Meet Joanne Zimolzak, Managing Partner at McKenna Long DC Office

by Nina Hart

Meet Joanne Zimolzak, head of the Insurance Division and Managing Partner in the DC Office of  McKenna Long & Aldridge LLP.  Below, Ms. Zimolzak describes her experiences with administrative law and several major challenges facing both practitioners and clients.

1.  What led you to a career in law?

I am the first member of my family to attend law school.  I started thinking about a career in law when I was in junior high school.  Apparently I had a strong tendency to play "devil's advocate," and my friends and family often suggested that law might be a good field for me.  I spent a year between college and law school working at a small firm, which cemented my choice. 

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

Understanding the administrative law process, including limitations on agency action, has proven extremely valuable in connection with my Freedom of Information Act (FOIA) work.  Throughout my career, I have assisted government contractors with obtaining and/or successfully preventing the release of sensitive business information under federal and state FOIA provisions.  In certain cases, the agency's failure properly to justify its determination has provided a strong basis to press for the best possible result from the client's perspective. 

In terms of regulatory compliance, I have assisted several companies in alleged procurement fraud matters and in conducting related internal investigations.  I also routinely advise insurance industry clients regarding regulatory compliance issues.  Recently, much of this work has focused on the emerging risk of climate change and its resulting impact on the industry, both from a regulatory standpoint and a potential liability standpoint.

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

Early in my career, I had an opportunity to work on several Administrative Procedure Act challenges to federal agency actions.  These were important matters to our clients, whose industries were negatively affected by agency actions that did not (at least in our view) comport with applicable standards.  I also had the opportunity early in my career to assist clients with litigating federal preemption cases to state law claims, including as amicus curiae in proceedings before the U.S. Supreme Court.  These experiences piqued my interest in administrative law and helped me appreciate its utility as a tool to minimize the risks of agency arbitrariness and overreaching. 

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

In law, as in life, communication is key.  It is helpful to have relationships within government agencies and to deal respectfully and productively with agency personnel, even in an adversarial situation.  Depending on who you are dealing with within an agency, there is often a good deal of useful information available.  Make sure you know your issue, and avoid taking unnecessary "pot shots" at the opposition – after all, chances are you will be dealing with them again and may even need their help.

5.  Is there a difference in how attorneys should approach appearances before specialized courts, such as the Court of Federal Claims or Federal Circuit, as opposed to generalist courts?  In your experience, are the judges on specialized courts looking for different things from attorneys, or do you perceive them as having a somewhat different outlook from their generalist colleagues?

When appearing before specialized courts, practitioners sometimes get tripped up by things as simple as the court's particular rules and procedures.  Spend some time getting to know these, and talk to or associate with someone who routinely practices before these courts.  It will be time well spent.  I think on one level, all courts are looking for the same kinds of things – competence, respectful conduct to the court and other counsel, adherence to court rules and practices, etc.  Certainly specialized courts are used to seeing practitioners who are very experienced in certain types of cases, so there is a high level of competence that they have come to expect in such matters. 

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

Managing client expectations is very important.  Both the agency decision-making process and any eventual legal challenge to agency action involve multiple steps and can take a good deal of time.  The standard of review applicable to agency action in certain situations can be difficult to overcome. 

7.  You have handled numerous insurance cases during your career.  Would you describe some of the challenges facing international/multinational companies and their attorneys in terms of regulatory compliance?

Globalization has led to increased opportunities for international commerce, but the flip side involves increased potential for legal liability.  Multinational companies frequently find themselves in the position of facing financial and reputational risk across multiple jurisdictions.  Companies appreciate the importance of identifying regulatory issues and ensuring compliance across a growing geographical footprint, but in the reality of today's environment, they often are doing so with fewer resources.  Substantively, large insurers and other multinational companies are facing a host of regulatory compliance issues, including in the areas of antitrust/competition, data privacy and protection, environmental/safety, and anti-corruption/bribery.  One thing to keep in mind in assisting multinational companies with these issues is the different privilege rules that apply in different jurisdictions.

