Administrative Law Conference

October 19-20, 2017 Capital Hilton | Washington, DC

Program Chairs:

Andrew Emery Susan Prosnitz

Section Chair: John F. Cooney

12.5 HOURS OF PROFESSIONAL PRACTICE CLE CREDIT REQUESTED INCLUDING 1.5 HOURS OF ETHICS CREDIT

Platinum Sponsors

Administrative Law Conference

Gold Sponsor

Silver Sponsor

THURSDAY, OCTOBER 19, 2017

TIME SESSION BALLROOM

7:30 am—9:00 am Registration & CLE Sign-In, Refreshment Breaks Capital Terrace

9:00 am—10:30 am Breakout Session I

Litigating During Regulatory Change: Immigration Law and Beyond Presidential

Reinvigorating Congress’s Oversight Role of the Federal Bureaucracy Congressional/Senate

Joining the Federal Administrative Judiciary Federal AB

10:30 am—10:45 am Break

10:45 am—12:15 pm Breakout Session II

Anything Up at OIRA? Exploring the Trump Administration’s Big Moves in the Regulatory Space

Presidential

Federal Agency Guidance: Its Role in Agency Operations, Industry Com-pliance, and Litigation

Congressional/Senate

Ten Top Issues for the FDA in 2018 Federal AB

12:15 pm—1:15 pm Lunch Break & Award Presentations Presidential

1:15 pm—2:45 pm Breakout Session III

The State of Regulatory Reform in Congress Presidential

Regulation of Disruptive Innovation – The Future of Driverless Planes, Trains and Automobiles!

Congressional/Senate

Regulatory Budgets: Risk or Remedy? Federal AB

2:45 pm—3:00 pm Break

3:00 pm—4:30 pm Breakout Session IV

Cleaning Out Regulatory Closets: Deregulation in Agencies Presidential

Now What? Academic Thoughts on Judicial Remedies in Administrative Law

Federal AB

FRIDAY, OCTOBER 20, 2017

TIME SESSION BALLROOM

7:30am—8:15 am Registration & CLE Sign-In, Refreshment Breaks Presidential

8:15 am—8:30 am Welcome from Section Chair & Sponsor Recognition Presidential

8:30 am—10:15 am Developments in Administrative Law, Part I Presidential

10:15 am—10:30 am Break

10:30 am—12:15 pm Developments in Administrative Law, Part II Presidential

12:15 pm—1:15 pm Lunch Break & Awards Presentations

1:15 pm—2:45 pm Breakout Session V

Evaluating Federal Actions: The Powers, Processes, and Proclamations of Administrative Agencies and the Oval Office

Presidential

Ethics CLE Credit Ethical Red Flags for Public Lawyers Congressional/Senate

Are ALJs Unconstitutionally Appointed, or Are They Mere Employees? The Rock and the Hard Place Posed by the Bandimere and Lucia Decisions

Federal AB

2:45 pm—3:00 pm Break

3:00 pm—4:30 pm Breakout Session VI

Collision Course: Determining Where the Executive’s Deliberative Process Privilege Ends and the People’s Right to Know Begins

Presidential

Agency Adjudication Outside of the Administrative Procedure Act Congressional/Senate

Litigation and The Agency Administrative Record Federal AB

4:30 pm Conference Adjourns

Schedule at a Glance

Andrew Emery, Program Chair; President, The Regulatory Group, Inc., Arlington, VA Susan Prosnitz, Program Chair; Deputy Chief Counsel, Regulations and Security Standards, Transportation Security Administration (TSA), Arlington, VA John F. Cooney Section Chair; Partner, Venable LLP, Washington, DC Carlos F. Acosta, Inspector General, Prince George’s County, Maryland Police Department, Upper Marlboro, MD Edgar Asebey, President, Edgar J. Asebey, P.A., Pompano Beach, FL Nick Bagley, Professor of Law, The University of Michigan Law School, Ann Arbor, MI Kent Barnett, Associate Professor of Law, University of Georgia School of Law, Athens, GA Anne Bechdolt, Senior Attorney, Regulatory Affairs, FedEx Express, Memphis, TN Hon. Judith Boggs, U.S. Department of Labor Benefits Review Board, Member and Administrative Appeals Judge, Washington, DC Michael D. Bopp, Partner, Gibson, Dunn & Crutcher; Former Chief Counsel, Senate Committee on Homeland Security and Governmental Affairs, Washington, DC Rene E. Browne, Acting Associate General Counsel, Legal Counsel Division, Office of the General Counsel, U.S. Department of Homeland Security (DHS), Washington, DC Hon. Walter Brudzinski, Chief Administrative Law Judge, U.S. Coast Guard, Washington, DC H.Thomas Byron III, Assistant Director, Appellate Staff, Civil Division, U.S. Department of Justice, Washington, DC Eric Bursch, Minority Staff Director, Subcommittee on Regulatory Affairs and Federal Management [Democratic staff] U.S. Senate Committee on Homeland Security and Governmental Affairs, Washington, DC

