Profile on William Jay: Rising Star in Appellate Advocacy

William Jay, a partner at Goodwin Procter LLP, was recently a featured speaker in the Section’s Supreme Court Series Teleconference entitled Perez v. Mortgage Bankers Association: The Supreme Court Considers the Limits on Notice-and-Comment Rulemaking Requirements.   Notice and Comment had the opportunity to sit down with the Law360 2014 Rising Star and hear about his diverse career and advice for aspiring administrative lawyers.

Growing up on a horse and cattle farm, Jay did not always plan to pursue a legal career.  He became interested in the law while attending Harvard College, where he had the opportunity to intern for a local member of Congress and the Chief Counsel of the Senate Republican Policy Committee.  His experience working for the committee ultimately led him to apply to Harvard Law School. 

Jay began his legal career as a law clerk for Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit.  It was an invaluable experience in light of the variety of cases that clerks can work on, ranging from criminal matters to contract interpretation.  “I would recommend clerking to anyone who is interested in litigation because it gives you a perspective on how judges think and review legal issues,” he noted. Jay also had the opportunity to serve as a law clerk to Supreme Court Justice Antonin Scalia, an experience he described as unlike any other job a young lawyer can have.  Although the Justices do a lot of their own work, it was an amazing opportunity just to be a “fly on the wall,” and an experience that would greatly inform his appellate litigation practice.

After clerking for Justice Scalia, Jay returned to the law firm of Gibson Dunn & Crutcher LLP where he worked for a total of four years.  While at Gibson Dunn, he was a litigation associate with the firm’s Appellate and Constitutional Law practice group.  He also worked on administrative law matters, ranging from an APA challenge to a Transportation Department rulemaking to advising clients on compliance with campaign finance regulations.  The firm is known for its high profile appellate practice, but Jay was drawn to the opportunity to work with great people and mentors. 

Even though he was very happy at Gibson Dunn, Jay’s career took another interesting turn when the Office of the Solicitor General at the U.S. Department of Justice posted several vacancies in 2007.  The Solicitor General’s office represents federal agencies before the Supreme Court and also supervises the government’s appellate litigation and defense of federal statutes.  This was only the second time in the previous three years the office was hiring, so Jay felt he would regret not pursuing such a rare opportunity.  To his surprise he was hired to serve as an Assistant to the Solicitor General. In his nearly five years in the Solicitor General’s office, he argued 11 Supreme Court cases, wrote 20 Supreme Court merits briefs, worked on approximately 150 briefs in opposition to certiorari, argued cases in Courts of Appeals, and participated in other aspects of litigation. 

Jay’s variety of experience greatly informs his current role as Co-Chair of Goodwin Procter’s Appellate Litigation group.  He represents clients in Supreme Court cases like Perez v. Mortgage Bankers Association (in which he co-authored a brief for the National Mining Association); briefs and argues cases in appellate courts around the country;  and handles a number of trial court matters, including administrative law cases for both plaintiffs and defendant-intervenors.  Jay noted that he enjoys working on a mix of appellate and trial-court cases, and that it is important to understand how trial courts operate when handling appellate matters.  Gaining that understanding is difficult to do if you haven’t experienced motion practice. 

Jay recommended aspiring administrative lawyers consider diversifying their careers.  In the rulemaking context, he said, “whether you are writing rules for an agency or comments for a client, it’s important to fully understand the opposing side’s perspective.”  In order for an attorney to draft useful comments on an agency proposal, he stated, it helps to experience what it’s like for agency staff to read comments and write rules.  He also noted that it helps to know how businesses think if you are drafting regulations for an agency.  He offered a word of caution, however, noting that even recognized experts in a field cannot anticipate every possible scenario during a rulemaking, so even seemingly clear rules will end up needing interpretation as they are applied to unanticipated facts.  What clients need most in that situation is not just experts in the subject matter, but counsel with good judgment.

Meet Nina Mendelson, Professor of Law at University of Michigan Law School

by Nina Hart

Meet Nina Mendelson, the Joseph L. Sax Collegiate Professor of Law at the University of Michigan Law School.  Below, Prof. Mendelson discusses her diverse experiences with administrative law, and shares her thoughts about challenges facing both attorneys and agencies.

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

Since high school, I had thought about law.  I was impressed by civil rights lawyers and, closer to home, a grandfather who was known for criminal defense work.  I was drawn to the idea of seeking, with integrity, justice and fair treatment for individuals.  Then, in college, where I studied political science, history, and economics, I became intrigued by another side of the law.  It is in the design and application of legal rules that we realize our ideas of how a good society should function.   That sealed it; I was headed to law school.

