(,1 2 1/,1( - thecre.com · 02/09/2012 · Biting The Data Quality Bullet: Burdens On Federal Data Managers Under New Section 515 By.Jim O'Reilly* he weather forecast for Oct. 1,

Citation: 27 Admin. & Reg. L. News 1 2001-2002

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AMINITTIE& EULATORY LAW NEWSSection of Administrative Law & Regulatory Practice

Vol. 27, No. 4 American Bar Association Summer 2002

Biting the Data Quality Bullet 2 Nominations 3 Council Capsules 4The Future of Electronic Rulemaking 6 Supreme Court News 8 News from the CircuitsNews from the States 12 2002 Annual Meeting 14 Recent Articles of Interest 18

In This Issue

HeinOnline -- 27 Admin. & Reg. L. News 1 2001-2002

Biting The Data Quality Bullet:Burdens On Federal Data Managers

Under New Section 515By.Jim O'Reilly*

he weather forecast for Oct. 1, 2002 is gloomyand overcast in Washington, at least inside theoffices of managers who have charge of their

agencies' information processing functions. Under guid-ance from OMB implementing agencies must be readyOct. 1 to respond to public petitions for the correctionof agency data that lacks "quality, objectivity, utility [or]integrity." Petitions are very likely to be used to requestsubstantive alteration of the underlying data, a prospectthat rings alarms at controversial federal agencies. Ifjudicial review of petitions is allowed, as many expect,new forms of collateral attack on agency decisions mayresult in 2003 and beyond.

At the Section's Spring Meeting in Richmond onApril 19, a panel of experts hosted by the GovernmentInformation & Privacy Committee explored the alter-native prospects for "data quality" challenges. Dr. JimTozzi, former Deputy Administrator of OMB's Office ofInformation & Regulatory Affairs (OIRA) and now aWashington consultant, authored the original drafts in1999, and in 2000 found a welcoming sponsor in HouseAppropriations member Rep. Joanne Emerson. Thoughcritics like OMB Watch offered their alternative terms,the Tozzi proposal was adopted as Section 515 of PublicLaw 106-554 and the "data quality" process becomesmandatory for all agencies on Oct. 1, 2002.

Tozzi energetically defended section 515 against itscritics. Data quality is the expected norm of agencybehavior, not an abstract ideal; all agencies' data sets thatare maintained or disseminated should already be meet-ing norms of "quality, objectivity, utility and integrity."How that compliance with norms is to be accomplishedin specific sets of data- ranging from pure scientificresults to opinions, forecasts and projections of the eco-nomic or health futures - will be the subject of individ-ual agency rules in summer 2002. Tozzi urged participa-tion and public input to the agency rules and guidances.

Mark Greenwood ofWashington's Ropes & Grayexpects the district courts to review agency denials of a515 petition for data correction. Tozzi and Greenwoodtold the crowded meeting room that Section 515 provides"law to apply" to agency denials of petitions, provides a* Professor of Law, University of Cincinnati Law School; Chair,Committee onGovernment Information & Privacy.

process that reaches a final agency decision, and has a cleardefinition of"dissemination," facilitating judicial review of515 petition denials. Greenwood observed that if anagency study is issued and has some independent effect,then a challenger's petition for correction of the studyconclusion or data will be taken to judicial review.

Greenwood cautioned the audience to differentiatesection 515's judicial review issue from the agency inter-nal processing of petitions. Although the process of peti-tion review will be comparable to existing reviews underthe Paperwork Reduction Act, where OIRA can over-rule an agency, the new section 515 is not an amend-ment of the PRA, so its mechanisms are not inhibited bythe PRA's ban on judicial review of decisions to approvecollections of information. Rather, the 515 mechanismsare like those of the normal APA adjudication of peti-tioners' claims about an agency decision, evoking the1979 Chrysler v. Brown issues on the roughly parallel setof"reverse-Freedom of Information Act" disputes.

Insights into the new data quality norms were alsooffered by Greenwood. Science policy will be affectedbecause OIRA's leadership will force agencies to makechoices within models, assumptions, etc. that pay closerattention to the incoming data's scientific adequacy.Agency default assumptions that are built into a modelcan now be changed by petition from the persons affect-ed, if the assumptions can be shown to lack "quality" or

continued on page 20

Administrative and Regulatory Law N ew s2 Volurne 27, Number 42Administrative and Regulatory Law News Volume 27, Number 4


Nominations for 2002-2003Chair: Neil R. Eisner(Washington, DC) -AssistantGeneral Counsel for Regulationand Enforcement at the U.S.Department ofTransportation.Neil served asVice-Chair of theSection during the past year andhas also been the Vice Chair ofthe Rulemaking andTransportation Comimittees, Co-Chair of the Mary C. Lawton

Government Service Award Committee, and a frequentspeaker at Section programs.

Chair-Elect: ThomasMorgan (Washington, DC) -

Oppenheimer Professor of Law

at George Washington University.Tom has served on the Section'sCouncil. Recently, he has beenour representative to the Ethics2000 and other related ABAefforts respecting professionalresponsibility. He is a former

Dean at Emory Law School, past-President of theAssociation ofAmerican Law Schools, and a widelyrespected scholar on regulation and administrative lawissues. He is an author or co-author of casebooks onregulation (with PaulVerkuil), antitrust, and professionalresponsibility.

Vice Chair:William Funk(Portland, OR) - Professor of Law,Lewis & Clark Law School. Billhas been a past member of theSection's Council, a Chair of theFederal Register, Reports andPaperwork Committee, and aViceChair of the Judicial Review andRulemaking Committees. He cur-rently is the Editor of theAdministrative & Regulatory Law

News and a member of the Publications Committee. He hasbeen a frequent speaker at Section programs and served asReporter on Government Management for the APA Project.

Council:Michael Asimow (Los Angeles, CA) -Professor ofLaw, UCLA Law School. Michael has long served asCo-Chair of the State Administrative Law Committeeand Associate Editor of the Administrative & RegulatoryLaw News. He is also the Section Liaison to NationalConference of Conumissioners on Uniform State Laws.He was Reporter for Adjudication in the APA Project.

Anne E. Dewey (Washington DC) - Special Advisorto the Office of Federal Housing Enterprise Oversight.Anne is the Section Representative to the Governmentand Public Sector Lawyers Division and a Co-Chair ofthe Banking and Financial Services Committee.

Anna W. Shavers (Lincoln, NE) - Professor of Law,University of Nebraska Law School. Anna is Chair ofthe Immigration and Naturalization Committee andthe Section Liaison to the ABA CoordinatingCommittee on Immigration Law.

Loren A. Smith (Washington, DC) - Senior Judge,U.S. Court of Federal Claims. Loren is a SectionFellow and former Chair of the AdministrativeConference of the United States.

David C.Vladeck (To fill a vacancy) (Washington,DC) - Public Citizen Litigation Group. David was theCo- Reporter for Openness in the APA Project and hasbeen a frequent speaker at Section programs.

Secretary:Jonathan Rusch (Washington, DC) - Special Counsel forFraud Prevention, US Department ofJustice. Jonathan hasbeen a Council Member, Chair of the Antitrust and TradeRegulation Committee, and Chair of the Criminal Lawand the Administrative Process Committee. He currently isAssistant Secretary and Co-Chair of Regulatory Initiatives.

Delegate:Judith S. Kaleta (Washington, DC) - Senior Counselfor Dispute Resolution, U.S. Department ofTransportation. Judy has been a Council Member, aChair of the Ombudsman Committee, and a Co- Chairof the Meetings Committee. She currently is Vice Chairof the Transportation Committee, Chair of the Long-Range Planning Committee, and Section Representativeto the Commission on Women in the Profession.

The following have been recommended for appoint-ment to special seats on the Council:

Federal JudiciaryMerrick Garland (Washington, DC) -Judge, U.S.Court of Appeals for the DC Circuit.

Executive BranchViet Dinh (Washington, DC) - Assistant AttorneyGeneral for Legal Policy, U.S. Department ofJustice.

State Administrative LawJim Rossi (Durham, NC) - Professor of Law, FloridaState University Law School.

Administrative JudiciaryAnn Young (Washington, DC) - Administrative Judge,U.S. Nuclear Regulatory Commission.

Summer 2002 3 Administrative and Regulatory Law News3Summer 2002 Administrative and Regulatory Law News


capsulesA Brief Digest of Council HighlightsFrom the 2002 Spring Meeting

Chair's ReportSection Chair C. Boyden Gray opened the Spring

Meeting with a brief discourse on the need for aSection sponsored project on international administra-tive law. Gray noted the emergence in Europe of abrand of administrative process that is opaque and doesnot embrace the concept of judicial review. He pre-dicts that as global trade expands we will see a migra-tion of these rules to the United States. Gray sees arole for the Section in facilitating an understanding ofEuropean administrative process and promoting muchneeded transparency. He cautioned that "over time,the Section will become marginalized by global rule-making if we do not act now." Gray foresees the effort

as a multi-year project along the lines of the Section'sAPA Project.

Delegate's ReportDelegate Ernie Gellhorn commented briefly on someof the preliminary House agenda items for the 2002Annual Meeting.

Gellhorn indicated he was inclined to support a rec-ommendation from the Steering Committee on theUnmet Legal Needs of Children, agenda item #106.The recommendation supports full implementation of

the 1999 Foster Care Independence Act through appro-priate state legislation in order to provide youth up toage 21 transitioning out of the foster care system fullaccess to all necessary services. Conversely, he indicatedthat he would oppose a recommendation sponsored bySection of Taxation as lying outside the profession'spurview. Agenda item #102, recommends thatCongress provide adequate funding to the Low IncomeTaxpayer Clinic ("LITC") program under Section 7526of the Internal Revenue Code of 1986 to clarify thatLITC funding should not be considered only as seedmoney but also a source of continued funding.

Gellhorn said two recommendations needed furtherstudy and advised referring them to the appropriate

Section committees. He asked that a recommendationsponsored by the Commission on Homelessness andPoverty, the Senior Lawyers Division, the SteeringCommittee on Unmet Legal Needs of Children and the

Commission on Legal Problems of the Elderly, bereferred to the Section's Banking and Financial Servicesand Antitrust and Trade Regulation Committees. The

recommendation, agenda item #109, urges federal, state,territorial and local governments and other appropriateentities to enact legislation, develop initiatives and takeaction to curb abusive, deceptive or fraudulent lendingpractices, also known as predatory lending, to defend therights of those who are disproportionately victimized:the elderly, low income, and minorities.

He also requested that agenda item #101, sponsoredby State Bar of Georgia Delegate Gregory S. Smith, bereferred to the Constitutional Law and Separation ofPowers Committee. That recommendation urgesCongress to adopt a law allowing for private persons tofile civil actions in the name of the United StatesGovernment, using non-privileged information toallege that funds or payments are being or have beenmade to organizations officially recognized by thePresident of the United States as terrorist organizations.

Finally, Gellhorn said he would consult with DelegateRon Cass on a recommendation from the Section ofInternational Law and Practice, House agenda item#119, that Congress and the President enact amend-ments to the Foreign Sovereign Immunities Act("FSIA") to address language in the statute that hascaused conflicting judicial decisions, ambiguities andconfusion. The recommended amendments address theinterpretation of application of the FSIA, including: thescope of application of the Act to government entities,officials, and corporations; exceptions from immunity;and service and execution provisions.

Data Quality GuidanceThe council approved the recommendation of theGovernment Information and Right to PrivacyCommittee that the Section submit comments underblanket authority in a select number of agency rule-makings that propose guidelines for implementing thedata quality provisions of Section 515 of the Treasuryand General Government Appropriations Act for FY2001, Pub. L. No. 106- 554.

The Office of Management and Budget (OMB) hasissued government-wide guidelines under Section 515which direct each federal agency to establish andimplement written procedures to ensure and maximizethe quality, utility, objectivity and integrity of theinformation that they disseminate. See 67 Fed. Reg.8,451 (Feb. 22, 2002). The council approved the sub-

Administrative and Regulatory Law News 4 Volume 27, Number 44Administrative and Regulatory Law News Volume 27, Number 4


mission of comments that focus on proposed agencymechanisms that do not comply with the OMBguidelines.

Former Section chair and current committee chairJim O'Reilly informed the council of the significanceof these rulemakings and said he expects the commit-tee will want to sponsor a panel at the fall conferenceon what the agencies have done on this issue.

PublicationsPublications Committee chair Randy May reportedyear-to-date profit of $25,000 on book sales throughFebruary of this year. He reviewed sales and market-ing efforts on the Section's books and noted that TheCost-Benefit State would be featured in ABA publica-tions. He expects that Eleanor Kinney's book onMedicare coverage will be out later this summer. TheBlack Letter Statement on Adjudication, edited byAPA Project Reporter Michael Asimow, should be outthis fall. A book covering the administrative law ofmultinational organizations and comparative adminis-trative law of our nation's major trading partners, pro-posed by Kathleen Kunzer, is still in the planningstages. He said that the Section had renewed foranother five years its contract with AmericanUniversity Washington College of Law for sharing thecost of publishing the Administrative Law Review.

MembershipMembership Committee chair Myles Eastwood report-ed that Section membership was still above 9000 and onthe rise. The committee's written report bestowed spe-cial thanks on committee member Christine Monte forhelping to organize Section participation in two LawStudent Division circuit meetings and for writing anexcellent article in the Student Lawyer on the benefitsof Section membership, on Michael Herz andJames Sefffor speaking at those meetings, on Renee Landers forspeaking to students at a recent SOC Roadshow atSuffolk Law School and on committee members JudyKaleta and Eleanor Kinney for lending a hand withChristine's article. Eastwood said the Section wouldjoin in an ABA telethon in May 2002 that would beconducted by the ABA Membership Department.

Small Business Impact MemoThe council approved the drafting of a letter to officials atOMB's Office of Information and Regulatory Affairs(OIRA) and SBA's Office of Advocacy (Advocacy) con-cerning a March 19, 2002, Memorandum of Understanding

(MOU) between the two agencies mutually pledging coor-dinated enforcement of provisions in the RegulatoryFlexibility Act, 5 U.S.C. 601 et seq. (RFA), that require fed-eral agencies to analyze the impact of proposed regulationson small businesses.