PROGRAM FACULTY

Terence Carlson, Assistant General Counsel for General Law, U.S. Department of Transportation, Washington, DC Judge Joan Churchill, Immigration Judge, retired., Immigration Court, Chevy Chase, MD Daniel Cohen, Assistant General Counsel for Legislation, Regulation and Energy Efficiency, U.S. Department of Energy, Washington, DC James W. Conrad Jr., Conrad Law & Policy Counsel, Washington, DC Clyde Wayne Crews, Vice President for Policy and Director of Technology Studies, Competitive Enterprise Institute, Washington, DC Margaret Daum, Staff Director, Democratic Staff, Senate Committee on Homeland Security and Governmental Affairs, Washington, DC Susan Dudley, Director of GW Regulatory Studies Center & Distinguished Professor of Practice, George Washington University Trachtenberg School of Public Policy & Public Administration Lisa Ellman, Partner, Hogan Lovells LLP and Co-Executive Director, Commercial Drone Alliance, Washington, DC Mark Epley, General Counsel, Office of the Speaker of the House of Representatives, Washington, DC Jill E. Family, Commonwealth Professor of Law and Government and Director, Law and Government Institute, Widener University Commonwealth Law School, Harrisburg, PA Michael Fitzpatrick, Head of Regulatory Advocacy, GE, Former Senior Advisor to the OIRA Administrator (1995-97) and OIRA Associate Administrator (2009-11), Washington, DC Daniel Flores, Chief Counsel, Subcommittee on Regulatory Reform, Commercial and Antitrust Law , U.S. House Committee on the Judiciary, Washington, DC William Funk, Lewis & Clark Distinguished Professor of Law Emeritus, Lewis & Clark Law School, Portland OR

James Gattuso, Senior Research Fellow, Roe Institute for Economic Policy Studies, Heritage Foundation, Washington, DC Robert Glicksman, J. B. and Maurice C. Shapiro Professor of Environmental Law, The George Washington University Law School, Washington, DC Andy Grewal, Professor and Joseph F. Rosenfield Fellow in Law, University of Iowa College of Law, Iowa City, IA Sean Hayes, Director, Oversight & Investigations, Department of Health and Human Services (HHS), Washington, DC Patrick Hedren, Senior Counsel, Government Affairs, GE Global Law & Policy, Washington, DC Kristin Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School, Minneapolis, MN Donald M. Itzkoff, Washington, DC Linda Jellum, Ellison C. Palmer Professor of Tax Law, Mercer University School of Law, Macon, GA William S Jordan III, Professor of Law, Emeritus, University of Akron Law School, Akron, OH Judith S. Kaleta, Deputy General Counsel, U.S. Department of Transportation (DOT), Washington, DC Sally Katzen, Professor of Practice and Distinguished Scholar in Residence, NYU School of Law; former OIRA Administrator and former OMB Deputy Director for Management (1993-2000), New York NY Hon. Harold C. “Chuck” Kullberg, United States Civilian Board of Contract Appeals, Washington, DC Martin S. Lederman, Associate Professor of Law, Georgetown University, Washington, DC Hon. Robert Lesnick, Chief Administrative Law Judge, Federal Mine Safety and Health Review Commission, Washington, DC Ronald M. Levin, William R. Orthwein Distinguished Professor of Law, Washington University School of Law St. Louis, MO

Thomas Lorenzen, Partner, Crowell & Moring LLP; formerly Assistant Chief, Environmental Defense Section, Environmental & Natural Resources Division, U.S. Department of Justice, Washington, DC Jeffrey S. Lubbers, Professor of Practice, American University Washington College of Law, Washington, DC Jennifer Mascott, Assistant Professor of Law, George Mason University Antonin Scalia Law School, Arlington, VA; Professor of Law, George Washington University School of Law, Washington, DC Christina McDonald, Associate General Counsel for Regulatory Affairs, U.S. Department of Homeland Security, Washington, DC Richard H. Melnick, Senior Assistant Bar Counsel, Maryland Attorney Grievance Commission, Annapolis, MD Richard Murphy, AT&T Professor of Law, Texas Tech University School of Law, Lub-bock, TX Amit Narang, Regulatory Policy Advocate, Congress Watch, Public Citizen, Washington, DC Amanda Neely, General Counsel, Senator Rob Portman; Deputy Chief Counsel, Senate Permanent Subcommittee on Investigations, Washington, DC Aaron L. Nielson, Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University, Provo, UT James O’Reilly, University of Cincinnati , Cincinnati, OH Nick Parillo, Professor of Law, Yale Law School, New Haven, CT Mark A. Perry, Partner, Gibson Dunn, Washington, DC Richard W. Parker, Professor of Law, University of Connecticut School of Law, Hartford, CT Richard J. Pierce, Jr., Kyle T. Alverson Professor of Law, George Washington University School of Law, Washington, DC Aditi Prabhu, Special Assistant, Office of General Counsel, U.S. Environmental Protection Agency (EPA), Washington, DC

