Meet Jason Mendro, Partner at Gibson, Dunn & Crutcher LLP

Meet Jason Mendro, a Partner in the Washington, D.C. office of Gibson, Dunn & Crutcher LLP.  Jason’s practice includes general litigation, class actions, securities litigation, and administrative law.  Below, he discusses what he enjoys about practicing law and offers advice for aspiring attorneys.

1.      What do you like most about your current job?

My favorite part of my job is the people.  I feel privileged to work with some of the most intelligent and dedicated attorneys in the field.  They have an incredible sense of integrity.  They are also a really fun group of people.  It is a great experience getting to team up with attorneys of their caliber. 

2.      What do you like about practicing administrative law?

My practice in the field of administrative has focused primarily on litigating the validity of rulemakings.  I appreciate this type of litigation because of its overall aim – which is creating better, smarter regulations.  I also enjoy working with the lawyers on the other side.  In my experience, they have been extraordinarily smart and highly professional.  High quality lawyering is important when you’re litigating the fate of a rule that may have a significant impact on people, industries, or the economy. 

3.      What are some of the challenges you face when practicing administrative law?

A significant challenge from the perspective of counsel to plaintiffs (or petitioners) who are contesting a rule is getting involved in the rulemaking process when you can maximize your impact.  It’s often most beneficial for a client to consult us to express concerns about a regulation and explore their legal options during the notice and comment period.  By ensuring that their views become part of the administrative record, clients can assist agencies in understanding their concerns and, if necessary, become better positioned to challenge regulations that may have a detrimental impact on them.   

4.      What led you to a career in law?

I always found the law fascinating.  I also looked up to the judges and attorneys in my community.  I was probably in my latter years of high school when I decided I wanted to be a lawyer. 

5.      Would you recommend a judicial clerkship for an aspiring administrative lawyer?

I would recommend a clerkship for anyone.  I served as a law clerk to the Honorable Gerald B. Tjoflat of the United States Court of Appeals for the Eleventh Circuit.  It was one of the best things I’ve ever done as a lawyer.  I have the highest respect for Judge Tjoflat and learned a great deal from the experience.

6.      Do you have any other advice for law students generally?

I would encourage law students to take classes with the professors that inspire them the most.  You can always learn different areas of the law once you begin practicing.  What is most important to a successful and meaningful career in the law is remaining motivated and interested in being a great attorney. 

7.      Outside of the law, what do you like to do for fun?

I played the guitar since high school.  I enjoy playing all kinds of music – pop, rock, blues, etc.  I’m not in a band or ready to go on tour yet, but I can always dream.  I also scuba dive, but don’t get to go as often as I would like.   

DHS & DOL Seek Comment On H-2B Interim Employment Wage Methodology

by Shannon Allen

The court, in Comité de Apoyo a los Trabajadores Agricolas v. Solis, “vacated portions of [the Department of Labor’s] (“DOL’s”) current prevailing wage rate regulation . . . .”  In response, the Department of Homeland Security (“DHS”) and the DOL are jointly “amending regulations governing certification for the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment.”  The DHS determined that it is essential for DOL to consult DHS to adjudicate H-2B petitions.  The interim final rule “revises how DOL provides the consultation . . . by revising the methodology by which DOL calculates the prevailing wages to be paid to H-2B workers . . . [and this] prevailing wage is then used in petitioning DHS to employ nonimmigrant workers in H-2B status.”

An employer must “pay the H-2B workers . . . a wage that will not adversely affect the wages of U.S. workers similarly employed.”  So, employers must pay the “prevailing wage” in order to fulfill this requirement.  The DOL determines the “prevailing wage” and the DHS and DOL have established provisions governing this process.

The DHS and DOL jointly determined that the new wage methodology is necessary for the H-2B program.   The agencies will use the Occupational Employment Statistics mean to ensure that H-2B workers are paid a wage that meet the new standards of the rule.  

The interim final rule is effective April 24, 2013.  Interested parties are invited to submit written comments on or before June 10, 2013.  You may submit comments using Regulatory Information Number (RIN) 1205-AB69, by:

·         Federal e-Rulemaking Portal www.regulations.gov. Follow the Web site instructions for submitting comments.

·         Mail or Hand Delivery/Courier to Michael Jones, Acting Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-5641, Washington, DC 20210.