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?

It may sound obvious, but I would encourage law students to take a course in Administrative Law and Procedure.  This was one of the best courses I took at Georgetown and it provided an excellent introduction to the field.  In my view, this course should be a prerequisite for anyone thinking of practicing law in the Washington D.C. area (regardless of eventual discipline).  Another suggestion would be to intern with a federal agency during or after law school.

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

I enjoy spending time with my two daughters, ages 11 and 4.  In my spare time, I love to cook (and in this regard, it is helpful that I also love to eat!).  I enjoy traveling to different cities and countries, where I try to immerse myself in the local culture.  I'm a huge movie buff – some recent favorites include Her and Silver Linings Playbook.  I'm a big fan of ice-skating and recently took up stand up paddleboarding, which is a hoot. 

DOE Seeks Input on Proposed Improvements to Migrant Education

by Shannon Allen

The Department of Education (“ED” or the “Department”) issued a notice of proposed rulemaking (“NPRM”) aimed at improving the Migrant Education Program (“MEP”).  The children of migratory agricultural workers and migratory fishers have educational needs that present “unique challenges for educators and our Nation’s schools.”  One significant result of a migratory way of life is that the children often enroll in new schools and in new school districts without sufficient documentation of their health and educational history.  Lacking health and educational information may cause children of migrant workers “delays in student enrollment, lead to inappropriate classroom and course placements, complicate or hinder the accrual of course credits needed for high school graduation, and result in duplicate services, such as multiple assessments and immunizations.”

 The Elementary and Secondary Education Act (“ESEA”) directed the Secretary of Education to “ensure the linkage of migrant student record systems for the purpose of electronically exchanging, among the States, health and educational information regarding all migratory students.”  To this end, the ESEA required the Department to implement a national “electronic records exchange mechanism” called the “Migrant Student Information Exchange” (“MSIX”).  This NPRM proposes to implement the MSIX, introduces regulations that would “facilitate timely school enrollment, placement, and accrual of secondary course credits for migratory children,” and assists the Department in determining “accurate migratory child counts.”   

The MSIX may be used to produce “national data on the migrant population,” but the primary purpose of MSIX is to provide educational personnel with the information they need in order to facilitate:

1. The timely enrollment of all school-aged migrant children;
2. The placement of migratory students in the appropriate grade level and courses of instruction; and
3. For secondary students, the accrual of course credits needed to graduate from high school.

Specifically, the Department’s proposals would require each SEA that receives a grant of MEP funds to:

• Collect, maintain, and submit current and updated Minimum Data Elements (“MDEs”) for eligible migratory children to MSIX within established timeframes;
• Ensure that all data submitted to MSIX are accurate and complete and that appropriate safeguards are in place to protect the integrity, security, and confidentiality of Consolidated Migrant Student Records in MSIX;
• Establish procedures for using, and requiring each of its sub-grantees to use, Consolidated Migrant Student Records in MSIX; and
• Establish procedures for MSIX data correction by parents, guardians, and migratory children.

The Department seeks public comment on the following:

• the MDEs that each State receiving MEP funds would be required to collect for purposes of the electronic transfer of migratory student information;
• the requirements that States must meet for immediate electronic access to this information.
• how these proposed regulations can be made easier to understand;
• whether the requirements in the proposed regulations are clearly stated;
• if the proposed regulations contain technical terms or other wording that interferes with their clarity;
• whether the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity;
• if the proposed regulations would be easier to understand if they were divided into more (but shorter) sections;
• how the description of the proposed regulations in the supplementary information section of this preamble could be more helpful in making the proposed regulations easier to understand;
• compliance with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed regulations; and
• ways to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department’s programs and activities.

Interested parties may submit comments, referencing Docket ID: ED-2013-OESE-0119-0001 at the top of the comment, by February 25, 2014, by one of the below methods.  Please note: comments cannot be accepted via fax or by email.