PROGRAM FACULTY

Neomi Rao, OIRA Administrator, Washington, DC Nicole Rataski Avramovich, Senior Regulatory Affairs Analyst, Industry Standards, Regulations and Compliance, Bridgestone Americas Tire Operation, LLC, Nashville, TN J.B. Ruhl, David Daniels Allen Distinguished Chair of Law; Director, Program on Law and Innovation; Co-Director, Energy, Environment and Land Use Program, Vanderbilt Law School, Nashville, TN Michael J. Rush, Senior Vice President, Safety and Operations, Association of American Railroads, Washington, DC Susanne Sachsman Grooms, Deputy Staff Director & Chief Counsel, Democratic Staff, House Committee on Oversight and Government Reform, Washington, DC Bijal Shah, Associate Professor of Law, Arizona State University, Sandra Day O’Connor College of Law, Phoenix, AZ Howard Shelanski Professor of Law, Georgetown University, Partner, Davis Polk & Wardwell, and OIRA Administrator 2013-2017, Washington, DC David L. Strickland, Partner, Venable LLP, and Counsel, Self-Driving Coalition for Safer Streets, Washington, DC Cass Sunstein, Robert Walmsley University Professor, Harvard Law School, Cambridge, MA Satya Thallam, Chief Economist, U.S. Senate Committee on Homeland Security and Governmental Affairs, Washington, DC Katherine Van Tassel, Associate Dean of Academics, Professor of Law, Concordia Law School, Boise, ID Christopher J. Walker, Associate Professor of Law; Director, Washington, DC Summer Program, The Ohio State University Moritz College of Law, Columbus, OH Philip A. Wallach, Senior Fellow, Brookings Institution, Washington, DC Caroline (Carrie) Wehling, Assistant General Counsel, Water Law Office, U.S. Environmental Protection Agency, Washington, DC

Matthew Lee Wiener, Vice Chairman and Executive Director, Administrative Conference of the Untied States (ACUS), Washington, DC Hon. Erin Wirth, United States Administrative Law Judge, Federal Maritime Commission, Washington, DC Eric Womack, Assistant Branch Director, Federal Programs Branch, Civil Division, U.S. Department of Justice, Washington, DC Allison M. Zieve, Director, Public Citizen Litigation Group, Washington, DC

Program Agenda

Thursday ● October 19, 2017

7:30 am—9:00 am Registration & CLE Sign-In, Refreshment Breaks

9:00 am—10:30 am Litigating During Regulatory Change: Immigration Law and Beyond Breakout Session I Jill E. Family (Moderator & Panelist) Rene E. Browne, Martin S. Lederman, Allison M. Zieve Presidential While administrative agencies are never static, we are experiencing a very robust period of regulatory change. The Trump Administration is promoting a clear departure from the pre-existing regulatory agenda. The Trump Administration’s reform proposals call for big changes to existing regulations and envision a wholesale rethinking of the role of agencies. Some of the proposals have rapidly morphed as they are implemented. What is it like to be an administrative law litigator during a time of such regulatory change? Is this presidential transition exceptional? Allison Zieve, Director, Public Citizen Litigation Group, has broad experience litigating in times of agency change across a range of administrative law topics, including her experience challenging the Trump Administration’s 1-in, 2-out executive order. Rene Browne, Acting Associate General Counsel, Legal Counsel Division, Office of the General Counsel, U.S. Department of Homeland Security, will discuss this topic from the perspective of a government lawyer.

9:00 am—10:30 am Reinvigorating Congress’s Oversight Role of the Federal Bureaucracy

Breakout Session I

Christopher J. Walker (Moderator)

Michael D. Bopp, Kristin Hickman, Amanda Neely, Philip A. Wallach

Congressional/ The Yale University Press recently published a book by Cornell law professor Josh Chafetz Senate entitled Congress’s Constitution. This timely book details the historical foundations for a number of powerful tools at Congress’s disposal—the power of the purse, the contempt power, freedom of speech and debate, and other oversight tools—to rein in the federal bureaucracy and to resolve Congress’s conflicts with the other branches of the government. This panel will discuss how Congress has used and can better utilize these tools to reassert itself in the modern administrative state. Two of the panelists (Professor Kristin Hickman and Brookings Senior Fellow Philip Wallach) are among the nation’s leading legal experts on administrative law and the role of Congress. The other two panelists either serve (Amanda Neely) or have served (Michael Bopp) in the Senate on committees with extensive oversight responsibilities—the latter of whom having conducted the Republican-led Senate oversight investigation of the Bush Administration’s handling of Hurricane Katrina response.

9:00 am—10:30 am Joining the Federal Administrative Judiciary Breakout Session I Hon. Joan Churchill, Hon. Harold C. “Chuck” Kullberg, Hon. Robert Lesnick, Hon. Erin Wirth Federal AB This program explains the requirements for becoming a federal administrative law judge or administrative judge; the application, review, selection and appointment processes; the role of a member of the administrative judiciary; and pertinent statutes, regulations, and codes, including ethics provisions.

10:30 am—10:45 am Break

Program Agenda

Thursday ● October 19, 2017

10:45 am—12:15 pm Anything Up at OIRA? Exploring the Trump Administration’s Big Moves in the Regulatory Space Breakout Session II Michael Fitzpatrick (Moderator) Susan Dudley, Sally Katzen, Howard Shelanski Presidential Three former OIRA Administrators will provide their assessment of the Trump Administration’s ambitious regulatory reform agenda, including recent executive orders (13771; 13777). They will explore the challenges and opportunities in the two-for-one and regulatory budget requirements and assess the impact of deregulatory efforts to date, what lies ahead for OIRA and the agencies, and the prospects for additional regulatory reforms through executive action.