Court Rules Against Efforts to Increase Fishing Limits of Certain Species

by Katherine Kennedy

The plaintiff brought this case under the Magnuson–Stevens Act (“MSA”) in the Northern District of California.  Judge Edward Chen delivered the opinion on April 12, 2013.  Oceana, Inc. v. Bryson, C-11-6257 EMC, 2013 WL 1563675 (N.D. Cal. 2013).  The opinion resulted from cross-motions for summary judgment. The plaintiff, Oceana Inc., a non-profit organization sued John Bryson in his official capacity as the Secretary of Commerce.  Industry intervenors also brought motions for summary judgment.

The MSA establishes Regional Fishery Management Councils, and requires the councils to prepare fishery management plans (“FMPs”) that target the prevention of overfishing. The plaintiff challenged Amendment 13, a 2010 amendment to the Costal Pelagic Species Fishery Management Plan, which covers a number of species within the California Current Ecosystem. The plaintiff alleged that Amendment 13 fails to comply with various requirements of the MSA, and violated the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”). Specifically, the Plaintiff alleged  that Amendment 13 failed to set certain measures required by the MSA (such as the “optimum yield” for the species of fish covered by the CPS FMP), so that it failed to appropriately account for certain known sources of uncertainty. The plaintiff also alleged that these measures were not based upon the best available science.

Congress enacted the MSA in 1976, 16 U.S.C. §§ 1801, et. seq., after finding that certain species of fish had declined to the point where survival was threatened enough that a national program for US fishery resources  conservation and management had become necessary to prevent overfishing, rebuild the endangered populations, insure conservation, facilitate long-term protection of essential fish habitats, and realize the full potential of the Nation's fishery resources. The Secretary of Commerce was placed in charge of creating councils to meet the aforementioned purpose of the statute at issue. The Pacific Council is the council responsible for the fishery management plan in this case, and overall, is the council responsible for Pacific Ocean fisheries seaward of the states of California, Oregon, and Washington.

The FMP from which this lawsuit originated concerns an FMP dedicated to the northern anchovy. The FMP at issue was approved and published in the Federal Register in 1978. The plaintiff brought this case due to Amendment 13, which implemented fishery specification framework to better account for uncertainty and prevent overfishing based on scientific and management resources. Amendment 13 was enacted to better FMPs by addressing the modification of previously existing harvest control rules for actively managed species to account for scientific uncertainty; the maintenance in the default harvest control rules for monitored stocks as modified to specify the new reference points; the added mechanism for the use of sector-specific standards in the annual harvest and management specification process.

The court reviewed this case under the Administrative Procedure Act because the case concerned ESA, NEPA, and MSA. A court must set aside agency actions under these statutes where such action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or was taken “without observance of procedure required by law.” The question for the court, thus, was whether the agency considered the relevant factors and articulated a rational connection between the facts in the record and the action taken. 

This case boiled down to two terms: Optimum Yield (OY) and Maximum Sustainable Yield (MSY). The plaintiff challenged the basis for these terms in the FMP and wanted to reopen the rulemaking in order to overturn the terms as arbitrary and capricious. This was a case of first impression for the Ninth Circuit. The court noted that a number of courts have held that plaintiff may not use challenges to FMP amendments as a vehicle for raising objections to provisions of the FMP that were previously implemented. Thus, the court had to determine if the OY and MSY challenges were an attempt for plaintiff to inappropriately challenge the amendment.  The court looked to the DC Circuit for guidance: “Plan amendments which are premised upon or retain a status quo do not equate to 'promulgation' of a new status quo. Thus, even when a proposed amendment includes new limits which are contingent upon a previously-enacted status quo amount, only the new limits themselves, and not the status quo amount, are subject to timely challenge.” Oceana, Inc. v. Bryson, C-11-6257 EMC, 2013 WL 1563675 (N.D. Cal. 2013). The court stated that it looks to see if the language being challenged in the current case is language that can be found in the agency’s proposed rule-making.

The Ninth Circuit also stated that courts also look to an agency's response to comments in determining whether a reopening has occurred. Where an agency has responded to comments on an issue, this may be an indication that the agency intended to reopen the issue. The court looked to two holdings within the circuit to determine if the agency had reopened the rule in 1978: 1) When ‘an agency's actions show that it has not merely republished an existing rule ... but has reconsidered the rule and decided to keep it in effect, challenges to the rule are in order and 2) Courts have consistently held that the statute of limitations does not bar review of agency actions that reopen a previously decided issue when the agency reaches the same decision at a subsequent proceeding. However, after analyzing the Plaintiff’s challenge to Amendment 13 in conjunction with these holdings as they applied to the “Optimum yield” provisions in MSA, the court held that Plaintiff’s challenge was untimely, thus denying plaintiff’s motion for summary judgment and granting summary judgment for the federal defendant. This is because the court focused on the notice opening the comments period on Amendment 13, which did not mention revisiting the rule on optimum yield.