The MOU establishes an information sharingprocess between the two agencies when a draft rule-making is likely to impact small entities. The MOUprovides that, in cases where OIRA is uncertainregarding a draft rule's impact on small business oragency compliance with RKFA, OIRA may provide acopy of the rule to Advocacy for evaluation. Further,in the case of a draft rule for which Advocacy has con-cerns in this regard, the MOU requires OIRA to pro-vide Advocacy with a copy of the draft rule and allowsOIRA to provide Advocacy with the regulatory analy-ses accompanying the draft rule. Finally, the MOUstates that if, in the judgment of OIRA or Advocacy,an agency's compliance with RFA is inadequate,OIRA will return the rule to that agency for furtherconsideration.

Some council members believe the informationsharing process established in the MOU raises twoissues. First, as Advocacy represents the interests ofsmall business, their review of agency draft regulationswould be based upon information gathered from smallbusinesses. Thus, Advocacy's review could provide alimited group of interested parties with the ability tocomment on a rule at a draft stage and outside theagency's record. This would be especially problematicif such "conduit" comments lead OIRA to return arule to the agency. Second, the RFA authorizesAdvocacy's Chief Counsel to appear as amicus curiae ina suit challenging an agency's regulations on RFAgrounds. Significant separation of powers and confi-dentiality issues are raised if the Chief Counsel had anopportunity to review that same rule when it was sub-ject to Executive branch review at OIRA.

U.S. Consensus CouncilFormer Section chair Phil Harter briefed the council onthe Dispute Resolution Section's solicitation of cospon-sors of a recommendation that the ABA support enact-ment of legislation that would establish the U.S.Consensus Council. Harter explained that the councilwould consist of political appointments and be fundedinitially with a $5 million appropriation. The functionof the independent, nonprofit organization would be to


Summr 202 5 dmiistrtiveand eguator LawNew5Summer 2002 Administrative and Regulatory Law News


0

The Future of Electronic Rulemaking:A Research Agenda

By.Jeffrey S. Lubbers*

-w-r- hen offering an agenda for the future it issometimes a good thing to revisit previousdiagnoses. In 1996, I participated in a sym-

posium about the administrative law agenda for the nextdecade [49 Admin. L. Rev. 159, 165-66 (1997)]. I notedthat electronic rulemaking had already begun and asked,"Will we be shortly seeing global rulemaking completewith chat rooms and word searches of all records?" Ithen suggested that, "This area is going to require someenlightened and balanced policymaking mixed withtechnical expertise. We all know that lawyers and techiesoften do not get along; however, this is one area wherecommunication across the professions is necessary.

We have come a long way in those six years.Government websites have become enormously useful.The online Federal Register, Code of Federal Regulations(C.ER.), and Unified Agenda of Federal Regulatory andDeregulatory Actions have eclipsed the paper versions in afew short years. And the Electronic Freedom ofInformation Act Amendments of 1996 have geometri-cally increased the amount of information providedproactively by agencies.

Technology is moving at its usual rapid clip. Butlegal developments are moving more slowly, and there isstill a wealth of e-rulemaking issues for administrativelaw scholars, with the help of their technologically adeptcolleagues to study.

In trying to catalog and perhaps order these issues forfuture researchers, I believe the main issue is nothing lessthan how to design a transformation of the rulemakingprocess as a whole.

This transformation has two main purposes. The firstis an informational one of providing a global seamlessview of each rulemaking. By "global," I mean both a"horizontal" view-meaning access to every meaningfulstep in the generation of a rule, from the statute enactedby Congress that authorizes the rule, to the earliestagency action (perhaps an "advance notice of proposed

* Senior Fellow, Section of Administrative Law and RegulatoryPractice. Fellow in Law and Government, Washington Collegeof Law, American University. Research Director, AdministrativeConference of the U. S., 1982-1995. This article is based on apresentation at a Working Session on Information Technologyand Rulemaking sponsored by the Regulatory Policy Program,John F Kennedy School of Government, Harvard University, aridthe National Science Foundation (March 26, 2002).

rulemaking"), to the last step in the process-whether itbe the final rule, a decision in a court challenge, or lateragency amendments, interpretations, guidelines, orenforcement actions. This will require proper docketdefinition and numbering so that agencies can properlycatalog these actions and so that interested viewers canbe sure that everything is there. By everything, I wouldinclude not just the text of the proposed and final rules,but the public comment files, preambles, ex parte com-munications, videotaped or audio taped public hearings,OMB review documents, "SBRIEFA" review panel doc-uments, relevant impact statements, models, risk assess-ments, Congressional review documents, relevant courtproceedings, etc. A good first step is to make sure atleast that proposed and final rules are linked.

What constitutes a "meaningful step" should ideallybe determined by the user as much as possible. Sincemany new rulemakings grow out of older rulemakings,or have implications for other concurrent rulemakings, atruly seamless view should permit users to search acrosspast or current rulemakings, to find connections, analo-gies, and consistencies (or inconsistencies).

In addition to this chronological view, I also mean a"vertical" view, what might be called "boring down"into the meaningful agency and outside studies andanalyses that are now found in the docket, along withthe public comments, for any significant proposed andfinal rule-and, where possible through links, into thosesecondary studies and analyses referenced in the primarystudies. And so on.

To fully implement this vision, it would be helpfulfor agencies to place archival records online. This canbe done to some extent retrospectively with existingrules, if existing paper records currently in regularagency dockets are scanned, and made accessiblethrough the new e- rulemaking systems. If done com-prehensively and carefully, this could be an expensiveproposition. But with the advent of electronic rulemak-ing, this sort of"forward" archiving should becomemuch more feasible in the future.

The second purpose of the transformation of rule-making is a participatory one-making it possible for par-ticipants to participate in real time with other stakehold-ers in a rulemaking process, (the glorified "chatroom")that will allow a more rational, interactive, and lessadversarial path to an optimum final rule.

AmsraieadRultyLaNes6ome2,ubr46 Volume 27, Number 4Administrative and Regulatory Law News


Both the informational and the participatory goalshave some stumbling blocks to which research shouldbe directed.

Taking the informational goal first, here are somequestions:• How should we best integrate existing sources of

information? The Office of Federal Register nowis able to constantly update the electronicC.ER.-which in itself is a great boon to anyonewho needs to know what government regulationsare in effect at the moment. Should there be anagency (perhaps in the National Archives andRecords Administration) that tries to integrate allof these documents electronically--the FederalRegister, C.ER., Unified Agenda-to begin with?In other words, should there ultimately be a singleU.S. Government Rulemaking Portal?

• What about the gloss that agencies are constantlyadding to codified rules through non-legislativerules? Some years ago I commented on an inter-esting article by Professors Hamilton andSchroeder of Duke University [57 Law &Contemp. Probs. 111,161 (1994)]. They had cata-logued all of EPA's hazardous waste regulationsunder the Resource Conservation and RecoveryAct that appeared in the C.ER. by counting eachC.ER. decimal point number as a separate rule.This yielded 697 separate rules. Then they exam-ined all of the related agency guidance documents(office directives, guidance memos, and hotlineresponses) since the beginning of the program andmatched them with the appropriate C.ER. rule.Some rules, they discovered, had many associatedguidances; some had none. This was done by aconsulting firm, by hand, and it must have been atedious tasks in the early 90s. But it could bedone fairly easily now-leading to a sort of"C.FR. Annotated."

* What about docketing issues?1. Should written (paper) comments be scanned

immediately so that a complete on-line docketis available? Is there still some loss of searchcapability and some risk of errors with scan-ning? Or is this susceptible to a technologicalsolution?

2. Archiving issues. Do (redundant) paper copiesneed to be kept? How about cover e-mails?

3. How should exhibits, forms, photographs. etcbe dealt with?

4. Barbara Brandon has highlighted [54 Admin. L.Rev no 3, (forthcoming)] the need to deal withcopyright concerns--both where the submitterasserts a copyright in his or her own com-ments, and where the submitter includes copy-

righted work without permission. How shouldthese knotty issues be resolved?

5. The OMB has recently issued new guidelineson the quality, objectivity, utility, and integrityof information disseminated by federal agencies[67 ER. 369 (Jan. 3, 2002)]. Will these stric-tures (including the requirement that agenciesestablish appeal mechanisms to resolve disputesover the accuracy of the data) limit agencywillingness to provide wider electronic accessto agency rulemaking documents?

6. Should there be different levels of user classifi-cations? So that one type of participants (likeagency staff) could see everything, but othersmight have more limited access? Should agen-cies be allowed to ask viewers to register?

7. Have we finally solved the digital signatureissue?

8. Security issues have become of heightenedconcern-both in terms of preventing unau-thorized tampering, and in making sure thatsensitive information is not made available topotential terrorists.

9. A slew of privacy issues are presented. Shouldanonymous comments be permitted? Oughtcommenters be identified or searchable byname? Should the names of submitters beindexed? This would seem to transformagency rulemaking files into "systems ofrecords" under the Privacy Act. Doesn't thismean that OMB must approve such "systems"?Should such files be exempted from the cover-age of the Act?

10. What legal impediments prevent agencies fromrequiring e-comments to the exclusion of papercomments?

The participatory goal also raises some important issues:" How can we best reach the goal of better, more

targeted notices-through electronic listservs?• Can we also provide easier, more convenient com-

ment opportunities, through linking "pop- up"comment forms to electronic notices of proposedrulemakings?

• What rules should govern rulemaking "chat-rooms"?1. Should they be moderated or not (and by

whom?)2. First Amendment concerns: as Barbara

Brandon has highlighted, some participants,especially anonymous ones, can be very disrup-tive through "incivility, aimlessness, or high-vol-ume posting." How to best combat this?


Summer 2002 Administrative and Requlatory Law NewsSummer 2002 Administrative and Regulatory Law News


By William Funk*

Court Further Explicates and AppliesChevron/MeadIn several near-the-end-of-term cases the Court hadoccasion to review agency legal interpretations accord-ing to one or another standards ofjudicial deference.

Certainly the most significant on the merits wasVerizon Communications, Inc. v. FCC, 122 S.Ct. 1753(2002), which upheld the FCC's TELRIC (total ele-ment long-run incremental cost) pricing regulationsgoverning the provision by incumbent telephone localexchange carriers of services and equipment torequesting new entrant competitors as well as FCCregulations requiring the incumbent local exchangecarriers to "perform functions necessary to combine"network elements for a new entrant. Both had beenset aside by the Eighth Circuit as not authorized bythe Telecommunications Act of 1996.

The TELRIC issue was whether the statutoryrequirement that pricing be based upon "the cost ... ofproviding the ... network element" meant that the pric-ing had to be based upon some actual cost incurred bythe incumbent local exchange carrier (the carriers' posi-tion) or whether it could mean a hypothetical cost thatwould occur in a perfect market (the approach taken bythe FCC regulation). The Court in an opinion byJustice Souter, with only Justice Breyer dissenting, heldthat the term "cost" was ambiguous and that the FCC'sinterpretation was reasonable, a standard Chevron, USA,Inc. v. NRDC, 467 U.S. 837 (1984) analysis.

For devotees of the intricacies of the Chevron doc-trine, however, there are elements of the Court's analysisthat might be said to further cloud the one-time clarityof the Chevron doctrine. That is, in determiningwhether the TELRIC regulation "exceed[ed] reasonableinterpretive leeway," the Court sometimes seemed to beanswering an interpretive question (as when it addressedwhether the purpose of the regulation was consistentwith the purpose of the 1996 Act) and sometimesseemed to be answering a different question: whetherthe TELRIC regulation was arbitrary and capricious (aswhen it addressed whether the effect of the regulationwould further the purposes of the statute). There arecommentators who believe that the second step ofChevron ought to be a determination whether the chal-lenged regulation is arbitrary and capricious, with onlystep one being a question of statutory interpretation.

*Professor of Law, Lewis & Clark Law School; Editor-in-Chief,Administrative & Regulatory Law News.

See, e.g., Ronald Levin, The Anatomy of Chevron: StepTwo Reconsidered, 72 Chi.-Kent L. Rev. 1253 (1997).However, nothing in Justice Souter's opinion for theCourt suggests a conscious decision to adopt such aframework. Rather, the argumentation for the reason-ableness of the FCC's interpretation simply seems to beconfused with the reasonableness of the regulation onthe record, as when in a footnote Justice Souterresponds to Verizon's "additional argument" that theTELRIC regulation was arbitrary and capricious: "this issimply a restatement of the argument that the FCC wasunreasonable in interpreting [the Act]." Indeed, theopinion also breaks new ground by supporting the rea-sonableness of the regulation on the basis of post-regula-tory facts, demonstrating that adoption of the regulationhas not thwarted achievement of its goals. "At the endof the day, theory aside, the claim that TELRIC isunreasonable as a matter of law ... founders on fact."Justice Breyer, dissenting from the TELRIC decision,did not use a Chevron analysis; instead, he based his opin-ion on the approach of Motor Vehicle Mfrs. Assn. v. StateFarm Mut.Auto. Ins. Co., 563 U.S. 29 (1983), which didnot involve a question of statutory interpretation butwhether the rescission of the airbag rule was arbitraryand capricious. Justice Souter's footnote response didnot recognize this difference; indeed, he seemed tobelieve they involved the same sort of inquiry exceptthat, in his words, State Farm "may be read as prescribingmore searching judicial review" because there theagency was changing its course.