10:45 am—12:15 pm Federal Agency Guidance: Its Role in Agency Operations, Industry Compliance, and Litigation Breakout Session II James W. Conrad Jr. (Moderator) Ronald M. Levin, Nicholas R. Parrilo, Aditi Prabhu Congressional/ For a regulated industry, actual regulations often provide only a basic framework, with a huge Senate number of practical issues left to be governed by agency guidance documents—policy statements, interpretive letters, memoranda, advisory circulars, bulletins, manuals, FAQs, etc.— that aren’t legally binding in the way regulations are, don’t have to go through notice and comment, and are less likely to be subject to judicial review. This panel addresses guidance from the perspectives of agency officials who write and administer guidance, counsel advising regulated entities on compliance matters, and attorneys litigating to challenge or defend guidance. Issues include how agency officials choose between regulations and guidance, how stakeholders provide input on the two, practical reasons for industry to follow guidance notwithstanding its nonbinding status, how to distinguish guidance from regulations in litigation, and complaints that agencies use guidance too much or too little. The panel will present some fresh perspectives on these enduring questions, including a new research project on guidance’s role in regulation, conducted for the Administrative Conference of the United States and based on interviews with over 130 officials and stakeholders, as well as new suggestions for harmonizing the unruly case law on the Administrative Procedure Act’s exemption of guidance from notice and comment.

10:45 am—12:15 pm Ten Top Issues for the FDA in 2018 Breakout Session II James O’Reilly (Moderator & Panelist) Edgar Asebey, Katherine Van Tassel Federal AB The program will address ten issues that are or should be considered as priorities for the Food & Drug Administration in 2018. Panelists will explain the background and public policies behind the evolution of the U.S. food and drug regulatory system, teach how the FDA responds to public health challenges and needs in the face of acute and chronic risks, explain the Food & Drug Administration’s organization, its functions, its relationship to other federal agencies, and how to effectively interact with the FDA, give insights into the strengths and weakness of the use of prescription drug marketing controls, address the areas of International food importation and its oversight, explain how the FDA, states, private litigation and the legal system interact to protect public health, and identify, understand, and apply the practical resources available, i.e. websites, materials, organization, data bases, that are commonly used to address public health issues and concerns.

Program Agenda

Thursday ● October 19, 2017

1:15 pm—2:45 pm The State of Regulatory Reform in Congress Breakout Session III Patrick Hedren (Moderator) Eric Bursch, Daniel Flores, Satya Thallam Presidential Key legislative staff from the House and Senate present the legal and policy issues involved with updating the Administrative Procedure Act of 1946, opportunities for meaningful changes to other laws that govern agency rulemaking, and the challenges they face making reform a reality. The panel will explore the points of agreement and disagreement between both parties, as well as the differences between the House and Senate.

1:15 pm—2:45 pm Regulation of Disruptive Innovation – The Future of Driverless Planes, Trains and Automobiles! Breakout Session III Donald M. Itzkoff (Moderator) Lisa Ellman, Michael J. Rush, David L. Strickland Congressional/ From smart trains and automated vehicles to drones, transportation is transforming faster than Senate Congress, the CFR and the states can keep up. What regulatory barriers constrain deployment of new and safer transportation technologies? And conversely, when and where are new regulatory frameworks and standards necessary to enable and promote innovation? This panel of transportation regulatory experts at the forefront of technology innovation will tackle these and other questions – including what does performance-based regulation really mean – in a deep and provocative administrative dive offering insights for all regulatory practitioners in any sector undergoing disruptive change.

1:15 pm—2:45 pm Regulatory Budgets: Risk or Remedy? Breakout Session III Richard W. Parker (Moderator & Panelist) Clyde Wayne Crews, James Gattuso, Amit Narang Federal AB The regulatory budget approach now being implemented by the Trump administration has been urged for years as an effective tool for rationalizing regulation and reducing what some consider to be runaway regulatory costs. Proponents find support for their optimism in the experience of Great Britain, Canada, and Australia, all of which have successfully implemented, or are implementing, regulatory budgets of one kind or another. Critics of the concept, however, argue that regulatory budgets have no empirical justification in the United States context, and constitute an arbitrary and capricious form of regulatory rationing that may force de-regulation (or prevent new regulation) regardless of regulatory benefit or public interest. Critics find the experiences of Great Britain, Canada, and Australia to be either irrelevant to the U.S. context or, worse, a worrisome confirmation of the risks of the approach. This panel will bring together leading advocates and critics of the regulatory budget concept in a vigorous but friendly debate on the empirical basis – and likely consequence – of regulatory budgets as implemented both overseas and in the United States.

12:15 pm—1:15 pm Lunch Break & Presentations (NON-CLE) Presidential Senior Fellow Award Sally Katzen Professor of Practice and Distinguished Scholar in Residence, NYU School of Law Former OIRA Administrator and former OMB Deputy Director for Management (1993-2000), New York NY ________________________________________________________________________________________________________________

Presentation from OIRA Administrator Neomi Rao Overview of Priorities at OIRA

Program Agenda

Thursday ● October 19, 2017

3:00 pm—4:30 pm Cleaning Out Regulatory Closets: Deregulation in Agencies Breakout Session IV Christina McDonald (Moderator) Nicole Rataski Avramovich, Anne Bechdolt, Daniel Cohen, Amit Narang Presidential In early 2017, President Trump issued two Executive Orders directed at regulatory reform: Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs, requires agencies to identify two prior regulations for elimination and equivalent cost offsets before issuing one new regulation. In addition, it provides that the Director of the Office of Management and Budget shall identify a regulatory cost allowance for each agency in fiscal year 2018 and beyond. Executive Order 13777, Enforcing the Regulatory Reform Agenda, requires agencies to establish Regulatory Reform Task Forces and to designate Regulatory Reform Officers. This panel will explore the practical aspects and effects of these Executive Orders. Through a diverse panel comprised of agency personnel, industry representatives, and advocacy representation, we will explore the on-the-ground experience with these regulatory reform Executive Orders. We will consider what steps federal agencies are taking to implement the executive orders, how outside parties are interfacing with agencies with respect to these Executive Orders, and what impacts these Executive Orders are having on regulated parties. We will explore successes that have been realized and challenges that have been encountered, in the context of these Executive Orders.

