Section Brown Bag: Sex Discrimination at Colleges and Universities

Section Mix and Mingle

You are cordially invinted to join the Section for the Spring Member Mix & Mingle Event at the 11th Annual Administrative Law & Regulatory Practice Institute on Thursday, April 30, 2015 from 5:30 - 6:30 p.m. at the Walter E. Washington Convention Center, 2nd Floor, Room 202AB in the buliding closest to Mt. Vernon Square (on the Yellow/Green Lines at the Mt. Vernon Square/7th Street - Convention Center Station).  Appetizers, beer, wine & soft drinks are provided.  Attendance is complimentary for Section members.  The event will honor the Administrative Law Review for the launch of an interactive discussion series, "ALR ACCORDing to...," which features a filmed interview of an ALR author discussing a current work.  Please RSVP to anne.kiefer@americanbar.org if you plan to attend.  For more information on the Institute view the online brochure here.  Hope to see you there! 

SSA Proposes Rule to Make Applying for SSN Easier

by Elisabeth Ulmer

The Social Security Administration (“SSA”) seeks comment on its proposed rule to modify its regulations so that, in addition to submitting the required evidence, Social Security number (“SSN”) applicants may complete a “prescribed application,” instead of a paper Form SS-5, “Application for a Social Security Card”).  The suggested changes are intended to make applying for a SSN easier and to make way for the online application process currently being designed.

Of all the services offered at the SSA, the application for a Social Security card is one of the most commonly used.  In 2013, the SSA reported receiving 10 million replacement SSN card applications.  When someone desires to find a job, record wages, collect Social Security benefits, or apply for many other government services, he or she must have a SSN.  Even banks and credit companies will often ask for it.

Persons who wish to apply for a SSN have two options (both of which currently require hard copies of supporting documentary evidence).  They can fill out Form SS-5 and either mail or hand-deliver it to their local field office or a Social Security Card Center.  Alternatively, the applicant can visit a SSA office and ask a representative to file, on his or her behalf, an application through the electronic Social Security Number Application Process.  However, the paper-based application process is too time-consuming for the large number of applications that the SSA receives.  As seen in 2013, millions of applications are filed, and it takes about 14 minutes to process each one.

Thus, with the assistance of recent technological advances, the SSA is developing an online application for certain eligible individuals, such as adult U.S. citizens whose records do not need any changes in name, birth date, etc.  Users of the online application would need to register through the my Social Security portal and possess both a U.S. mailing address and a valid U.S. state-issued driver's license or U.S. state-issued ID.

The SSA says that this new option will allow it “to provide expanded service options that meet the varied needs of the public in a cost-efficient and environmentally responsible way.”  The online application would streamline the process of obtaining a replacement SSN for both applicants and the SSA.  Applicants would not need to mail the application or visit a SSA office, and SSA would be able to process applications more quickly.  Nevertheless, the SSA emphasizes that this new option will not compromise the security and integrity of the application process.

Aside from discussing the forthcoming electronic SSN application in its proposed rule, the SSA also mentions four other changes with respect to applying for a SSN.  First, because of the new online option, the SSA would like to remove from 20 CFR 422.103 and 422.110 the requirement that applicants for a replacement SSN card “must file an application at any Social Security office.”

Second, because the electronic application will not require applicants to complete a Form SS-5, the SSA plans to delete references to this paper form and, where necessary, replace them with the term, “prescribed application.”  It will refer to either a paper-based or electronic application.  Third, in order to establish eligibility and identity when someone applies for an original or replacement SSN card, 20 CFR 422.107 states that he or she must provide “documentary” evidence.  The SSA proposes to eliminate this identifier so that applicants may submit other types of evidence.

Finally, in 2003, the U.S. Department of Homeland Security replaced the Immigration and Naturalization Service, which was divided into Customs and Border Protection, Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services.  Accordingly, in section 422.107(e)(1), the SSA plans to replace references to “Immigration and Naturalization Service” with “Department of Homeland Security.”

