Meet Jeffrey Lesk, Managing Partner at Nixon Peabody Washington, DC Office

by Nina Hart

Meet Jeffrey Lesk, managing partner at Nixon Peabody in Washington, DC. Below, he discusses the interactions between public and private entities, and provides insights on effective lawyering to practitioners and law students.

1. Where do you work now and what led you to a career in law? 

I’m the Managing Partner of the Nixon Peabody DC office – and I head the firm’s national government-assisted community development financing group.  As trite as it sounds, when I was in college (and before), I knew I wanted to do something that would in some way leave a mark, make a difference, contribute to something important.  Honestly – I wasn’t exactly sure what lawyers did (and I certainly didn’t realize the broad array of ways to practice law), but I sensed that a legal degree would give me a lot more options to find ways to accomplish this goal.

2. What other experiences with administrative or regulatory law have you had? 

I started my legal career in the Office of General Counsel at the US Department of Housing and Urban Development.  In my five years there, I was lucky to have had two distinct positions that provided different experiences that opened my eyes to a much broader number of ways to practice administrative and regulatory law. 

The first was a position as a staff attorney, where my clients were HUD programs.  That was in most ways a traditional in-house government regulatory attorney position.  Right off the bat I learned to work with complex statutes and regulations – and even had input in drafting regulations.  I also had the opportunity to apply the law to “real world” inquiries from program staff and field attorneys through the opinion-writing process.  That really gave me a feel for “applied” administrative and regulatory law – something that has carried through my entire legal career.

For my second HUD lawyer position, I was basically recruited by one of my clients (the Urban Development Action Grant program) to be an in-house program attorney.  That’s code for “I did deals.”  Even better, I did deals in partnership with the private sector.  That was a great eye-opener and provided a lot of opportunities.

3. How did you become interested in pursuing a career in administrative law?

It grew from my general interest in community development, urban planning and the related social programs.  I saw that governmental programs, regulations and oversight provided both hurdles and incentives for this type of development.  As anyone in the field knows, the overlapping rules and regulations are really complex, and I was drawn to practicing law in a way that I thought had most potential to put it all together, solve problems and, in a way, bring order out of chaos.  But most of all, I thought practicing administrative and regulatory law would put me a position to ultimately have a high level of understanding of the ins and outs of how the government could facilitate the types of projects and programs I wanted to work with.

4. Do you have any advice about “best practices” for attorneys, particularly for those whose work requires frequent interaction with government agencies? 

I really encourage attorneys working with government agencies to focus on the purposes and policies behind the programs and agencies.   One of the basic elements of practicing law is to understand the motivations of the “other side.”  And yet when we deal with government agencies we often forget the policy piece – we jump right to the particulars of the law and (for transactional lawyers) the mechanics of getting deals done.  For me, understanding policy not only provides an advantage in legal practice, it also makes for a much richer, more complete understanding – which I think contributes to being a better, more effective lawyer.  And it opens doors to some very complex, interesting, sophisticated legal work – great practitioners who understand policy make effective contributors in producing highly complex, high-impact, innovative projects.

5. What do you think are the biggest challenges facing administrative law practitioners?

For administrative/regulatory law practitioners who have transactional practices, “doing deals” generally requires dealing with tight timeframes, moving targets and numerous surprises along the way.   On the other hand, government programs and administrative procedures generally are focused on consistency, process and more linear movement.   As citizens, that’s what we expect and value, but a legal practitioner, it’s challenging to reconcile those often-conflicting paradigms and find ways to work through them.   But it’s also really rewarding – especially when you’re doing deals that have positive social impact.   

6. Your office has been involved in developing a number of public-private partnerships. Would you describe the role that attorneys play in facilitating these partnerships and give an example of one project with which you were involved? 

