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ADMINISTRATIVE & REGULATORY LAW NEWSVol. 26, No. 1 Fall 2000American Bar Association

Sect ion o f Adminis t ra t ive Law & Regula tor y Prac t ice

Chair’s Message 2 APA Project Round Two 3 Council Capsules 4 Supreme Court News 6 News from the States 8 The Court’s Deferences 10 Administrative Law Conference Information 12

News from the Circuits 14 Recent Articles 16 Member News 24 Upcoming Meetings 24

I n T h i s I s s u e

2000Administrative Law

ConferenceWashington, DC October 12-14

Administrative and Regulatory Law News Volume 26, Number 12

here. Congressional developments claimed a greatdeal of attention during the 1990’s, including theUnfunded Mandates Reform Act, the CongressionalReview Act, and the Small Business RegulatoryEnforcement Fairness Act; and bills to codify far-reaching requirements for cost-benefit analyses andrisk assessments in major rulemaking proceedings arestill on the radar screen. The executive branch hasgiven us “reinventing government” and a successionof executive orders, and the advent of a new presi-dential administration portends further developmentsfrom that quarter as well. Broader social forces arealso having their impact. Electronic technology, atopic of several programs at our upcoming Adminis-trative Law Conference, is transforming the regulato-ry process as it has everything else. In addition, thejudiciary may still have a few surprises up its collec-tive sleeves, as the Supreme Court heads towardanother rendezvous with the nondelegation doc-trine, and the case law on regulatory takings and thecommerce clause becomes increasingly prominent.Finally, while the foregoing discussion has focusedon federal law, the states remain true laboratories ofexperimentation, trying out countless variations onthemes that federal practitioners take for granted.

The Section has been and remains an active par-ticipant in the legal profession’s dialogue on all thesefronts. Indeed, another of our major recent initia-tives, the launching of an annual series of volumeson Developments in Administrative Law and RegulatoryPractice, attests to our belief that the field continues

Chair’sMessage

Ron Levin

ADMINISTRATIVE & REGULATORY LAW NEWS

No Longer Young, but Not Yet Gray

When I realized that I would be serving as Section Chair just after Jack Young and just beforeBoyden Gray, the title for my inaugural column prac-tically wrote itself. The title is not entirely frivolous,however. It does refer most directly to the currentstate of the Section chairmanship (and possibly of theSection Chair personally). But it also has somethingto say about the current status of administrative law.

A sign that federal administrative law may be “nolonger young” is that the field seems to have achieveda degree of doctrinal stability in recent years. Or atleast the pace of change has slowed. A generationago, much of administrative law seemed up for grabs.The creation of new agency responsibilities in envi-ronmental, health, and safety regulation, and the riseof rulemaking, triggered vast dislocations in adminis-trative law. Now the range of doctrinal ferment hasnarrowed. It is hard to think of any court case fromthe 1990’s that compares in importance with theblockbuster cases of the 1980’s, such as Benzene,Chadha, State Farm, Chevron, and Morrison v. Olson.We still see judicial opinions carrying on lively argu-ments about standing and finality, textualism and def-erence, but their impact is felt mainly at the margins.The maturing of administrative law has resulted in aregulatory system in which the basic ground rules,while not simple, have begun to look fairly recogniz-able to those who toil regularly in this area.

This relative equilibrium has helped to set the stagefor our Section’s Administrative Procedure ActReview Project. The “Statement of AdministrativeLaw” that our reporters are developing is a practicalpossibility precisely because so much of the subjectmatter has come to seem fairly durable (though surelynot entirely static). The Statement, when completed,should stand as one of the Section’s most comprehen-sive and valuable contributions to professional educa-tion. Chief Reporter Paul Verkuil and his talentedcorps of reporters deserve enormous credit for thetime and thought they have devoted to this project.

But administrative law is “not yet gray” by anymeans. The signs of continuing evolution arenumerous, and I can mention only a few of them

continued on page 15

(ISSN 0567-9494)Published by the ABA Section of Administrative Law andRegulatory Practice, 740 15th Street, NW, Washington, DC20005-1002.Editor in Chief: William Funk, Lewis & Clark LawSchool, Portland, OR 97219, (503) 768-6606; FAX (503) 768-6671; e-mail: [email protected]. Associate Editor for Section NewsWilliam S. Morrow, Jr., e-mail:[email protected]. AssociateEditor for News from the States Michael Asimow, e-mail:[email protected]. Staff Director: Leanne Pfautz, ABA, 74015th Street, NW, Washington, DC 20005-1002, (202) 662-1665;FAX: (202) 662-1529; e-mail: [email protected] views expressed in the Administrative & Regulatory Law Newsare not necessarily those of the Section of Administrative Law andRegulatory Practice, the American Bar Association, or the Editors.

The second round of the APA project gotunderway July 8 at the 2000 Annual Meet-ing in New York City with a return to the

topics of adjudication and scope of judicial review.Over the past year, project reporters have producedpapers on these two topics and on rulemaking,availability of review and governmental manage-ment and openness. All of the papers that havebeen produced to date may be viewed at the sec-tion’s APA project website: http://www.abanet.org/adminlaw/apa/home.html.

The New York session’s return to adjudicationand scope of review saw a blend of the old and new.Panelists from the 1999 Annual Meeting in Atlantapresented revised papers on adjudication. Newcontributions to the statement on judicial reviewadded fresh insight into the Chevron doctrine. Butwhat really distinguished this gathering from previ-ous ones was the adjudication panel’s introductionof concrete recommendations for reform.

AdjudicationAssistant Reporter Michael Herz moderated thediscussion on adjudication. One difference ofopinion that came to the fore during the discussionwas a disagreement over the creation of a defaultrule for determining when a hearing on the recordshould be required, with Glen Robinson urging an“on the record” presumption and Jack Beermannarguing the cause for making informal adjudicationthe norm, as noted below. Panelist Steven Croley,from the University of Michigan Law School,raised the stakes by proposing the creation of anintermediate level of adjudication, somethingbetween formal and informal.