This is not the first instance of a court failing toclearly distinguish between a Chevron analysis, which inits original formulation was simply a question ofwhether a regulation as a matter of statutory interpre-tation is within statutory authority, and a StateFarm/Overton Park analysis in which a regulation, onthe basis of the rulemaking record, is assessed for itsreasonableness in the sense of whether it will actuallyachieve its stated purpose. For example, in Verizon, theprior question could be answered by asking whetherhypothetical costs could in theory further the purposesof the Act; the latter question, however, could only beanswered by looking at the rulemaking record to see ifthere is a reasonable basis for concluding that usinghypothetical costs will in fact further the purposes ofthe Act. It is entirely possible that a positive answer tothe first question could be given but the record wouldnot provide substantiating evidence of what the actualeffects of the regulation would be, leading to the regu-lation being overturned as arbitrary and capricious.Whether these two separate analyses are characterized

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as Chevron steps one and two, as suggested by Levin, orin this author's preference as Chevron and StateFarm/Overton Park analyses, it would be helpful ifcourts recognized that there are two separate analysesinvolved, each of which uses different tools and asksdifferent questions.

The other issue dividing the Court was whether thestatutory statement that incumbent local exchange car-riers are to provide network elements "in a mannerthat allows requesting carriers to combine such ele-ments" allowed for a regulation that requires incum-bents themselves to combine the elements when newentrants are not able to combine them. While JusticeScalia joined Justice Breyer in dissenting on this point,the Court dismissed the notion that the language fore-closed such a regulation. The Court focused on theunderlying purpose of the statutory provision- tofacilitate interconnections by making combination ofnetwork elements feasible. It did not read the lan-guage as intending to stymie that purpose when it wasnot feasible for the new entrant to make the combina-tion but it would be feasible for the incumbent tomake it on behalf of the new entrant.

Justice Souter again applied Chevron in a unanimousopinion for the Court in Chevron USA, Inc. v.Echazabal, 122 S.Ct. - (2002). Here the issue waswhether the EEOC's regulation allowing employersnot to hire a person for a job who, in light of his dis-ability, would be a danger to any person, including theperson himself, was a reasonable interpretation of theAmericans with Disabilities Act. The Act specificallyprovides only that employers are allowed not to hirepersons who, because of their disability, would "pose adirect threat to the health or safety of other individualsin the workplace." The Ninth Circuit invoked thecanon of expressio unius exclusio alterius to hold, con-trary to the Eleventh Circuit, that the EEOC's regula-tion was beyond the statutory authority. Withoutinvoking any doctrine ofjudicial deference to theEEOC's interpretation, the Court found that thecanon should not apply here because the Court foundthat the statutory language was merely "an example oflegitimate qualifications that are job-related and con-sistent with business necessity,"' not an exclusive state-ment of an exception. Moreover, the Court said, an"essential . .. ingredient" of the canon is "a series ofterms from which an omission bespeaks a negativeimplication," and here there was no series of terms.Finally, the statutory history (the previous language ofand practice under the Rehabilitation Act) did notsupport a limitation to an exclusive exception.

Consequently, the Court found that "Congress has notspoken exhaustively on threats to a worker's ownhealth," and therefore "the agency regulation can claimadherence under the rule in Chevron" if it is reason-able. Interestingly, the opinion then listed a number ofreasons why the employer would view the regulation asreasonable, including the fact that it would enable theemployer to avoid the risk of violating theOccupational Safety and Health Act, if it employed aworker under circumstances that would pose a healthrisk to the employee. The legitimacy of the concernwith respect to the OSH Act alone, the Court said,"will be enough to show that the regulation is entitledto survive."

Probably the most significant case with respect tothe Chevron/Mead doctrine was Barnhart v. Walton,122 S.Ct. 1265 (2002), if only because here the Courtwas forced to focus on the contours of the doctrine bya Scalia concurrence. The issue in the case waswhether the Social Security Administration's regulationinterpreting provisions of the Social Security Act wasvalid. Mr.Walton was diagnosed as schizophrenic andbecame disabled, losing his job. However, elevenmonths later, although still suffering from mental ill-ness, he was able to obtain employment in a differentjob. The question was whether he qualified for SocialSecurity Disability and Supplemental Security Incomepayments. The statute defines "disability" as an

inability to engage in any substantial gainful activ-ity by reason of any medically determinable phys-ical or mental impairment which can be expectedto result in death or which has lasted or can beexpected to last for a continuous period of notless than 12 months.Grammatically, the 12-month requirement only

applies to the physical or mental impairment, but theSocial Security regulation requires that the person beunable to engage in substantial gainful activity for notless than 12 months. Walton suffered from a mentalimpairment that lasted more than 12 months, but hewas able to engage in substantial gainful employmentafter only eleven months. The Fourth Circuit, con-trary to two other circuits, held that the statute wasclear and unambiguous, precluding the regulation.

The Supreme Court reversed. Conceding that thestatutory language only required a 12-month periodfor the disability, Justice Breyer, for the Court, con-cluded that this left open and therefore ambiguouswhether and to what extent there was a minimum


Sum er20 2 A miisratve an Re ultoy L w ewSummer 2002 Administrative and Regoulatory Law News


tme circuitsD.C. Circuit extends Buckhannon to FOIA casesIn Buckhannon Bd. & Care Home Inc. v. WVa. Dep't ofHealth & Human Res., 532 U.S. 598 (2001), the SupremeCourt held that to obtain attorneys fees under the feeshifting provisions of the Federal Housing AmendmentsAct and the Americans with Disabilities Act a personmust be a "prevailing party;" meaning that it was awardedsome relief by a court, either in a judgment on the mer-its or in a court-ordered consent decree. In Oil,Chemical and Atomic Workers International Union v.Dep't of Energy, 288 F3d 452 (D.C. Cir. 2002), thecourt over Judge Judith Rogers dissent held the samewas required under the attorneys fee provision of theFreedom of Information Act. Prior to Buckhannon, theD.C. Circuit had used the "catalyst theory" under whichattorneys fees would be awarded if the litigation substan-tially caused the requested records to be released. Usingthat approach and prior to Buckhannon, the district courthad awarded fees to the union in light of the fact that itssuit had resulted in DOE providing the documents, cul-minating in a stipulated consent order of dismissal. AfterBuckhannon, however, the court said that only a courtorder granting relief would enable the award of attor-neys fees, noting that the Supreme Court had cited inBuckhannon to a number of similar fee shifting provi-sions, including the FOIA. Here the court order haddismissed the suit, thereby not granting relief, albeit inlight of DOE's providing of the documents.

The court was not moved by the difference in lan-guage between the statutes in Buckhannon, which use theterm "prevailing party," and the language in the FOIA,which uses the term "substantially prevailing." Both, thecourt said, have the same meaning. The court was alsonot moved by the recognition that the necessary effect ofsuch a ruling would be to allow the government to avoidattorneys fees in FOIA cases simply by providing thedocuments at the last moment in the litigation before afinal order of disclosure, presumably even during appeal.

D.C. Circuit Finds EPA "Guidance" anImproperly Promulgated Legislative RuleD.C. Circuit hostility to agency use of guidance documentsrather than notice-and-comment rulemaking found anoth-er expression in General Electric Co. v. EPA, 290 E3d 377(D.C. Cir. 2002). The Toxic Substances Control Act gov-erns the use of PCBs. EPA has adopted regulations gov-erning the cleanup and disposal of PCB waste. Under theregulations a person may apply for permission to use amethod other than those identified in the regulations, andEPA will approve it if the alternative method does not pose"an unreasonable risk of injury to health or the environ-

ment." EPA has also issued a Guidance Document identi-fying the risk assessment techniques a person may use inseeking approval of an alternative waste disposal method.The Guidance Document states that either of two differentmethods of risk assessment are acceptable. GE challengedthe Guidance Document on the grounds that it was notadopted after notice-and-comment.

TSCA requires challenges to "rules" under TSCA tobe brought in the D.C. Circuit within 60 days of prom-ulgation. EPA argued that this provision did not applyto interpretive rules and statements of policy, eventhought they might be "rules" within the definition ofthe APA. The court, however, said that it had jurisdic-tion because, on the merits, it determined that theGuidance was a legislative rule. In addition, the D.C.Circuit found that the Guidance was ripe for reviewbecause the issue was "largely a legal, not a factual,question," and there is no requirement for hardship,when the question is factual and Congress hasexpressed a preference for pre-enforcement review,which it had here with respect to "rules."

On the merits, the court said that the guidance wasa legislative rule because it denied the decisionmakerdiscretion by limiting applications for alternative PCBwaste disposal techniques to two acceptable risk assess-ment methodologies. Thus, the Guidance had legallybinding effect at least on the agency. EPA argued thatits own characterization of the Guidance was that it wasnot binding and that the Guidance itself states thatsome risk assessments may require the use of non-stan-dard methods, not provided for in the Guidance. Thecourt, however, quoted various places in the Guidancethat used the word "must," suggesting that persons wererequired to follow one of the two methodologies in theGuidance, and the allowance for an exception in non-standard cases did not "undermine the binding force ofthe Guidance Document in standard cases."

Second Circuit Defers to Secretary of Labor'sInterpretation that a Federal Rule of CivilProcedure Does Not Apply to OSHRCProceedings, Contrary to Other CircuitsUnder the Occupational Health and Safety Act, theOccupational Safety and Health Review Conmmission isto hold its proceedings "in accordance with the FederalRules of Civil Procedure:' The OSH Act also providesthat if an employer does not contest a citation for analleged violation by filing a notice of contest with theSecretary within 15 working days after receiving noticeof the citation, the citation shall be deemed a final order.In Chao v. Russell P Le Frois Builder, Inc., F 3d -

Administrative and Regulatory Law News 10 Volume 27, Number 410 Volume 27, Number 4Administrative and Regulatory Law News


(2d Cir. 2002), a secretary of an employer lost the noticeof citation when it slipped behind the seat of her car. Itwas discovered two months later, and the employer thenpromptly filed a notice of contest, explaining the reasonfor the delay. OSHRC applied what it said was its long-standing precedent and excused the delay under theauthority of Federal Rule 60(b), which provides that acourt may excuse a party "from a final judgment, order,or proceeding for ... mistake, inadvertence, surprise, orexcusable neglect." The Secretary, however, maintainedthat OSHRC lacked jurisdiction over the notice of con-test because the 15-day period had expired.

The court referred to Martin v. OSHRC, 499 U.S.144 (1991), in which the Court held that courts shoulddefer to the Secretary rather than to OSHRC, becauseCongress delegated to OSHRC only "the type of non-policymaking adjudicatory powers typically exercisedby a court in the agency-review context." [Of course, inMartin the interpretive issue involved the meaning ofthe Secretary's own regulation applying the substantiveprovisions of the OSH Act.] Consequently, the SecondCircuit concluded that "[b] ecause Congress delegatedrule-making authority under the OSH Act to theSecretary," it is the Secretary, rather than OSHRC, thathas the authority to interpret the statute with respect tothe question at hand. Having concluded that deferencewas due the Secretary, the next question was whetherthat deference should be strong, Chevron deference orweak, Skidmore deference. Because the Secretary's posi-tion had only been articulated in the instant litigation,the court held that it was not entitled to Chevron defer-ence. Applying Skidmore, the court said the Secretary'sview "merits deference" in light of the "delicacy andimportance of the Secretary's role." "Institutional com-petence thus militates in favor of deference to theSecretary's view." The Secretary's view was that Rule60(b) did not apply because the OSH Act says theFRCP only apply to proceedings before OSHRC, buthere there could be no proceeding before OSHRC,because the failure to timely file a notice of contestresulted in a final, unappealable order. The court recog-nized that some other circuits had found OSHRCjurisdiction over certain late-filed notices of contest, butit was not persuaded. Judge Pooler dissented.

D.C. Circuit Rejects Civil Rights Commission'sTheory of Term AppointmentsPresident Clinton appointed Victoria Wilson to fill thevacancy left in the Civil Rights Commission by the deathof an incumbent. Her commission stated that theappointment was "for a term expiring on November 29,

2001," the date on which the previous incumbent's termwould have ended. When that date came, however, Ms.Wilson did not leave, and when President Bush appointeda replacement, the Commission refused to seat him, on thetheory that there was no vacancy to be filled. The statutegoverning appointments states that "term of office of eachmember of the Commission shall be 6 years." Accordingly,the Commission maintained that Ms.Wilson's appoint-ment was for 6 years from the date of her appointment,January 13, 2000. In United States v. Wilson, 290 E3d 347(D.C. Cir. 2002), the court held that the statute's languagewas not unambiguous, because the word "term" couldhave either of two meanings: the period of personal serv-ice (as maintained by Ms.Wilson and the Commission) orthe fixed slot of time to which individual appointees areassigned (as maintained by the United States and the newappointee). Recognition of these two separate meaningsof the term is longstanding, as reflected in an AttorneyGeneral's opinion of 1882. To determine which of thesetwo meanings was the correct one, the court looked to thehistory of the Commission and the practice that had beenfollowed. The Commission conceded that, when a mem-ber had completed a fifll term but was not reappointed,and the new appointee was appointed some time after theend of the previous member's fiffl term, the newappointee's term could be calculated from the end of theprevious appointment. This concession, while it clearlyundercut the Commission's general theory, was necessarybecause of the uninterrupted practice of the Commnissionover its history. Moreover, the prior statutes governing thecomposition of the Commission had provided explicitlyfor staggered terms, and the newest version was notaccompanied by any expression of an intent to change thissystem, and some language of the current statute could beinterpreted to express an intent to retain the staggeredterms. To allow the word "term" to mean the period ofpersonal service, rather than a fixed slot of time, woulderode the staggered terms, and, where the issue has arisen,every other multimember agency with staggered terms hasinterpreted the "term" to be a fixed slot of time.Accordingly, the court held that the Commission's termwas a fixed slot of time, which for Ms.Wilson ran out onNovember 29,2001.

9th Circuit Sides with 3d, Contrary to 1st and7th, Holding That State Agencies Cannot BeState Courts for Purposes of the Removal StatuteAn employee filed a discrimination complaint againstU.S.West with the Oregon Bureau of Labor and


Summr 202 1 AminitraiveandRe~ultr LawNw11Summer 2002 Administrative and Regulatory Law News


by Michael Asimow*

Taking a Step Toward Better LocalGovernment AdjudicationLocal government adjudication is the black hole ofadministrative law. Local agencies can generally selectany procedure they want to use, subject only to rarely-applied due process requirements. That rare lightningstruck in Haas v. County of San Bernardino, 27 Cal.4th1017, 45 P3d 280 (2002). In this case, the CaliforniaSupreme Court held that a pro tem hearing officer wastainted by financial bias.