Public-Private Partnerships have been the primary focus of my legal career, both in the public and private sectors.  The role of attorneys – particularly attorneys with regulatory and administrative law background – can be crucial.  What I love about them most is that each side really needs the other, but they often view the world through different lenses.  Having had a leg in both camps helps my ability to explain to both public and private partners what I see as the motivations, limitations, goals and concerns of the other side.  Deep legal knowledge and strong technical skills are critical for any good lawyer, but the added value often comes from being a problem-solver, facilitator and translator.  The best examples are the numerous Affordable Housing finance programs I’ve put together, especially those that involve green development and renewable energy – they involve (from numerous governmental agencies) public sector programs, laws, regulations and oversight to protect the public financial resources provided to private (non-profit and for-profit) developers, lenders and investors.  The private sector brings knowledge and experience in real estate development, financing, underwriting and asset management – but they’ve got to do it right or risk serious legal and financial consequences.  I sit in the middle of all of this – making sure that the public requirements are complied with and that the private parties perform.  At the end of the day, thousands of units of well-developed and operated housing are provided by the private sector in a way that fulfills the social goals of the public sector.

7. For law students or new attorneys considering a career in administrative law, what do you think would be a good way of familiarizing themselves with the field?  

I was lucky to have two summer internships during law school that drew me deep in to administrative law.  It was a great way to test the waters, and both gave broad exposure and surprising responsibilities right off the bat.  I’d really recommend that approach – and DC in particular has great options in the government, as well as with trade associations, industry coalitions, and non-profit organizations.  I ultimately settled on a long-term career in private practice, but my years in and around the public sector have served me well throughout my career.

8. Outside of the law, what are your favorite activities or hobbies?  

I love sports and fitness – especially cycling, swimming, hiking and yoga.  I’m particularly fond of multi-day charity bike rides.  I’ve had some amazing experiences on both coasts – fantastic, beautiful, challenging rides with people who are into both cycling and social causes.   I don’t have nearly the time I’d like to devote to reading, music and art – but I try to fit those things in as much as I can.  One thing I do make time for is gardening – the combination of design, exercise, visual focus and sustainability really appeals to me and takes me far away from my work.  I love my work – but it’s important to break away once in a while.

Department of Veterans Affairs seeks Veteran Law Judge

The Department of Veteran Affairs, Board of Veterans Appeals in Washington, DC seeks Veteran Law Judges for numerous vacancies. The deadline for applying is July 3, 2013. The salary range for the position is $129,065.00 to $138,878.00 per year.

Responsibilities:

• Managing, mentoring, training, developing and leading staff counsel;
• Reviewing requests for and determining whether statutory and regulatory provisions pertaining to hearings are satisfied;  
• Identifying the issues raised by and on behalf of the appellant and determining which of these issues has been procedurally developed for appellate review;
• Analyzing all previously developed evidence and appraising previous adjudicative processes by the originating agency; 
• Determining whether there are other parties with adverse interests who may be joined in a contested appeal;
• Recommending to the Chairman that subpoenas be issued or revoked;
• Correlating and resolving conflicting evidence;
• Fully considering all the evidence of record and issuing decisions which are completely independent and final, signed by the Veterans Law Judge and published to the parties in interest without prior review; 
• Ruling on motions, as provided by the applicable law and regulations; and
• Conducting in person or video conferencing hearings. 

Qualifications:

Applicants must have a full seven (7) years of experience as a licensed attorney preparing for, participating in, and/or reviewing formal hearings or trials involving litigation and/or administrative law at the Federal, State or local level.  Qualifying administrative law experience involves cases in which a formal procedure was initiated by a governmental administrative body and includes:

• participating in settlement negotiations in advance of hearing cases;
• preparing for hearing and/or trial of cases;
• preparing opinions;
• hearing cases;
• participating in or conducting arbitration, mediation, or other alternative dispute resolution approved by the administrative body; or
• participating in appeals related to the types of cases above.

Specialized experience is defined as experience dealing with laws and regulations pertaining to veterans' benefits, as set forth primarily in Title 38 of the United States Code and the Code of Federal Regulations, and areas of medicine and/or laws as related to the Board's jurisdiction.  This experience has been gained at the next lower grade level or its equivalent.