Comments on this proposed rule are due on April 27, 2015.  Interested parties are invited to submit comments by any of the following methods:

• Submitting comments electronically on the Federal eRulemaking Portal: http://www.regulations.gov 
• Faxing comments to (410) 966-2830 
• Mail your comments to the Office of Regulations and Reports Clearance, Social Security Administration, 3100 West High Rise Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401

The SSA cautions commenters not to include any personal information, such as Social Security numbers or medical information.

All comments should include Docket No. SSA-2014-0042.

Meet Renée Landers, Law Professor and Section Vice Chair

Meet Renée Landers, Professor at Suffolk University Law School and Vice Chair for the ABA Section of Administrative Law & Regulatory Practice.  Below, Prof. Landers shares her diverse experiences with administrative law and insights for practitioners and students alike.

1.  What led you to a career in law?  How did you become interested in studying and teaching administrative law?

Except for three years when my father was stationed in Germany with the U.S. Army, and my family lived there, I grew up in Springfield, Illinois.  Our house was eight blocks from Abraham Lincoln’s home.  As a result, Lincoln’s story and his legal career always held my interest.  In addition, as Springfield is the state capital, the process of lawmaking and politics was an everyday feature of life.  I was hooked at an early age.  Law school seemed like a natural ambition for someone with these interests.

In college, I studied government, and then took a position in the State Bookstore Division of the Office of the Massachusetts Secretary of the Commonwealth.  That Division, along with the Rules and Regulations Division, published and sold copies of Massachusetts regulations and other publications.  Everyone came into the Bookstore—plumbers, nurses, electricians, doctors moving into the state, aestheticians, architects, funeral directors.  After the Bookstore, I served as the Chief Administrative Assistant to the Secretary of the Commonwealth, then in two different Deputy Secretary positions—the Public Records Bureau, which administers the Massachusetts public records law, and the Corporations Bureau, which manages corporate filings and securities regulation.  All the material I studied on public administration in college started to make sense.  So, after five years in that office, when I finally went to law school, I wanted to build on what I already had learned about the administrative process.  Administrative Law is the perfect field for someone interested in the political process, government, and law.

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

After law school, I clerked for the then Chief Justice of the Massachusetts Supreme Judicial Court and the docket certainly included review of administrative agency decisions.  I joined a firm with a substantial health law practice, which involves a great deal of administrative law relating to state regulatory issues, as well as matters concerning the Medicare and Medicaid programs.  Even as a summer associate with the firm, I had worked on briefing for an appeal of a major determination of need matter before a state agency.  Subsequently, I left private practice to teach at Boston College Law School and taught administrative law, health law, and constitutional law, which remain in my teaching portfolio today.  After teaching at BCLS for a few years, I worked in the Clinton Administration, first in the Office of Policy Development in the U.S. Department of Justice, and then as Deputy General Counsel of the Department of Health and Human Services.  Both positions involved dealing with a wide variety of administrative law and policy issues.  While at HHS, I was involved in some early work that led to the development of the HIPAA Health Information Privacy regulations and that became a major area of focus for private practitioners and their clients after the rules were promulgated.  After leaving the government, I returned to my former firm, and rejoined the health law practice.

3.  As someone who has worked in both the public and private sectors, do you have any advice for attorneys looking to transition between the two areas?  Is there a different skill or mindset that attorneys need to bring to or develop for government work that may not be as crucial in a more traditional litigation practice and vice versa?

I have tremendous admiration for career government lawyers who are able to adapt to changing administrations and shifting priorities.  The ability to serve the institutional interests of the government through changing administrations is a temperamental attribute that serves the public well.  In some ways, this ability to adapt is similar to the skill that the lawyer in private practice needs to have in understanding the goals and motivations of different clients. 

Working as a government lawyer offers the potential to work on high-profile issues and the privilege to have a concern for doing the right thing, not just present facts or issues in the light most favorable to a client.  The goal of the prosecutor is not to win, but to seek justice.  The goal of other government lawyers is to try to shape policy and law in a manner faithful to congressional intent and to the benefit of the public.  Institutional interests and political concerns do sometimes weigh heavily in the decisionmaking calculus, but the larger values are always present.  When I worked in the government, I was cognizant that on any given day, there might be an issue or a direction that I could not support or rationalize, leaving resignation as the only responsible course of action.   Happily, the occasions giving rise to such tensions are few, but every lawyer has boundaries he or she will not cross.  In private practice, lawyers sometimes must navigate situations in which clients act in ways that make it more difficult for attorneys to represent them.  In both government and private practice, these situations are difficult. 