However, the court acknowledged that the reopening doctrine applied and was proper regarding maximum sustainable yield (MSY) due to the seemingly serious consideration of remedying the issue presented in Amendment 13. The court noted that in August 2011, the federal defendant conducted an Environmental Assessment for Amendment 13 that discussed a variety of alternatives for amending the status determination criteria in the FMP. The Court stated that the record reflected that the Council explicitly considered specifying an MSY for the northern subpopulation of the northern anchovy, but decided not to do so because of concerns about the adequacy of the data on this species. This explicit consideration is sufficient to bring this issue within the reopening doctrine. Thus, plaintiff’s challenge was not barred by time in this instance due to the presence of MSY being a serious issue in the rulemaking procedure.

Further, the Court held that the agency’s decision regarding MSY in rulemaking was arbitrary and capricious. The plaintiff was able to prove that defendants did not have the adequate research to support the MSY that it enacted through the Amendment. Further, the defendants were unable to prove through the record that it would have caused significant disruption to add the MSY estimate and a short justification in the amendment before transmitting it to NMFS. The court seemed persuaded by the lack of defendants’ explanation as to why it was not “practicable” to incorporate this number into Amendment 13 before the Council transmitted it to NMFS in January 2011, or before the notice of proposed rulemaking was published in June 2011. Thus, the court held that since the time line was unconvincing as to why it was not possible to incorporate the MSY proxy for the northern subpopulation of the northern anchovy into Amendment 13 at some point before the amendment was finalized, without such an explanation, NMFS's decision to approve Amendment 13 without an MSY proxy for the anchovy population was arbitrary, capricious, and contrary to law. Thus, plaintiff’s motion for summary judgment pertaining to MSY was granted and defendant’s denied.

TSA Seeks Comment on Using Advanced Imaging Technology For Screening

by Shannon Allen

The “Presidential Memorandum Regarding 12/25/2009 Attempted Terrorist Attack,” charges the Transportation Security Administration (“TSA”) with “aggressively pursuing enhanced screening technology in order to prevent further such attempts, while at the same time protecting passenger privacy.”  In 2011, the U.S Court of Appeals for the District of Columbia ordered the TSA to “provide notice and . . . comments on the use of [advanced imaging technology] (“AIT”) . . . for primary screening,” but did not require the TSA to “stop using AIT to screen passengers.”  The TSA now proposes a regulatory revision to “clarify that [the] TSA may use . . . AIT to screen individuals at security screening checkpoints.”  Comments are due by June 24, 2013.

The regulatory revision proposes the following regarding the use of AIT:

·         Threats have evolved to include non-metallic explosives, devices, and weapons.

·         AIT is the best option to detect non-metallic anomalies without touching the individual.

·         Congress authorized TSA to procure and deploy AIT for use at security checkpoints.

·         TSA implemented safeguards to protect privacy and upgraded its millimeter wave AIT units with automatic target recognition (ATR) software which creates a generic outline of a specific individual and eliminates the need for operator interpretation of an image.

·         AIT equipment is safe because the x-ray or radio waves emissions are so low as to present a negligible risk to passengers, airline crew members, airport employees, and TSA employees.

·         TSA provides details on AIT procedures at www.tsa.gov/ait-how-it-work (which allows opt out procedures for passengers) and posts signs at airport checkpoints to notify passengers about AIT and alternative screening procedures. The level of acceptance by passengers has been high; the vast majority of passengers do not object to AIT screening.

·         Using AIT is effective in detecting small, non-metallic items hidden underneath passenger clothing that could otherwise escape detection.

TSA invites any written comments, data, or views related to this proposal, specifically the economic, environmental, energy, or federalism impacts that might result from this rulemaking action.  Interested parties may submit comments, using any one of the following methods:

·         Submit comments through the Federal eRulemaking portal at http://www.regulations.gov.

·         Address, hand-deliver, or fax written comments to the Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001; fax (202) 493-2251.