OPM To Provide Flag Benefit For Fallen Federal Civilian Employees

by Shannon Allen

The U.S. Office of Personnel Management (“OPM”), in coordination with the U.S. Department of Defense (“DOD”) and the U.S. Department of Homeland Security (“DHS”), seeks comment on proposed regulations to implement the Civilian Service Recognition Act of 2011 (the “Act”) which would support the government in administering a “flag recognition benefit” for “fallen Federal civilian employees.”

Congress passed this Act in order to recognize that Federal civilian employees are exposed to dangerous situations.  The proposed regulations would institute a “comprehensive Government wide” method to “honor” employees who “die of certain injuries.”  As a way to “formally express sympathy and gratitude on behalf of the Nation” the Act permits agency heads to “give United States flags to beneficiaries” of employees who “die in the course of serving their country.”

The OPM proposed regulations allow for the creation of additional means to honor these employees and specifically permit agencies to provide flags in support of Federal civilian employees “who die of injuries” sustained “in connection with their employment” as a consequence of: 

1)      criminal acts,

2)      acts of terrorism,

3)      natural disasters, or

4)      other circumstances as determined by the President.

According to the proposed regulations:

• the beneficiary must request a flag from the employing agency,
• the request must be in a format specified by the employing agency and include necessary documentation,
• the OPM will create an optional form for requesting a flag,
• agencies will distribute flags in a manner that is most efficient and cost-effective, but agencies must keep in mind the meaningfulness of prompt delivery to beneficiaries.

Comments are due by August 16, 2013 and interested parties may submit comments, identified by “RIN 3206-AM58,” using any of the following methods:

• Federal eRulemaking Portal: Submit comments electronically at http://www.regulations.gov. Follow the instructions for submitting comments.
• Email: Send to performance-management@opm.gov. Include “RIN 3206-AM58” in the subject line of the message.
• Fax: Send to (202) 606-4264
• Mail, Hand Deliver/Courier comments: Address comments to Mr. Stephen T. Shih, Deputy Associate Director, Senior Executive Service and Performance Management, Suite 7412, 1900 E Street NW., Washington, DC 20415-1000.

Free State Foundation Comments on City of Arlington Decision

by Katherine Kennedy

Notice and Comment is pleased to share the following article by Randolph J. May, the President and Founder of The Free State Foundation, on the Supreme Court's recent opinion in City of Arlington, Tex. v. F.C.C.. The Free State Foundation is an independent, non-profit, Section 501(c)(3) free market-oriented think tank founded in 2006.

As we wrote about here, the City of Arlington decision does away with the distinction between jurisdictional and non-jurisdictional statutory interpretation traditionally used in analyzing agency interpretation. In the opinion, Justice Scalia stated that “[o]nce those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency's assertion of authority, or not.”

May's article, entitled "Chevron Deference and Regulatory Reform," describes the holding in detail and demonstrates the concern for the implications of this holding, as voiced by Chief Justice Roberts. "...[A]n agency cannot exercise interpretative authority until it has it; the question whether an agency enjoys that authority must be decided by a court without deference to the agency." Although the debate about the future and effects of this holding is seemingly endless, May takes the opportunity to propose regulatory reform. The article focuses on regulatory reform measures that would alter decision-making frameworks within agency commissions, consistent with previous legislation generated in the House and through suggestions for statutory edit. May's process-oriented regulatory reform suggestions are specific to FCC reform, but perhaps his observations and suggested framework will provide the impetus for Congress to act.

 

From October 1999-May 2006, May was a Senior Fellow and Director of Communications Policy Studies at The Progress & Freedom Foundation, a Washington, D.C.-based think tank. Prior to joining PFF, he practiced communications, administrative, and regulatory law as a partner at major national law firms. From 1978 to 1981, May served as Assistant General Counsel and Associate General Counsel at the Federal Communication Commission.