• Electronically through the Federal eRulemaking Portal: Go to www.regulations.gov to submit your comments electronically; OR
• Postal Mail, Commercial Delivery, or Hand Delivery: Addressed to Lisa C. Gillette, U.S. Department of Education, 400 Maryland Avenue SW., Room 3E313, Washington, DC 20202-6135.

Save the Date: 10th Annual Administrative Law Institute April 3-4, 2014

Join the Section of Administrative Law and Regulatory Practice for the 10th Annual Administrative Law Institute in Washington, DC.  There will be a number of sessions on exciting topics, including Executive Branch Oversight of Rulemaking, Affordable Care Act Rulemakings, Observations About Rulemaking Under Dodd-Frank, and many more.  Get a sneak preview of the schedule here.  Stay tuned for more information!

DoD Seeks Comment on Procedures for Afghanistan Contract Payments

by Shannon Allen

The Department of Defense ("DoD") seeks public comment on a proposal to amend the Defense Federal Acquisition Regulation Supplement ("DFARS"). This proposed rule aims to include policies and procedures regarding payment for contracts for performance in Afghanistan into the DFARS. The DoD intends to promulgate policy and procedures on the use of a "new solicitation provision" that provides notice that the "payment currency" used for "contracts for performance in Afghanistan" will be "dependent on the nationality of the vendor." This rule applies the procedures concerning payment currency contained in the U.S. Central Command’s Fragmentary Order ("FRAGO") 09-1567 and FRAGO 10-143.

Specifically, the "solicitation provision" states that if the contract is awarded to a "host nation vendor (Afghan)," then the contractor will "receive payment in Afghani (local currency)" through an "electronic funds transfer to a local (Afghan) banking institution." The DoD’s proposal further provides that contracts will not be awarded to "host nation vendors (Afghans)" that are not banking locally. In addition, the proposed amendment states that if awarded to "other than a host nation vendor," then the contract will be awarded in U.S. currency. 

 

Changes are added to "provide direction" to contracting officers, so they can follow the procedures included in the DFARS Procedures, Guidance, and Information ("PGI") 225.7703(c), when they issue "solicitations" and "contracts for performance" in "Afghanistan." The DoD does not anticipate that this proposal will have a "significant economic impact" on a considerable quantity of small entities because this proposed amendment simply provides mandates for payment to host nation vendors for performance in Afghanistan. Finally, the proposed rule does not duplicate, overlap, or conflict with any other Federal rules.

Comments may be about any aspect of this proposal including, but not limited to:

• the assessment of costs and benefits of available regulatory alternatives;
• if regulation is necessary;
• the selected regulatory approach that maximize net benefits
• the potential economic, environmental, or public health and safety effects; or
• how this proposal reduces cost, harmonizes rules, or promotes flexibility.

Interested parties are invited to submit comments, identified by DFARS Case 2013-D029, by March 31, 2014, by any of the following methods:

• Regulations.gov: http://www.regulations.gov;
• Email: dfars@mail.mil. Include DFARS Case 2013-D029 in the subject line of the message;
• Fax: 571-372-6094;
• Mail: Defense Acquisition Regulations System, Attn: Mr. Mark Gomersall, OUSD(AT&L)DPAP(DARS), Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060.
  

 

POSTPONED: Administrative Law Section Winter Mix and Mingle

The American Bar Association, Section of Administrative Law and Regulatory Practice Winter Membership Mix and Mingle is postponed.  We'll let you know as soon as the event is rescheduled!

PTO Seeks Comment On Codification of Current Trademark Practices

by Shannon Allen

The United States Patent and Trademark Office (“PTO”) seeks input on codifying current practices.  This notice of proposed rulemaking proposes changes to the “Trademark Rules of Practice” and the “ Rules of Practice in Filings Pursuant to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks.”  