Administrative law is another story.  At Yale Law School, I was very lucky to have the opportunity to study administrative law with Professor Jerry Mashaw, a true giant of the field.  But I did not fully appreciate the field’s importance until I spent a few years in government, at the Department of Justice Environment and Natural Resources Division, prior to entering teaching.  I worked on a variety of environmental issues in a small policy and special litigation section.  There I was privileged both to work with many talented individuals and to get an inside view of agency function and the dynamics among executive branch agencies.  I continue to emphasize to my students just how much of modern governance takes place in agencies.  It is accordingly critical to understand the processes by which the administrative state creates law and policy and the legal framework that constrains it.

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

Besides my past environmental law practice, both at Justice and at a large private firm, as well as occasional pro bono work here in Michigan, I have been fortunate to serve on the Section’s Council and to serve as a public member of the Administrative Conference of the United States.  I also serve as a research fellow for a think tank, the Center for Progressive Reform.  Spending time in all these institutions has given me wonderful opportunities to learn from others and to consider what is working and what might be reformed in the administrative state.   Finally, in my over 15 years of teaching administrative law here at Michigan, I have enjoyed discussing administrative law issues with my students, and I always appreciate hearing their fresh perspectives. 

3.  As someone who has written extensively about the federal agencies, what do you think is the greatest challenge facing agencies and advocates involved in assessing or creating regulations?  Are there any “best practices” that attorneys involved in the process should follow?

It’s hard to pick one single “greatest challenge,” but there are two issues involving the general public and regulation that I think deserve more sustained attention.  One is what to do with the thousands and thousands of rulemaking comments that ordinary citizens are filing.  This is happening more frequently because e-rulemaking makes comments easier to file.  Moreover, this Administration has taken a strong stance in favor of transparency and public engagement, beyond simply voting in elections.  Comments numbered in the millions for the FCC’s net neutrality rulemaking this past summer, and they often are in the hundreds of thousands for important rules from EPA and other agencies.  As others have pointed out, these comments often amount to an expression of preference, rather than directly engaging the regulatory issues in detail, and they surely range in quality.  But agencies’ failure even to acknowledge them may increase already significant levels of public cynicism about ordinary citizens’ role in government. 

The other issue concerns public access to agency rules.  Federal agencies have elected to use thousands of privately written standards in lieu of drafting their own rules on issues ranging from oil pipeline operation and product safety to occupational safety.  These rules cannot be readily accessed in either the Federal Register or the Code of Federal Regulations, as with the rest of agency rules.  They are often referred to as “incorporated by reference” or “IBR” rules, a reference to agency practice in referencing the rules as binding in the CFR without including their text.  They’re reliably publicly available only by physically visiting the Office of the Federal Register.  Otherwise, individuals must obtain the rule from the private drafting organization, often for quite a significant fee.  Meanwhile, pipeline neighbors, consumers, and employees are typically less able to afford these standards than many companies who must comply with them.  The Section has taken a position on this issue that Jamie Conrad, Professor Peter Strauss, and I helped draft.   The United States has a long tradition of high levels of public access to the law’s text, and the discussion over public access to IBR rules has yet to properly engage the public’s interest in being able to read them.

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

I don’t think the skill set required is any different.  Whether an attorney is working in government or in the private sector, he or she must be prepared to employ meticulous research and analysis and innovative thinking, along with integrity in the use of sources and the representation of clients.   Of course, a client’s concerns and needs may be different in the two settings, but in both cases, attorneys should be prepared to do their work to the highest standards.  Attorneys must also be able to consider legal issues both at the narrowest level of what the law, today, requires, and at the broader level of how the law functions and the policies it serves.  

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?

Of course, students should take Administrative Law!  Beyond that, students and new lawyers might explore the issues of the field in the context of a specific area of interest, whether it is immigration, environmental law, benefits programs, or consumer safety.  The importance of administrative law principles can be easier to appreciate by seeing how they impact people and institutions in a particular substantive area.   A federal agency internship also would provide an excellent chance to explore administrative law issues.  All this would give someone a great start.  I would also particularly recommend that new lawyers and students attend the Section’s fall and spring administrative law conferences.  They are a great way to learn about cutting-edge administrative law issues.  Finally, I would say that even for those of us who have long been in the field, new issues are constantly arising, so we are never done becoming “familiar” with administrative law.  

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

I spend a lot of time with my family; I have two very active teenagers, so there’s usually a lacrosse game, cross country meet, or band concert to enjoy.  When possible, I also like to be in the beautiful outdoors hiking or canoeing. 