May has held numerous leadership positions in American Bar Association. He is a past Chair of the ABA Section of Administrative Law and Regulatory Practice and represents the Section in the ABA House of Delegates. He is also a Fellow of the National Academy of Public Administration.

Supreme Court Takings: A First Look at Koontz and Horne

Join the Section of Administrative Law and Regulatory Practice as it co-hosts a webiner and teleconference on two 2012 reglatory takings cases, Koontz v. St. Johns River Water Management District, and Horne v. U.S. Department of Agriculture. A panel of legal scholars and expert practitioners will discuss the rulings and how they will impact your practice. The event will take place July 12, 2013 from 1:00 to 2:30 PM Eastern. It is also sponsored by the Section of State and Local Government Law, and Government and Public Sector Lawyers Division, along with the Center for Professional Development.

The ABA will seek CLE credit for this program. Find out more - including the program faculty and how to register - online here: http://apps.americanbar.org/cle/programs/t13sct1.html.

SEC Argues For Continued Authority To Obtain Emails Directly From ISPs

by Shannon Allen

The Electronic Frontier Foundation’s (“EFF’s”) March 18, 2013 article reported on the “first hearing in what many . . . hope will be a successful update to the archaic Electronic Communications and Privacy Act (“ECPA”) in this year's Congress.”  In his press release, Senator Leahy, said he had “worked to make sure . . . updates” to the ECPA “carefully balance privacy interests, the needs of law enforcement and the interests of [the] thriving American tech sector.” Senator Lee added that “the Fourth Amendment was meant to protect” private information stored in “digital filing cabinets.”

Senators Leahy and Lee introduced S. 607: Electronic Communications Privacy Act Amendments Act of 2013 (“S. 607”) which, among other things, establishes “a search warrant requirement in order for the government” to acquire the “content of . . . emails . . . when those communications are stored with a third-party service provider.”  (see The Leahy-Lee Electronic Communications Privacy Act Amendments Act for a summary of amendments.)  Subsequently, in an April 24, 2013 letter to Senator Leahy, Chairperson Mary Jo White (“Chairperson White”), of the Securities and Exchange Commission (“SEC”) expressed her concerns about proposed updates to the ECPA.  In her letter, Chairperson White asked Senator Leahy to consider the negative impact that S. 607 would have on the SEC’s “enforcement efforts . . . .”

The 27 year old ECPA, an EFF article explained, “allows the government to argue that private online messages older than 180 days are not protected by the Fourth Amendment and that the government can access the messages without a warrant.”  The Sixth Circuit Court of Appeals, however, held in U.S. v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010) (“Warshak”) that the use of an ECPA Section 2703(b) subpoena or court order to obtain the contents of emails violated the Fourth Amendment’s prohibition against warrantless searches.  Chairperson White claimed that S. 607’s codification of the Warshak decision would hinder the SEC’s investigations because the SEC would have to obtain consent from the “entity being investigated” in order to get email content “directly from ISPs.” 

In a May 30, 2013 memo, distributed to the ABA’s Administrative Law and Regulatory Practice Section, Greg Nojeim (“Nojeim”), with the Center for Democracy and Technology (“CDT”), strongly disagreed with Chairperson White’s assessment that codifying the warrant requirement would limit the SEC’s ability to conduct investigations.  Nojeim expressed concern that the SEC wanted to “get documents from service providers without giving the target an opportunity to cull the records for relevancy, assert any privilege, or otherwise raise any objections.

In her letter to Senator Leahy, Chairperson White explained that the SEC “frequently seeks to obtain the contents of emails” in order to carry out its mandate.  And without the Section 2703(b) authority to subpoena an ISP directly, she argued, the SEC would not be able to obtain critical evidence (e.g. deleted, not produced, or otherwise unavailable emails.).  Nojeim countered, in his memo, that “regulatory agencies [including the SEC] already have substantial power to identify user accounts, freeze those accounts to prevent destruction or alteration, and use subpoenas served on the account owner to force disclosure.”  He argued that Chairperson White’s concerns are already addressed under current law.  For example, 18 USC 2703(f) requires an ISP, upon the request of a government entity, to take all necessary steps to preserve records in its possession pending the issuance of a court order or other process.