Adjudicatory Hearings. Reporter GlenRobinson presented an updated version of his ear-lier report on adjudicatory hearings and a briefdescription of two suggestions for reform. He rec-ommended two changes to the APA to clarify themeaning of the “required by statute” phrase inSection 554(a). His first amendment would clarifythe holding in Wong Yang Sung v. McGrath, 339U.S. 33 (1950) – the holding that says “required by

Fall 2000 Administrative and Regulatory Law News3

APA Project Round Two: Redux & ReformBy William S. Morrow, Jr.*

statute” may sometimes mean “required by dueprocess” — by amending 554(a) to read “requiredby statute or by the Constitution.” The secondchange recommended by Robinson would imposea rebuttable presumption that a statutory require-ment for an adjudicatory hearing means a hearingon the record. Robinson believes it does not makesense to specify a raft of formal hearing proceduresonly to turn around and establish a presumptionagainst their use.

Informal Adjudication. Jack Beermann pre-sented an updated version of his earlier statementon informal adjudication and offered several pro-posed amendments to various APA sections. Beer-mann would divide adjudication into “formaladjudication” and “informal process” by amendingthe definitional provisions in sections 551(7) & (16).Beermann favors making informal adjudication thedefault rule given the prevalence of informalprocess. On the other hand, he would strengtheninformal procedures to ensure adequate notice toparties and development of an adequate record forreview. He also would amend 555(e) to create ageneral right to petition agencies, with the under-standing that not every denial must be supported byspecific, detailed reasons.

Integrity of Process. Reporter Michael Asi-mow presented an updated version of his earlierreport on integrity of the decisionmaking process.On the issue of bias, he believes the APA shouldborrow from the Model State Administrative Pro-cedure Act §4-202(b), which states that an adjudi-cator can be disqualified for “bias, prejudice,interest, or any other cause provided in this Act.”He also thinks the APA should make clear that anagency head from an agency with more than onehead should not participate in deciding an issue ofbias that relates to himself or herself.

On separation of functions, Asimow advocatesan amendment to 554(d) that would require sepa-ration of functions even in nonprosecutorial pro-ceedings. He also believes 554(d) should makeclear that whenever a staff member participates inan agency proceeding in such a manner and tosuch a degree that the member identifies with or


* Associate Editor for Section News; Chair, TransportationCommittee; General Counsel, Washington Metropolitan AreaTransit Commission.

will be about twenty-five new chairs and vicechairs next year. He announced the formation of anew committee on regulatory policy. CassSunstein and Robert Hahn will co-chair that com-mittee. Levin also said that he has revived theCommittee on Government Information andRight to Privacy. Jim O’Reilly will be chairingthat committee. Levin noted that the InternationalLaw Committee will be taking a different directionto focus on the role of the American lawyer withrespect to global regulatory institutions like theEuropean Commission.

Board Liaison ReportABA Governor M. Douglas Dunn, the section’sadvocate on the Board, briefly reviewed the newlyadopted guidelines for requesting additional sectionstaff and the report on corporate sponsorship. Healso vowed to work on reducing the overlap ofjurisdiction between this section and the StandingCommittee on Election Law. He then coveredBoard discussions on items of interest to the sec-tion, including the section’s recommendations thatthe House of Delegates support (1) expansion ofthe Federal Circuit’s jurisdiction over veteransappeals and (2) establishment of practice standardsfor ombudsmen. (See Council Capsules,Administrative & Regulatory Law News, Summer2000, at 4-5.) Dunn reported that the Board sup-ported the veterans recommendation but not theombudsmen recommendation. According toDunn, the Board was concerned about the breadthof the recommendation and language mandatingnondisclosure of information that ombudsmendeem confidential.

Delegates’ ReportDelegate Ernie Gellhorn said he would oppose arecommendation to the House of Delegates fromthe ABA Judicial Division that would urgeCongress to, among other things, amend the APAby implanting a default rule requiring formal hear-ings in all adjudication proceedings, except in caseswhere the statute being applied states otherwise.Gellhorn said he would inform the House that theAPA project reporters are divided on this issue and

Chair’s ReportChairman Young thanked the Council for theirsupport in the past year. He said he was pleasedwith the Annual Developments project andthought it was a good start to what will hopefullybe a long series of successful publications for thesection. He noted that the fall AdministrativeLaw Conference is now an established part of thesection’s programming. He thanked Neil Eisnerfor organizing a very successful first annualGovernment Administrative Law Institute. Hesaid that Tom Sargentich is working on a draftreport on administrative law issues that will serveas a blueprint for developing an educational pro-gram for presidential transition teams andappointees. He expects Sargentich to present thereport at the October council meeting. Heclosed by thanking staff for their dedication andsupport during the past year.


CouncilCapsules

A Brief Digest of Council Highlights From the 2000 Annual Meeting In New York

Mrs. Kevin Barry, John Miller, Martin Richman, andKevin Barry at the reception at the Federal Courthousein New York City following the tribute to Judge HenryFriendly

Chair-Elect’s ReportChair-Elect Levin said that in the coming year, hewill try to sustain the momentum generated byChairman Young. Levin said that the committeeappointment process is complete and that there


advise the House that further consideration of thisissue should be postponed until after the APA pro-ject reporters have finished their work.

Gellhorn commented on the Board ofGovernors’ lack of support for the ombudsmenrecommendation. He noted that opposition wasoriginating primarily from the Senior LawyersDivision and the Commission on Legal Problemsof the Elderly out of a concern that the recom-mendation’s neutrality provisions might compro-mise the position of ombudsmen who serve asadvocates for the elderly. Chairman Youngthanked the Ombudsman Committee for theirhard work on producing an outstanding productand urged them to continue.

Gellhorn then discussed the DC Bar’s recom-mendation opposing legislation proposed by theDepartment of Defense that would limit federalcourt jurisdiction over decisions of military selec-tion boards. The Chair recognized Kevin Barry,who gave a brief history of the legislation and saidthat the Judge Advocates are in favor of the rec-ommendation. The council voted to support therecommendation.