From what I have said, it is probably clear that I think that the “client” is a different concept for the government lawyer than for the lawyer in private practice.  I think the concept of “zealous advocacy” should be interpreted differently for the government lawyer than for the lawyer in private practice.

I am also reminded of process constraints every year when I teach the material on ex parte communications and bias and prejudgment.  These materials teach the public sector lawyer and the lawyer in private practice always to ask the question about how the person on the other end of the communication may perceive it before picking up the phone to make a call or meeting with a decisionmaker. 

4.  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 think that this is where I am supposed to say that joining the Section of Administrative Law & Regulatory Practice is the best way to become immersed in many of the central issues in the field! The substantive projects and programs of the Section offer great learning opportunities and the ability to connect with leading practitioners and academics in the field.  These people can be tremendous resources for lawyers.  On a related point, reading the Administrative Law & Regulatory News is a way to stay current.

Law students really should take a course in administrative law.  To paraphrase the slogan on the Section’s tee shirts, every field of law involves administrative law to some extent, so have the overview is really important.   The business sections of the leading national newspapers—and sometimes the front page—also are excellent sources of information about important state and federal administrative actions affecting particular industries or sectors. 

5.  What advice might you give to lawyers or law students interested in being more involved with the Section?  Perhaps you could explain how and why you became involved with the ABA and this Section.

Tom Susman, who is now the ABA’s Director of Government Affairs, was a partner in the law firm with which I practiced and he had been involved in the Section.  He put my name forward to the nominating committee for a position on the Council after I left the government and that was the beginning of my involvement with the Section.  The meetings and programs are really interesting and thought-provoking, and are useful in teaching administrative law.  Also, I enjoy the people immensely—they are smart, creative, and welcoming.  The Section provides colleagues in the field across the political spectrum and across the various substantive administrative law fields.  Section involvement also offers the opportunity to have a role in the debate on policy issues in administrative law.  The Section is a well-respected source for information and commentary on developments in administrative law, and it is a privilege to be part of the Section’s policy-making process.

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

Until my son went off to college two years ago, I spent a lot of time driving and attending sporting and performance events in which he was involved.  As he attends college near home, I still attend a lot of concerts in which he is involved.  It is fun, not a parental duty!

I serve, or have served, on several boards for organizations that are not focused on law:  an art museum, a university library advisory committee, an advisory board for a public policy center, and advisory board for an institute for advanced study, the boards for the Big Sister Association of Greater Boston, the public television and radio organization, and Planned Parenthood League of Massachusetts, just to name a few.  All of these organizations do encounter interesting legal issues, but the primary focus is something else.  What keeps me sane is singing in a community chorus—the weekly rehearsals, which can be demanding, transport the mind and body to a different realm of discipline and, one hopes, beauty.  I do like going to museums and traveling.  The Section does provide the chance to travel the U.S.—another benefit of being involved.  Suffolk University Law School has had a summer study abroad program at Lund University in Sweden for 16 years, and I have been fortunate enough to teach Comparative Health Law for the program three times.  Teaching in Sweden has afforded me a chance to live and work in a different country, to teach foreign students who bring unique perspectives and critiques to the U.S. approach toward financing and delivering health care, and to see another health care system in operation. 

Also, since I was 9 years old, I have been baking pies.  Watertown, where I live, has a Faire on the Square, in the fall, and an apple pie contest is one of the events.  I have entered almost every year since 2001.  I have won second place once (beginner's luck), third place twice, and have won the contest the last two years.  Also, I bake triple berry pies for the dessert for the July 4th celebration for the Swedish and American students and faculty in the Lund summer program.  I have to bring some things from the U.S. because pies are not really a continental European thing. 