Haas had a massage parlor license which the Countywanted to revoke because an employee got caughtsoliciting acts of prostitution. The attorney representingthe County selected Abby Hyman as the hearing offi-cer. Hyman was a local in-house insurance lawyer.She had never met Haas or the County attorney andhad never before served as a hearing officer. She waspaid the standard County hourly rate for her services.

The Court held that Haas was denied due processbecause Hyman had an incentive to decide the case forthe County. The idea is that if she decided to revokethe license, she would have a good chance to be select-ed as a hearing officer in future cases, but if she refusedto revoke it, she probably would not get hired again.The Court thought that this sort of financial biasresembled the classic case of Tumey v. Ohio, 273 U.S.510 (1927), which overturned a decision imposing afine by the town mayor who was permitted to pocketany fines he imposed. However, Hyman's interestseems far more remote than the mayor's in Tumey.

In prior cases, both the California and U. S. SupremeCourts have held that an appearance of bias is not suffi-cient to overcome the presumption that an administra-tive judge will decide a case fairly. But Haas says this"mere appearance" rule is not applicable to cases offinancial bias. The presence of a possible financialincentive to decide the case for the County wasenough to disqualify Hyman without any furthershowing that she might be biased.

The decision will force numerous local governmentsin California to change the ways they select hearingofficers. They can no longer select hearing officers onan ad hoc basis and pay them by the hour. They mighthire state central panel hearing officers (which is quitecostly) or establish their own fulltime hearing officers(even if they don't have enough cases to keep a hearing

*Professor of Law Emeritus, UCLA Law School; Co-Chair, State

Administrative Law Committee; Reporter for Adjudication, APAProject.

officer busy). Perhaps they could hire pro tem hearingofficers if an ordinance provided that the officer couldnot be again appointed for a lengthy period of time.Despite the cost and inconvenience to local govern-ment, Haas will improve the quality of local govern-ment decisionmaking by professionalizing the hearingofficer function. This will help to insure fair local gov-ernment hearings for generations to come.

New Mexico Courts Interpret New Process forJudicial Review of Administrative Actions'The new uniform rules in New Mexico governingjudicial review of administrative actions include a sig-nificant and controversial change in existing appellateprocedures. (see Adm. & Reg. Law News, vol. 25, no. 3and vol. 26, no.3). The rules provide that, after the firstrecord review of an administrative action by the districtcourt, the appeal from the district court to the Courtof Appeals is by writ of certiorari, thus granting discre-tion to the Court of Appeals to review or not reviewadministrative appeals. NMSA 1978, § 39- 3-1.1(E).In two recent decisions, the New Mexico Court ofAppeals first upheld the constitutionality of the newprocess, and then significantly narrowed its own scopeof review of administrative actions.

In Vandervossen v. City of Espanola, 2001-NMCA-16, 130 N.M. 287, 24 P.3d 319 (2001), an appellantargued that the statute providing the Court of Appealswith discretionary review violated the provision in theNew Mexico Constitution granting a party "anabsolute right to one appeal." N.M.Const. Art.VI, Sec.2. After a lengthy discussion, the Court of Appealsupheld the constitutionality of the new statute. Theprimary justification was that the constitutional rightattached only when the district court was acting in its"original" jurisdiction (i.e., acting as a civil or criminaltrial court), and not when the district court is acting inits appellate jurisdiction. The Court found that thereview of an administrative action by the district courtis a "special" statutory proceeding and not part of thedistrict court's original jurisdiction.

In C.ET Development, LLC v. Torrance County, 2001-NMCA-69, 130 N.M. 775,32 R3d 784 (2001), the CourtofAppeals significantly narrowed its scope of review ofadministrative decisions when the review is by a writ of

certiorari to the district court under the new statute.Because the Rules of Appellate Procedure specifies thegrounds for granting a writ of certiorari (NMRA 2001

1The infornlation for this article was provided by Bill Brancard,Past Chair, Pubhic Law Section, New Mexico State Bar, AssociateCounsel New Mexico State Land Office.

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12 Volume 27, Number 4Administrative and Regulatory Law News


Rule 12-505), the Court ofAppeals found that its scopeof review is thus limited to the grounds on which it grantscertiorari. Since the grounds are limited to either conflictswith previous decisions or laws, significant constitutionalquestions, or issues of significant public interest, the CourtofAppeals determined that its review could not includemany elements of the traditional administrative scope ofreview. Now, issues such as whether the administrativedecision was arbitrary or capricious or an abuse of discre-tion or not supported by substantial evidence can only bedecided by the district court.

Washington State Rushes in WhereWashington DC Refuses to Tread 2

The State ofWashington has adopted an Ergonomics Rule(WAC 296-62-051) in the wake of the repeal of the feder-al rule (See PL 107-5 [SJRes 6] March 20,2001). TheRule establishes a process through which technologicallyand economically feasible measures to reduce repetitivestress injuries can be identified and employed. Estimatesare that 50,000 Washington employees are affected by suchinjuries annually. In 2001, the Governor appointed a spe-cial Blue Ribbon Panel-composed of national publichealth experts, representatives of labor and managementand others-which was charged with studying the fairness,clarity and enforceability of the Rule. The final report ofthe Blue Ribbon Panel was issued in March, 2002. Thereport gave the Rule a green light on all counts. TheGovernor has announced a 2-year delay in the effectivedate of the Rule to allow businesses additional time to pre-pare for implementation. Many proponents of the rulewere disappointed at the delayed implementation but arecounting on the Governor's assurance that the rule is aliveand well and will, in fact, go into effect in two years.

Administrative Law Judges Deserve ClearEthical Rules3

The states should adopt ethical codes for their ALJs,whether they work in central panels or for the agen-cies for which they decide cases. In 2001, the ABAadopted Resolution 101B, urging state and local gov-ernments to require that members of the administra-tive judiciary be accountable under provisions similarto the ABA's Code of Judicial Conduct.

The ABA's action follows the actions of a numberof states including Colorado, Georgia, Iowa, Minnesotaand South Carolina that have adopted the CJC forALJs. Other states, including California, Kentucky,

2The information for this article was provided by ProfessorWilliam RK. Andersen, University of Washington Law School.

3The information in this article was provided hy Patricia E.Salkin, Associate Dean of Albaniy Law School and Director of theGovernment Law Center.

Missouri, North Carolina, North Dakota and Oregonhave established ethical codes specifically for ALJs thatare modelled on the CJC. Other states, especiallyincluding NewYork, should follow suit.

Recent ArticlesAnnual Survey of Pennsylvania Administrative Law:Survey of Selected Court Decisions. 9 Widener J. Pub.L. 517-814 (2000).

Dennis, Judge James L. ,Judicial Power and theAdministrative State, 62 La. L. Rev. 59 (2001).

Marcello, David A., Administrative Practice under the1974 Constitution:A "Silver Anniversary Review," 62 La.L. Rev. 185 (2001).

Price, William A., Survey of Illinois Law:Administrative Law, 25 S. Ill. U. L.J. 679 (2001). i

ABA Connection September 18:Going to School on Education Law

On September 18, 2002 at 1:00 p.m. Eastern, theABA Connection is presenting a one-hour CLEteleconference titled, "Going to School onEducation Law." Legal issues are rampantthroughout the education field that directly affectparents, students, teachers and administrators on aregular basis. Among those issues are student dis-cipline; religious freedom and accommodation;open meetings and elections for school boards;privacy issues; tort liability for school; and specialeducation requirements. This article will focus onkey recent developments in some of those areas.The program is a no-cost benefit of ABA mem-bership and is co-sponsored by the Section ofAdministrative Law and Regulatory Practice andits Education Committee . Continuing LegalEducation credit has been applied for in statesthat accept the teleconference format. To register,call the ABA at 1-800-285-2221 from 8:30 a.m.to 6:30 p.m. Eastern time, weekdays, beginningMonday, July 22nd, or register online by Friday,August 16th at www.abanet.org/CLE/connec-tion.htrnl. If you are unable to participate in thelive teleconference the program is available, at nocost, for one month, on the ABA CLE Web Siteat http: // www.abanet. org/ cle/ connection.htm.Tapes of the program are available to ABA mem-bers for $50.00 two weeks after the program.To order a tape call the ABA Service Center at1-800-285-2221.

SaLa

13Summer 2002 Administrative and Regulatory Law News


i i Ira ti, e. I a aii P1..... .......................... ................ ............ ..........

24th Street, NW(202) 789-1234

............

REGISTRATION

Registration for section meeting activities mustbe received by Thursday July 25 2001, so thatyour name may be included in the pre- registra-tion list given to all attendees. To register, pleasevisit the Section website at www.abanet.org/adminlaw/calendar. The deadline for advanceABA registration is Thursday, July 11, 2002.

HOTEL RESERVATIONS

The deadline for housing is Monday, July 8, 2002.I.T.S. is the only source for Official ABA Housing.I.T.S. can be reached at 800- 421-0450. I.TS. willacknowledge your reservation request in writingwithin two weeks of receipt of your ABA registra-tion form. You must be registered for the ABAmeeting in order to receive official housing. Pleasenote that the rate at the Park Hyatt Hotel is$210.00

THURSDAY AUGUST 8, 2002

Fever or Chill? Taking the Temperature of theAdministrative Judiciary in an Era of Reform(CLE Credit Available)3:00 p.m.- 4:30 p.m. • Mayflower Hotel, 1127Connecticut, Ave., NW, The Rhode IslandRoom, 2 nd Floor.Sponsors: Judicial Division - NationalConference on Administrative Law Judges,Section of Administrative Law and RegulatoryPractice, Senior Lawyers Division,YoungLawyers Division, Labor and Employment LawSectionSignificant momentum has been developing formajor efforts to reorganize the way the adminis-trative-judiciary functions at both state and feder-al levels. A distinguished panel will updatelawyers and judges on the status of specialty

Administrative and Reoulatory Law News

courts, central panels, corps of judges, and othermajor efforts including pending legislation, theAdministrative Law and Regulatory PracticeSection's examination of the AdministrativeProcedures Act, and the ABA's Model CentralPanel Act.

Access to Drugs During Public HealthCrises (CLE Credit Available)2:00 p.m. to 5:00 p.m. * JW Marriott Hotel,1331 Pennsylvania Ave., NW, Capitol BallroomSalon D, B LevelSponsors: Section of Administrative Law andRegulatory Practice, Special Committee onBioethics and the Law, Section of Health Law,Section of Intellectual Property Law,International Health Law Committee, Sectionof International Law and Practice

The program will focus on the current percep-tion of the ethical and legal conflict between phar-maceutical company patent rights in new drugsand urgent public health needs, in two contexts: 1)the public health needs of developing countriessuch as South Africa, in their battles against devas-tating diseases such as AIDS, and 2) the publichealth needs of developed countries such as theUnited States and Canada when facing bioterroristthreats such as anthrax.

Jill Be Nimble Part II- Forging Ahead (WomenRainmakers) (CLE Credit Available)2:00 p.m.- 4:00 p.m. (with reception to follow)9 Marriott Wardman Park Hotel, 2660 WoodleyRoad, NW, CLE CentreSponsors: Section of Administrative Law andRegulatory Practice, Law PracticeManagement Section, Section of RealProperty, Probate and Trust Law, Section of

14-olue-7,-umbr-14 Volume 27, Number 4


Family Law, Section of State & LocalGovernment Law and Government and PublicSector Lawyers Division

A panel of experienced women lawyers willdiscuss how NIMBLE looks, DC style in an infor-mal, motivational and interactive program. Theywill discuss the benefit to their careers and rain-making prowess of movement between the federalgovernment and the private sector and how thesemoves enabled them to maximize their skill setsand personal and professional power. Hear howthey do it, how they got there, and how they likeit. Topics will include: shaping your skills to fit therole, networking by building bridges, recognizingdead end situations, and who they have to thankfor their success.

FRIDAY, AUGUST 9

Section Registration and Welcome1:00 p.m. - 5:30 p.m..o The Park Hyatt,Ballroom Level

Negotiating in the Face of Terrorism (CLECredit Available)2:00 p.m. - 3:30 p.m. • Marriott Wardman ParkHotel, 2660 Woodley Road, NW, CLE CentreSponsors: Section of Administrative Law andReg-ulatory Practice, Section of DisputeResolution

The United States has always played a pivotalrole in the efforts to negotiate peace in theMiddle East. From the formation of Israel in1948, the role of the United States and itsEuropean allies has been a central force shapingthe relationships of the Israel, its Arab neighbors,and the Palestinians. This panel discussion willfocus on the appropriate role of the UnitedStates and its ability to foster negotiations in theMiddle East in the face of terrorism.

Whatever Happened To Broadband? (CLECredit Available)2:00 p.m.- 3:30 p.m. e Marriott Wardman ParkHotel, 2660 Woodley Road, NW, CLE CentreSponsors: Section of Administrative Law andRegulatory Practice, Section of Science &Technology Law

The landmark 1996 Telecommunications Actheld out the promise of a pro-competitive nationaltelecommunications policy that quickiy woulddeliver high speed internet access, streaming, realtime video communications and other sophisticatedbroadband services to the general public. However,more than six years later - despite significant

advances in technology - the promise remainslargely unfilfilled. This program will examine thetechnological, financial, business, regulatory andlegal conditions which have impeded the develop-ment and deployment of advanced broadbandcommunications services.

Military Tribunals - Justice and the WarAgainst Terrorism - An Argument Beforethe Court (No CLE Credit Available)2:00 p.m.- 4:30 p.m. e The St. Regis Hotel, 923

16 th Street, NWSponsors: Section of Administrative Law andRegulatory Practice, Military Law Committeeof the General Practice, Solo and SmallFirm Section, Standing Committee onLaw and National Security, StandingCommittee on Armed Forces Law and LegalAssistance for Military Personnel, JudgeAdvocates Association.