3:00 pm—4:30 pm Now What? Academic Thoughts on Judicial Remedies in Administrative Law Breakout Session IV Aaron Nielson (Moderator) Nicholas Bagley, Andy Grewal, Jennifer Mascott, Nicholas Parrillo Federal AB No one -- including agencies -- likes to lose in court but it happens sometimes. What, however, does that really mean? Will the agency action be vacated or remanded? Is there a "workaround"? What if the agency declines to comply or the court concludes that the agency's compliance is inadequate? And what should happen when any potential remedy is unusually disruptive because the challenged practice has been occurring for a long time? This panel of academics will address such questions by focusing on harmless error in administrative law, agency practices regarding compliance with remedial orders, how agencies post-remand sometimes are able to use different grants of authority to achieve similar ends, and what might happen if the manner of appointment of administrative law judges is declared unconstitutional. In short, remedies matter. This event is co-sponsored by the Yale Journal on Regulation's Notice & Comment, a Blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice.

2:45 pm—3:00 pm Break

4:30 pm End of Day 1

8:30 am—10:15 am Developments in Administrative Law, Part I Jeffrey Lubbers (Moderator) William Funk (Constitutional Law), Christopher Walker (Adjudication) Presidential In this signature event of the Administrative Law Section’s Fall Conference, scholars will present a comprehensive overview of the most important administrative law developments in the last twelve months. It’s all the administrative law news that’s fit for discussion and it comes packaged in one fast-paced program that has become a must-attend event for anyone practicing federal administrative law or involved with regulation in Washington.

10:15 am—10:30 am Break

7:30 am—8:15 am Registration & CLE Sign-In, Refreshment Breaks

8:15 am—8:30 am Welcome from Section Chair & Sponsor Recognition Section Chair John F. Cooney Presidential

10:30 am—12:15 pm Developments in Administrative Law, Part II Jeffrey Lubbers (Moderator) Linda Jellum (Judicial Review: Scope of Review), William S. Jordan (Rulemaking), Richard Murphy (Judicial Review: Access to the Courts) Presidential In this signature event of the Administrative Law Section’s Fall Conference, scholars will present a comprehensive overview of the most important administrative law developments in the last twelve months. It’s all the administrative law news that’s fit for discussion and it comes packaged in one fast-paced program that has become a must-attend event for anyone practicing federal administrative law or involved with regulation in Washington.

Program Agenda

Friday ● October 20, 2017

12:15 pm—1:15 pm Lunch Break & Awards Presentations Presidential Section Fellow Award

Hon. Jeffrey A. Rosen, Deputy Secretary, U.S. Department of Transportation Shawne McGibbon, General Counsel, Administrative Conference of the United States Volunteer of the Year Andrew Emery, President, The Regulatory Group, Inc. Gellhorn-Sargentich Law Student Essay Award Laura Dolbow, Vanderbilt University Law School “Appropriating Agencies: How Congress Leverages Legislative History to Direct Agency Action”

Award for Scholarship in Administrative Law Eloise Pasachoff “The President's Budget as a Source of Agency Policy Control, 125 Yale L.J. 2182 (2016)” Adrian Vermeule “Law's Abnegation: From Law's Empire to the Administrative State (Harvard University Press 2016)”

Program Agenda

Friday ● October 20, 2017

1:15 pm—2:45 pm Ethical Red Flags for Public Lawyers Breakout Session V Judith S. Kaleta (Moderator) Carlos F. Acosta, Terence Carlson, Richard H. Melnick Congressional/ The ABA’s Government and Public Sector Lawyers Division’s Ethical Red Flags for Public Senate Lawyers examines the unique ethical issues confronted by public sector lawyers using an entertaining, interactive format. Panelists dramatize short, illustrative scenarios with a discussion period following each hypothetical. A variety of ethics topics will be covered – all from the point of view of the government lawyer.

ETHICS CLE

CREDIT

1:15 pm—2:45 pm Evaluating Federal Actions: The Powers, Processes, and Proclamations of Administrative Breakout Session V Agencies and the Oval Office Robert Glicksman (Moderator) Aaron Nielson, J.B. Ruhl, Cass Sunstein Presidential What are the “certain kinds” of decisions that executive agencies can make? Does regulatory delay deserve its poor reputation? What new insights can text analytics reveal about Presidential language? Leading scholars will examine these contemporary questions in the field of Administrative Law. Each panelist will discuss their latest research, developed through articles that will be published in The George Washington Law Review’s Volume 86 Annual Review of Administrative Law. Specifically, the scholars will explore the American nondelegation principle as applied to administrative agencies; the benefits and challenges of ossification in agencies; and computational topic modeling of the language that flows from the Oval Office.