Section Cosponsoring Short Teleconference on Decker v. NEDC

Register now for tomorrow's teleconference: Decker v. NEDC: The Clean Water Act, Agency Deference, and How Recent Court Decisions Affect Your Practice. The Section is cosponsoring the event along with the National Conference of the Administrative Law Judiciary and several other Sections. The event takes place from 12:00 pm to 1:30 pm ET Wednesday, April 17, 2013. Find more information and a link to the registration page online here.

Meet Katie Kennedy, 3L at Appalachian School of Law and N&C Editor

by Nina Hart

Meet Katie Kennedy, a third-year law student at Appalachian School of Law and Editor of the Notice and Comment, Recent Cases section.  Below, she shares why she decided to go to law school, her experience as a law student, and discusses the benefits of being involved in the ABA. 

1.      Where do you attend law school? What led you to attend law school? What are your plans for after law school?

I attend the Appalachian School of Law. I was inspired to go to law school after sitting for an Environmental Law and Policy class in my Environmental Studies program at Stony Brook University, my alma mater. I plan to continue a career in environmental and energy law in Philadelphia, Pennsylvania after law school.

2.      What interested you in administrative law?

After working for the United States Environmental Protection Agency Office of Enforcement and Compliance Assurance in Washington DC for my first year externship, I fell in love with administrative law. I joined the Federal Bar Association for the Young Lawyer’s Division and I traveled around DC, visiting as many federal agencies as possible. I was published within the EPA in the Cross-Cutting Issues Periodical and I constantly read administrative decisions or cases concerning agencies.

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

During my first year externship with the EPA, under the direction of Mr. Mike Walker and Ms. Candi Schaedle, I edited scholarly submissions for the 9th International Conference for Environmental Compliance and Enforcement; edited guidance documents for National Environmental Policy Act Compliance Actions; researched and briefed "NEPA: The Year in Review" for the U.S. Department of Justice; published work in Monthly Report for Office of General Counsel's Cross Cutting Legal Issue Publication (May 2011); and conducted a mock trial for the Office of Enforcement and Compliance Assurance’s Administrative Hearing Workshop.

4.      Based on your experiences thus far, what do you perceive to be challenges facing administrative law practitioners?

I think that the hardest aspect of practicing administrative law is the lack of uniformity among the federal circuit courts regarding administrative rulemaking, adjudication, and due process hearings.

5.      For law students considering a career in administrative law, what do you think would be a good way of familiarizing themselves with the field? Are there any courses, other than Administrative Law, that you consider especially useful?

I think students should join the American Bar Association Administrative Law Section to start, and students should consider an externship or internship within an agency to gain experience. I also think that students should write and publish articles concerning the field.

6.      From a law student’s perspective, how would you characterize the dialogue between practitioners and academics? Are there areas for improvement, and what might those be?

I would love to see a student career fair for this ABA section. I would also love to see the Federal Bar Association reach out to law schools and establish school chapters. I think that more networking events between academics and practitioners would also be valuable. Similarly, it would be valuable for practitioners to visit law students and give lectures or round table discussions about practicing and starting a career in administrative law.

7.      Based on your leadership experience with the ABA Law Student Division, how would you advise students interested in administrative law to engage with the ABA in order to learn more about the field?

As the ABA is the largest network of attorneys, your experience is what you make of it. If you put yourself out there, ask questions, network, seize opportunities, and build connections, you will learn about the field and also develop relationships with practitioners. I thank the ABA for my wonderful mentors and network.

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

 

       I love beach volleyball (I am a native of Long Island, NY), I have an amazing dog who I love to go running with, and I Zumba all the time!

President Obama Appointees Moving Forward

by Kevin J. Schmitt

Gridlock in the Senate over agency appointments has become a feature of Washington politics. The problem was compounded this year when the D.C. Circuit limited the president’s authority to make recess appointments in Noel Canning v. NLRB, No. 12-1115 (D.C. Cir., Jan. 25, 2013).

Yet the last few days have offered up their share of surprises for weary watchers of the appointment process. The Senate considered three significant Obama appointees for major positions, with one officially confirmed and the other two facing light opposition as they move through the process.

On Wednesday, April 10, the Senate voted 87 to 11 to confirm former REI CEO Sally Jewell as Secretary of the Interior. Ms. Jewell has a long history of private sector experience, first as an engineer for Mobil Oil and then in the banking industry before she joined REI in the late 1990s. Jewell replaces former Secretary Ken Salazar.