Ethics 2000 Advisory CommitteeTom Morgan, section delegate to the Ethics 2000Committee, presented a report on the committee’sproposed amendments to Model Rules 1.9 and1.11, regarding a lawyer’s obligations to formerclients. Rule 1.11 by its terms applies only to for-mer government lawyers. The amendments wouldresolve the disagreement over whether Rule 1.11applies to ex-government lawyers in addition to orexclusive of Rule 1.9 by making it clear that Rule1.9 applies. Morgan believes this will place a dis-proportionate burden on ex-government lawyers.Under Rule 1.9, a lawyer generally can take infor-mation he or she acquired while representing aformer client and use it on behalf of a new clientagainst other members of the former client’s indus-try. That does not work when the former client isthe federal government. Morgan said he wouldpropose that the committee drop its proposal, withthe understanding that Rule 1.11 would be modi-fied to recognize that some information obtainedfrom the government should not be used in privatepractice. Council member Lynne Zusman sug-gested looking at FOIA cases for guidance.Morgan agreed. The council consented to

Morgan informing the committee that the sectionsupports his compromise proposal.

Federal Appointments ProcessCouncil Member Stephen Calkins was asked toreport on his interviews of four presidentialappointees, Asst. Atty. Gen. Joel Klein, FTCChairman Robert Pitofsky, and FTCCommissioners Sheila Anthony and Thomas Leary.The appointees said the biggest problem was theinterminable delay, with its attendant financial harmfrom putting one’s practice on hold. Financial dis-closure forms were also singled out as potentialproblems for some nominees. Past Chair Ron Cassobserved that the myriad of financial forms a nomi-nee must complete conflict with each other and setnominees up for failure. Incoming Chair-ElectBoyden Gray suggested that this matter should becovered in the section’s presidential transition mate-rials. Chair-Elect Levin agreed and expressed hisdesire to keep the section involved in the appoint-ments process beyond the election.

Annual Scholarship AwardThe subcommittee on scholarship recommended thatthis year’s award be conferred on Cass R. Sunstein,the Karl N. Llewellyn distinguished professor in theUniversity of Chicago Law School and Departmentof Political Science, for his two articles: Is the CleanAir Act Constitutional?, 98 MICH. L. REV. 303 (1999),

Chair Ron Levin, Delegate Ernie Gellhorn, and formerChair Janet Belkin at the London reception at the Middle Temple of the Inns of Court.


by William Funk*

Issue Exhaustion Splits CourtIn Sims v. Apfel, 120 S. Ct. 2080 (2000), the Courtin a 5-4 decision, with Justice O’Connor joiningonly part of the majority opinion, held that JuatassaSims was not required to raise an issue to the SocialSecurity Appeals Council in order to raise the issuein judicial review of her denial of benefits. Ms. Simshad filed for Social Security disability benefits, buther claim was denied. She sought and received ahearing before an ALJ, who again found againsther. She then requested the Social SecurityAppeals Council to review her case, but it deniedreview. Finally, she sued in district court, claimingthree separate errors made by the ALJ, but the dis-trict court rejected her claims. The court ofappeals affirmed the district court on the merits asto the first claim, but as to the last two claims itheld that it lacked jurisdiction to consider them,because she had not raised them in her request forreview by the Appeals Council. The Court grant-ed certiorari to resolve a split in the circuits as towhether a claimant waives judicial review of anissue if he fails to exhaust that issue by presenting itto the Appeals Council.

Justice Thomas, writing for the majority, firstnoted that the government conceded that Ms. Simshad “exhausted her administrative remedies byrequesting review by the Council.” Accordingly,under the judicial review provision of the SocialSecurity Act, 42 U.S.C. § 405(g), and its implement-ing regulations she was entitled to judicial review ofher claims. The government, however, argued thatin addition to exhausting her administrative reme-dies, she must also exhaust the issues, saying that “anissue exhaustion requirement is ‘an important corol-lary’ of any requirement of exhaustion of remedies.”

Requirements of administrative issue exhaustion,the Court said, “are largely creatures of statute,” andno statute required it here. The Court recognized,however, that “it is common for an agency’s regula-tions to require issue exhaustion in administrativeappeals. And when regulations do so, courtsreviewing agency action regularly ensure againstbypassing that requirement by refusing to considerunexhausted issues.” Here, though, there was noregulation requiring administrative issue exhaustion.

Finally, the Court acknowledged that “[i]t is truethat we have imposed an issue-exhaustion require-ment even in the absence of a statute or regulation.”The Court explained that the “basis for a judiciallyimposed issue-exhaustion requirement is an analogyto the rule that appellate courts will not considerarguments not raised before trial courts.” Becauseof this justification for a judicially imposed issue-exhaustion requirement, “the desirability of a courtimposing a requirement of issue exhaustion dependson the degree to which the analogy to normaladversarial litigation applies in a particular adminis-trative proceeding.” Appeals to the Social SecurityAppeals Council are, however, very informal. Usu-ally the claimant is not represented by a lawyer, andthe Council provides a form claimants may use tofile an appeal that includes three lines for theclaimant to state the basis for an appeal. The Paper-work Reduction Act notice estimates that filling outthe form will take 10 minutes. In light of thisnature of Social Security Appeals Council appeals,Justice Thomas, joined by Justices Stevens, Souter,and Ginsburg, concluded that the analogy to normaladversarial litigation was lacking and so an issue-exhaustion requirement was not appropriate.

Justice O’Connor agreed that, in the absence of astatute or regulation requiring issue exhaustion, sucha rule is not always appropriate. In those cases, theremust be a “careful examination of ‘the characteris-tics of the particular administrative proceeding pro-vided.’” However, rather than rely on generalconclusions about the nature of Social SecurityAppeals Council appeals, Justice O’Connor con-cluded simply that here there was one particularcharacteristic that made issue exhaustion inappropri-ate. This characteristic was the fact that the agencyfailed to notify claimants that issue exhaustion wasrequired under circumstances where all the otherinformation from the agency would likely lead oneto believe that issue exhaustion was not required.

Justice Breyer, writing for himself, the Chief Jus-tice, and Justices Scalia and Kennedy, began differ-ently. Without mentioning statutes or regulationsrequiring issue exhaustion, he wrote that “[u]nderordinary principles of administrative law a review-ing court will not consider arguments that a partyfailed to raise in timely fashion before an adminis-trative agency.” The dissent agreed that therequirement for administrative issue exhaustion inpart stemmed from an analogy to judicial practice,but even more important in the administrative


Supreme CourtNews

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

(5th Cir.1998)(no exhaustion required).More interesting is the insight Apfel provides into

the attitudes toward judicial review held by the cur-rent members of the Court. Justice Thomas again,see Shalala v. Ill. Council on Long Term Care, Inc., 120S.Ct. 1084 (2000)(Thomas, J., dissenting), speaks infavor of review, reflecting a presumption ofreviewability that must be overcome, while JusticeBreyer again, see id. (Breyer, J.), speaks againstreview, finding principles of administrative law thatpreclude review subject to narrow exceptions. Jus-tice O’Connor’s concurrence, depriving the major-ity of the ability to establish any rule of law, disposesof the case on its particular facts, which the agencycan easily overcome in the future. In this way shereflects the decisional minimalism – deciding casesas narrowly as possible – noted by Professor CassSunstein, see Foreword: Leaving Things Undecided, 110HARV. L. REV. 4 (1996).

