Section Seeks Nominations for Mary C. Lawton Award

Each year, a government lawyer in the fields of administrative law and regulatory practice is honored at the Section's Annual Awards Dinner with the Mary C. Lawton Outstanding Government Service Award. This year's dinner will be held in November in Washington D.C., and it is now time to start sending in nominations for the award. Provide the name and period of government service of your nominee, along with the departments or agencies served and a description of the nominee's specific contributions to the development, implementation, or improvement of administrative law and regulatory practice. Nomination packages can be sent to the ABA Section of Administrative and Regulatory Practice, 1050 Connecticut Avenue NW, Suite 400, Washington D.C. 20010. Or, email them to Anne Kiefer at anne.kiefer@americanbar.org. Nominations are due by August 31.

Meet Sam Wice, Incoming Administrative Law Section Student Representative

by Nina Hart

Meet Sam Wice, the incoming Student Representative to the Section of Administrative Law & Regulatory Practice.  Below, he discusses his experience with administrative law and his goals for the Section.

1. Where do you attend law school and what led you to a career in law? What are your plans for after law school?

I am a third-year student at Duke University School of Law. I became interested in the law when I worked for two years at the Congressional Budget Office (CBO). I enjoyed the legal aspects of working with legislation and I decided to make law a career. For post-graduation employment, I am seeking a variety of positions, including judicial clerkships, government agency work, and law firm work.

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

I learned about administrative law and regulatory practice through my work and internship experience. Before law school, I worked for two years on Unfunded Mandates Reform Act issues at CBO. As an intern at the U.S. Solicitor General's Office, I saw how the United States decided to argue City of Arlington v. FCC. As a summer honors law clerk at the Security and Exchange Commission's Office of the General Counsel, I have seen how the Commission defended Dodd-Frank regulations.

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

At CBO, I saw how a law's impact depends largely on regulations. For instance, one of the most specific provisions that I reviewed would have required seatbelts in motor coaches. But the Department of Transportation had regulatory discretion whether to apply the requirement to existing motor coaches, whether to require three-point or lap seatbelts, and how much force a seatbelt should be able to withstand. The range of possibilities had about a $1 billion difference in aggregate costs.

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

One challenge facing practitioners is that at the same time that some agencies are required to increase their regulatory purview, their budgets are being cut. With reduced funds, the government might not be able to hire top administrative law attorneys and citizens who require administrative assistance will have to wait longer for services.

5. 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?

Law students considering a career in administrative law should take an administrative law class and try to intern with a government agency that engages in administrative work. Students should remember that administrative law does not just occur in Washington, DC. States and local governments practice administrative law too, and federal agencies have satellite offices throughout the country that practice administrative law. New attorneys considering a career in administrative law should read a hornbook on the subject and attend administrative law hearings in their spare time — students should feel free to do these too. Also, new attorneys should try to clerk with an administrative law judge.

6. From a law student’s perspective, how would you characterize the dialogue between academics, students, and practitioners in the area of administrative law?

The Section does a good job of facilitating dialogue. By offering free admission into the Section and free attendance at many conferences, the ABA Section of Administrative Law and Regulatory Practice encourages law students to attend conferences where they can meet academics and practitioners. But because of geographical, cost restrictions many students are not able to take advantage of these benefits.

7. As the incoming Law Student Division representative to the Administrative Law & Regulatory Practice Section, what are your goals for the year? What do you think could be done to foster interest in administrative law or joining the Section?

I want to increase outreach to students who might not be able to attend the Section's events. Thus, I hope to have a series of teleconferences or webinars about careers in Administrative Law, where students can ask practitioners about their jobs and how to enter the field. Likewise, hopefully the Section will be able to schedule some CLEs on law school campuses and we can encourage students to attend the classes.

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

I am a big baseball and St. Louis Cardinals fan. I also enjoy baking.

USDA Proposes Nutrition Standards for School Lunches

by Shannon Allen

The Food and Nutrition Service (“FNS”) issued an interim final rule to amend the National School Lunch Program and School Breakfast Program regulations.  The purpose of the rule is to “improve the health and well-being of the Nation's children, increase consumption of healthful foods during the school day, and create an environment that reinforces the development of healthy eating habits.”  The rule obliges schools participating in the National School Lunch Program and School Breakfast Program to make drinkable water available to children at no cost in the place where lunches are served during the meal service. In addition, the interim rule creates nutrition standards for all foods sold in schools, other than food sold under the lunch and breakfast programs. 