Back in March, President Obama nominated Gina McCarthy, currently an assistant administrator in the Office of Air and Radiation, to head the Environmental Protection Agency. If confirmed, Ms. McCarthy will take a leading role in the President’s efforts to combat climate change, which should make her a controversial choice. In addition, back in February, a program that she oversees in her current role came under criticism. Despite these obstacles, however, she received a (relatively) warm reception on Capitol Hill recently, with opponents focusing their criticisms more on the agency itself rather than Ms. McCarthy’s qualifications. Part of this may be due to the fact that she has worked closely with Republican governors in Massachusetts in the past and has a reputation for taking business considerations into account.

Perhaps most significantly of all, President Obama’s pick for the D.C. Circuit Court of Appeals, Sri Srinvasan, had an easy hearing before the Senate Judiciary Committee on April 10. So easy, in fact, that Republican Senator Orrin Hatch of Utah, voiced tentative support for Mr. Srinivasan’s confirmation. An Obama appointee on the D.C. Circuit, of course, would have a significant impact on judicial review of agency actions and could have a major role in implementing the President’s second term agenda.

While these developments are unlikely harbingers of forthcoming bipartisan cooperation, it is heartening to see signs of movement within the increasingly dysfunctional appointments process. Time alone will tell, however, whether this era of good feelings persist.

Kevin J. Schmitt is a third-year law student at UC Hastings College of the Law. He is currently a Senior Articles Editor for the Hastings Law Journal.

Call for Nominations: 2013 Annual Section Awards

The 2013 Annual Section Awards Dinner isn't taking place until October or November, but the time to nominate the winners is now! Nominations are due by May 1, 2013 for the following awards:

Annual Award for Scholarship in Administrative Law: Nominate a written work that was published (copyrighted) in 2012.

Mary C. Lawton Award for Outstanding Government Service: Nominate a government attorney or political appointee who has made an outstanding contribution to the development, implementation, or improvement of administrative law and regulatory practice.

Gellhorn-Sargentich Law Student Essay Competition: Encourage your students to submit a work for consideration, with a $5,000 cash prize and publication in The Administrative & Regulatory Law News or The Administrative Law Review (at the discretion of the editors).

Questions and nomination packages can be emailed to Anne Kiefer at anne.kiefer@americanbar.org. Please see the links provided for more details about each award.

D.C. Circuit Declines Review of ALJ Mine Safety Citation

by Katie Kennedy

 

The U.S. Court of Appeals for the D.C. Circuit recently declined review of an ALJ decision citing Excel Mining, LLC ("Excel") for violating the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Excel Mining, LLC v. Dep't of Labor, 2013 U.S. App. LEXIS 5261, 1, 2013 WL 1155362 (D.C. Cir. Mar. 15, 2013). The mining company, Excel Mining LLC, argued that the ALJ's finding of only "moderate negligence" for the purposes of the monetary penalty calculation precluded his finding of an "unwarrantable failure" under 30 U.S.C.S. § 814(d) because a finding of an "unwarrantable failure" required "more than ordinary negligence." The company brought this case before the D.C. Circuit and the judges entered order on March 15, 2013. The court reviewed the legal conclusions of the ALJ de novo and his findings of fact for substantial evidence. The court rejected the mining company's argument because a finding of "moderate negligence" did not foreclose a finding of an "unwarrantable failure."

The underlying case involved a Petition for Assessment of Civil Penalty filed by the Secretary of Labor pursuant to 30 U.S.C. § 815(d). 34 FMSHRC 99. It alleged that Excel is liable for a single 104(d)(1) violation n1 of the Secretary's Mandatory Safety Standards (30 C.F.R. § 75.220) for Underground Coal Mines. The agency sought a total civil penalty of $23,229.00. Excel Mining appealed the ALJ’s decision in an attempt to show that the interpretation of the relationship between the regulations governing penalty calculations and the statutory term "unwarrantable failure" is unreasonable.

This case boiled down to an issue of agency deference. The Secretary's interpretation of an ambiguous provision of the Federal Mine Safety and Health Act is entitled to deference so long as it is reasonable. The Commission defines an "unwarrantable failure" as "aggravated conduct[] constituting more than ordinary negligence." An ALJ must look at "all the facts and circumstances of each case" to determine if the violation was so aggravated as to constitute an "unwarrantable failure." As the Secretary points out, there is ample support in the record for the ALJ's finding of aggravated conduct: the roof control plan violation was extensive and obvious; the company had been cited for the same violation eleven days before the inspection and warned that repeated violations would result in heightened sanctions; and the safety implications were grave.