This program will feature a mock argumentbefore a court of legal jurists addressing thePresident's authority under Article II of the U.S.Constitution to convene military tribunals, andwhether promulgated (we anticipate these will beissued before the meeting) Department of DefenseMilitary Tribunal regulations for detainees atGuantanamo Naval Base, Cuba, meet due processrequirements from a U.S. and international legalperspective. The forum will be an appellate argu-ment before four judges (constitutional and inter-national law experts), two attorneys representingthe detainees and two attorneys representing thegovernment.

Does A Report to An Ombuds ConstituteNotice to an Entity? (No CLE Credit Available)3:30 p.m.- 5:30 p.m. * The Park Hyatt, Tivoli I/IISponsors: Ombuds Committee of theSection of Administrative Law andRegulatory Practice, Section of Business Law,Section of Dispute Resolution, Section ofIndividual Rights and Responsibilities,Government and Public Sector Lawyers Division

Ombuds receive complaints and questionsfrom individuals concerning people within anentity or the functioning of an entity. They workfor the resolution of particular issues and, whereappropriate, make recommendations for theimprovement of the general administration of theentities they serve. Ombuds bring enormousbenefit to an institution whether the offce isconstituted to serve the public or serves withinthe private sector. This program explores the

Sume 200215 Adm I III IIstIve an ReI ltoyLa Nw15Summer 2002 Administrative and Regulatory Law News


issues of the Ombuds office receiving confiden-tial information and the issue of "notice" to insti-tutions. This panel will draw from a variety ofviewpoints to address an area of the law that isevolving and has implications on the issues ofconfidentiality, privacy as well as notice.

Program Chair: Sharan Levine, Counsel toOmbuds, Levine & Levine, Kalamazoo, MIModerator: Philip Harter Director, Program onConsensus, Democracy & Governance, VermontLaw School, South Royalton,VTSpeakers:* Sharan Levine, Counsel to Ombuds, Levine &Levine, Kalamazoo, MI• Elizabeth Pino, Director of Ombuds Programs,McKenzie and Company, Boston, MA• Toni Robinson, Ombudsperson, MassachusettsInstitute of Technology, Boston, MA9 Jeff Senger, Deputy Senior Counsel for DisputeResolution, U.S. Department ofJustice,Washington, DC

Section ReceptionCo-Sponsored by the Judicial Division-National Conference on Administrative LawJudges6:00 p.m. - 7:30 p.m. * the home of C. BoydenGray in Georgetown

Section Dinner7:45 p.m.- 10:00 p.m. 9 the home of C. BoydenGray in Georgetown

SATURDAY, AUGUST 10

Section Continental Breakfast8:00 a.m. - 9:00 a.m. * The Park Hyatt, Ballroom

Section Council Meeting9:00 a.m.- 10:00 a.m. • The Park Hyatt,Ballroom

State Sovereign Immunity from Privately-Initiated Federal Agency Adjudications (NoCLE Credit Availbale)10:00 a.m.-11:30 a.m. • The Park Hyatt,Ballroom

Last May's Supreme Court decision in FederalMaritime Commission v. South Carolina State PortsAuthority is one of the most important administra-tive law decisions of the past decade. The 5-4 deci-

sion holds that Congress cannot create a regulatoryscheme in which administrative law judges adjudi-cate private claims against states. Justice Thomas'opinion states that the similarities between the deci-sionmaking processes of federal judges and ALJs are"overwhehning." This panel will evaluate the SouthCarolina case from several perspectives.Program Chair and Moderator: Michael Asimow,Professor of Law Emeritus, University ofCalifornia Los Angeles School of Law, LosAngeles, CASpeakers:Warren Dean, Partner, Thompson and Coburn,Washington, DC9 Judith Resnik, Arthur Liman Professor of Law,Yale Law School, New Haven, CTe Hon.John Vittone, Administrative Law Judge,Department of Labor, Washington, DC

Education Law and the Supreme Court (CLECredit Available)9:30 a.m.- 11:00 a.m.0* Marriott Wardman ParkHotel, 2660 Woodley Road, NW, CLE CentreSponsors: Section of Administrative Law andRegulatory Practice, Division of PublicEducation, Section of Individual Rights andResponsibilities

The panel will analyze the Supreme Court'streatment of school policy in the 2001-2002Term by examining four landmark cases that willaffect teachers, students, parents - and theirlawyers - for years to come:

Human Clones and The Law: From Embryosand Stem Cells to Duplicate and DesignerBabies (CLE Credit Available)9:30 a.m.- 12:00 p.m. • Marriott Wardman ParkHotel, 2660 Woodley Road, NW, CLE CentreSponsors: Section of Administrative Law andRegulatory Practice, Section of Science &Technology Law

This program addresses cloning, embryo stemcell research, and genetic enhancement of humanbeings. The scientific underpinnings of thesetechnologies will be explained, as well as the

implications for lawyers in the fields of health law,

drug approval, technology transfer, family law,

intellectual property law, individual rights law, and

international law.

Administrativ P and Roeoulatorv Law News 16 Volume 27, Number 4


CEELI Luncheon12:00 p.m. e Marriott Wardman Park, 2660Woodley Road, NW, Marriott Ballroom,Lobby Level

National Association of Women LawyersLuncheon12:00 p.m. * Omni Shoreham, 2500 CalvertStreet, NW, Regency Ballroom, Level 1B

Zero Tolerance Policies and the Constitution:First Amendment, Fourth Amendment andEqual Protection Concerns (No CLE CreditAvailable)2:00 p.m. - 3:45 p.m. • Omni Shoreham, 2500Calvert Street, NW, Capitol RoomSponsors: Section of Administrative Law andRegulatory Practice, State and LocalGovernment Law Section

Public school districts across the country inrecent years have enacted zero tolerance policies toaddress concerns of school violence. Zero tolerancepolicies have been described by its proponents asprohibiting potentially violent behavior with aguaranteed response with little or no exceptions toprotect the safety of the school and its occupants.Responses range from reprimand to expulsion.Critics argue there is no flexibility and such sweep-ing policies deny students their due process rightsThe application and effectiveness of zero tolerancepolicies, and the constitutional concerns that havefollowed the policies throughout the various courtswill be addressed.

HIPPA Enforcement and Litigation RiskManagement: The Crisis Ahead (CLE CreditAvailable)2:00 p.m.- 3:30 p.m. * Marriott Wardman ParkHotel, 2660 Woodley Road, NW, CLE CentreSponsors: Section of Administrative Law andRegulatory Practice, Section of Science &Technology Law

The initial deadline for enforcing HIPAA'snew privacy, security and transaction require-ments for health care is looming in April of 2003,with an intermediate deadline of October, 2002.Not all the industry will be ready, and substantialdisruptions to cash flow may occur. This panelexplores the enormous new civil and criminal lit-igation exposure that HIPAA creates, and offersattorneys practical ways to help prepare theirclients for these pervasive new risks, as part ofimplementing HIPAA quickly and effectively.

Ultimate Dispute Resolution Update (CLECredit Available)2:00 p.m. - 4:30 p.m..9 Marriott Wardman ParkHotel, 2660 Woodley Road, NW, CLE CentreSponsors: Section of Administrative Law andRegulatory Practice, Section of DisputeResolution

Learn the latest news and trends in practice,legislation, and judicial decisions in mediationand other areas of dispute resolution.

ABA President's Reception7:00 p.m.- 10:00 p.m. • National Space and AirMuseum, 7 th and Independence Ave., SW

SUNDAY, AUGUST 11

Section Continental Breakfast8:00 a.m.- 9:00 a.m. • The Park Hyatt, Ballroom

Section Council Meeting9:00 a.m.- 11:30 a.m. *The Park Hyatt,Ballroom

Margaret Brent Luncheon12:00 p.m. * Marriott Wardman Park, 2660Woodley Road, NW, Marriott Ballroom, LobbyLevel,Speaker: U.S. Representative Eleanor NortonHolmes

MONDAY AUGUST 12

ABA Pro Bono Publico Awards Luncheon12:00 p.m. * Omni Shoreham, 2500 CalvertStreet, NW, Regency BallroomSpeaker: Former First Lady Rosalynn Carter

Attendance at all programming and eventsrequire registration to the 2002 ABA AnnualMeeting. Some CLE courses and ABA eventswill require additional fees. Please check with theprimary sponsor of each session for additionalinformation. Primary sponsors are in bold typeunder each program listing. For more detailsabout the 2002 ABA Annual Meeting, visithttp: //www.abanet. org/annual/2002/homehtil

We thank meeting sponsors Wiley, Reinand Fielding and Sidley, Austin, Brown &Wood LLP for their generous support.



of interestTara L. Branum, President or King? The Use andAbuse of Executive Orders in Modern-Day America, 28J. LEGIS. 1 (2002). This article addresses the nature ofexecutive power as it relates to the issuance of executiveorders and other presidential directives. It argues thatthe President exceeds his constitutional authority whenhe uses presidential directives to set policy and makelaws, a responsibility that the Constitution expresslygrants to Congress. In reaching this conclusion, thisarticle first looks at the intent of the Founding Fathersand the history of presidential directives. It then evalu-ates recent trends in the use of presidential directivesthat stand in contradiction to the intent of the Framers.It also briefly considers uses of presidential directives byPresident Bush occasioned by the "war" on terror. Itanalyzes the limited case law on the subject and discuss-es recent aborted attempts by Congress and individualsto curb presidential lawmaking by executive order orother directive. Finally, it makes recommendations tothe present incumbent, particularly in light of a possiblyextended period of "war."

Jamison E. Colburn, Toward an Architecture ofAdministrative Adaptation, Available from the SSRNElectronic Paper Collection:http://papers.ssrn.com/paper.ta?.abstract_id-d=303379. Traditional administrative law sees its core, theAdministrative Procedure Act, from only one very confin-ing point of view: as an appliance ofjudicial "checking" ofbureaucratic power pursuant to a neotraditionalist adapta-tion of the separation of powers. The political history ofthe Act and, indeed, the separation of powers tradition as awhole, suggest this is a radically incomplete understandingof that core. Both of these are, in short, far more eclecticthan traditional administrative law admits. Leading out ofthe nineteenth and into the twentieth century, AmericanProgressivism mounted a sustained attack on the institu-tional face and rhetoric of the separation of powers, andvarious reactionary forces coalesced as a result. By thecoming of the New Deal, these two forces were clearlyallied against one another and were the formative influ-ences that produced the text of the APA. That text reflectsan essentially incomplete agreement between those con-tending factions, and any interpretation that makes senseof the whole Act within the eclectic separation of powerstradition must begin from this incompleteness. I argue thata bifurcation of the Act into "internal" and "external"senses of its provisions would make the most sense of thispolitical history, the APA's text, and the relationshipsbetween the judicial. political, and administrative systemswithin the larger constitutional traditions housing them.

James W. Conrad, Jr., Draft Guidance on theAppropriate Use of Rules vs. Guidance, 32 ENVTL. L.REP. (ENVTL. L. INST.) 10721(2002). Regulated entitiesfamously decry federal agencies' use of guidance docu-ments and the like in lieu of notice-and-comment rule-making. Congress has denounced such "back-door regu-lation," and even public interest groups sue over "de facto"or "spurious" rules when it suits their purposes. Theauthor, in-house counsel for a major trade association,canvassed his association's positions over several years andfound- somewhat surprisingly - as many cases wherethey supported the use of guidance as where they opposedit. Drawing from that experience, the article articulates aset of considerations to guide agencies in determiningwhether to proceed by regulation or guidance. It identi-fies the three primary, but different, concerns motivatingparticipants in the debate (having input beforehand,obtaining judicial review, and being able to act at variancewithout fear of enforcement). It emphasizes the differencebetween situations where agencies can issue rules andthose where they cannot, as only the former can give riseto "regulation by guidance." Then it outlines the factorsagencies should consider in choosing between rulemakingand guidance, such as whether the agency intends to bindthe public or itself, whether there is a history of rulemak-ing on the topic, and the prevalence and complexity oflegal or technical issues. Finally, the article distinguishesthe other two types of"non-rule rulemaking" that regu-lated entities and others often criticize - "regulation byinformation" and "regulation by enforcement.

John J. Coughlin, The History of the Judicial ReviewofAdministrative Power and the Future of RegulatoryGovernance, 38 IDAHO L. REv. 89 (2001). This arti-cle focuses on the historical development ofjudicialreview in protecting two distinct, but interrelated, philo-sophical values embedded within the foundations ofmodern constitutional government. The first involvesthe suspicion of government power as institutionalizedin the constitutional doctrine of the tripartite separationof powers. The second constitutional value safeguardedby judicial review concerns the protection of personalautonomy through individual rights. Based upon thehistorical development of American administrative law,the article recalls that judicial review, which checks thepower of unelected bureaucrats, remains critical formaintaining the suspicion of government power andprotecting individual autonomy in the regulatory state.The article traces the development of the two constitu-tional values of autonomy and suspicion through threehistorical periods: (1) the origins of judicial review as

18Administrative and Regulatory Law News Volume 27, Number 4


the guardian of autonomy and suspicion during theeighteenth and nineteenth centuries; (2) judicial reviewfrom the New Deal through the AdministrativeProcedure Act and the movement from suspicion todeference as well as the refashioning of the notion ofautonomy; and (3) the administrative state from the1960s in terms of the limits of autonomy and the oscil-lation between suspicion and deference.

Rafael Gely, A Tale of Three Statutes ... (and OneIndustry):A Case Study on the Competitive Effects ofRegulation, 80 OR. L. REv. 947 (2001). The expresspackage delivery industry for reasons of historical acci-dent is subject to three different federal labor laws: TheUnited States Postal Service is subject to the PostalReorganization Act, the United Parcel Service and othersare subject to the National Labor Relations Act, andFederal Express and some others are subject to theRailway Labor Act. Because regulatory statutes affectmarket participants' activity, this situation provides aunique opportunity to observe whether these three regu-latory regimes impose differential costs upon the firms,potentially skewing market competition. Professor Gely'sarticle analyzes the cost implications of these three laborlaws to assess the econonic effects of regulation.