The Healthy, Hunger-Free Kids Act of 2010 (“HHFKA”) specifies that “such nutrition standards apply to all foods sold (a) outside the school meal programs; (b) on the school campus; and (c) at any time during the school day.”  HHFKA requires established nutrition standards for such foods be consistent with the most recent Dietary Guidelines for Americans.  The HHFKA requires the consideration of:

• authoritative scientific recommendations for nutrition standards,
• existing school nutrition standards, including voluntary standards for beverages and snack foods;
• current State and local standards;
• the practical application of the nutrition standards; and
• special exemptions for infrequent school-sponsored fundraisers.

The standards for food and beverages in this interim final rule represent minimum standards that local educational agencies, school food authorities, and schools are required to meet.  This rule is effective August 27, 2013 and State agencies, local educational agencies, and school food authorities must implement the provisions as follows:

1. the potable water provisions must be implemented no later than August 27, 2013, and
2. all other provisions must be implemented beginning on July 1, 2014.

Interested parties are invited to submit comments by October 28, 2013 by one of the following methods:

• Federal eRulemaking Portal: Go to http://www.regulations.gov, select “Food and Nutrition Service” from the agency drop-down menu, and click “Submit.” In the Docket ID column of the search results select “FNS-2011-0019” to submit or view public comments and to view supporting and related materials available electronically, or
• By Mail: Send comments to William Wagoner, Section Chief, Policy and Program Development Branch, Child Nutrition Division, Food and Nutrition Service, P.O. Box 66874, Saint Louis, MO 63166.

Join the Section at Next Month's ABA Annual Meeting

The 2013 ABA Annual Meeting will be held next month in San Francisco. While you're there, join the Section for a dinner, reception, and annual meetings.

The Section Dinner will be held at Merryvale Winery on the evening of Friday August 9 from 5:30 to 11:30 pm. Then starting Saturday morning, meetings will begin at the Palace Hotel, including Council Meetings, Annual Meeting of the Members, and Election of Council Members and Officers.

Advance registration is required for certain events. View the full brochure and sign up to participate online here.

Federal Housing Finance Agency Seeks Senior Policy Analyst

The Federal Housing Finance Agency’s Office of Housing and Regulatory Policy is seeking a Senior Policy Analyst (Counterparty & Portfolio). The deadline for applying is August 1, 2013.  The salary range is $111,471.00 to $189,501.00.

The Senior Policy Analyst will:

• Develop analyze, evaluate, monitor, and/or implement effective housing finance policies, procedures and guidelines, related to but not limited to asset disposition policies for large retained mortgage portfolios (both securities and loans), review of servicing policies including transactions/transfers, as well as the evaluation of broader strategic business policies that effect the taxpayer/borrower.
• Use knowledge of price discovery, asset disposition, transaction execution, market impact, other capital market operations and public policy to advise on the effective management of the portfolios of Fannie Mae and Freddie Mac.
• Identify policy issues relevant to FHFA’s oversight responsibilities and evaluate their implications and significance.
• Monitor the regulated entities' housing programs to ensure that program operations and policies are in compliance with statute, regulations, and FHFA policies.  Work with the staff of the regulated entities to assist in program improvements, realignment, or to resolve areas of noncompliance.
• Manage special projects and coordinate within the FHFA and/or with the regulated entities.
• Develop and deliver presentations, with written materials, as necessary.
• Prepare policy and issue papers, briefings, and memos for the Director, Senior Associate Director for OHRP, other senior FHFA staff or officials, as well as external audiences.
• Maintain sufficient documentation to verify any analysis included in the materials and to reproduce the analysis.
• Establish and maintain professional contacts relevant to the financial services and mortgage finance industries.

Qualifying experience includes the following: 

• Providing technical analysis and policy expertise in housing finance, particularly related to large retained portfolios of mortgage loans and related securities.  Recent experience with price discovery, asset disposition, transaction execution, market impact, other capital market operations and public policy to advise on the effective management of the portfolios of Fannie Mae and Freddie Mac.  
• Proven ability to plan, lead, and organize interdisciplinary teams and projects as a team leader and work collaboratively with staff, industry, the enterprises, public interest groups and other parties with diverse interests.
• Expert skill in applying sophisticated policy research and analytical skills to complex and varied issues.
• Expert ability to communicate technical, general and sensitive information, both orally and in writing.