 

The court held that the regulations required the ALJ to adjust the negligence finding to "moderate negligence" because he found a single mitigating circumstance: that the mining company had moved mining equipment out of one of the areas of the mine that had been made unsafe by the mining company's failure to comply with its roof control plan. However, that finding did not need to preclude the separate, forward-looking decision to impose heightened oversight under§ 814(d) when the record showed that aggravating factors predominated. Thus, because the court did not find that the ALJ's decision, as adopted by the Commission, was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,5 U.S.C. § 706(2)(A), the court denied the petition for review in case number 12-1138.

President Obama Announces NLRB Nominations

by Lauren Khouri

 

On Tuesday, April 9, 2013, President Barack Obama announced plans to nominate three candidates to full terms on the National Labor Relations Board (NLRB). President Obama urged swift Senate approval for the nominees, Democract Mark Pearce, and Republicans Harry I. Johnson and Philip A. Miscimarra. Obama also renewed his request for confirmation of the nominees he put forth in February, Democrats Sharon Block and Richard Griffin. This would fill all five seats on the board.

Senate approval of these nominees would also answer questions of legitimacy that resulted from a federal appeals court holding that Obama’s NLRB recess appointments were unconstitutional. As discussed in the Section's 9th Annual Administrative Law and Regulatory Practice Institute last week, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled in January that recess appointments are only constitutional when the vacancy occurs during a recess and limits the definition of “recess” to official breaks between formal year-long Congressional sessions. This decision raised questions about the broad range of decisions the NLRB issued in the past year, including enforcing collective-bargaining agreements, ruling on the rights of workers to use social media, and applying anti-retaliation provisions. The NLRB is set to file its writ of certiorari, asking the Supreme Court to overturn the D.C. Circuit, by April 25.

Obama’s announcement this week also coincides with a Republican-drafted bill in the House, which would effectively prevent the NLRB from taking any action until the Supreme Court rules on the issue, or until the NLRB five-seat panel has a quorum of non-contested members. Currently, the NLRB can issue decisions when it has at least three sitting members.  

With a bill pending in the House, appointments pending in the Senate, and a question for review before the Supreme Court, the NLRB remains in limbo until one of the federal branches of government makes the next move.

Lauren Khouri is a third-year law student at American University Washington College of Law. 

EIB Set To Approve Export Financing for Boeing 777 To Philippines

by Shannon Allen

The Export-Import Bank of the United States (“EIB”) issued a notice and requested comment on “an application for final commitment for a long-term loan or financial guarantee in excess of $100 million.”  The obligor is Philippine Airlines, Inc. and the purpose of the transaction is “to support the export of [a] U.S. manufactured commercial aircraft to the Philippines,” specifically, a Boeing 777 aircraft.  The Boeing 777 is to be “used for long-haul passenger air service between the Philippines and destinations in Asia, Canada, and other routes.”

Timely comments concerning export assistance for the Boeing 777 aircraft will be presented to the EIB Board of Directors prior to final action on this transaction.  Information on the final decision will be available in the “Summary Minutes of Meetings of Board of Directors.”  Comments must be received on or before April 8, 2013. 

 

Comments may be submitted through www.regulations.gov. To submit a comment, enter EIB-2013-0020 under the heading “Enter Keyword or ID” to get to the docket page and follow the instructions for submitting a comment.  Make sure you include your name, company name (if any) and EIB-2013-0020 on any attached document. (e.g. posted comment)

Law of Counterterrorism Event in New York City

The Section is co-sponsoring, along with The Council on Intelligence Issues, a roundtable discussion with expert authors from ABA's landmark book The Law of Counterterrorism. Topics will include various aspects of the law of war, the intelligence community, the PATRIOT Act and the IRTPA, and advice of counsel in cases in the war on terror. Participants include:

• New York City Police Commissioner Raymond W. Kelly
• John D. Altenburg, Jr., Maj. Gen., U.S. Army, ret., Principal, Greenberg Taurig LLP
• Karen J. Greenberg, Director, Center for National Security, Fordham Law School
• Richard B. (Dick) Jackson, Col., U.S. Army, ret., Law of War Advisor to Judge Advocate General, U.S. Army
• W. George Jameson, former Senior Counsel, Central Intelligence Agency
• Lynne K. Zusman, Editor, ABA Administrative Law Section Fellow

The event takes place May 14, 2013, from 4:30 to 6:00 pm, at Times Square Tower, hosted by O'Melveny & Myers LLP. Attendance is free, but registration is required. More information can be found online.

