D.C. Circuit Allows CREW v. FEC to Move Forward

by Lou Kolodner

On April 2, 2013, the U.S. Court of Appeals for the D.C. Circuit reversed a District Court ruling in favor of the Federal Election Commission ("FEC").  Citizens for Resp. and Ethics in Washington v. Fed. Election Comm., 711 F.3d 180 (D.C. Cir. 2013). The District Court granted the FEC's motion for summary judgment of a Citizens for Responsibility and Ethics in Washington ("CREW") complaint challenging the FEC's delay in responding to a Freedom of Information Act ("FOIA").  The District Court held that CREW did not exhaust administrative appeal remedies.  The Circuit Court reversed the decision, allowing the case to move forward. The case hinged on “what constitutes [an agency] ‘determination' so as to trigger the exhaustion requirement.”  This was a case of first impression in the D.C. Circuit.

CREW is a nonprofit organization dedicated to promoting ethics and accountability in government and public life.  CREW promotes transparency through monitoring and exposing activities of public officials and federal agencies. In this case, CREW submitted a FOIA request to the FEC in March of 2011. The FEC acknowledged receipt of the request the next day. However, after the agency failed to produce any documents in two months, CREW filed suit in D.C. District Court.  The District Court granted the FEC's motion for summary judgment asserting that CREW had not exhausted administrative remedies.

The general rule governing this issue is that a party making a FOIA request must exhaust administrative remedies before filing suit in District Court. However, if an agency does not make and communicate its determination whether to comply with a request within certain statutory timelines, the party making the FOIA request has exhausted administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C)(i).

CREW argued that in order to make a determination within the meaning of the statute, an agency must at least inform the requester of the scope of the documents it will produce and the exemptions it will claim with respect to any withheld documents. Thus, CREW expected notice regarding the scope of the documents the FEC would produce in response to CREW's request. The FEC countered that an agency only needs to express a future intention to produce non-exempt documents and claim exemptions.

The D.C. Circuit agreed with CREW’s interpretation and application of the statute for four reasons. First, FOIA requires agency notification immediately upon making a determination on FOIA requests. Second, the agency must also immediately notify the requester of his or her right to appeal. In the instant case, the FEC failed to do so within the statutory timelines. Third, while FOIA provides for exceptional circumstances if an agency needs more time to make its determination, the FEC did not meet this statutory requirement. Fourth, the court agreed with CREW that FEC’s interpretation of the statute would negate the need for the exceptional circumstances provision.

The court held that in order to make a determination to trigger the administrative exhaustion requirement, the agency must at least: 1) gather and review the documents; 2) determine and communicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents; and 3) inform the requester that it can appeal whatever portion of the ‘determination’ is adverse.

Even though the court sympathized with the difficulty that FOIA requests pose of executive and independent agencies, the agency must adhere to the 20-working day period absent unusual circumstances. The take home message of this case is that the statute does not allow agencies to keep FOIA requests bottled up for months for no reason.

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

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

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

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

2.      What do you like about practicing administrative law?

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

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

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

4.      What led you to a career in law?

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

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

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

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

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

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

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

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

by Shannon Allen

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

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

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

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

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

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

Court Rules Against Efforts to Increase Fishing Limits of Certain Species

by Katherine Kennedy

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

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

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

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

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

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

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

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

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

TSA Seeks Comment on Using Advanced Imaging Technology For Screening

by Shannon Allen

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

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

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

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

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

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

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

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

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

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

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

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

Section Cosponsoring Short Teleconference on Decker v. NEDC

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

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

by Nina Hart

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

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

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

2.      What interested you in administrative law?

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

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

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

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

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

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

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

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

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

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

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

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

 

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