Qui Tam Actions Not Barred by StandingRequirementsIn Vermont Agency of Natural Resources v. UnitedStates ex rel. Stevens, 120 S.Ct. 1858 (2000), theCourt found that the doctrine of standing did notpreclude a person from bringing a qui tam action onbehalf of the United States but that he could notbring this case because the False Claims Act, whichauthorized the qui tam suit, did not authorize suitsagainst states. The False Claims Act, passed in1863, authorizes the form of action known as quitam, a shortened form of a Latin expression mean-ing: who pursues this action on our Lord the King’sbehalf as well as his own. The False Claims Actimposes a civil liability on “any person” filing afalse claim for money with the United States, and itauthorizes a private person, after giving notice tothe government and if the government chooses notto sue within 60 days, to bring a suit in his ownname and that of the United States to collect onthat liability. The person, known as a relator,receives a portion of those funds, if he succeeds inthe suit, with the balance going to the government.It is an ancient way of privatizing the collection ofgovernment debts.

In this case Vermont raised two defenses – thatthe person did not have standing to bring the suitand that in any case Vermont could not be made adefendant, either because the False Claims Act didnot authorize suits against states or because theEleventh Amendment barred such a suit. The

context, they said, was the need to respect agencyautonomy and expertise. This was a separate justi-fication for an issue-exhaustion requirement, andone that argued here for enforcing such a require-ment. The dissent acknowledged that the informa-tion provided by the Appeals Council to claimants“might make the claimant believe he need not raiseevery issue before the Appeals Council,” and thegovernment said it was their policy not to requireissue exhaustion when the claimant was not repre-sented by a lawyer, but here Ms. Sims was repre-sented by a lawyer, who could be expected toknow the general rule requiring issue exhaustion,and who did not use the Appeals Council form butfiled 19 pages “of detailed legal and factual argu-ments challenging the ALJ’s decision.” According-ly, the dissent believed Ms. Sims should be subjectto the issue-exhaustion requirement.

Apfel is hardly a blockbuster of a decision. Itresolves by a 5-4 vote the split in the circuits bydeciding that, under existing regulations andinstructions, Social Security claimants need notraise an issue before the Appeals Council in orderto raise it on judicial review. It expressly did notdecide whether a claimant must raise an issuebefore the ALJ in order to raise it on judicialreview, although given the analyses in the differentopinions it would appear likely that issue exhaus-tion would be required. Moreover, the SocialSecurity Administration (or the Appeals Council)can effectively reverse the outcome in Apfel by thesimple act of informing claimants that they mustraise all issues, or even continue their existing poli-cy, by informing claimants that if they are repre-sented by counsel they must raise all issues.Outside the Social Security context it is unlikelythat Apfel has any force. Not only do the four dis-senters indicate the view that issue exhaustion is thegeneral rule, subject to only the rarest of excep-tions, but Justice O’Connor clearly viewed the situ-ation in Apfel unique. Even Justice Thomas’sopinion, by tying issue exhaustion to an analogy toadversarial litigation in the judicial context, suggeststhat in the vast range of formal and informal adju-dication, issue exhaustion would be required. Per-haps the one outstanding question would bewhether issue exhaustion applies to notice-and-comment rulemaking, where under the rubric ofexhaustion of administrative remedies the courts ofappeals are split. Compare National Ass’n of Manufac-turers v. Department of the Interior, 134 F.3d 1095(D.C. Cir. 1998)(exhaustion required) with AmericanForest and Paper Ass’n v. U.S. E.P.A., 137 F.3d 291




up all attempts to prune their PPLs. Neither result, thedissent argued, would be in the public interest.

Legislature Can Appoint Judges toCalifornia’s State Bar CourtThe process of disciplining lawyers raises separation ofpowers issues that are distinct from other forms of pro-fessional licensing. State supreme courts regard theareas of admission to the bar and lawyer discipline aswithin their purview, thus leaving in doubt whetherthe executive and legislative branches can interfere.

California has an exemplary lawyer discipline sys-tem. The State Bar employs full-time investigatorsand prosecutors. A State Bar Court, independent ofthe Bar and an arm of the Supreme Court, is staffedby full-time professional judges. The State BarCourt is divided into a Hearing Department and aReview Department. Decisions of the ReviewDepartment are reviewed by the Supreme Court.

The Supreme Court has appointed all the StateBar Court’s judges since it came into effect in1988. However, the California State Bar wentthrough some tough times in the ‘90’s when it wasdefunded by the Governor, bringing the lawyerdiscipline process to a grinding halt.

Capitalizing on this weakness, the legislature, in anapparent grab for power and patronage, interjecteditself into the appointments process. By statute, theSupreme Court can now appoint only two of the fivejudges of the Hearing Department. The Governor,the Speaker of the Assembly, and the Chair of theSenate Rules Committee each get to appoint one ofthe other three. The Supreme Court continues toappoint the judges of the Review Department.

Surprisingly, in a 4-3 decision, the CaliforniaSupreme Court upheld the validity of this statuteagainst a strong separation of powers attack. O’Brienv. Jones, 96 Cal.Rptr.2d 205 (2000). A fundamentalprecept in the federal separation of powers is thatCongress can never arrogate the choice of adjudica-tors or rulemakers to itself. Buckley v. Valeo, 424 U.S.1 (1976). And it should be even more difficult thannormal for the legislature to seize the appointmentsprocess when lawyer discipline is at stake, given theSupreme Court’s independent legislative, executiveand judicial powers over discipline.