House Judiciary Subcommittee Approves Bill to Reform APA

On July 18, 2013, the House Committee on the Judiciary, Subcommittee on Regulatory Reform, Commercial and Antitrust Law passed H.R. 2122 (S. 1029), the Regulatory Accountability Act of 2013, by voice vote.  The bill will now go to the full committee.  

H.R. 2122 would update the Administrative Procedures Act to reform how agencies promulgate regulations.  In particular, H.R. 2122 codifies some of the core requirements of Executive Orders (EOs) 12866 and 13563, which establish guidelines for federal agency rulemaking.  This includes requiring cost benefit analysis and greater input from the regulated community early in the rulemaking process for high-impact regulations.  Committee Chairman Bob Goodlatte’s (R-VA) opening statement on the bill emphasized the need for the reforms given the impact costly regulations have on job growth and the economy.  

House Approves Delay of Pipeline Industry Standards Posting

by Shannon Allen

On July 16, 2013, the House overwhelmingly passed, H.R. 2576, which would modify requirements regarding the availability of pipeline safety standards.  On June 28, 2013, subcommittee Chairman Denham, Full Committee Chairman Shuster, subcommittee Ranking Member Brown, and Ranking Member Rahall, of the House Committee on Transportation and Infrastructure, introduced H.R. 2576.  The bill would address issues related to Section 24 of the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (“the Act”).  The Act contains a requirement that all industry “technological standards” which are “incorporated by reference in guidelines and regulation” must be made accessible for no cost “on the internet.”

H.R. 2576 expressly:

• extends the deadline for making standards available from one to three years so industry and the Pipeline and the Hazardous Materials Safety Administration (“PHMSA”) can properly implement the mandate,
• deletes the term “guidance” from the provision to lessen the number of PHMSA documents that this provision applies too, and
• deletes the term “on an internet Web site,” which will protect copyright and intellectual property from being released to the public on the internet, and allow more flexibility for access to incorporated documents.

The Committee explained that the purpose of H.R. 2576 is to “protect property rights while allowing for more flexibility in making documents transparent.”  The Committee also expressed Standards Development Organizations (SDOs) concerns regarding 1) “intellectual property rights,” 2) allowing “oversees competitors free access to valuable intellectual property,” and 3) the Act harming the capability of some SDOs to “continue to develop standards if they are unable to bring in revenue to offset the cost of development.”

On June 1, 2012, the Section of Administrative Law and Regulatory Practice (“the Section”), submitted comments, to the Office of Management and Budget, Office of Information and Regulatory Affairs, concerning “the practice of incorporation by reference in agency regulations.”  In the Comments, the Section recognized that SDOs charge industry for crafting technical industry standards and that the government routinely incorporates by reference (“IBR”) these standards into regulations.  The Comments emphasized that “ready access” to IBR standards “is necessary for citizens to know what their government is doing and to hold the government accountable for serving – or not serving – the public interest.”  Transparency concerning IBR standards, the Section urged, is of special importance when the IBR standards are crafted by “private organizations rather than governmental agencies” (e.g. when American Petroleum Institute standards are incorporated by reference in pipeline safety rules).

The Section also suggested that “the long-term effects of requiring internet access to IBR standards” would not be as injurious to SDOs as they anticipate.  The Section argued that 1) posting IBR standards online “would not prevent SDOs from enforcing their copyrights,” 2)“users who want an [IBR] standard in hard copy could still be required to buy it from the SDO,” and 3) “most users of incorporated standards will continue to buy them even if they are available in read-only form online . . .” because for many industries “there is simply no substitute for having . . . paper copies that can be highlighted, tabbed, carried around and referred to anywhere, anytime.”

H.R. 2576 was referred to the Senate Committee on Commerce, Science, and Transportation.

Meet Brigitte Collier, Outgoing Section Law Student Representative

by Nina Hart

Meet Brigitte Collier, the outgoing Student Representative to the Section of Administrative Law & Regulatory Practice.  Below she discusses her commitment to the law, her experience as a student representative, and gives advice for law students interested in administrative law.