Adrienne Heritier, New Modes of Governance inEurope: Policy-Making without Legislating?, Availablefrom the SSRN Electronic Paper Collection: http://papers.ssrn.com/paper.tafPabstractid=2 99431.The focus of this analysis is on new modes of governanceand government in the European Union that (a) includeprivate actors in policy formulation, and/or (b) while beingbased on public actors, (c) are only marginally based onlegislation (these are hierarchical insofar as they are subjectto a majority decision) or that are not based on legislationat all. In recent years non-legislative modes of policy-mak-ing and modes of governance including private actors inpolicy-formulation have gained in salience in Europeanpolicy-making, and they have been advocated as a panaceafor speeding up European decision making, which has sooften ended up in gridlocks. The European integrationproject has reached a stage where core areas of the welfarestate such as employment policy, social policy, and educa-tion are directly affected. These are areas where memberstate political support is very difficult to gain. Hence amethod of cooperation has been developed to avoid theclassical form of legislation through directives and regula-tions; instead, it relies on the open method of coordination,that is, target development and published scoreboards ofnational performance, as measured by the policy objectives

that have been agreed upon, as well as voluntary accords,that is, the self-regulation of private actors.

Shi-ling Hsu, A Game Theoretic Approach toRegulatory Negotiation:A Framework for EmpiricalAnalysis, 26 HARv. ENv. L. REv. 33(2002). Whileregulatory agencies have been engaging in negotiationwith regulated parties and other stakeholders for decadesnow, careful study of the implications of such negotia-tions have lagged. In particular, while several commenta-tors have now staked out intellectual ground on thetheoretical ramifications of regulatory negotiation,empirical analyses of regulatory negotiations have beenlacking. This article analyzes the implications of regula-tory "reinvention" as the latest in a series of administra-tive initiatives aimed at achieving better rulemaking andadjudication through negotiations. Reinvention is com-monly understood to mean those programs that utilizenegotiated agreements to implement regulatory require-ments imposed by various environmental statutes.Controversy has visited reinvention, as several specificreinvention projects have raised questions regarding thelegality of this administrative practice. Using an eco-nomic game-theoretic model, this article argues for acontinuation of this practice, but under new statutoryauthorizations. Reinvention accomplishes much-neededflexibility in environmental statutes that have sufferedfrom partisan Congressional gridlock, and by and largeeffectuate minor common sense amendments. Severalinstances of administrative failures, however, have jeop-ardized the legitimacy of this practice. Statutory authori-zations, coupled with funding for enforcement and spe-cific guidelines limiting agency discretion can bringlegitimacy to regulatory negotiation. In addition, objec-tive means of monitoring and evaluating the effective-ness of agencies in conducting negotiations are neces-sary. Towards this end, this article argues for empower-ment of citizen groups and presents an empirical meansof evaluating the fairness of regulatory negotiations.

Richard J. Pierce, The Appropriate Role of Costs inEnvironmental Regulation, Available from the SSRNElectronic Paper Collection: http://papers.ssrn.com/paper.tafabstractid=3 01479. In Whitman v.American Trucking Association, 121 S. Ct. 903 (2001), theCourt held that EPA cannot consider costs in any wayin setting air quality standards. The Court's opinion rais-es many more questions than it answers. This article dis-cusses three of those questions: (1) which of three com-




Biting The Data Quality Bulletcontinued from page 2

"objectivity" under the 515 criteria. If the agencydeclines to alter the model and is sued, Greenwoodexpects courts to allow suits where the error is not sim-ply a mathematical measurement, but is a "characteriza-tion" such as "Acme is the worst polluter in Maine."Greenwood foresees much more frequent centralizationof the adverse "characterization" decisions and more staffrequests for agency counsel assistance before technicalreports on controversial issues are disseminated. Agenciesmust now do what the private sector has routinely donewith consumer research the agency must considerhow a set of data will be utilized once placed on theagency's website or published in a report. The data's usemay increase likelihood of 515 challenges.

Dr. Gary Bass of OMB Watch saw "common senseturned amuck" and cautioned that 515 could be misusedin the rulemaking process by opponents of the substanceof an agency rule. His group is less concerned aboutroutine error correction than about the use of disruptivetactics ofjudicial review outside of normal review of afinal agency regulation. The OMB guidance to agenciescited the Safe Drinking Water Act risk assessment normsand said agencies could "adopt or adapt" them; mostagencies will "adapt" to give themselves more flexibility.Bass believes that judicial review of denial of an adminis-trative appeal should not be routinely available except aspart of the overall review of a rulemaking.

Bass offered specific critiques of the guidance issuedto agencies by OIRA: Section 515 had focused on data

dissemination, but OIRA's guidance expanded its mech-anisms to data use and not just to dissemination. Theguidance urged agencies to use the Safe Drinking WaterAct risk assessment norms that are unacceptable toOMB Watch; the group believes agencies like OSHAshould use the best evidence that is available. OMBWatch is concerned that the analysis of scientific datawill be done in an arbitrary manner. OIRA called forpeer review, but there are undisclosed conflicts of inter-est in many agency peer review programs. Data qualityis only one factor in decision making; health and safetydecisions should be aided by precautionary principles.And more attention to public involvement is needed;OMB should have told agencies to err on the side ofdisclosure where any doubt exists.

Once the data is disseminated, what remedies existfor damages caused? The petition route for correction isless helpful when a false or misleading disseminationdamages the affected private person. Senior Judge LorenSmith of the Court of Federal Claims reviewed thejurisprudence of his court and explained how rare theremedial opportunities have been. Congressional privatebills referred to his court are the rare exception; mostremedies fail under the Federal Tort Claims Act's inten-tional tort exclusion or the Tucker Act's requirements.

Agency regulations and guidance will appear in theFederal Register this summer. Jim Tozzi invited atten-dees to keep track of agency proposals atwww.thecre.com. The Section Council will be work-ing with the Government Information & PrivacyCommittee to make appropriate comments in responseto the agency proposals. 4

COulipsules continued from page 5

"produce consensus on Federal policy issues throughcollaborative processes open to key stakeholders."

After some discussion, Chair Gray asked councilmember Cooney to draft a letter to the DisputeResolution Section outlining the Section's concernsand declining the request to co-sponsor. Those con-cerns include a lack of evidence that such an organiza-tion is needed at the federal level, an absence of provi-sion for council members' disclosure of conflicts ofinterest, and erosion of the public/private distinction.

Multijurisdictional Practice - Part IIAs reported in the previous installment of CouncilCapsules, the council approved sending a letter to theCommission on Multijurisdictional Practice thatwould communicate the Section's concern with

regard to two of the safe harbors (provisions permit-ting the practice of law in a non-licensing jurisdic-tion) proposed in the Commission's interim reportdated November 30, 2001. (See Council Capsules,Multojurisdictional Practice, ADMINISTRATIVE &R-EGULATORY LAW NEWS,Vo1. 27, No. 3, Spring 2002).

Proposed Model Rule 5.5(c)(5), which would haveallowed transactional representation, counseling andother non-litigation work in a non- licensing jurisdic-tion on a temporary basis, and proposed Model Rule5.5(c) (6), which would have allowed lawyers to providetemporary services in a non-licensing jurisdictioninvolving primarily federal law, international law, thelaw of a foreign nation or the law of the lawyer's homestate, were perceived by some in the Section to not ade-quately address the needs of telecommunications andenergy practitioners, whose practices transcend statelines and involve transactions that are subject to bothfederal and multi-state jurisdiction, involve ongoingnegotiations, and are not dominated by federal law or

20Administrative and Reg'ulatory Law News Volume 27, Number 4


the law of any one state.It appears the Commission has taken heed.As proposed in the Commission's interim report,

Model Rule 5.5(c)(5) permitted the performance ofservices in a non-licensing jurisdiction on a temporarybasis "for a client who resides or has an office in a juris-diction in which the lawyer is authorized to practice" orwhere the services "arise out of or are reasonably relat-ed to a matter that has a substantial connection to ajurisdiction in which the lawyer is admitted to practice."Proposed Model Rule 5.5(c)(6) permitted the perform-ance of services in a non-licensing jurisdiction on atemporary basis to the extent such services "are gov-erned primarily by federal law, international law, the lawof a foreign nation, or the law of a jurisdiction in whichthe lawyer is admitted to practice."

The Commission's final report reduces and com-bines proposed Model Rules 5.5(c)(5) & (6) into pro-posed Model Rule 5.5(c)(4), which permits the per-formance of services in a non-licensing jurisdiction ona temporary basis to the extent such services "arise outof or are reasonably related to the lawyer's practice in ajurisdiction in which the lawyer is admitted to prac-tice." Omitted are the client location restriction, the"substantial connection" requirement, and the primarylaw restriction.

The final report explains that "this provision wouldrespect preexisting and ongoing client- lawyer relation-ships by permitting a client to retain a lawyer to workon multiple related matters, including some having no con-nection to the jurisdiction in which the lawyer is licensed."Final Report at 25 (emphasis added). The final reportfurther explains that "this provision would authorizelegal services to be provided on a temporary basis out-side the lawyer's home state by a lawyer who, through thecourse of regular practice in the lawyer's home state, has devel-oped a recognized expertise in a body of law that is applicableto the client's particular matter." Final Report at 25(emphasis added).

The final report states that this provision "is drawnfrom § 3(3) of the Restatement (Third) of the LawGoverning Lawyers" and cautions that to be covered byit, "the lawyer's contact with any particular host statewould have to be temporary." Final Report at 25, 26.T he report does not offer guidance on what is consid-ered temporary and what is not. Indeed, it explains that"the line between the 'temporary' practice of law andthe 'regular' or 'established' practice of law is not a brightone." Final Report at 26. The report anticipates that"the line can become clearer over time as Rule 5.5 isinterpreted by courts, disciplinary authorities, commit-tees of the bar, and other relevant authorities." FinalReport at 26.

The Commission's final report may be viewed athttp:/ //www. abanet, org/cpr/mj P-home" html"

Amicus OppositionFormer Section chair Ron Levin and council memberJohn Duffy briefed the council on the Section's suc-cessful opposition to the Intellectual Property (IP)Section's proposal to file an amicus brief in Eldred v.Ashcroft. The IP Section had proposed that the Boardof Governors approve filing a brief that would havesupported the constitutionality of the 1998 CopyrightTerm Extension Act, which extended the copyright ofexisting works. Levin reported that the Boarddeclined the IP Section's request, in part because ofour Section's opposition. Duffy commented that therationale behind the IP Section's position was unsoundfrom a policy perspective.

Remarks by ABA PresidentCandidate to CouncilRobert J. Grey Jr., former chair of the ABA House ofDelegates (1998-2000) and current candidate for ABApresident (2004-2005), welcomed the Section to hishometown of Richmond, Virginia.

Grey congratulated the Section on owning thelongest streak of putting resolutions before the Houseof Delegates and commended the Section for fulfillingits core mission- aiding professional development.Grey's other remarks touched on the ABA's publicimage, future trends in the practice of law, billablehours, and federal judicial vacancies.

Grey believes the ABA must improve its image. Oneimportant aspect of the solution is to promote the workof the sections, which is to meet the professional devel-opment needs of it members. He said the ABA hasmatured over the last ten years by focusing on issuesgermane to the profession and moving away from com-menting on social issues of less professional relevance.He said this maturation has helped the ABA avoid theprecipitous decline in membership that other profes-sional organizations have experienced in the recent past.

Grey predicts that the nature of the practice of lawwill change in the foreseeable future. He sees stability atthe top of the profession in the form of large firmsaided by globalization but anticipates that the trendtoward self-lawyering at the other end of the spectrumwill present new challenges. "At some point they willneed our assistance, and we need to be ready," said Grey.

Grey waded into the billable-hours controversy byfirst noting the increasing proliferation of flat- fee andsliding-scale arrangements. "Clients have demandedit," he said. But he doubted the practice of trackingassociate hours would disappear. He said law firmswill "still keep track of time for internal management."

Grey sees improving ABA executive and legislativeaccess as a key component in the search for solutionsto the growing backlog of federal judicial vacancies.He observed that "other interest groups are succeed-



ing" where the ABA is not. He closed by predicting a"renewed emphasis in the coming term on improvingthe ABA's relationship with the administration andCongress. The effort will probably not satisfy every-body, but it is a high priority."

Riding the CircuitABA Executive Director Robert Stein dropped in onthe council's Sunday session to say a few words aboutissues of current concern to the ABA. Stein noted thathe tries to attend four to five section meetings eachyear and recalled meeting with the Admin Law Sectionabout five years ago.

He commended the Section for tackling issuesaffecting the entire ABA, not just Section members.He said that this was very helpful and had beennoticed by the ABA leadership.

Calling this period in ABA history the "good olddays," Stein said ABA membership had reached408,865, making it the largest professional organizationin the world, about with about 100,000 more mem-bers than the next largest. Further, he said ABA mem-bership was trending upward, whereas the trend forother professional organizations was downward.

The ABA is having a good year financially, accord-ing to Stein. Investment income is off, but duesincome is over the budgeted amount, and incomefrom credit card sponsorships has become very lucra-tive. In addition, the Board has ordered a reduction inexpenses. The spate of no dues increases for the pastfew years should continue a while longer, he said.

Stein also talked about a publicity program the ABAis embarking on this summer that will use a publicrelations firm to craft ads expressing the ABA's values.The first ads should be out in early July. The ads willbe balanced so that people see them as a debate.

Stein discussed the "Dialogue on Freedom" pro-gram initiated by Justice Kennedy and encouraged

Section members to visit the ABA web site for materi-

als that could be used to make presentations at highschools on the values of freedom that the war on ter-rorism is defending.