The Court upheld the statute but added its owncheck to make the statute constitutional. The Courtruled that legislative and gubernatorial nomineeswould have to be cleared through the Court’s Appli-cation Evaluation and Nominations Committee.

by Michael Asimow*

Doctor Dumped by HMO Has Right to a HearingWhen do due process notions of notice, hearing, andsubstantive rationality apply to private sector deci-sionmakers? Traditionally, California has led the wayin spelling out a common law right of fair procedurein private relationships. In Potvin v. MetropolitanLife Insurance Co., 22 Cal.4th 1060, 997 P.2d 1153,95 Cal.Rptr.2d 496 (2000), the California SupremeCourt took these rights to another level.

Dr Potvin, an ob/gyn, was one of thousands ofdoctors on Metlife’s preferred provider list (PPL).This made him eligible to treat Metlife’s insureds.Potvin’s contract with Metlife allowed Metlife toterminate him without cause. Metlife terminatedhim because he had been sued for malpracticefour times and Metlife only allows two suits.Metlife refused to provide Potvin with a hearing.

The Supreme Court held that California’s com-mon law right of fair procedure required Metlife toprovide Potvin with notice and hearing. In addi-tion, he could be terminated only for a reason thatwas substantively rational. Metlife fell under thecommon law right of fair procedure because it hadeconomic power so substantial that the removal significant-ly impaired the ability of an ordinary competent physicianto practice in a particular area. The provision in thecontract allowing for termination without causewas unenforceable as contrary to public policy.

The decision was by a narrow 4-3 majority. Thedissent complained that the majority had greatlybroadened existing law because Metlife did not have amonopoly position among insurers. Moreover,unlike prior cases, Potvin was not prevented frompracticing medicine; he had merely lost someincome. The dissent complained that doctors werebeing made a “protected class.” Why should they beany different from the vast number of employees termi-nated without cause from at- will jobs whose termi-nation also greatly affected their income and ability toget other jobs? Why should an independent contrac-tor have greater rights to a hearing than an employee?

The dissent also pointed out that the majority’s stan-dard was so vague that, as a practical matter, everyinsurance company would have to provide a time-con-suming hearing in every termination case in order toforestall costly litigation. Alternatively, they could give

8

News from

* Professor of Law, UCLA Law School; Co-Chair, StateAdministrative Law; Co-Reporter for Adjudication, APA Project.

the States


the survey with candor, confident that no individualresponse would be given to a judge. Each judgethen received a report containing the summary of hisor her results. Confidentiality was also crucial at thisstage. The individual judge’s report was given onlyto the judge and to another person selected by thatjudge to help evaluate the results and to providementoring. Individual judges then could assess theinformation about their strengths and weaknessesand consider their own skill development needs.

The Chief Judge received only an office-widesummary of the survey results. These office-wideresults were made public. Copies have been madeavailable through various continuing legal educa-tion seminars and are available on the OAH webpage found at www.oah.state.mn.us.

The survey identified a number of areas whereOAH judges were consistently ranked excellent.Three-quarters or more of respondents respondedthat the judges were either excellent or good oneach of the topic areas. Over 50% of the responsesrated judges excellent at showing patience, promot-ing a sense of fairness, being even-tempered andshowing respect to the parties. There were alsoareas identified where skill development was need-ed. For example, only 33% considered the judgesexcellent at controlling lengthy, repetitive state-ments during the hearing. While almost 45% con-sidered the judges ability to write understandabledecisions to be excellent, a sizable minority, 20%,identified this as an area needing improvement.

Using the survey results, OAH has embarked onan effort to provide more professional developmentopportunities for the judges. Each judge has con-trol over a modest budget for attending either localseminars or the National Judicial College. In-housetraining is also available. In addition to the formalprofessional development opportunities, OAH isencouraging judges to share their knowledge withtheir colleagues by convening a “drop in” soda andpopcorn session twice a month to discuss issues orproblems that have arisen in hearings.

Professional Advancement for CA ALJs2

Approximately 500 to 600 ALJs currently work fora variety of agencies in California. These agencies

This panel evaluates and ranks all applications forpositions on the State Bar Court. Subjecting thelegislative and gubernatorial appointments to thisscreening process, the Court said, provided sufficientprotection against the appointment of unqualifiedpersons to the State Bar Court.

What emerges from this case is that the powersover lawyer discipline are uneasily shared betweenthe Supreme Court and the legislature. The Courtcan and does override statutes in this area that itdisagrees with, but it surprisingly decided not todo so. The Court seemed anxious to avoid con-flict with the legislature in an area where the pub-lic distrusts the lawyers—finding and eliminatingthe bad apples in the Bar. Yet by requiring all non-judicial appointments to the State Bar Court to bescreened through its own qualifications committee,the Supreme Court made future conflict inevitable.

Minnesota Program for Judicial Feedback1

How does a judge know whether he or she is per-ceived as even-handed? How can a judge knowwhether the lawyers and parties understand his deci-sion? Judges know what they intend, but few knowif they have successfully communicated those inten-tions. For judges to improve their judicial skills, theymust get feedback about whether their communica-tions are perceived by others as they intend them.

Minnesota’s Office of Administrative Hearings(OAH) created a “Judicial Development” programto give judges the opportunity to link their intentwith the perceptions of those appearing beforethem. An important key to the success of theprogram is confidentiality of information for anindividual judge, while providing public account-ability for the office as a whole.

To forge this link, OAH randomly surveyed attor-neys and parties who appeared before AdministrativeLaw and Workers’ Compensation Judges. The sur-vey asked for information about an individual judge’swork. Survey questions ranged from whether thejudge showed patience and remained even-temperedduring the proceedings, to whether the judge wasfamiliar with the issues of the case and wrote anunderstandable and thorough decision. Surveyresponses were returned to a neutral organization,hired by OAH, to collect and analyze the data. Thatallowed members of the bar and public to complete

1 The information in this article was provided by Ken Nickolai,Chief Administrative Law Judge, State of Minnesota. continued on page 22

2 The information in this and the following article was providedby Bruce Cooper, President of iResolve, Inc., a SouthernCalifornia company established to conduct impartial hearings anddispute resolution in person and online.