1. Where do you attend law school and what led you to a career in law? What are your plans for after law school?

I am a 3L at Indiana University Robert H. McKinney School of Law in Indianapolis, IN.  Being from Haiti, I naturally wanted to help people and give back to my community both where I live and in Haiti.  The best way I felt that I could do this was by being the voice in court for those who are not able to speak for themselves.  I have 10 years of experience working in the legal industry, which validated my passion for practicing law.  I learned that lawyers need to be active in their community, giving back whenever possible, with no expectations of returns.  My experiences have helped me to discover my gifts of compassion for others, empathy, and understanding as well as my passion for public interest, human rights, and family law.  I also want to assist people with resolving their conflicts in a cordial manner and in ways that benefit the interests of all parties involved. 

After law school, I plan to take the Indiana Bar and, hopefully, practice in the areas of family law and trusts & estates, regulatory practice, or another area of public interest law.  I am also open to practicing business law.

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

My experiences that led to a career in regulatory law happened by chance after I graduated from college.  My first job was doing pension administration, which is regulated by the Employee Retirement Income Security Act (ERISA).  Shortly after that, I worked for a hydroelectric power generation corporation working in a variety of areas including human resources, litigation and real estate.  Most recently, I worked for the largest family-owned winery in the world, regulated by the Alcohol and Tobacco Tax and Trade Bureau (TTB).  Some of my responsibilities were to interpret alcohol regulations, help ensure that the direct-to-consumer events complied with state and federal regulations, evaluate each state’s marketing requirements, and provide regulatory training for representatives in each state.

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

My interest in administrative law stems from my work experiences at the Winery, talking with administrative law professionals, and my administrative law class.  All of these experiences led me to want to learn more about the field.  My work experiences also helped me realize how essential administrative law is – almost everything in our daily lives is affected in some way or another by administrative law. 

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

One obstacle is a lack of interest by young lawyers, which is perpetuated by a lack of knowledge regarding how many areas of practice involve administrative law.  Also, the salaries can be an issue because most law students accrue over 100K in student loans; therefore, they need a reasonable salary to pay back the loans and have enough to live.

5. 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 believe some of the best ways of introducing law students and new attorneys to the administrative law field are through internships, job shadows and networking events at the law schools.  Local administrative law professionals should be invited to these networking events to speak about what they do, how they acquired their current position, advice on what students and young lawyers should do if they are interested in a career in administrative law, and allow time for questions and answers as well as additional time for one-on-one networking between the speakers and the attendees. 

6. From a law student’s perspective, how would you characterize the dialogue between academics, students, and practitioners in the area of administrative law?

From my perspective as a student, my academic experience was different from my work experience and my conversations with current practitioners.  My academic experience was heavily focused on learning the case law and not practical experience.  Speaking with current practitioners gave me a much better perspective on practicing in the area of administrative law.  Most students that I speak to, including myself, would prefer balancing academic work with more practical experience.  For example, I would have benefited a lot more from my administrative law class if I were required to sit in on a hearing and write about what I learned or had several practitioners come in from different areas of practice and talk to the class about their roles and responsibilities. 

7. As the Law Student Division representative to the Administrative Law & Regulatory Practice Section, what were your goals for the year? What do you think could be done in future years to foster interest in administrative law or joining the Section? What have you enjoyed most and found to be most challenging in your role?

My goals were to contribute to the monthly e-newsletter; hold a minimum of two teleconferences with a panel of lawyers from the 40+ section committee members; write at least one article to be published in the Student Lawyer magazine; and launch monthly articles from interviews with lawyers and judges throughout the country who practice in different areas of administrative law and regulatory affairs.  The purpose of these articles is to educate law students about the broad range of practices that are available within administrative law.  The articles were distributed via the student bar listserv, posted in the student law section of the Administrative Law website, and the monthly e-newsletter.

I have enjoyed being part of the council meetings and interacting with members from throughout the country.  The most challenging thing for me was getting a clear understanding of exactly what my role was and getting students involved.  I believe that if I had had a better understanding of my role when I first started, I could have planned my goals and execution earlier and been more organized.  Thus, I think greater communication between incoming and outgoing student representatives is key to furthering our goals and being the best possible representatives to the Section.

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

I enjoy spending time with my family and friends, traveling, running, and reading non-law school related books.  

Join the Section Events at the ABA Annual Meeting Next Month

The 2013 ABA Annual Meeting will be held next month in San Francisco. While you're there, join the Section for a dinner, reception, and annual meetings.

The Section Dinner will be held at Merryvale Winery on the evening of Friday August 9 from 5:30 to 11:30 pm. Then starting Saturday morning, meetings will begin at the Palace Hotel, including Council Meetings, Annual Meeting of the Members, and Election of Council Members and Officers.

