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.

Millennium Challenge Corporation seeks Senior International Attorney

The Millennium Challenge Corporation is seeking a Senior International Attorney for the Washington, DC office.  The deadline for applying is June 25, 2013.  The salary range is $115,000 to $158,000 per year.  Applicants must have at least four years of international transactional experience as an attorney. 

Responsibilities:

If selected for this position, you will be required to resolve complex and difficult international law questions and factual issues in the drafting, interpretation, and application of legislation, regulations, contracts, internal policies, orders, decisions, opinions, or other legal instruments under the general supervision of an assistant general counsel. You will work to obtain a balance of conflicting interests by applying a high order of original and creative legal thought. You will serve as a "second chair" attorney to help resolve extremely complex and difficult legal problems that substantially broaden or restrict the activities of MCC, which are primarily focused on developing and implementing MCC's grants to selected economically deprived countries. In certain circumstances, you may be required to work with little or no supervision.   You will address confidential and sensitive international law matters that cut across MCC organizational lines and affect the administration and resources of MCC. You will be required to provide legal counsel to foreign development assistance professionals who have extensive experience working in poor and economically deprived countries.   You will provide advice on novel questions and respond to substantive procedural questions concerning the application of international law and other areas of legal expertise. You will work with U.S. outside legal counsel and foreign counsel to resolve issues of local law.

Qualifications:

Required Qualifications - For MCC Pay Band 3a:  Applicants must be a graduate of a school of law accredited by the American Bar Association, and must have had a minimum of four (4) years of international transactional experience as a practicing attorney in private industry, public
service, non-profit or volunteer work.  This experience must have provided the applicant with
the knowledge, skills, and abilities to successfully perform the duties of the position. (NOTE: This experience MUST be well documented on your resume or application).

Education completed in foreign colleges or universities may be used to meet the above requirements.  You must show that the foreign education is comparable to that received in an accredited educational institution in the United States. It is your responsibility to provide such evidence when applying.

You must provide evidence of active membership in good standing of the bar of a state, territory of the United States, District of Columbia, or Commonwealth of Puerto Rico. Applicants are responsible for citing minimum qualifications such as JD and Bar membership information (institution name, state for bar, and dates) on their respective resumes. Failure to supply details will result in an incomplete application

Preferred Qualifications:

The ability to speak, read, and write French, especially in a business setting, is not required but highly desirable.

8th Annual Homeland Security Law Institute Starts Tomorrow!

Registration is still open for the Section's 8th Annual Homeland Security Law Institute. The main program will be held June 20 and 21 at the Capital Hilton in Washington, DC. Pre-program workshops are also offered on Wednesday, June 19 at the law firm of Greenberg Traurig LLP, covering "Careers in Homeland Security" and "Homeland Security Law & Policy 101." A faculty reception will follow.

This 2-day program features numerous panels and presentations on topics such as export control, transportation security, immigration enforcement, money laundering, and cyber security. The full brochure can be found online here. 13 CLE credits have been requested.

Registration is available online here.

Meet Dr. Helen Boutrous, Department Chair at Mount St. Mary's College

by Lynn White

As promised, we are delighted to spotlight Dr.Helen Boutrous, Chair of the History and Political Science Department at Mount St. Mary’s College in Los Angeles, in the second part of our feature on the Boutrous family.  The Boutrous’ met while attending the University of San Diego School of Law where they shared a mutual passion for their administrative law course taught by Kenneth Culp Davis, a pioneer in the field.  Dr. Boutrous teaches several classes related to law and public policy and has particular interest in Presidential influence on regulatory policy and the roles of federal, state and local governments in developing public policy.  Below she reflects on practicing in a government agency and inspiring young women to pursue careers in law. 

 

1.What led you to a career in law?

Through high school I saw myself working in government on policy issues – but not necessarily the law.  In college I took a class in which we did a moot court competition.  I was both thrilled and infuriated by the experience.  I knew I wanted more.

2.  What first interested you in administrative law?

I have always been fascinated by government process – the interplay of federal and state power; the inter-branch struggles at the Federal level; and the extent to which government can and does shape society.  It was a real honor during law school to take Administrative Law from Kenneth Culp Davis – but my first academic inspiration in the field was my high school government teacher – Mr. Bolton, Anaheim High School.    

3.  You had the opportunity to work on regulations in a Federal agency.  What was that process like?  How was it different from what you learned in law school?

I am very grateful for my experience in the Federal Government.  I had the opportunity to be part of the regulatory drafting process and to defend federal regulations against challenges from regulated industries.  Very quickly after law school, I was litigating before Administrative Law Judges, leading proceedings against violators of Federal laws, and dealing with regulated entities and individuals affected by regulation at public hearings.  Our Administrative Law class was excellent, but nothing can quite prepare you for the dynamics of dealing with the general public, agency policymakers, and OIRA, all at the same time.

 

4.  What prompted you to transition to studying political science and ultimately teaching?  How do you feel your work as an administrative law practitioner complements your current role?