NSF Seeks Input on Collection of Information for “Large Facilities Manual”

by Shannon Allen

The National Science Foundation (“NSF”) seeks input on the proposed collection of information for a “Large Facilities Manual.”  The NSF intends to administer this information collection for a period of three years.  The NSF’s mission and purpose is “To promote the progress of science; to advance the national health, prosperity, and welfare; to secure the national defense. . . .” (The National Science Foundation Act of 1950 (Pub. L. 81-507) (“The Act”)).  The Act directs and permits the NSF to start and maintain: basic scientific research and research fundamental to the engineering process; programs to strengthen scientific and engineering research potential; science and engineering education programs at all levels and in all the various fields of science and engineering; programs that provide a source of information for policy formulation; and other activities to promote these ends.

The NSF provides the academic community with “advanced instrumentation needed to conduct state-of-the-art research and to educate the next generation of scientists, engineers and technical workers.”  The NSF ensures that these communities have “access to these resources, and to provide the support needed to utilize them optimally, and implement timely upgrades.”  One of NSF’s major responsibilities is to support facilities which are an essential part of the science and engineering enterprise. Facilities are defined as shared-use infrastructure, instrumentation and equipment that are accessible to a broad community of researchers and/or educators. The NSF awards “universities, consortia of universities or non-profit organizations” to construct, manage, and operate facilities and NSF oversees this development management and performance.

The Large Facilities Manual is intended to: provide step-by-step guidance for NSF staff and awardees to carry out effective project planning, management and oversight of large facilities while considering the varying requirements of a diverse portfolio; clearly state the policies, processes and procedures pertinent at each stage of a facility's life cycle from development through construction, operations, and termination; and document and disseminate “best practices” identified over time so that NSF and awardees can carry out their responsibilities more effectively.

The proposed collection of information will include the submission of proposals and subsequent project documentation . . . related to the development, construction and operations of Large Facilities.  The NSF will balance its oversight on facilities development and construction against monitoring its information collection in order to address reporting burdens.  The NSF invites the public to specifically comment on:

• whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information shall have practical utility; 
• the accuracy of the Agency's estimate of the burden of the proposed collection of information; 
• ways to enhance the quality, utility, and clarity of the information on respondents, including through the use of automated collection techniques or other forms of information technology; and 
• ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

Interested parties should submit written comments by January 6, 2015, addressed to:

• Suzanne Plimpton, Reports Clearance Officer, National Science Foundation, 4201 Wilson Blvd., Rm. 1265, Arlington, VA 22230, OR 
• by email to: splimpto@nsf.gov.

DOL Proposes Drug Testing for Unemployme​nt Compensati​on Applicants

by Shannon Allen

The Employment and Training Administration (“ETA”) of the U.S. Department of Labor (“Department”), proposed a controversial new rule for the Federal-State Unemployment Compensation Program.  The purpose of the proposed regulation (§ 620.1) is to implement section 303(l)(A)(ii), Social Security Act (“SSA”), permitting the drug testing of Unemployment Compensation (“UC”) applicants for the use of controlled substances where suitable work (as defined under the State's UC law) is only available in an occupation for which drug testing is regularly conducted.

These proposed rules would implement the Middle Class Tax Relief and Job Creation Act of 2012 (“the Act”) amendments to the SSA and allow States to enact legislation that would permit State Unemployment Insurance (“UI”) agencies to conduct drug testing on UC applicants for whom suitable work is only available in an occupation that regularly conducts drug testing.  Under these situations, States may deny UC to an applicant who tests positive for drug use.  These two explicit situations are:

• Where the applicant was terminated from employment with the applicant's most recent employer because of the unlawful use of a controlled substance. (Section 303(l)(1)(A)(i), SSA.); or 
• Where the only available suitable work for an individual is in an occupation that regularly conducts drug testing.

For State UI program purposes, the Department’s Notice of proposed rulemaking (“NPRM”) seeks to define and regulate occupations that regularly conduct drug testing.

The Department asserts that the proposed regulations: will impact a very limited number of applicants for unemployment compensation benefits; do not have a substantial direct effect on the States or the relationship between the National Government and the States because drug testing authorized by the regulation is voluntary on the part of the State, not required; and do not adversely impact family well-being as discussed under section 654 of the Treasury and General Government Appropriations Act of 1999.

The Department seeks comment on the proposed regulations and specifically encourages comments on methods to refresh the list of occupations that regularly drug test. Comments must be submitted in writing on or before December 8, 2014.  Interested parties may submit comments, identified by Regulatory Information Number (RIN) 1205-AB63, by only one of the following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the Web site instructions for submitting comments; OR 
• Mail and hand delivery/courier: Written comments, disk, and CD-ROM submissions may be mailed to Adele Gagliardi, Administrator, Office of Policy Development and Research, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-5641, Washington, DC 20210.