Advance registration is required for certain events. View the full brochure and sign up to participate online here.

DOE Seeks Input On Soliciations For Pollution Reducing Energy Projects

by Shannon Allen

The Loan Programs Office (“LPO”) of the Department of Energy (“DOE”) requests comments on a potential solicitation announcement for Federal Loan Guarantees for Advanced Fossil Energy Projects.  In a press release on July 2, 2013, the DOE, as a part of President Obama’s “Climate Action Plan,” announced the solicitation for new and “advanced fossil energy projects and facilities” that significantly decrease “greenhouse gas and other air pollution.”  The DOE is authorized by Section 1703 of the Energy Policy Act of 2005 to “support innovative clean energy technologies” that are normally not capable of acquiring traditional “private financing” because of “high technology risks.” 

If the DOE moves forward with the potential solicitation, “applicants would be invited to apply for loan guarantees from [the] DOE” to fund projects located in the U.S.  The potential future solicitation for “Advanced Fossil Energy Projects” makes available to the DOE up to “Eight Billion Dollars ($8,000,000,000) in loan guarantee authority.”

In the proposed potentially broad solicitation, the DOE 1) contemplates including “all fossil fuels” (e.g. coal, natural gas, oil, shale gas, oil gas, coal bed methane, methane hydrates, and others.), 2) considers including both “electrical and non-electrical fossil energy use,” and 3) considers including projects that:

• avoid, reduce, or sequester air pollutants or anthropogenic emission of greenhouse gases,
• employ New or Significantly Improved Technology, and
• use advanced fossil energy technology described in one or more of the following areas: advanced resource development; carbon capture; low-carbon power systems; or efficiency improvements.  

The LPO invites comments regarding the draft of the “potential future solicitation announcement.”  Comments from interested industries, stakeholders, and the public are due by September 9, 2013.  The DOE seeks comments regarding every part of the draft solicitation, but is “particularly interested” in input about the “weighting percentage allocated to each category for evaluations (Programmatic, Technical, Policy, and Financial),” as well as the actual “categories themselves.”

Comments may be submitted in writing to:

• David G. Frantz, Deputy Executive Director, Loan Programs Office, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585.
• For Further Information, please contact David G. Frantz at: DraftLPOFossilSoliciationComments@hq.doe.gov

DOJ Seeks Attorney for Forfeiture Unit

The Criminal Division of the U.S. Department of Justice is seeking an experienced attorney to be the head of the Forfeiture Unit in the Asset Forfeiture and Money Laundering Section. The deadline for applying is July 30, 2013. The salary range is $123,758.00 to $155,500.00.

The Deputy Chief of the Forfeiture Unit:

·         Supervises and manages the work of the Unit’s attorneys on cases involving civil and criminal forfeiture actions, and ancillary proceedings;

·         Advises line attorneys on strategic approaches to their forfeiture actions;

·         Ensures that unit attorneys are properly prepared and trained to litigate complex matters, trains line attorneys on discovery obligations and ethical considerations, and oversees the negotiation of settlement agreements and other resolutions, properly balancing a variety of relevant factors;

·         Reviews seizures warrants, lis pendens, restraining orders, complaints, criminal forfeiture allegations, dispositive pretrial motions, and other pleadings;

·         Provides litigation advice to other Criminal Division litigating components, U.S. Attorneys’ Offices, federal investigative agencies, and state and local prosecutors and agencies on asset forfeiture issues;

·         Develops and maintains working relationships with partners at the U.S. Attorneys’ Office, other litigating components and offices, and federal, state, and local law enforcement agencies;

·         Represents AFMLS in inter-departmental and inter-agency meetings and communicates on matters concerning asset forfeiture issues.

Applicants must possess a J.D. degree, be duly licensed and authorized to practice as an attorney under the laws of any State, territory of the United States, or the District of Columbia, and have at least five years post J.D. experience. Applicants must be an active member of the bar in good standing.

Applicants must also have one year of specialized experience at the GS-14 grade level. Examples of specialized experience include: preparing pleadings, briefs and other court papers involving complex legal issues in complex civil or criminal litigation; and conducting complex civil or criminal litigation and familiarity with asset forfeiture litigation.