1:15 pm—2:45 pm Are ALJs Unconstitutionally Appointed, or Are They Mere Employees? The Rock and the Hard Breakout Session V Place Posed by the Bandimere and Lucia Decisions Hon. Judith Boggs (Moderator) Kent Barnett, Hon. Walter Brudzinski, Jennifer Mascott, Mark A. Perry, Richard J. Pierce Federal AB A major legal issue has arisen that holds potentially, huge implications for administrative law judges and all federal agencies that employ them. The issue is whether ALJs are considered “inferior officers” subject to the Appointments Clause of the U.S. Constitution or mere “employees” of their respective agencies. The former designation would require ALJs to have been appointed to their positions by the President, the courts, or an agency departmental head. Since ALJs are not appointed in this manner, but are instead hired pursuant to a merit system operated by the Office of Personnel Management, it is argued that their appointments, as well as the decisions they render, are invalid. This was precisely the holding recently rendered by the U.S. Court of Appeals for the 10th Circuit in Bandimere v. SEC, which rejected the opposing view expressed by the D.C. Circuit in Lucia v. SEC. In Lucia, the D.C. Circuit held that ALJs of the Securities and Exchange Commission were not unconstitutionally appointed since they were not duly-appointed “inferior officers” of the U.S. government. Rather, the court held, they were mere “employees” whose decisions were subject to review by the full Commission and therefore did not constitute “final decisions” under the Appointments Clause, and as contemplated by the U.S. Supreme Court decision in Freytag v. Commissioner. Clearly, this split in the circuits is ripe for Supreme Court review and holds huge potential uncertainty for the administrative state – especially if the Court’s ruling is applied to all ALJ decisions rendered under the Administrative Procedure Act. This panel will explore the merits of the legal arguments presented by all parties in these and other related cases still winding their way through the courts. We will also explore the significant policy issues presented by these cases, as well as potential “fixes” should the Supreme Court decide to take up these cases and find that ALJs are indeed, inferior officers rather than agency employees.

2:45 pm—3:00 pm Break

Program Agenda

Friday ● October 20, 2017

3:00 pm—4:30 pm Collision Course: Determining Where the Executive’s Deliberative Process Privilege Ends and Breakout Session VI the People’s Right to Know Begins Michael Bopp (Moderator) Margaret Daum, Mark Epley, Sean Hayes, Susanne Sachsman Grooms Presidential The Executive Branch’s increasing invocation over recent presidential administrations of the

deliberative process privilege in response to congressional and other inquiries necessarily questions the competing constitutional mandates of the co-equal branches as well as the public’s right to know. On the one hand, the Executive Branch has an interest in being able to hash out issues and make decisions behind closed doors. On the other, Congress and the public have an interest in under-standing Executive Branch deliberations, both because they could help Congress legislate more ef-fectively and because people could view how decisions are made as relevant to how they vote in the next presidential election. Executive Branch decision-making, too, can be important in litigation. As recent judicial decisions indicate, the heightened frequency with which the deliberative process privi-lege is invoked and its unclear underlying rationale not surprisingly have led to a convoluted history of judicial development. This raises questions about the extent to which the deliberative process should shield the Executive Branch from Congressional inquiry as well as its proper place in FOIA and private litigation contexts. The panel of experienced Congressional investigators and current and former Executive Branch officials will consider whether recent courts have interpreted the scope of the privilege correctly and how Congress’s ability to conduct effective oversight of the current administration is being affected by its invocation.

3:00 pm—4:30 pm Agency Adjudication Outside of the Administrative Procedure Act Breakout Session VI Matthew Lee Wiener (Moderator) Kent Barnett, Bijal Shah, Christopher J. Walker Congressional/ The Administrative Conference of the United States (ACUS) has spent the last few years

Senate addressing the role of “informal” agency adjudication in the modern administrative state. It turns out that the vast majority of adjudications do not come before an administrative law judge (ALJ) under the procedures set forth in the Administrative Procedure Act (APA). Instead, agencies usually use so-called informal adjudicatory procedures. The panel will explore this often-hidden world of agency adjudication outside of the APA by drawing on ACUS’s pioneering research in the field (Matt Wiener and Kent Barnett) and, to give greater depth to the subject, recent scholarship on the immigration adjudication system (Bijal Shah) and the new adjudicatory processes of the Patent Trial and Appeal Board (Chris Walker).

3:00 pm—4:30 pm Litigation and The Agency Administrative Record Breakout Session VI H. Thomas Byron (Moderator) Thomas Lorenzen, Caroline (Carrie) Wehling, Eric Womack, Allison Zieve Federal AB This panel—consisting of agency lawyers and litigators representing the government, the private sector, and public interest organizations—will address topics relating to an agency’s administrative record that are likely to arise in litigation. The panel’s discussion should be relevant to government agency lawyers who participate in the development of the administrative record, as well as litigators and others interested in administrative law. The panel will address development of the record during agency proceedings (before final agency action and any subsequent litigation), as well as the considerations that agency attorneys and Justice Department litigation counsel take into account as they identify the administrative record for purposes of litigation. The discussion will consider record issues that arise in the context of a variety of different agency actions (such as adjudications and rulemakings) and legal challenges, including traditional APA suits challenging agency action, as well as proceedings under 5 U.S.C. § 706(1) seeking to compel agency action unlawfully withheld or unreasonably delayed, and actions under other statutes, such as the National Environmental Policy Act. The panel will also discuss the scope of the administrative record, including the treatment of deliberative and other privileged material. The discussion will be followed by an opportunity for questions from the audience.