Court Will Not Compel EPA Determination on Aviation Gasoline Effects

by Katherine Kennedy

The District Court for the District of Columbia recently granted the Environmental Protection Agency's ("EPA") motion to dismiss a suit by Friends of the Earth ("FOE") seeking to compel the agency to make a determination regarding aviation gasoline and its effects on human health.  Friends of the Earth v. EPA, et. al., 2013 U.S. Dist. LEXIS 43263 (D.D.C. Mar. 27, 2013).  Specifically, FOE sought to make EPA determine whether lead emissions from general aircraft engines using aviation gasoline endanger the public health or welfare under 42 U.S.C. § 7571(a)(2)(A) of the Clean Air Act (“CAA”).  If the EPA determined that the emissions cause or contribute to air pollution, and therefore endangers public health or welfare, the agency would have to make the endangerment finding and govern the emissions.

This dispute began when FOE filed a petition for rulemaking with EPA in October 2006. Two and a half years later, on April 28, 2010, EPA issued an Advance Notice of Proposed Rulemaking on Lead Emissions from Piston-Engine Aircraft Using Leaded Aviation Gasoline, Available at 75 Fed. Reg. 22,440 (Apr. 28, 2010). However, FOE still brought suit alleging that EPA failed to respond to its original petition. After an inability to resolve the issue through briefing and discovery, the EPA denied the petition, stating that although it would not make a rule, it would engage in notice and comment to determine if FOE’s evidence was true regarding pollution and human health. 

FOE brought this claim under the citizen suit provision, the same provision utilized in the infamous Mass v. EPA case, due to EPA’s “unreasonable delay under its statutory duty to perform.” EPA moved for summary judgment to dismiss the case for lack of subject matter jurisdiction. The court in this case only heard the issue of whether FOE had standing to bring this suit under section 304 of CAA, allowing citizen suits against the EPA. The court held for EPA and that FOE lacked standing to challenge EPA in this manner, although the court expressly stated that it did not discredit the underlying public health concerns of this case.

The citizen suit provision of CAA, section 304(a)(2), states that a person can bring a civil action against the EPA in district court if there is an alleged failure to perform any non-discretionary act or duty under the law. Further, the section provides the district courts shall have jurisdiction to compel agency action when unreasonably delayed.  However, the court has subject matter jurisdiction over this action only if making the endangerment determination that would require the agency to promulgate standards is a nondiscretionary act assigned to the agency. The court reasoned that since the Act does not create a mandatory duty within the EPA to regulate aviation gasoline, and since the court lacks the authority to tell EPA how to regulate these types of emissions, the court lacks jurisdiction to hear the case. Thus, the court held that the endangerment determination is not a nondiscretionary act or duty that the citizen suit provision grants the district courts the jurisdiction to compel.

Meet Prof. Anna Williams Shavers, Section Vice Chair

by Nina Hart

Meet Professor Anna Williams Shavers, Cline Williams Professor of Citizenship Law at the University of Nebraska College of Law.  Professor Shavers is also the Vice Chair of the Section of Administrative Law and Regulatory Practice and Chair of the 9th Annual Administrative Law and Regulatory Practice Institute on April 3-4, 2013 at the Capital Hilton, Washington, D.C.  Below she discusses her passion for administrative law and the critical issues facing the Section and legal profession. 

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

I am the Cline Williams Professor of Citizenship Law at the University of Nebraska College of Law.  After receiving a graduate degree in business, I began work at a federal agency and observed the work of my lawyer colleagues.  Their work seemed more interesting and challenging.  This led me to attend law school.

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

Before law school, I worked at the Social Security Administration and the National Labor Relations Board.  Since graduating from law school, my administrative law work has primarily been in immigration and nationality law.  However, for a short time while I was in private practice, I also worked with banking regulations.

3.      How did you become interested in studying and teaching administrative law? 

My work before and after law school has always involved some aspect of administrative law and I found it exciting and challenging.  I was one of those law students who truly enjoyed rules and statutory-based courses.  Civil Procedure and Administrative Law were two of my favorites.   My first law teaching job was as a clinical law professor at the University of Minnesota where I had the opportunity to start an immigration law clinic.  When I joined the faculty at the University of Nebraska, the two courses I specifically requested to teach were Administrative Law and Immigration Law.  My requests were granted.