Section Member Testifies Before House Energy and Commerce Subcommittee

Randolph May, past Chair of the ABA Section of Administrative Law and Regulatory Practice, testified at a hearing on "Improving FCC Process" before the House Subcommittee on Communications and Technology, Committee on Energy and Commerce, on Thursday, July 11, 2013. In his testimony, Mr. May supports the proposed FCC regulatory reforms contained in the Committee's Discussion Drafts because, along with his own additional proposals, they would make the FCC less likely to default so often to regulatory measures, even absent clear and convincing evidence of market failure or consumer harm. For more information, visit the Free State Foundation website at http://www.freestatefoundation.org/.  

House Subcommittee Holds Hearing on the Regulatory Accountability Act

by Lynn White

On July 9, 2013, the House Committee on the Judiciary, Subcommittee on Regulatory Reform, Commercial and Antitrust Law held a hearing on H.R. 2122 (S. 1029), the Regulatory Accountability Act of 2013.  The bill would update the Administrative Procedures Act to reform how agencies promulgate regulations. 

During the 109^th Congress, the Subcommittee on Commercial and Administrative Law initiated the Administrative Law Process and Procedure Project for the 21st Century which included a comprehensive study of administrative law and process and made recommendations for improvement.  H.R. 2122 is an outgrowth of the recommendations the Subcommittee published in the Interim Report on the Administrative Law Process and Procedure Project for the 21^st Century. 

In particular, H.R. 2122 codifies some of the core requirements of Executive Orders (EOs) 12866 and 13563, which establish guidelines for federal agency rulemaking.  Committee Chairman Bob Goodlatte (R-VA) stated that H.R. 2122 takes long established best practices from EOs 12866/13563 and makes them legally binding.  This includes requiring cost benefit analysis and greater input from the regulated community early in the rulemaking process for high-impact regulations.  Chairman Goodlatte stressed the need to modernize the Administrative Procedures Act so that it reflects that current state of rulemaking. 

Some opponents of the legislation suggest that it will slow down the rulemaking process.  Proponents of the bill state that it “will improve the accountability and integrity of the rulemaking process.” 

Agencies Seek to Engage Youth and Veterans in Protecting Public Lands

by Shannon Allen

On behalf of the America’s Great Outdoors Council, Secretary Jewell, of the Department of the Interior (“DOI”), formed a Federal Advisory Committee (“FACA”) to develop recommendations for the establishment of the 21st Century Conservation Service Corps (“21CSC”) National Council.  The 21CSC is a “bold national effort” to give America’s “youth and veterans” important work “protecting, restoring, and enhancing” America’s Great Outdoors.  This effort will help preservation service work on public lands and promote a “new generation of natural resource managers. . . .”  The 21CSC goals are to “build America’s future, put Americans to work, and preserve, protect, and promote America’s greatest gifts.”

On behalf of the 21CSC National Council, the USDA Forest Service (“FS”) is publishing a notice requesting letters of interest from all “conservation and youth corps programs” wishing to be identified as a “21CSC member organization.”   21CSC member organizations must be in alignment with the following 21CSC principles:

1) Population served:  young people ages 15-25 and/or military veterans up to age 35,

2) Participant eligibility: U.S. citizens, nationals, or lawful permanent residents,

3) Emphasis on diversity and inclusion: outreach to underserved communities,

4) Term of service: compensated minimum of 140 hours and maximum of 3,500 hours,

5) Organization of work: crew-based or individual/small team-based,

6) Types of work: outdoor and/or “hands-on” direct impact,

7) Participant outcomes: job skill development, community skill development, and connection to environment and/or resources, and

8) Leveraged investment: leveraged public investment via financial or in-kind support.

The purpose of this outreach is to “engage young Americans and returning veterans in public lands and water restoration.”  Letters of interest should include: the name of the organization, an outline of the organization’s and/or program’s criteria, the address, a point of contact, and email, and a description of the organization or program.

Interested organizations should submit letters of interest before August 1, 2013 and may be submitted in the following ways:

•  Email: 21CSC@fs.fed.us or
• Mail: USDA Forest Service, Attn: Merlene Mazyck, 1620 Kent Street, RPC, 4th Floor, Arlington, VA 22209

Baby Veronica Case Creates Confusion Regarding Indian Child Welfare Act

by Katherine Kennedy

The Supreme Court’s recent decision in Adoptive Couple v. Baby Girl created confusion concerning tribal sovereignty. The 1978 Indian Child Welfare Act (ICWA), the statute at issue, is intended to keep Native American children from being taken from their homes and typically placed with non-Native American adoptive or foster parents, in an effort to preserve familial bonds between birth parents and their children. But in a 5-4 ruling, the Court said federal law doesn’t require that a Native American child be taken away from her adoptive parents and given to her biological father. It is now uncertain how this opinion will fare for Native American rights: will this strengthen tribal sovereignty or harm it in the long run? On June 25, 2013, Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Stephen Breyer joined Justice Samuel Alito, who wrote the majority opinion. Justice Sonia Sotomayor wrote the dissenting opinion. She was joined by Justices Antonin Scalia, Ruth Bader Ginsburg and Elana Kagan.