The Supreme Court’s recent decision inChristensen v. Harris County, 120 S.Ct. 1655(2000), presents a troubling inconsistency

concerning deference to agency interpretations.Christensen held that courts should not accord

Chevron strong deference to an agency’s interpreta-tion of a statute that is contained in an opinion let-ter. “Here, however, we confront an interpretationcontained in an opinion letter, not one arrived atafter, for example, a formal adjudication or notice-and-comment rulemaking. Interpretations such asthose in opinion letters – like interpretations con-tained in policy statements, agency manuals, andenforcement guidelines, all of which lack the forceof law – do not warrant Chevron-style deference.”Instead, “interpretations contained in formats suchas opinion letters” receive only weak deferenceunder the multi-factor approach of Skidmore v. Swift& Co., 323 U.S. 134 (1944), by which they are“entitled to respect” from the reviewing court, “butonly to the extent that those interpretations havethe ‘power to persuade.’”

The Christensen holding on interpretation ofstatutes is of great significance. It is commendably inaccord with the bedrock principle that agencies canmake law only to the extent Congress has autho-rized. It allays fears that the Chevron doctrine mightempower agencies to create binding norms by infor-mally adopting interpretations in formats that do notthemselves have the force of law. See Anthony,Which Agency Interpretations Should Bind Citizens andthe Courts?, 7 YALE J. ON REG. 1 (1990).

Inconsistently, however, the opinion containsdictum calling for a different approach to anagency’s interpretation of its own regulation. “TheUnited States asserts that the agency’s opinion letterinterpreting the regulation should be given defer-ence under our decision in Auer v. Robbins, 519U.S. 452 (1997). In Auer, we held that an agency’s

interpretation of its own regulation is entitled todeference. See also Bowles v. Seminole Rock and SandCo., 325 U.S. 410 (1945). But Auer deference iswarranted only when the language of the regula-tion is ambiguous.” The Auer opinion had held theagency’s interpretation “controlling unless plainlyerroneous or inconsistent with the regulation,” atleast where there was no reason to suspect that itdid not “reflect the agency’s fair and consideredjudgment on the matter in question.”

Thus the Christensen Court repudiated strongdeference for agency interpretations of ambiguousstatutes contained in formats lacking the force oflaw, while apparently endorsing strong deferencefor agency interpretations of ambiguous regulationscontained in such formats.

We disagree with the Auer-Seminole Rockapproach. We believe that the Skidmore-Christensenstandards should apply when courts review agen-cies’ interpretations of their own regulations thatare contained in formats that are not legally bind-ing. See Anthony, The Supreme Court and the APA:Sometimes They Just Don’t Get It, 10 ADMIN. L.J. OFAM. U. 1, 4-11 (1996). The logic of Christensen’sdenial of strong deference to informal interpreta-tions of statutes so requires. Interpretations of reg-ulations are usually expressed in nonlegislativeformats, which are every bit as informal as theopinion letter and other informal documents thatChristensen says should receive no Chevron defer-ence, and are just as lacking in force of law.

The strikingly inconsistent approach taken in Chris-tensen might be explained by considerations of judicialeconomy: the Court didn’t want to saddle the federaljudiciary with the additional workload of interpretinga large body of often-technical regulations. Perhapsthe Court thought it was striking a pragmatic com-promise, by undertaking the interpretation of statutesthough not of regulations. But judicial pragmaticsshould not overcome fundamentals of our system.

The legal infirmities of the Auer-Seminole Rockreview standard for interpretations of regulations areseveral. 1) It authorizes the agencies to make lawthrough an informal format where Congress has notdelegated such power either explicitly or by implica-tion. 2) The review standard directly flouts APA

The Court’s Deferences – a Foolish Inconsistency

by Robert A. Anthony* and Michael Asimow**

* GMU Foundation Professor of Law, George Mason UniversitySchool of Law; Vice-Chair, Judicial Review Committee; Vice-Chair, Rulemaking Committee.

** Professor of Law, UCLA Law School; Co-Chair, StateAdministrative Law Committee; Co-Reporter on Adjudication,APA Project.


A further practical problem arises from treatinginterpretations of statutes and interpretations of regu-lations inconsistently. Canny agency counsel mightevade Christensen’s rule denying strong deference toinformal agency interpretations of statutes, by craftinginformal interpretive documents that purport tointerpret regulations rather than the governing statute.

In this way an informal-ly-issued agency posi-tion could commanddeference under Auer-Seminole Rock where itcould not get deferenceunder Chevron. Theagency tried just such amaneuver in Christensen,claiming that the posi-tion put forth in theopinion letter was aninterpretation both ofthe statute and of theregulation. The effortfoundered only becausethe Court deemed theregulation unambigu-ous. But if the regula-tion had been regardedas ambiguous, theagency’s interpretationof it might have receivedAuer-Seminole Rockstrong deference, con-tradicting Christensen’sown holding that strongdeference is availableonly to statutory inter-pretations that have theforce of law.

Tellingly, the Chris-tensen opinion candid-ly recognized thatdeference to agencies’interpretations of theirregulations makes iteasy for agencies to

change the operative law. The Court said that,where the regulation was not ambiguous (as itwas not in Christensen), “[t]o defer to theagency’s position would be to permit the agency,under the guise of interpreting a regulation, tocreate de facto a new regulation.”

The quoted sentence can be applied with equalforce to ambiguous regulations, where Auer-Seminole

§ 706’s command that “the reviewing court shall . . .determine the meaning or applicability of the termsof an agency action.” 3) It contradicts the reasonthat the framers of the APA included an exceptionfor interpretative rules in § 553; namely, that suchrules are subject to “plenary judicial review.” 4) Asworded in the Auer opinion, it is even more deferen-tial than Chevronbecause it seems torequire the courts touphold an agency inter-pretation of an ambigu-ous regulation withoutregard to whether it isreasonable; that positionis dubious under APA §706(2)(A). 5) As JohnManning has demon-strated, the Auer-Semi-nole Rock standard raisesa serious separation-of-powers issue by unitinglawmaking and law-exposition in the sameagency hands. Man-ning, ConstitutionalStructure and Judicial Def-erence to Agency Interpre-tation of Agency Rules, 96COLUM. L. REV. 612,631, 638-654 (1996).