Online Registration Open for 11th Annual Administrative Law Institute

The Section will host the 11th Annual Administrative Law Institute, April 30 - May 1, 2015 at the Walter E. Washington Convention Center in Washington, DC.  The April 30, 2015 program will cover a number of exciting topics, including Immigration Training, the FDA Rulemaking on E-Cigarettes, and the U.S. Supreme Court's recent decision in Perez v. Mortgage Bankers Association.  The May 1, 2015 program will include Rulemaking 101, an overview of the rulemaking process and judicial review. You can register online here. 

FDA and EPA Seek Comment on Revising Fish Consumption Advice

by Elisabeth Ulmer

The Food and Drug Administration (“FDA”) and the Environmental Protection Agency (“EPA”) jointly seek comment on the substance and structure of their updated advice regarding the safety of eating fish.  This draft update will include “both advice and supplemental questions and answers for those who want to understand the advice in greater detail.”

In 2004, the FDA and EPA released a document named, “What You Need to Know About Mercury in Fish and Shellfish,” to assist the public in reaping the health benefits of eating fish, while reducing mercury exposure.  Fish (which includes both fish and shellfish) contain protein, omega-3 fatty acids, and many micronutrients, and are low in saturated fat, but they also contain methylmercury, a form of mercury that can harm the central nervous system and the developing brain of fetuses.

The FDA and EPA now propose to update this 2004 advice in order to align it with the Dietary Guidelines for Americans 2010.”  The FDA drafted its assessment in 2009 and recently modified it after receiving comments and advice from peer reviewers, the public, and federal agencies, including the EPA.  Although these recommendations are directed toward a target audience of women who are pregnant, may become pregnant, or are breastfeeding, this information is intended for the public at large as well.

The updated advice from FDA and EPA includes the following four recommendations for the target audience.  First, these women should consume at least 8 and up to 12 ounces (2 or 3 servings) per week “of a variety of fish lower in mercury within their calorie needs.”  Second, they should avoid tilefish from the Gulf of Mexico, shark, swordfish, and king mackerel because these four fish contain the highest mercury concentrations.  Third, they should eat no more than 6 ounces of white (albacore) tuna per week.

Fourth, as the 2004 FDA guidelines advised, those who eat local fish caught by family and friends should follow “locally posted fish advisories regarding safe catch.”  Although the amount of mercury in local waters is unknown, the levels tend to be higher in local fish than in commercially available fish.  In the absence of such advisories, consumers of locally caught fish should eat no more than 6 ounces per week and refrain from consuming any other fish in the same week.  In addition, given the continued development of their nervous systems, the FDA and EPA recommend that children eat less fish than adult women.

Furthermore, the FDA and EPA wish to solicit comments regarding ways to change the substance and structure of their updated advice in order to make the recommendations “both understandable and influential.”  The agencies also invite comment regarding whether to add orange roughy and marlin to the list of fish that both young children and the target audience of women who are pregnant, may become pregnant, or are breastfeeding should avoid.  These two fish contain less mercury than the aforementioned four fish that the target audience should avoid, but orange roughy and marlin contain more mercury than “nearly all other commercial fish” and “can be unusually low in omega-3 fatty acids.”  Thus, their benefits do not outweigh the costs.

Finally, the FDA and EPA seek public comment on the following:

1. Whether the final updated advice should track the Dietary Guidelines for Americans 2010 more or less closely than the draft of that updated advice now does.

2. Any new science that has become available since the Dietary Guidelines for Americans 2010 were issued that would be relevant to the updated advice.

3. Information upon which to base advice on young children's fish consumption. There have been a number of studies that have examined the effects of both postnatal exposure to mercury as well as postnatal fish consumption by young children, but this research has not been as extensive as the research on prenatal exposures and maternal fish consumption.

4. As stated previously, suggestions for improving the clarity and utility of the advice.

5. How to integrate advice from local advisories for those who consume fish from local streams, rivers, and lakes.

In addition to inviting comments, the FDA and EPA will hold a public meeting, in which the FDA Advisory Committee on Risk Communication will offer its thoughts on the updated advice.  The agencies will also publish information in the Federal Register about other public meetings that they plan to host around the country.

The comment period will close 30 days after the transcripts of the aforementioned meetings are published. The closure date will be published in a Federal Register notice.  Interested parties are invited to submit comments by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov 
• Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852

The FDA will share with EPA all of the comments that it receives.