The prospective adoptive parents filed a petition to adopt “Baby Veronica” (AKA “Baby Girl”). Her biological father, a member of a Native American tribe, opposed adoption, and the Cherokee Nation intervened. The Charleston County Family Court denied the adoptive parents’ petition and required the prospective adoptive parents to transfer the child to her father. The prospective adoptive parents appealed. The South Carolina Supreme Court affirmed the lower court’s decision. The Supreme Court granted certiorari.

The tone and outcome of this case is immediately apparent from Justice Alito’s opening paragraph:

“This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child. The provisions of the federal statute at issue here do not demand this result.”Adoptive Couple v. Baby Girl, 12-399, 2013 WL 3184627 (U.S.S.C. 2013).

           

This case turned on the fact that the child was never in the father’s custody. The Court held that this case differs from a normal interpretation of 25 U.S.C. § 1912(f) since it involves a parent that never had custody of the child. The Court further held that § 1912(d), which conditions involuntary termination of parental rights with respect to a Native American child on a showing that remedial efforts have been made to prevent the “breakup of the Indian family,” is inapplicable when, as here, the parent abandoned the child before birth and never had custody of the child. The Court further clarified that § 1915(a), which provides placement preferences for the adoption of Native American children, does not bar a non-Native American family like Adoptive Couple from adopting a Native American child when no other eligible candidates have sought to adopt the child. The Court reversed the South Carolina Supreme Court's judgment and remanded for further proceedings.

After a tumultuous romance, the birth parents of the child in this case ceased dating and called off their engagement. Via text message, the birth mother asked the biological father if he would like to pay child support or terminate his parental rights. The biological father chose the latter option. Birth mother then decided to put Baby Girl up for adoption. Because birth mother believed that biological father had Cherokee Indian heritage, her attorney contacted the Cherokee Nation to determine whether the biological father was formally enrolled. The inquiry letter misspelled biological father's first name and incorrectly stated his birthday. Cherokee Nation responded that, based on the information provided, it could not verify Biological Father's membership in the tribal records.

Working through a private adoption agency, the birth mother selected the adoptive couple, non-Native Americans living in South Carolina, to adopt Baby Girl. Adoptive couple supported birth mother throughout her pregnancy and they were present at the birth. Justice Alito seemed most impressed that the adoptive father cut the umbilical cord. The next morning, birth mother signed forms relinquishing her parental rights and consenting to the adoption. Adoptive couple initiated adoption proceedings in South Carolina a few days later, and returned there with Baby Girl. After returning to South Carolina, the adoptive couple allowed the birth mother to maintain a relationship with the baby.

In this case, it was undisputed that had Baby Girl not been 3/256 Cherokee, the biological father would have had no right to object to her adoption under South Carolina law. The South Carolina Supreme Court held that the biological father is a “parent” under the ICWA and that two statutory provisions—namely, § 1912(f) and § 1912(d)—bar the termination of his parental rights. The Court did not decide whether biological father is a “parent” for purposes of these statutes, persuaded by adoptive parents’ arguments. The Court held that even if he was within the definition of the statute, the Court still held that neither § 1912(f) nor§ 1912(d) bars the termination of his parental rights.

The Court found the argument that the biological father’s custody would not cause harm to the child flawed, because according to the Court, this is not an issue of a prospective custody. The Court says that the analysis that the State Supreme Court followed hinged on the following: “Specifically, § 1912(f) provides that “[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, ... that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Since the statute specifically refers to continued custody, § 1912(f), then, does not apply in cases where the Native American parent never had custody of the  child.