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Registration: The Group Discount is an additional $30 off per person with a group of 20 or more people from the same agency/office. Please complete ONE registration form per person. The ABA Service Center can be reached at 800-285-2221, 312-988-5000, Monday-Friday 9:00 AM - 6:00 PM ET. NOTE – THE CODE FOR THIS MEETING IS AL17101. A member of the Service Center team will register the attendee and process either an invoice (if payment will be made by check) or will process the card payment and email a receipt to the attendee. Each individual attendee will also receive an email confirming their registration when the registration is processed. Payment is necessary when the order is processed – VISA, American Express, Master Card or Discover are accepted. You can also return this form or call Jenette Cromwell, ABA Service Center Team Lead at (Jenette.Cromwell@americanbar.org T: 312‐988‐5554). You may contact Section staff for questions about the registration process: Angela Petro – 202.662.1582 or Rebecca Mobley – 202.662.1528 Registration closes October 13, 2017

In the interest of furthering the ABA’s creation, promotion and distribution of educational/informational materials (both now and in the future), I understand and agree that my registration and attendance at, or participation in, ABA meetings, programs and events (“Events”) constitutes an agreement by me to grant to ABA the right to record my image, photograph, picture, likeness, and voice by any technology or means. I also grant ABA the right to copy, use, perform, display and distribute such recordings of me for any legitimate purpose, including but not limited to distribution by means of streaming or other technologies via the Internet, or distribution of audio or video files for download by the public. I hereby waive any right to inspect, approve, or be compensated for use of any materials incorporating such images obtained during the Events. I release ABA and its agents, representatives and licensees from all liabilities arising out of any use of my likeness and d information as provided above. I understand and agree that any and all negatives, digital images, and recordings of my likeness, regardless of form, are and shall remain property of the ABA.

Conference Location: Capital Hilton, 1001 16th Street NW, Washington, DC. The hotel is easily accessed via the Red line Farragut North station or O/B/S lines Farragut West station. Sorry, we cannot validate parking.Hotel Block at the Capital Hilton: BOOK BY September 18th 11:59 PM EST $315 Meeting Rate | Valid 10/16 – 10/23Call 202-393-1000 or 1-855-271-3617 and mention: ABA 2017 Administrative Law Conference

CLE: The ABA directly applies for and ordinarily receives CLE credit for ABA programs in AK, AL, AR, AZ, CA, CO, CT, DE, GA, GU, HI, IA, IL, IN, KS, KY, LA, ME, MN, MS, MO, MP, MT, NH, NJ, NM, NV, NY, NC, ND, OH, OK, OR, PA, SC, TN, TX, UT, VT, VA, VI, WA, WI, and WV. These states sometimes do not approve a program for credit before the program occurs. This course is expected to qualify for 12.5 CLE credit hours in 60-minute states, and 15.0 credit hours in 50-minute states. This transitional program is approved for both newly admitted and experienced attorneys in NY. Attorneys may be eligible to receive CLE credit through reciprocity or attorney self-submission in other states. For more information about CLE accreditation in your state, visit: https://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=272703484

All CLE materials will be posted online and a link to the materials will be emailed to attendees. Please contact Angela.Petro@americanbar.org by September 29, 2017 if your local MCLE board/state requires a hard copy of materials.

Scholarships: A limited number of scholarships to partially defray tuition expenses are available for this program. To request a scholarship, send an e-mail to Anne.Kiefer@americanbar.org explaining the reason for your scholarship request and provide your ABA Membership ID number. Scholarship requests must be received by the ABA no later than September 19, 2017. You will be notified of your scholarship status by October 9, 2017.

Cancellations: Cancellations accepted with cancellation fee ($25—$50 depending on rate). Substitutions are accepted without fee. Contact Rebecca.mobley@americanbar.org or 202-662-1528.

Special Needs: If you have any special needs (equipment or dietary), please contact Rebecca.Mobley@americanbar.org or 202-662-1528 with your request no later than September 15, 2017

Name: __________________________________________________________________________________________________

ABA Member I.D.: ___________________________________ Administrative Law Section Member? Yes_____ No_____

Email: _________________________________________________________________ Phone: _________________________________________

Organization: _______________________________________________________________________________________

Address: ______________________________________________________ City, State, Zip: ____________________________________________

Please contact Rebecca Mobley at Rebecca.Mobley@americanbar.org or 202-662-1528 with registration questions.ABA Section of Administrative Law & Regulatory Practice, 1050 Connecticut Avenue NW, Suite 400, Washington, DC 20036

Administrative Law Conference

October 19-20, 2017

Full 2 Day Program

Single DayIndicate Day

**Group Discount

Total

ABA Administrative Law Section Members*Rate also applies to Govt. Attorneys/Academia Section Members