Chairperson White concluded her letter by urging Senator Leahy to consider a “better balance between privacy interests and the protection of investors.”  “[I]n appropriate circumstances and with court approval,” she recommended continued authority for the SEC to obtain emails directly from ISPs.  Alternately, Nojeim argued that passing S. 607 was the best way to allow the SEC to determine the “existence of possibly relevant information,” so then subpoenas could be “served on . . . subscribers to actually obtain the content.”  To allow the SEC to obtain emails directly from ISPs, Nojeim concluded, would be “unnecessary, . . . diminish privacy, [and] threaten proprietary information . . . .”  Nojeim welcomes input from interested parties at gnojeim@cdt.org or 202-407-8815.

Finally, the EFF is “glad to see ECPA reform robustly moving” and “with bills in both houses of Congress the future of ECPA reform is bright.”  The EFF believes that “users should be guaranteed the same rights in their virtual lives as they are in their physical lives” and encourages interested parties to tell “Congressmen to support reform.”  Many are looking forward to the eventual modernization of this dated privacy law.

BALCA Overrules Long-Standing HealthAmerica Precedent

by Adam J. Rosen

The Board of Alien Labor Certification Appeals has recently issued a potentially groundbreaking decision in Sushi Shogun, 2011-PER-02677 (May 28, 2013), directly overruling HealthAmerica, 2006-PER-00001 (July 18, 2006) (en banc).  Sushi Shogun started with the filing of an ETA Form 9089, Application for Permanent Employment Certification, (“the Application”), for Labor Certification under 8 USC § 1182(a)(5)(A).  The Application was filed on behalf of the alien Maria Ramos with the U.S. Department of Labor (DOL) pursuant to the regulations at 20 CFR Part 656.  However, DOL denied the Application because the employer input the prevailing wage as $10.04 instead of correctly as $10.14.  In appealing this decision, the employer pointed out that the correct prevailing wage was on the Prevailing Wage Determination.  While BALCA acknowledged that this “was the result of typographical errors,” the employer’s challenge was precluded by 20 CFR § 656.11(b) prohibiting any modification of the ETA Form 9089.

The process for sponsoring a foreign national for permanent employment in the United States generally requires that an employer begin with the framework established by the Secretary of Labor pursuant to 8 U.S.C. § 1182(a)(5)(A), Section 212(a)(5)(A) of the Immigration and Nationality Act, in 20 CFR Part 656.  This process, commonly known as the Labor Certification process, requires the employer to obtain a Prevailing Wage Determination from the DOL based upon which the sponsor will establish an offered wage for the job opportunity in the Application.  In Sushi Shogun, the prevailing wage that was assigned by the DOL’s National Prevailing Wage Center was $10.14 per hour.  With the PWD in hand, the employer proceeds with a series of recruitment steps that are prescribed by 20 CFR § 656.17(e), including a notice posted at the worksite to inform similarly employed U.S. workers that the employer is proceeding to submit an ETA Form 9089.  Alternatively, when there is a collective bargaining agreement, this notice must be provided to the union leadership for the worksite of the sponsored position.  Once these steps are completed, the employer must prepare its ETA Form 9089 online at DOL’s dedicated website for filing.