And while Chris-tensen’s approach tointerpretation of regula-tions may serve theinterests of some federaljudges, the practicalitiesof that approach dis-serve the interests of theaffected public and ofpersons concerned withthe fairness, efficiencyand acceptability ofgovernmental processes.Most notably, thereview standard erects a powerful incentive foragencies to issue vague regulations, with thethought of creating the operative regulatory sub-stance later through informal interpretations. Themore misty or vacuous the regulations, the broaderis the discretion to interpret, and the less predictablewill be the interpretations. Moreover, the affectedpublic will usually be unable to participate in shap-ing the informally-issued regulatory interpretationsor to effectively challenge them in court. continued on page 21

Section PublicationsThanks in large part to the hard work of the

last two Publications Committee chairs,Eleanor Kinney and Warren Belmar, andimmediate past Section chair Jack Young, theSection’s book publishing program is thriving.

Current titles available include: Developmentsin Administrative Law and Regulatory Practice,1998-1999, Jeffrey Lubbers; Federal Administra-tive Procedure Sourcebook, William Funk, JeffreyLubbers, and Charles Pou; The Realists’ Guideto Redistricting, Gerald Hebert, Donald Verrili,Jr., Paul Smith, and Sam Hirsch; The LobbyingManual: A Compliance Guide for Lawyers andLobbyists, Second Edition, William Luneberg;and A Guide to Federal Agency Rulemaking, ThirdEdition, Jeffrey Lubbers.

In the next few weeks, another new bookwill be published by the Section: Federal Admin-istrative Dispute Resolution Deskbook, MarshallBreger, Gerald Schatz, and Deborah Laufer.And the next edition of the Developments book,surveying all the key decisions from 1999-2000,is expected out in January 2001.

To order a book, go to www.abanet.org/adminlaw and click on “Section Publications”or call Leanne Pfautz at 202-662-1665. If youhave an idea for a book or monograph whichmay be appropriate for consideration as part ofthe Section’s publication program, contactPublications Committee Chair Randolph J.May at 202-289-8928 or [email protected]

COMMITTEE SHOWCASE PROGRAMSThird Annual Regulatory Update andForecast for Labor and Employment LawyersPresented by the Labor and Employment Committee✦ 9:00 a.m. – 10:30 a.m. ✦ Westin Fairfax

E-Commerce, Consumer Privacy Rights andRegulation: Considering the AlternativesPresented by the Government Information &Privacy Committee✦ 9:00 a.m. – 12:00 p.m. ✦ Westin Fairfax

Executive Power After the ClintonAdministrationPresented by the Constitutional Law & Separationof Powers Committee✦ 9:30 a.m. – 12:00 p.m. ✦ Westin Fairfax

Science, Agencies, and the Courts: Is Three A Crowd?Presented by the Environment & NaturalResources Committee✦ 9:30 a.m. – 11:30 a.m. ✦ Westin Fairfax

Proposals for Reorganization of ImmigrationFunctions: Arguments Pro and ConPresented by the Immigration and NaturalizationCommittee✦ 9:30 a.m. – 11:30 a.m. ✦ Westin Fairfax

Regulation by Information: ProceduralProtections in the Information AgePresented by the Regulatory Initiatives Committee✦ 10:00 a.m. – 11:30 a.m. ✦ Westin Fairfax


Section of Administrative Law and Regulatory Practice2000 Administrative Law Conference

Westin Fairfax Hotel2100 Massachusetts Avenue, NW

Washington, DC 20008Telephone: (202) 293-2100Guest Fax: (202) 293-0641

Thursday, October 12

Overview of the APA Review Project: Where We Are & Where We Are Going✦ 2:30 p.m. – 5:00 p.m. ✦ Westin Fairfax

Reception(Ticketed event)✦ 5:30 p.m. – 7:30 p.m. ✦ Swann House ✦ 1808 New Hampshire Avenue, NW

Annual Review of Developments inAdministrative Law✦ 9:00 a.m. – 12:00 p.m. ✦ Westin Fairfax

Awards Luncheon(Ticketed event)✦ 12:30 p.m. – 2:00 p.m. ✦ Westin Fairfax


Thursday, October 12

Friday, October 13

Saturday, October 14

Section Continental Breakfast✦ 8:00 – 9:00 a.m. ✦ Westin Fairfax

Section of Administrative Law andRegulatory Practice Council Meeting✦ 9:00 a.m. – 12:30 p.m. ✦ Westin Fairfax

Problems in Mental Disability DiscriminationPresented by the Labor and EmploymentCommittee✦ 10:45 a.m. – 12:15 p.m. ✦ Westin Fairfax

Workshop on Medical Information and PrivacyPresented by the Health & Human ServicesCommittee and the Food and Drug Committee✦ 1:15 p.m. – 5:45 p.m. ✦ Westin Fairfax

Ethical and Effective Hearings: Taking the High Road✦ 1:30 p.m. – 4:30 p.m. ✦ Westin Fairfax

Digital Democracy: Electronic Technologyand Public Participation in GovernmentPresented by the Rulemaking Committee✦ 2:00 p.m. – 4:00 p.m. ✦ Westin Fairfax

Balancing National Security, Presidential Power, and Due Process:Administrative Law in Implementing theDrug Kingpin Act and the InternationalEmergency Economic Powers Act (IEEPA)Presented by the Defense & National SecurityCommittee and Law and Government Program ofthe American University Washington College of Law✦ 2:00 p.m. – 4:30 p.m. ✦ Westin Fairfax

The “Last Mile” in FCC Practice: The Pathfrom the Agency to the Courthouse, and theProcedural Hurdles Along the WayPresented by the Communications Committee✦ 2:30 p.m. – 4:30 p.m. ✦ Westin Fairfax

Section Dinner and Tribute to SolicitorsGeneral of the United States(Ticketed event)✦ 7:00 p.m. – 9:30 p.m.✦ Westin FairfaxSpeakers: ✦ Seth Waxman, Solicitor General of the United States✦ Charles Fried, Solicitor General 1985 - 1989

To register for any of these programs or activities, visit the Section website atwww.abanet.org/adminlaw or call the Section office at 202/662-1528.