In a question and answer session, some councilmembers expressed concern that the use of publicrelations tools will make the ABA look like a specialinterest group and that the ABA should spend moretime testifying at hearings and less time lobbying con-gressmen. Stein acknowledged that there was somedissent among the ABA leadership regarding theplanned public relations effort, but expressed confi-

dence that the ABA has been effective, if not as

focused as it might be, in its relations with Congress.On the topic of billable hours, Stein said "we need

to get off the billable hour treadmill." He believesclients want billings to reflect the value of the services

they receive, not the number of hours some associateor partner spends researching an issue. He also believes

that over-reliance on billable hours has caused a reduc-tion in mentoring and pro bono service and has con-tributed to law firm instability. Stein said theHirschon Commission should be providing some lead-ership on this issue in the near future. 4

The Future of ElectronicRulemaking continued from page 7

3. How to deal with e-mail attachments withtheir attendant risk of viruses, and of overload-ing systems? What about the ease with whichcommenters can "dump" huge files or linkswithin their electronic comments? Whatshould the agency's responsibility be to siftthrough everything that is "sent over the tran-som"?

4. What rules should pertain to archiving ofchats? To be consistent with the above infor-mational goals, this should be done, but howmuch flexibility should there be, opportunityfor correction, disclaimers, etc.?

5. What about electronic "negotiated rulemak-ing"? Would this just become a more formal-ized, more highly moderated, version of"regu-lar" electronic rulemaking? Or would it addvalue by liberating negotiated rulemaking from

the up-front cost concerns (of conveningmeetings) that seem to be holding it back now.

Other issues:• Should the Administrative Procedure Act be

amended to reflect the electronic age, just as theFreedom of Information Act was in 1996?

" How much uniformity in e-rulemaking shouldbe sought across the government? Or is a bestpractices approach preferable?

• Do we need a government-wide regulatory the-

saurus to be used in agency websites?• What about the usefulness of electronic meet-

ings/hearings outside rulemaking context? Are

there Federal Advisory Committee Act orGovernment in the Sunshine Act concerns?

" Is there any reason for different approaches in

electronic rulemaking between executive andindependent agencies?

And, finally, one last issue to consider. We've obvi-

ously made great strides in the area of agency e-rule-making, but what if anything have we done in the area

Administrative and Regulatory Law News 22 Volume 27, Number 422Administrative and Regulatory Law News Volume 27, Number 4


of e-adjudication by agencies? Many agencies, such as theNational Labor Relations Board, Merit SystemsProtection Board, and the Patent and Trademark Office,still develop significant policies through case-by-caseadjudication (sometimes with oral arguments and signif-icant participation by intervenors or amici curiae), butthere is very little government-wide focus on the infor-mational and participatory goals of such proceedings.

I realize it is a lot easier to raise issues and questions

than to solve them. I applaud the Kennedy School andthe National Science Foundation for encouraging thisdialogue. If my former agency, the AdministrativeConference of the United States, still existed, I wouldhope we would be commissioning the best researchminds in the country to help solve these questions,because the vision of a seamless informational and par-ticipatory rulemaking process is not only an attractiveone, but it has now become an attainable one. Ab

Suprre CourtewS continuedfrom page 9

time period for the inability to engage in substantialgainful activity. The question then was whether theagency's requirement was permissible. Elsewhere thestatute requires that the impairment be "of such sever-ity that he is not only unable to do his previous workbut cannot ... engage in any other kind of substantialgainful work which exists in the national economy."

The degree of severity required is ambiguous, theCourt found, and the agency by regulation couldestablish a reasonable time period during which theperson could not engage in substantial gainful work aspart of the delimitation of severity. The period of 12months, the minimum period required by the statutefor suffering the impairment, was a reasonable mini-mum period for the person to be unable to engage insubstantial gainful work.

Walton argued that the Court should not afford theagency Chevron deference here, because the agencyregulation was only recently adopted, perhaps inresponse to the litigation, but the Court dismissed thisargument, noting that just such an argument againstChevron deference had been considered and rejectedin Smiley v. Citibank (South Dakota), NA., 517 U.S.735 (1996).

If Justice Breyer had stopped here, his opinionwould have been unanimous, but he went on. Henoted that the agency had long interpreted the statutein this manner, citing documents back to 1957, andcited a pre-Chevron case for the proposition that theCourt accords "particular deference to an agencyinterpretation of 'longstanding' duration." The factthat these earlier interpretations had not been made inthe context of regulations, but in a "ruling," in anenforcement manual, and in a letter, the Court said,"does not automatically deprive that interpretation ofthe judicial deference otherwise its due." As a descrip-tive statement regarding deference owed to longstand-ing interpretations because they are longstanding, thiswould be consistent with pre-Chevron understandingsand even with a conception that there may be differ-

ent bases for strong deference besides the Chevrondoctrine. As a statement describing Chevron deference,however, it seems inconsistent with the Court's recentdecision in Christensen v. Harris County, 529 U.S. 576(2000), which denied Chevron deference to an agencyopinion letter and in which the Court said:

Interpretations such as those in opinion letters-like interpretations contained in policy state-ments, agency manuals, and enforcement guide-lines, all of which lack the force of law-do notwarrant Chevron-style deference.

The Court, nevertheless, denied any conflict withChristensen, noting that if the mere absence of notice-and-comment rulemaking deprived an interpretationof Chevron deference, then the extensive discussion inUnited States v. Mead Corp., 533 U.S. 218 (2001), lastterm, finally concluding that only Skidmore deferencewas due to the informal interpretation there, wouldhave been unnecessary. The Court characterized theChristensen analysis as relying "in significant part uponthe interpretive method used and the nature of thequestion at issue." Here, the Court stated,

the interstitial nature of the legal question, therelated expertise of the Agency, the importanceof the question to the administration of thestatute, the complexity of that administration, andthe careful consideration the Agency has giventhe question over a long period of time all indi-cate that Chevron provides the appropriate legallens through which to view the legality of theAgency interpretation here at issue.

Justice Scalia concurred in the judgment and in theopinion except as to the discussion of the relevance ofthe agency's longstanding interpretation and why, ifthe earlier opinions were relevant, they qualified forChevron deference under Mead. Justice Scalia rightful-ly states that Chevron did not rely at all on the long-standing nature of the agency interpretation andinstead explicitly approved deference to new, changedinterpretations, if the statute was ambiguous and thenew interpretation was reasonable. He ascribed defer-ence to longstanding interpretations as "an anachro-nism - a relic of the pre-Chevron days." Others mightsay that it survives Chevron at least in circumstances in

S 0n e0LSummer 2002 Administrative and Regulatory Law News


which the Chevron doctrine itself would not apply, butin either case Justice Scalia's objection to its use to jus-tify invoking the Chevron doctrine seems well taken.

There was, however, a second issue in the case.Walton argued in the alternative that, even if the 12-month period requirement could be applied to theperiod of inability to work as well as the period ofphysical or mental impairment, the statute onlyrequires that it "can be expected to last" for that peri-od. In his case, although he was able to return togainful work after eleven months, this result was unex-pected, and at the time he applied for the benefits hisinability to work would have been expected to last atleast 12 months. Again, however, the agency regulationclearly interpreted the statutory language to precludethis reading, requiring a full 12 months of actualinability to work, if the decision as to eligibility ismade more than 12 months after the onset of theinability. Rather than cite Chevron and proceedingfrom there, however, the Court said:

[t]he statute's complexity, the vast number ofclaims it engenders, and the consequent need foragency expertise and administrative experiencelead us to read the statute as delegating to theAgency considerable authority to fill in, throughinterpretation, matters of detail related to itsadministration [citing to a pre-Chevron case].

Then the Court concluded: "The statute's language isambiguous. And the Agency's interpretation is reason-able."

The Court's perturbations on Chevron/Mead may leadsome to exclaim as Mark Twain said, and Justice Jacksonquoted in his dissent in SEC v. Chenery Corp. II, "themore you explain it, the more I don't understand it."

Finally, the author of Chevron, Justice Stevens, ren-dered a decision for a unanimous Court in SEC v.Zandford, 122 S.Ct. 1899 (2002), upholding the SEC'sinterpretation of Section 10(b) of the SecuritiesExchange Act of 1934 in the context of a particularenforcement action. The Act prohibits fraudulentactivity "in connection with the purchase or sale ofany security." Zandford, a broker, had been given dis-cretion to trade for a particular account, and he hadsold the securities in the account and then used theproceeds for his own use. After Zandford's criminal

conviction, the SEC moved for summary judgment ina civil action to enjoin him from future violations andordering disgorgement of his ill-gotten gains. The dis-trict court granted the motion, but the Fourth Circuit

reversed, holding that Zandford's action was not "inconnection with" the sale of a security; it was simplytheft from the customer's account. The SupremeCourt reversed. It noted that the SEC "has consistent-ly adopted a broad reading of the phrase 'in connec-tion with the purchase and sale of any security,'"

including a 1947 formal adjudication in which theSEC specifically held that a broker who sells a cus-tomer's securities with the intent to misappropriate theproceeds violates Section 10(b). "This interpretationof the ambiguous text of § 10(b)," the Court stated, "inthe context of formal adjudication, is entitled to defer-ence if it is reasonable [citing United States v. Mead]."Here, the Court found that interpretation reasonablein light of an ongoing scheme by which the brokermanipulated the account in various ways in order toliquidate the securities and transfer the proceeds tohimself, as opposed to simple embezzlement of thecash proceeds of a customer's account.

Court Extends Sovereign Immunity/EleventhAmendment to Agency Adjudications ofPrivate ClaimsIn Federal Maritime Commission v. South CarolinaState Ports Authority, 122 S.Ct. 1864 (2002), SouthCarolina had denied permission to a cruise ship line todock in Charleston, because the cruise ship was usedprincipally for taking persons outside of SouthCarolina for the purpose of gambling. The cruise shipline filed a complaint with the Federal MaritimeCommission alleging that South Carolina was violatingthe Shipping Act of 1984 by discriminating against it.Under the Act, persons may file complaints with theCommission seeking reparations and/or administrativecease-and-desist orders against persons who violate theAct. Under the Commission's rules, the complaint wasreferred to an Administrative Law Judge. The SouthCarolina State Ports Authority moved for dismissal onthe grounds that it was "entitled to EleventhAmendment immunity" from the action. The ALJagreed with the State, but the Commission held thatsovereign immunity did not bar the action. Onappeal, the Fourth Circuit reversed, and the SupremeCourt granted certiorari.

Reflecting the 5-4 split that has characterized theCourt's Eleventh Amendment cases in recent years, theCourt in an opinion by Justice Thomas affirmed theFourth Circuit, finding that the agency adjudication ofthe private complaint was the functional and constitu-tional equivalent of a suit in court which would bebarred by the Eleventh Amendment. Justices Stevensand Breyer wrote dissents on behalf of the minority, reit-erating their continuing disagreement with the Court'sEleventh Amendment case law but arguing that this caseextended that case law and was not compelled by it.

No one doubted that had the Shipping Act provid-ed for a private suit in federal court for violations ofthat Act, recent Eleventh Amendment case law wouldhave barred such a suit against an unconsenting state.The novel question in the case was whether the sameresult was required when it was not a suit in a court

24i , 1'!

Administrative and Regqulatory Law News Volume 27, Number 4


but an adjudication before an agency.The Court began with what has now become famil-

iar ground: "sovereign immunity enjoyed by the Statesextends beyond the literal text of the EleventhAmendment." The Eleventh Amendment, rather thandefining the extent of sovereign immunity, is merely thearticulation of one aspect of that immunity driven by theneed to overrule a particular case, Chisholm v. Georgia, 2Dall. 419 (1793). Quoting from Hans v. Louisiana, 134U.S. 1 (1890), the doctrinal foundation for modernEleventh Amendment law, the Court stated that there isa presumption that the "Constitution was not intendedto 'rais[e] up' any proceedings against the States that were'anomalous and unheard of when the Constitution wasadopted."'The proceedings before the Commission fellunder this presumption. The Court noted that formaladjudications before the Commission "bear a remarkablystrong resemblance to civil litigation in federal courts."The "preeminent purpose of state sovereign immunity,"the Court said, "is to accord States the dignity that isconsistent with their status as sovereign entities." Thus,in light of the similarities between civil litigation and theCommission's adjudication, these adjudications wouldsimilarly violate the state's sovereign immunity. Indeed,the Court suggested, "allowing a private party to haul astate in front of such an administrative tribunal [might]constituteH a greater insult to a State's dignity thanrequiring a State to appear in an Article III court."

The Court dismissed two objections to the applica-tion of the sovereign immunity to the case. The gov-ernment argued that sovereign immunity does notinsulate states from actions by the United States, andthat although the complaint that initiated the casecame from a private person, the action in essence wasone by the United States. The Court rejected thisargument, noting that under the Shipping Act the pri-vate party's complaint to the Commission by itselfeffectively requires a response from the defendant. Thefailure to appear itself has legal consequences.Accordingly, it is not the United States that is decidingto bring the action that affects the dignity of the state;it is the private party - precisely what sovereignimmunity is intended to protect against. This theCourt distinguished from the more ordinary situationwhen a person raises a claim to the government, whichinvestigates the claim, and then decides whether or notto bring an action against the violator. This proceduredoes not raise any sovereign immunity problem.

A second argument by the government was that,even if the requested reparations order would violatestate sovereign immunity, a cease-and-desist orderwould not, because it would not threaten the financialintegrity of the state. To this the Court replied thatthis reflected a fundamental misunderstanding of sover-eign immunity; it "applies regardless of whether a pri-

vate plaintiff's suit is for monetary damages or someother type of relief." It is not merely a defense to lia-bility; it is immunity from suit.