The problem in Sushi Shogun derives from what the employer described as the considerable amount of time that the DOL took before denying the Application.  In the Federal Register notice promulgating the rules at 20 CFR Part 656, the DOL’s Office of Foreign Labor Certification stated that no changes of any kind would be allowed to the ETA Form 9089 because an application would be completely adjudicated within 45 to 60 days.  As a result of that expeditious processing an employer would be able to re-file the Application while using the same recruitment efforts.  In HealthAmerica, 2006-PER-00001, the employer argued that given the considerable expense of recruitment required to file an ETA Form 9089 balanced against the fact that the error on the Form was typographical in nature, the denial should be reversed.  In reaching the HealthAmerica decision, the full complement of BALCA considered several factors: the evidently typographical nature of the error on the form itself, evidence prepared prior to filing the Application corroborating the nature of the error being maintained by the employer and that 20 CFR Part 656 was otherwise complied with.  The HealthAmerica decision also considered the substantive due process test of Mathews v. Eldridge, 424 U.S. 319 (1976), balancing the public and private interest.  The ability to overcome denials based on HealthAmerica has arisen in many circumstances involving an actual typographical error as in Sushi Shogun or when information is missing from the Application form.

The Sushi Shogun employer argued in its request for reconsideration that denial was unwarranted post-audit because the error, i.e., $10.14 instead of $10.04, “was a ‘minor typographical error’.”  Id. at 2.  The record included the PWD and the notice of filing that stated the prevailing wage correctly as $10.04.  The Certifying Officer explained that correcting this error is prohibited by 20 CFR § 656.11(b): “Requests for modifications to an application will not be accepted for applications submitted after July 16, 2007.”  DOL and the employer did not disagree over what was the prevailing wage, only whether the typographical error constituted a prohibited “modification.”  Under HealthAmerica, issued before the May 17, 2007 promulgation of 20 CFR § 656.11(b), and its progeny issued after that date, this type of mistake was not held to constitute a “modification” prohibited by the regulation.  Yet in Sushi Shogun, BALCA ruled that “[u]nfortunately for the Employer, HealthAmerica has effectively been overruled by the promulgation of 20 CFR § 656.11(b).”  Id. at 3.

While Sushi Shogun states that this position is prescribed by the rule’s “plain language,” BALCA does not explain why it issued multiple decisions specifically based on HealthAmerica’s rationale that a typographical error does not warrant denial well after this regulation was promulgated.  Such as in a case like Pa’lante LLC, 2008-PER-00209 (May 7, 2009).  Pa’lante LLC involved an ETA Form 9089 that only included the sponsored worker’s experience with the filing employer.  The worker, however, was satisfying the education requirement of the case based on an opinion that based on the education he had plus experience earned before joining the filer he had the equivalent to the required degree.  The Application was denied by the Certifying Officer because it failed to show the worker had the “required minimum education, training, and experience prior to hire by the petitioning Employer.”  Id. at 4.  BALCA ultimately reversed the denial because evidence of the experience not listed on the form but used towards the degree equivalent was included in the materials prepared pre-filing pursuant to 20 CFR § 656.10(f) (imposing recordkeeping mandate on filers).  BALCA’s reasoning stemmed directly from HealthAmerica and related to the typographical error holding of that case.

The Pa’lante panel quoted from HealthAmerica, noting that “the Employer’s omission on the Form 9089 was not a mere typographical error, but a failure to report information essential to the CO’s review of the application.”  Pa’lante reversed the denial, about two years after 20 CFR § 656.11(b) was promulgated, holding the case  was “is similar to HealthAmerica insofar as the documentation needed to prove that the application actually complied with the regulations was documentation constructively considered to have been submitted by the Employer under PERM’s recordkeeping provisions.”  2008-PER-00209, at 6.

At the end of the analysis of Sushi Shogun, the most obviously unanswered question is whether HealthAmerica’s application of the Mathews v. Eldridge substantive due process test to the adjudication of the ETA Form 9089 will survive to benefit another employer.  If substantive due process does survive to bring another application back from denial, the challenge will be for BALCA to balance the reasoning warranting substantive due process with its decision in Sushi Shogun.

Adam Rosen is a Member of the Murthy Law Firm and a Supervising Attorney in the Special Projects Department. He represents companies and individuals before U.S. Citizenship and Immigration Services (USCIS), the Department of Labor (DOL), the Department of State (DOS), and various other government agencies with regard to both immigrant and nonimmigrant employment- and family-based applications and petitions.