$399 $274 Daily $369 _____________________

ABA Members $429 $304 Daily $399 _____________________

Government Attorneys/Academia $429 $304 Daily $399 _____________________

General Public $489 $325 Daily _____________________

Law Student $25 $25 _____________________

**Group Discount $30 off (per person)

REGISTRATION FORMABA Section of Administrative Law & Regulatory Practice

Administrative Law Conference | The Capital Hilton, Washington, DC | October 19-20, 2017GROUP DISCOUNT CODE AL17101

INFORMATION LINK ABOUT THE CONFERENCE http://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=282960739

Registration: The Group Discount is an additional $30 off per person with a group of 20 or more people from the same agency/office. Please complete ONE registration form per person. The ABA Service Center can be reached at 800-285-2221, 312-988-5000, Monday-Friday 9:00 AM - 6:00 PM ET. NOTE – THE CODE FOR THIS MEETING IS AL17101. A member of the Service Center team will register the attendee and process either an invoice (if payment will be made by check) or will process the card payment and email a receipt to the attendee. Each individual attendee will also receive an email confirming their registration when the registration is processed. Payment is necessary when the order is processed – VISA, American Express, Master Card or Discover are accepted. You can also return this form or call Jenette Cromwell, ABA Service Center Team Lead at (Jenette.Cromwell@americanbar.org T: 312-988-5554). You may contact Section staff for questions about the registration process: Angela Petro – 202.662.1582 or Rebecca Mobley – 202.662.1528

In the interest of furthering the ABA’s creation, promotion and distribution of educational/informational materials (both now and in the future), I understand and agree that my registration and attendance at, or participation in, ABA meetings, programs and events (“Events”) constitutes an agreement by me to grant to ABA the right to record my image, photograph, picture, likeness, and voice by any technology or means. I also grant ABA the right to copy, use, perform, display and distribute such recordings of me for any legitimate purpose, including but not limited to distribution by means of streaming or other technologies via the Internet, or distribution of audio or video files for download by the public. I hereby waive any right to inspect, approve, or be compensated for use of any materials incorporating such images obtained during the Events. I release ABA and its agents, representatives and licensees from all liabilities arising out of any use of my likeness and d information as provided above. I understand and agree that any and all negatives, digital images, and recordings of my likeness, regardless of form, are and shall remain property of the ABA.

Conference Location: Capital Hilton, 1001 16th Street NW, Washington, DC. The hotel is easily accessed via the Red line Farragut North station or O/B/S lines Farragut West station. Sorry, we cannot validate parking.

Hotel Block at the Capital Hilton: BOOK BY September 18th 11:59 PM EST $315 Meeting Rate | Valid 10/16 – 10/23Call 202-393-1000 or 1-855-271-3617 and mention: ABA 2017 Administrative Law Conference

CLE: The ABA directly applies for and ordinarily receives CLE credit for ABA programs in AK, AL, AR, AZ, CA, CO, CT, DE, GA, GU, HI, IA, IL, IN, KS, KY, LA, ME, MN, MS, MO, MP, MT, NH, NJ, NM, NV, NY, NC, ND, OH, OK, OR, PA, SC, TN, TX, UT, VT, VA, VI, WA, WI, and WV. These states sometimes do not approve a program for credit before the program occurs. This course is expected to qualify for 12.5 CLE credit hours in 60-minute states, and 15.0 credit hours in 50-minute states. This transitional program is approved for both newly admitted and experienced attorneys in NY. Attorneys may be eligible to receive CLE credit through reciprocity or attorney self-submission in other states. For more information about CLE accreditation in your state, visit: https://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=272703484

All CLE materials will be posted online and a link to the materials will be emailed to attendees. Please contact Angela.Petro@americanbar.org by September 29, 2017 if your local MCLE board/state requires a hard copy of materials.

Scholarships: A limited number of scholarships to partially defray tuition expenses are available for this program. To request a scholarship, send an e-mail to Anne.Kiefer@americanbar.org explaining the reason for your scholarship request and provide your ABA Membership ID number. Scholarship requests must be received by the ABA no later than September 19, 2017. You will be notified of your scholarship status by October 9, 2017.

Cancellations: Cancellations accepted with cancellation fee ($25—$50 depending on rate). Substitutions are accepted without fee. Contact Rebecca.mobley@americanbar.org or 202-662-1528.

Special Needs: If you have any special needs (equipment or dietary), please contact Rebecca.Mobley@americanbar.org or 202-662-1528 with your request no later than September 15, 2017

Name: __________________________________________________________________________________________________

ABA Member I.D.: ___________________________________ Administrative Law Section Member? Yes_____ No_____

Email: _________________________________________________________________ Phone: _________________________________________

Organization: _______________________________________________________________________________________

Address: ______________________________________________________ City, State, Zip: ____________________________________________

Please contact Rebecca Mobley at Rebecca.Mobley@americanbar.org or 202-662-1528 with registration questions.ABA Section of Administrative Law & Regulatory Practice, 1050 Connecticut Avenue NW, Suite 400, Washington, DC 20036

Administrative Law Conference

October 19-20, 2017

Full 2 Day Program

Single DayIndicate Day

**Group Discount

Total

ABA Administrative Law Section Members*Rate also applies to Govt. Attorneys/Academia

Section Members

$399 $274 Daily $369 _____________________

ABA Members $429 $304 Daily $399 _____________________

Government Attorneys/Academia $429 $304 Daily $399 _____________________

General Public $489 $325 Daily _____________________

Law Student $25 $25 _____________________

**Group Discount $30 off (per person)