While still working as a government lawyer, I took a Legislative Process class at Georgetown University.  I was hoping to gain enhanced insight into Congress after some interesting experiences with Congressional Staff.  As has been the case throughout my education, I was enthralled by the study of government process.  I took another class, and another, and ultimately decided to stop practicing and pursue my PhD in the Government Department at Georgetown University.  After completing my PhD and moving to California, I was hired as a professor in the History and Political Science Department at Mount St. Mary’s College in Los Angeles.  I feel my experience as a practitioner adds greatly to what I can offer my students.  “War stories” are a great way to bring legal concepts to life, and I would bet that few undergraduates are as steeped in the regulatory review process as mine are! 

5.  You are the pre-law director at Mount St. Mary’s College, and initiated a mock trial and moot court program.  Why do you feel those programs are important?  How have students benefited?

We have a vibrant pre-law minor at Mount St. Mary’s, a Catholic  college primarily for women. Requirements of the program include Legal Reasoning, Constitutional Law and Individual Rights.  When I arrived at Mount St. Mary’s, there had never been a Mock Trial or Moot Court team.  When I suggested it to my students, they jumped at the idea.  We have been competing in Mock Trial since 2004 and in Moot Court since 2009.  Our students have won individual awards and we have made it to national competition in moot court.  I think the program is an invaluable way for students to discover a passion for the law; prepare them for the rigors of law school; and experience the rewards of competition.  I see my students do better work across courses after having been part of these competitions.  My students are being accepted into excellent law schools, and I think the pre-law program and team competition has been a factor.   

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

When I was practicing for the government, a supervising attorney told me:  “remember, they can never out number us.”  I think it must be daunting for private attorneys to take on the government.  Government attorneys practicing administrative law, on the other hand, have many masters: the hierarchy within the agency; the President in the form of OIRA; the general public during notice and comment and public hearings; Congress through statutory delegations and oversight; and the courts through judicial review.  Reaching the optimal outcome is a difficult balancing act of varied interests.   

7.  For undergraduates, 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? 

First, I highly recommend practicing law in the government.  A young lawyer can gain significant experience very quickly.  To be a good administrative law practitioner, one must understand government process both in theory and practice.  Therefore, taking courses that delve into government structure and process is very important, as is keeping abreast of political and policy debates.  To get a taste of the administrative world, keep up with regulations at regulation.gov and, as the site says, “help improve federal regulations by submitting your comments.”  And, of course, by following Notice and Comment!       

8.  Mr. Boutrous noted that you bonded over a similar passion for an administrative law class.  For our readers who are romantics, could you elaborate on that?

Romantic administrative law practitioners – our kind of people!  Yes, we did bond over a shared fascination with the arbitrary and capricious standard, and legislative vs. adjudicative facts, but it also may have been the long dinner dates after class.  In any event, we started as law review colleagues and classmates, and are still debating legal standards after 25 years of happy marriage.     

DHS/CBP Seeks to Expand Border Crossing Info Collection With Canada

by Shannon Allen

The Department of Homeland Security, U.S. Customs and Border Protection (“DHS/CBP”) proposes to update the DHS system of records called, “DHS/CBP-007-Border Crossing Information (“BCI”) System of Records.”  The CBP maintains border crossing information on individuals entering the US in order to prevent terrorists and terrorist weapons from entering the country.  This information “resides on the TECS information technology platform.”  In the spirit of increased transparency, DHS/CBP is updating this system of records and providing notice to the public.  The DHS/CBP is updating:

 

(1)  Categories of individuals: “to include persons entering Canada from the United States,”

(2)  Categories of records: “to include border crossing data from Canada,”

(3)  Sources of information: “to include data provided by the Canada Border Services Agency (“CBSA”), and

(4)  Routine uses: “to include the sharing of border crossing information with Canada.”

The DHS/CBP is updating this system of records to provide notice of the “Beyond the Border (“BTB”) Entry/Exit Program” with Canada.  The BTB is now entering the second phase where both countries intend, at all automated land border ports of entry, to “exchange border crossing information” about “certain third-country nationals, permanent residents” of Canada, and “lawful permanent residents” of the US. 

Border crossing information includes; a photograph, itinerary information, and the time and location of the border crossing.  The CBP will not share information for “U.S. citizens, Canadian citizens, asylees, refugees, individuals who have obtained a T, U, or Violence Against Women Act visa, or when the individual's citizenship is unknown.”

The DHS is requesting comment on the application of these exemptions to the newly added categories.  Comments are due by June 27, 2013 and interested parties may submit comments, identified by docket number DHS-2013-0038 by one of the following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Fax: 202-343-4010.
• Mail: Jonathan R. Cantor, Acting Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
• Instructions: All submissions received must include the agency name and docket number for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.
• Docket: For access to the docket to read background documents or comments received, please visit http://www.regulations.gov.