This latter conclusion may well strike some as oddin light of the doctrine of Ex parte Young, 209 U.S. 123(1908), which created an exception to EleventhAmendment immunity when the suit seeks an injunc-tion against a state officer to end a continuing violationof federal law. Although there has been some specula-tion about the continuing vitality of Ex parte Young,after rejection of an Ex parte Young argument inSeminole Tribe of Florida v. Florida, 517 U.S. 44 (1996),the case that signaled the renascence of sovereignimmunity in the Supreme Court, the Court recentlyrelied upon it to defeat an Eleventh Amendment claim.See Verizon Maryland, Inc. v. Public Service Comm'n ofMaryland, 122 S.Ct. 1753 (2002). Here, at least for therequested cease-and-desist order, the complaint filed bythe cruise ship line would seem analogous to situationsin which Ex parte Young has applied. The Court, how-ever, did not cite or mention Ex parte Young.

The effect Federal Maritime Commission will have onagency practices is unclear. Although the case involvedan attempt to bring a state into a formal adjudication,and the Court to a certain extent relied on the partic-ular procedural requirements of formal adjudication toshow the equivalence to a civil action in court, itseems clear that its holding would equally apply to aninformal adjudication, if it too involved a private per-son in effect requiring the state to appear in the pro-ceeding. At the same time, the Court took pains todistinguish the ordinary situation when an agencybegins a proceeding against a state based upon theagency's independent determination to bring the case,even if the original information and request camefrom a private person, going so far as to note that theCommission could still proceed on its own against theSouth Carolina State Ports Authority. The UnitedStates conceded that the Court's decision would notinterfere with the Commission's ability to enforce theShipping Act. Justice Breyer in dissent, however, sug-gested a more dire consequence. He cited the whistle-blower provisions in a number of federal environmen-tal statutes, all of which provide for dischargedemployees to file a complaint with a federal agency,which then "cause[s] such investigation to be made as[deemed] appropriate," including a "public hearing"conducted pursuant to the formal adjudication provi-sions of the APA, concluding with findings of fact,which if they support a finding of a violation, results inan order to the offender. In other words, these provi-sions, at least, seem identical to those in FederalMaritime Commission.

At the ABA Annual Meeting in Washington, D.C.,the Section will sponsor a panel on this case. A



New:hF'rcuits continued from page 11

Industries, but U.S.West removed the case to federal dis-trict court. The statute provides for removal of casespending before a "state court."The Ninth Circuit inOregon Bureau of Labor and Industries v. U.S. West

Communications, Inc., 288 E3d 414 (9th Cir. 2002),held that the case could not be removed to federalcourt, because BOLI is a state agency, not a state court.The court rejected use of a "functional test" used bythe First and Seventh Circuits, but also rejected by theThird Circuit. Because the language of the statute wasclear, there was no authority to use a functional test, thecourt said. 4&

Rec en m articiec nterest continued from page 19

peting canons of constructions should courts use whenthey interpret ambiguous provisions in regulatorystatutes; (2) how can an agency make and defend itsline-drawing decisions when it is prohibited from con-sidering costs in any way: and, (3) how can courtsreview an agency's decisions when the agency is pro-hibited from considering costs.

Brian S. Prestes, Remanding Without Vacating AgencyAction, 32 SETON HALL L. Riv. 108 (2001). In thelast decade, courts reviewing agency action haveincreasingly opted to remand the challenged regulationto the agency without vacating. This trend is likely tocontinue or accelerate. Because courts' ability toremand without vacating agency action effectively barsrelief from successfully challenged regulations, whetherremanding without vacating is lawful is a critical ques-tion for regulated parties, courts, lawmakers, and agen-cies alike. This Article suggests that remanding withoutvacating arbitrary or insufficiently reasoned agencyaction is unlawful. After arguing that the ambiguouspractical benefits of remanding without vacating do notjustify brushing the legal arguments aside, this Articleconcludes, against the conventional wisdom, that thetext of the Administrative Procedure Act, along with

the legislative history, statutory purpose, canons of con-struction, and judicial precedent demonstrate the ille-gality of remanding without vacating.

Collections

Thirty-First Annual Administrative Law Issue:Politics and Policy: Presidential Administrationsand Administrative Law. 51 DUKE L.J. 851(2001). James E Blumstein, Regulatory Review by theExecutive Office of the President:An Overview and PolicyAnalysis of Current Issues;John 0. McGinnis, PresidentialReview as Constitutional Restoration; Robert V Percival,Presidential Management of the Administrative State: TheNot-so-unitary Executive; Jim Rossi, Bargaining in theShadow ofAdministrative Procedure: The Public Interest inRulemaking Settlement; Mark Seidenfeld, The Psychologyof Accountability and Political Review of Agency Rules.

Symposium, The Bicentennial Celebration of theCourts of the District of Columbia Circuit. 90Georgetown L. J. 545 (2002). Including: Patricia M.Wald and Jonathan R. Siegel, The D.C. Circuit and theStruggle for Control of Presidential Information; Richard J.Pierce, Jr., The Special Contributions of the D.C. Circuit toAdministrative Law; Daniel R. Ernst, Dicey's Disciple onthe D.C. Circuit:Judge Harold Stephens and AdministrativeLaw Reform, 1933-1940. '

Blackletter Statement of Federal Administrative Law

The Section has published A Blackletter Statement of Federal AdministrativeLaw. The Blackletter Statement aims to summarize in manageable lengthand format the basic propositions of current federal administrative law. TheStatement is divided into six topics reflecting the standard subjects ofadministrative law: Adjudication, Informal Rulemaking, Scope of JudicialReview, Availability of Judicial Review, Freedom of Information Act (andrelated statutes), and Government Management of the AdministrativeProcess. Additional copies can be purchased by contacting the Section'sDirector, Leanne Pfautz, at 202/662-1665 or [email protected]: $5 each for 1-10 copies; $3 each for 10 or more.

26Administrative and Regulatory Law News Volume 27, Number 4


-Ofier,'oncSlad om lteeChl'r

ChairC. Boyden GrayWashington, DC202/663-6056

Chair ElectNeil R. EisnerWashington, DC202/366-4723

Vice ChairThomas D. MorganWashington, DC202/994-9020

SecretaryCynthia A. DrewWashington, DC202/616-7554

Assistant SecretaryJonathan J. RuschWashington, DC202/514-0631

Budget OfficerDavid W. RodererWashington, DC202/974-1012

Asst Budget OfficerDaniel CohenWashington, DC202/482-4144

Section DelegatesErnest GellhornWashington, DC202/319-7104

Ronald A. CassBoston, MA617/353-3112

Immediate Past ChairRonald M. LevinSt. Louis, MO314/935-6490

CouncilSteve CalkinsDetroit, MI313/577-3945

John F. CooneyWashington, DC202/962-4800

John DuffyWilliamsburg,VA757/221-3819

Cynthia FarinaIthaca, NY607/255-5879

David FrederickWashington, DC202/514-1030

H. Russell Frisby, Jr.Washington, DC202/296-6650

Renee M. LandersBoston, MA617/951-7000

Leonard LeoWashington, DC202/882-8138

Daniel RodriguezSan Diego, CA619/260-4527

Sidney A. ShapiroLawrence, KS785/864-9222

Lisa A. WhitneyNew York, NY212/659-5306

Lynne K. ZusmanWashington, DC202/659-1971

Ex Officio MembersState Administrative LawJim RossiTallahassee, FL850/644-8308

Executive BranchViet DinhWashington, DC202/514-4601

JudiciaryMerrick GarlandWashington, DC202/273-0376

Legislative BranchHannah SistareWashington, DC202/224-4751

Administrative JudiciaryJudith Ann DowdWashington, DC202/219-2557

Administrative ProcessCommittee Chairs

AdjudicationAlan W. HeifetzWashington, DC202/708-5004

John C. Keeney, Jr.Washington, DC202/637-5750

Constitutional Lawand Separation of PowersThomas 0. SargentichWashington, DC202/274-4238

Daniel E. TroyWashington, DC202/719-7550

Corporate CounselRichard J. WolfParsippany, NJ407/370-6301Dispute ResolutionCharles E. PouWashington, DC202/887-1037

Government Informationand Right to PrivacyJames T. O'ReillyCincinnati, OH513/556-0062

Judicial ReviewMark SeidenfeldTallahassee, FL850/644-3059

Legislative Processand LobbyingWright H. Andrews, Jr.Washington, DC202/347-6875

RatemakingSteven A. AugustinoWashington, DC202/955-9600

Regulatory InitiativesJonathan J. RuschWashington, DC202/514-0631

Sidney A. ShapiroLawrence, KS785/864-9222

Regulatory PolicyRobert W. HahnWashington, DC202/862-5909

Cass R. SunsteinChicago, IL773/702-9498

RulemakingDaniel R. CohenWashington, DC202/482-4144

State Administrative LawMichael R. AsimowLos Angeles, CA310/825-1086

Edward J. Schoenbaum, Jr.Springfield, IL217/524-7836

Government FunctionsCommittees

AgricultureRobert G. HibbertWashington, DC202/756-8216

Philip C. OlssonWashington, DC202/518-6366

Antitrust andTrade RegulationThomas C. ArthurAtlanta, GA404/727-5792

Banking andFinancial ServicesAnne E. DeweyWashington, DC202/414-3803

David W. RodererWashingtnn, DC202/974-1012

BenftsJodi B. LevineOklahoma City OK405/231-4451

Rudolph N. PattersonMacon, GA912/745-1651

Beverage Alcohol PracticeRichard BlauTampa, FL813/277-6775

CommunicationsRandolph J. MayWashington, DC202/289-8928

Margaret TobeyWashington, DC202/887-6935

Daniel WaggonerSeattleWA206/628-7789

Consumer Products RegulationDavid H. BakerWashington, DC202/973-2709

Peter L. WinikWashington, DC202/637-2224

Criminal ProcessDavid L. DouglassWashington, DC202/778-3026

Stephen M. RyanWashington, DC202/463-4349

Defense andNational SecurityThomas E. Crocker, Jr.Washington, DC202/756-3318

EducationJulie UnderwoodAlexandriaVA703/838-6710

ElectionsTrevor PotterWashington, DC202/719-4273

Jamin B. RaskinWashington, DC202/274-4011

Joseph E. SandlerWashington, DC202/543-7680

EnergyKenneth G. HurwitzWashington, DC202/962-4850

Environmental andNatural ResonrcesJames 0. Neet, Jr.Kansas City MO816/474-6550

Wendy WagnerAustin, TX512/471-5151

Food and DingScott BassWashington, DC202/736-8684

Nick LittlefieldBoston, MA617/832-1105

Government Operations& Personnel

Joel P. BennettWashington, DC202/625-1970

Lynne K. ZusmanWashington, DC202/659-1971

Health andHuman ServiceMichael MalinowskiWilmington, DE302/477-2120

Housing andUrban DevelopmentOtto J. HetzelBethesda, MD202/321-1500

Immigration and NaturalizationAnna W. ShaversLincoln, NE402/472-2194

InsuranceJanet E. BelkinNew York, NY212/815-9267

Intellectual PropertyKenneth CorselloWashington, DC202/220-4310

International LawCharles H. Koch, Jr.Williamsburg,VA757/221-3835

Kathleen E. KunzerArlington,VA703/741-5177

International Trade & CustomsLindsay MeyerWashington, DC202/962-4800

Labor & Employment LawNancy E. ShallowDetroit, MI313/877-7337

OmbudsSharan Lee LevineKalamazoo, MI616/382-0444

Postal MattersSenny BooneArlington,VA703/907-7900Pnblic Contracts andProcnrementCharles D. AblardWashington, DC202/789-8787

John W. ChierichellaWashington, DC202/639-7140

Securities, Commoditiesand ExchangesTimothy R. DonovanChicago, IL312/923-2871

Alan L. DyeWashington, DC202/637-5737

TransportationWilliam S. Morrow, Jr.Washington, DC202/331-1671

Treasury, Revenue and TaxJames R. HagertyWashington, DC202/778-3037

Veterans AffairsMichael P. HoranWashington, DC202/416-7792

Stephen PurcellWashington, DC202/554-3501

Barton F StichmanWsahington, DC202/265-8305

Section ActivitiesCommittees

Outstanding GovernmentService AwardJohn F. CooneyWashington, DC202/962-4800

Robert A. ShapiroWashington, DC202/693-5505

Scholarship AwardWilliam H. AllenWashington, DC703/524-5216

Jack M. BeermanBoston, MA617/353-2577

Daniel R. OrtizCharlottesville,VA804/924-3127

NominationsJohn Hardin YoungWashington, DC202/479-1111

PublicationsRandolph J. MayWashington, DC202/289-8928


Cynthia Drew has left the VI tWU ,011/dDepartment ofJustice to take. oioid.sbcia position as AssociateProfessor of Law at the.tittAUniversity of Miami in CoralGables, Florida.

Susan Braden has been nominated by PresidentBush for appointment to the United States Court ofFederal Claims.

At the urging of Senate Energy CommitteeChairman Jeff Bingaman (D-N.M.), Senator Daschlesent a letter to President Bush requesting the nomina-tion of Suedeen Kelly, the former chairwoman ofthe New Mexico Public Utilities Commission. Kellywould theoretically fill a seat left vacant by formerFERC Chairman Curt Hebert last summer.

Hannah S. Sistare, former staff director and coun-sel for Senator Fred Thompson (k-TN) on the Senate

ADMINISTRATIVE & REGULATORY LAW NEWSVolume 27, Number 4, Summer 2002

Published by the Section ofAdministrative Law and Regulatory Practice

American Bar Association750 N. Lake Shore DriveChicago, IL 60611-4497

.Rtu 1 F/W Governmental Affairsd1an .$.Morr0..Committee, has joined the

'1$ should.be rewed.Brookings Institution as the2.executive director of the

newly convened secondNational Commission on the Public Service. Sistarewill direct the Commission's efforts to focus attentionon the need for comprehensive reform in the federalpublic service.

Renee Landers has accepted an appointment asan Associate Professor at Suffolk University LawSchool, where she will be teaching administrative lawand health care law.

Professor Peter Strauss's book, An Introduction ofAdministrative Justice in the United States (2d ed.)has been published by Carolina Academic Press.

Professor Jim Rossi has left Florida State Law Schoolfor the University of North Carolina Law School. A

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