In general, the proposed amendments are “intended to codify existing practice.”  Specifically, the PTO’s goal is to“benefit the public” by offering more “clarity” regarding mandates relating to the following:

• Representation by Attorneys or Other Authorized Persons before the PTO
• Applications for Registration
• Examination of Application and Action by Applicants Procedures
• Amendment of Applications
• Publication and Post Publication Procedures
• Appeals
• Petitions
• Post Registration Practice
• General Information and Correspondence in Trademark Cases
• Classification of Goods and Services
• Procedures Under The Madrid Protocol

The PTO solicits input in order to:

• evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• enhance the quality, utility, and clarity of the information to be collected; and
• minimize the burden of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g. permitting electronic submission of responses).

According to the Administrative Procedure Act, prior notice and opportunity for public comment are not required for interpretive rules or rulemaking that involves rules of agency practice and procedure.   This notice of proposed rulemaking proposes changes that simply clarify agency practices.  Thus, these amendments do not require notice and comment. The PTO, however, “has chosen to seek public comment before implementing the rule.”

Interested parties are invited to submit comments by April 23, 2014.  The PTO prefers comments be submitted via electronic mail message to: TMFRNotices@uspto.gov.  They can also be sent:

• by mail to: Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451, attention Cynthia C. Lynch;
• by hand delivery to: the Trademark Assistance Center, Concourse Level, James Madison Building-East Wing, 600 Dulany Street, Alexandria, Virginia, attention Cynthia C. Lynch; OR
• by electronic message via the Federal eRulemaking Portal at: http://www.regulations.gov.

FCC’s Proposes Changes to Rules Regarding In-Flight Calls

by Elisabeth Ulmer

The Federal Communications Commission ("FCC") is seeking public comment on allowing in-flight mobile use, including calls, texting, and data services. At the open commission meeting on December 12, 2013, the Wireless Telecommunications Bureau introduced the notice of proposed rulemaking ("NPRM") to revise its outdated rules and give airlines the option of offering mobile wireless services via onboard airborne access systems.

 

The FCC prohibits in-flight mobile use because of concerns that it would interfere with wireless networks on the ground. However, there are now onboard airborne access systems available that would prevent such disruption and allow for the use of mobile devices during flight. Some airlines in Europe and Australia already permit the use of mobile communications services in flight.

 

The FCC proposes continuing to prohibit in-flight cellular use and extending the ban to all frequency bands. The NPRM would allow airlines to "voluntarily opt into offering in-flight mobile services" by taking two affirmative steps:

1. "Apply[ing] to the FCC for a modification of their existing aircraft station authorization under Part 87 of the Commission’s rules; and
2. Install[ing] and operat[ing] an airborne access system to manage in-flight use of mobile wireless devices."

 

The FCC based its reasoning for allowing in-flight mobile services on its duty to regulate technology and update outdated rules. Now that the technology is available to ensure non-disruptive in-flight mobile use, the FCC rule banning it for its interference is obsolete. According to FCC Chairman Tom Wheeler, "[m]odern technologies can deliver mobile services in the air safely and reliably, and the time is right to review our outdated and restrictive rules." 

 

In its Q&A about the proposed rule change, the FCC further emphasizes that the final decision about in-flight mobile use rests with each airline: "[u]ltimately, if the FCC adopts new rules, it will be the airlines’ decision, in consultation with their customers whether to permit the use of data, text and/or voice services while airborne."

 

The possibility of in-flight calls has generated negative attention among airlines and consumers. Delta Air Lines and Jet Blue have both decided to prohibit in-flight calls because of unenthusiastic customer feedback. For instance, a 2012 Delta Air Lines customer survey revealed, "64% of passengers said the ability to make phone calls inflight would have a negative impact on their onboard experience." United Airlines is also leaning toward not allowing in-flight calls.

 

While the FCC views its role as solely "to examine the technical feasibility of the use of mobile devices in flight," Anthony Foxx, the Secretary of the Department of Transportation ("DOT"), has said that the duty to "determine if allowing these calls is fair to consumers" belongs to the DOT. As a result, the DOT has announced its intent to initiate proceedings to ban in-flight calls.