According to the Court, the primary mischief the ICWA was designed to counteract was the unwarranted removal of Native American children from Native American families due to the cultural insensitivity and biases of social workers and state courts. “The statutory text expressly highlights the primary problem that the statute was intended to solve: “an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” § 1901(4).” The Court distinguished this intent from the case at bar: when, as here, the adoption of a Native American child is voluntarily and lawfully initiated by a non-Native American parent with sole custodial rights.  The ICWA's primary goal of preventing the unwarranted removal of Native American children and the dissolution of Native American families is not implicated. Thus, since the biological father never had custody of his daughter, the South Carolina Supreme Court erred in finding that § 1912(f) barred termination of Biological Father's parental rights.

The Court provides guidance as to the statutory term “breakup,” relating to the statute’s intent to prevent the “breakup” of familial relations by the mischief that ICWA was enacted to redress. Justice Alito held that just as the continued custody requirement was not met here to require biological father’s sought-after remedy, the term “breakup” should be read within the same context of “continued custody.” Since the biological father “abandoned” his child, he cannot claim that the adoption caused the breakup of his familial relations. So the Court held that the South Carolina Supreme Court erred in finding that § 1912(d) barred termination of Biological Father's parental rights.

Justice Alito also held that § 1915(a)'s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. This ICWA section states: “[i]n any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families.” The Court held that this section does not apply because there cannot be a preference to apply if no alternative party that is eligible to be preferred under § 1915(a) has come forward. Since the adoptive couple was the only party seeking custody of the baby, and since her biological parents did not seek custody of their daughter, and since the Cherokee nation did not seek the adoption of the girl even after intervening in the adoption proceedings, the Court held that this argument also fails.

In Justice Alito’s concluding paragraph, he warns that the State Supreme Court decision would put certain vulnerable children at a great disadvantage solely because any ancestor, even a remote one, was Native American. Further, “…As the State Supreme Court read §§ 1912(d) and (f), a biological Indian father could abandon his child in utero and refuse any support for the birth mother—perhaps contributing to the mother's decision to put the child up for adoption—and then could play his ICWA trump card at the eleventh hour to override the mother's decision and the child's best interests.” Justice Alito also warns that if the State Supreme Court’s decision were to stand, adoptive parents would be cautious to adopt and sue to determine rights before becoming entangled in equal protection concerns and ancestors claiming custody over adoptive parents. Thus, it seems that this case has made it clear that a biological parent who wants custody of his/her child who is adopted by a non-Native American non-relative, should: be an active parent during pregnancy, pay some support during the child’s life, be active within the tribal nation, and should offer evidence that his/her continued custody would be broken up by adoption by a non-Native American non-relative couple or person. However, it is unclear how this decision will affect tribal sovereignty and if this holding will affect “all Indian parents who have never had custody of their children, no matter how fully those parents have embraced the financial and emotional responsibilities of parenting,” as Justice Sotomayor’s dissent warns.

Justice Sotomayor’s dissent outlines the implications of this holding due to the fact that the father has a federally acknowledged and protected parent-child relationship that this Act was designed to protect, and that Justice Alito’s analysis of § 1912 is too simple. According to the dissent, § 1912 does not require that a “parent” carryout the functions of a parent to keep that title. The dissent states that Justice Alito and the majority give on one hand and take from another by stating that the majority illogically concluded that ICWA's substantive protections are available only to a subset of “parent[s]”: those who have previously had physical or state-recognized legal custody of his or her child. Further, the dissent states that such a narrow definition of “breakup” is inappropriate; noting that nothing in the text of subsection (d) indicates that a blood relationship should be excluded from the category of familial “relationships” that the provision aims to save from “discontinuance.”

However, the crux of the dissent rests in this paragraph:

“The majority is willing to assume, for the sake of argument, that Birth Father is a “parent” within the meaning of ICWA. But the majority fails to account for all that follows from that assumption. The majority repeatedly passes over the term “termination of parental rights” that, as defined by § 1903, clearly encompasses an action aimed at severing Birth Father's “parent-child relationship” with Baby Girl. The majority chooses instead to focus on phrases not statutorily defined that it then uses to exclude Birth Father from the benefits of his parental status. When one must disregard a statute's use of terms that have been explicitly defined by Congress, that should be a signal that one is distorting, rather than faithfully reading, the law in question.”

This case truly demonstrates the different schools of judicial interpretation currently serving on the Supreme Court bench. It seems that the textualists, originalists, and strict constructionists have carved an exception to the ICWA framework in this case. The applicability of this rule will challenge agencies to reconsider Native American child adoptions and the procedure so as to avoid challenges and trial. Only time will tell.