Meet Ted Boutrous, Partner at Gibson, Dunn & Crutcher LLP

by Lynn White

Notice and Comment is pleased to do its first ever two-part feature of an administrative law power couple, Ted and Helen Boutrous.  Mr. Boutrous is a partner at Gibson, Dunn& Crutcher LLP where he co-chairs the firm’s Appellate and Constitutional Law Group.  The National Law Journal recently listed the group as one of the top 20 appellate practices in its annual Appellate Hot List report and named Ted one of the 100 most influential lawyers in the nation. Dr. Helen Boutrous is the Chair of the History and Political Science Department at Mount St. Mary’s College in Los Angeles.  She teaches several classes related to law and public policy and has particular interest in Presidential influence on regulatory policy and the roles of federal, state and local governments in developing public policy.  The Boutrous’ met while attending the University of San Diego School of Law where they shared a mutual passion for their administrative law course taught by Kenneth Culp Davis, a pioneer in the field.  For the first part of our feature, Ted discusses some of the values that helped shape his career and critical issues facing the legal community.  Stay tuned for part two with Dr. Boutrous next week!

1.  You left the University of North Dakota after two years and took some time off.  What led you to a career in law from there?

Society tells us that we need to know what we want to do when we’re really young.  I originally thought I wanted to be a writer or a journalist. I then took a break from college which was really healthy for me.  As I got older, I became more focused and eventually studied political science at Arizona State.  While there, I took legal philosophy and Supreme Court classes and became fascinated with the law.   My father was  a lawyer and a great inspiration to me.  I went on to attend law school at the University of San Diego.

After receiving my law degree, I was ready to jump right into work.  I had a clear vision that I wanted to work on Supreme Court cases.  I was fortunate that Gibson Dunn had the kind of environment where I was able to do that very early in my career. 

2.  You mentioned in an interview that your appellate and constitutional law practice informs your work in media, entertainment and technology?  Could you discuss that a little more?

I’ll start with a great example that’s in the news now.  As I’ve written about here and here, I am obsessed with the recent government leak investigations, including  the ones involving Fox News’ James Rosen and the government subpoenaing the Associated Press’ phone records.  There is a fundamental tension when “we the people” cede authority to elected officials to run the government.  Some matters that have national security implications must be kept secret, but at the same time we have to be able to scrutinize the government’s decisions as part of our democratic system of self-government.  It is legitimate for the government to investigate its own people for leaking, but hard to imagine a scenario where it is justified to go after a journalist.   Protections of the press are meant to protect their ability to report news and inform the people.  The government must figure out how to avoid leaks, but once the information is released, you can’t take it out on the press. 

On the other hand, I’ve also represented clients and companies in situations where there is media attention on them and it can be challenging.  Because I have represented journalists, I think I bring a certain sensitivity to both sides that enables me to be helpful to reporters and do the best job I can for my clients. 

3.  What do you enjoy most about practicing law?

I enjoy dealing with fundamental legal problems that impact society.  I’ve been fortunate to work on matters that have significant political and social consequences, like the Proposition 8 case.  Law is one of the few professions that combine theories and abstract ideas with real world activities.  It crosses over almost all aspects of our lives from commercial to political.  I’m lucky that I have a great platform to practice and great people to work with. 

4.  How has your practice changed over the years?

Substantively a different area of law explodes on the scene every few years. A decade ago, punitive damages dominated litigation, now its class actions.  As I get more senior, I am able to spend more time in court, which I enjoy.  The greatest development in my career is being able to develop a fabulous team of partners and associates.   I work with a superb group at Gibson Dunn which allows me to do so much more exciting work.

5.  What are some of the critical issues facing the legal community right now?

One of the greatest challenges facing large and mid-size firms is ensuring that we are able to develop associates so we focus a lot of our attention on professional development.  At Gibson Dunn, we are also focused on diversity issues and that’s something I feel very strongly about.  We are looking at ways to provide associates with multiple paths to success.  We want to be able to be nimble and flexible to the extent possible so we’re able to maximize our greatest assets, our attorneys. 

6.  What advice would you give to aspiring lawyers on how to have a successful career in the law? 

When I was younger, my propensity for long-term planning was not the greatest so I didn’t script out every phase of my career.  I have always tried to stay true to myself and pursue opportunities that really attract me.   I’ve also had a few lucky breaks; you can’t underestimate the value of that.  And when the opportunities presented, I worked hard to take advantage of them. 

There are also broader life lessons that are applicable to finding success in the law.  It’s important to love what you’re doing.  Prior to coming to a law firm, I wasn’t sure if I was going to like a corporate environment.  I was lucky I had the freedom and flexibility to rotate through various practice groups and get a sense of what I was and wasn’t good at and things I really enjoyed doing.  Do what you like best and take advantage of any opportunities that will give you the ability to pursue your strengths. 

Attorneys should also stay flexible. The great thing about the legal field is that there is room for multiple paths to success.  Society tends to put too much of a premium on pursuing one path through life.  Sometimes you have to follow the evidence where it leads.  You may end up finding happiness and success in an area that you might not have ever predicted.  At Gibson Dunn we encourage attorneys to pursue opportunities that will round out their professional and legal skills.  Happiness and success can organically occur by focusing on what is meaningful to you.

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

 I love to read fiction and journalism, watch movies, and hang out with my wife Helen.