4.      How would you characterize the dialogue between academics and practitioners with regards to administrative law? Are there ways to improve how professors, agencies, and advocates work together to shape or change administrative law? Are there specific issues related to regulation development or review that you think warrant a greater degree of collaboration between academics and practitioners?

I have a quite favorable view of the dialogue between academics and practitioners primarily because of my involvement with the Administrative Law and Regulatory Practice Section.  The discussion of issues that we tackle in Council meetings are ones that affect the practice of administrative law by government and private attorneys and that can also enhance the teaching and scholarship of administrative law academics.  The discussions and positions taken on various issues benefit greatly from the perspectives of each of these groups.  Practitioners can also benefit from the research and writing of the academics. Three general issues that are of great interest to me and that can benefit from more collaboration are (1) the use of technology in administrative law practice, (2) the impact of globalization and international trade on the rulemaking process, and (3) the future of the Chevron doctrine. 

5.      Do you have any advice about “best practices” for attorneys who are preparing to handle administrative law cases or who are participating in the rulemaking process?

My advice for a best practice is to determine the best method for keeping current on agency practice.  This usually means being aware of what an agency in a particular substantive area has done recently and is likely to do in the future.   Although my students often thought I was joking when I advised them to read the Federal Register each day, I was serious – but I’m happy to say that I no longer have to give that advice.  Most of the information needed to keep current is available electronically.  Instead of pouring over the printed page of the Federal Register, an administrative law advocate can now quickly search such sites as GPO’s Federal Digital System at http://wwww.gpo.gov, Reginfo.gov for agency regulatory plans and agendas, and regulations.gov to comment on agency actions and participate in the rulemaking process.  Many states now have similar sites that are helpful to advocates engaged in state administrative law practices.

There are also several helpful publications that the Section has published over the years.  I would recommend as the basics for a federal administrative law practice the three Guide Books:  A Guide to Federal Agency Adjudication, 2ndEdition; A Guide to Federal Agency Rulemaking, 5th Edition; and A Guide to Judicial and Political Review of Federal Agencies.

6.      What do you think are the biggest challenges facing administrative law practitioners? How could the Section assist attorneys with these challenges?

Information overload presents a major challenge to administrative law practitioners.  Because of advances in technology, we are constantly being bombarded with information and sometimes have questions regarding the reliability of that information.  The Section is taking major steps to assist with this challenge.  One of the best examples is this blog, Notice and Comment.  It has great potential for keeping attorneys up to date with accurate information.

7.      As Vice-Chair of the Section, what are your priorities or goals for the Section this year or in the long-term?

I want to be sure that the Section has an inclusive and expanding membership.  This means that we have to determine how we can best serve administrative law practitioners, academics and students.  Inclusiveness must address all types of diversity.  Diversity in practice areas, geographic locations, and various demographic indicators will help the Section grow and ensure that relevant administrative law issues are considered and acted upon by the Section.

8.      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?

For law students, the best advice is to take a basic administrative law class along with a substantive regulatory class.  These two courses will give students a good idea of what administrative practice involves.  This can be enhanced by taking advantage of the fact that agencies are creating more internship opportunities for students.  Law schools are facilitating these opportunities by providing law school credit for these experiences if they are unpaid positions. Also, the Section sponsors programs that focus on advising law students about a career in administrative law.

Law students and new attorneys can both benefit from getting to know attorneys with an administrative law practice.  The Section facilitates this in a number of ways, including (1) sponsoring CLE programs that have content for the experienced as well as the novice attorney, (2) hosting “mix and mingle” events where those involved and interested in an administrative practice can meet and get to know each other, and (3) sponsoring programs that are educational in a location that provides an opportunity for socializing. 

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

Most of my friends would have no hesitation in offering traveling as my favorite activity and collecting and tinkering with electronic gadgets as my favorite hobby.  I think in some ways my love for traveling developed from my work in immigration law.  As I met people from various places around the world I developed a desire to see more of the world.  I set a goal to visit every continent and each of the United States.  I have now visited every continent except Antarctica and I’m still looking for a reason to go there.  I have a few states left on my list, but since they are mostly clustered in one area of the country, I have hopes of checking them off my list in one extended trip.  With all of the gadgets that I have accumulated, I should be able to plan a great trip.  In my spare time, I can use my gadgets to check and see if my favorite agencies have proposed any new regulations.