11th Circuit construes Christensen narrowlyThe travails of Elian Gonzales captured the nationfor months, but his stay in the United States waseffectively ended by a decision of the Eleventh Cir-cuit in Gonzales v. Reno, 212 F.3d 1338 (11th Cir.2000), rehearing and rehearing en banc denied, 215 F.3d1243. The issue there was whether the Immigra-tion and Naturalization Service was required toconsider an application for asylum by Elian Gonza-les. The INS had held that it was not so requiredbecause no cognizable application had been made,because the “applications” had been signed various-ly by Elian himself and his uncle but was opposedby his father. The court acknowledged that theimmigration laws stated that “any alien ... mayapply for asylum,” but the court found that this lan-guage was ambiguous with respect to how a minorchild of tender age “applies” for asylum. The INSinterpreted the statute in Elian’s case to precludechildren as young as six years old from personallyapplying for asylum; rather, absent extraordinarycircumstances, the application should be made onbehalf of the child by the child’s parent.

Citing Chevron v. NRDC, the court found thisa reasonable interpretation of the statute. How-ever, no one cited the Supreme Court’s decisionin Christensen v. Harris County, 120 S.Ct. 1655(2000), decided a just a month earlier, in whichthe Court held that an interpretation in an opin-ion letter was not entitled to Chevron deferencebecause the opinion letter did not have the forceof law. In the petition for rehearing and rehear-ing en banc this omission was corrected, andElian’s American relatives argued that Chevrondeference was not appropriate because the INSinterpretation had not occurred in a rulemakingor formal adjudication. The Eleventh Circuitresponded by saying that, although the SupremeCourt mentioned rulemaking and formal adjudi-cations as two examples of agency acts entitled toChevron deference, those examples were illustra-tive and not exclusive.

Moreover, it said that here the INS had adoptedits interpretation in the course of an informal adju-dication, that is, in the course of deciding what dowith the Elian’s application. “This kind of adminis-trative decisionmaking,” the court continued, “—which we think no one can seriously question wasthe deliberate and official position of the pertinentagencies of the executive branch of our govern-ment—is substantially different from and more than

the opinion letter in Christensen.” To apply Chris-tensen to this case, the court concluded, would beto extend Christensen, which it declined to do.Even if Christensen did apply, the court believed thatsome deference would still be appropriate becauseof the foreign relations aspect of immigration law.

D.C. Circuit finds EPA guidance documentfinal and ripe for reviewThe Emergency Planning and Community Right-to-Know Act (EPCRA) requires facilities that man-ufacture, process, or otherwise use toxic chemicalsto report “releases” of those chemicals annually.The Environmental Protection Agency uses thesereports to create the Toxic Release Inventory, apublic document listing amounts of toxic chemicalsreleased by facilities. In 1997 EPA by regulationextended the reporting requirement to facilities inthe metal mining industry, and in subsequent EPAinterpretations of the regulations contained in guid-ance documents EPA specified the extent of thosereporting requirements. A number of metal miningcompanies challenged these interpretations as sub-stantive changes to the regulations that were invalidfor failure to have gone through notice-and-com-ment rulemaking. The district court held that theguidance was not final and the challenge not ripe.In Barrick Goldstrike Mines, Inc. v. Browner, 215F.3d 45 (D.C. Cir. 2000), the D.C. Circuit reversedand remanded. As to finality, EPA had argued in itsbrief that the guidance was not “final agencyaction” because it was not “binding,” inasmuch as itmerely restated what EPA believes the regulationalready provides. In oral argument, however, EPAwas forced into conceding that the interpretationswere final. The court went on, nevertheless, toreiterate the D.C. Circuit’s position that guidelinesor guidance documents can be considered “finalagency action” even if informally delivered. Thecourt applied the familiar two-part test: “First, theaction must mark the ‘consummation’ of theagency’s decisionmaking process—it must not be ofa merely tentative or interlocutory nature[; a]ndsecond, the action must be one by which ‘rights orobligations have been determined,’ or from which‘legal consequences will flow.’”

Here, EPA conceded that its guidance was its finaldecision, and the court found that “legal conse-quences” would flow from the interpretations, becauseif the companies do not comply with that interpretationthey will be subject to enforcement actions. Similarly,

News fromthe Circuits


the action was ripe, because the challenges raised onlylegal issues that would not be clarified by further devel-opments and because the companies were placedunder the hardship of having to comply with thereporting requirements or face enforcement action.

Tenth Circuit holds Forest Serviceparticipation in Colorado program tointroduce Lynx not final agency actionColorado, acting under Colorado law, intends tointroduce Canadian Lynx into Colorado. Theintroduction will take place on U.S. Forest Serviceland, with the Forest Service’s consent, support,and facilitation, including participation in formu-lating Colorado’s recovery plan, in conducting var-ious analyses, and in various public meetingsregarding the project. Organizations whose mem-bers might be economically harmed by restrictionsthat might be placed on the use of Forest Serviceland to protect the Lynx brought suit under theAPA, arguing that the Forest Service had failed tocomply with the National Environmental PolicyAct. In Colorado Farm Bureau v. U.S. Forest Ser-vice, — F.3d — (10th Cir. 2000), the court heldthat there was no jurisdiction over the case becausethere was no final agency action for it to review.The fact that the Forest Service had entered into ageneral agreement with Colorado to work togeth-er in the future on particular projects did not qual-ify as something that would have direct andimmediate consequences. A letter from theregional forester pledging readiness to aid in theLynx introduction program was viewed as merely astatement of some future intent. And the fact ofparticipation in formulating the plan did not resultin any legal consequences.

Seventh Circuit dismisses challenge toForest Service designation of Research

Natural Areas for failure to exhaustadministrative remediesIn 1997 the Forest Service closed a number of theResearch Natural Areas (RNAs) in the ShawneeNational Forest to equestrian use, and groupsaffected by this change brought suit alleging,among other things, that the designation of theseareas as RNAs, areas of land within a National For-est on which the Forest Service allows natural con-ditions to prevail in order to promote biologicaldiversity, research and monitoring, and education,was arbitrary and capricious. In Shawnee TrailConservancy v. U.S. Dept. of Agriculture, —- F.3d—- (7th Cir. 2000), however, the court dismissedthe case because the plaintiffs had not exhaustedtheir administrative remedies. The Forest Serviceregulations require persons to exhaust their admin-istrative remedies before seeking judicial review, andthe plaintiffs had not sought administrative reviewof the RNA designations. The plaintiffs arguedthat they should be excused from their failure toexhaust administrative remedies because seekingsuch remedies would have been futile in this case –futile because closing the areas was the result of asettlement agreement made in a lawsuit with envi-ronmentalists, and the Forest Service was unable todeviate from that agreement. The court restated itsposition that courts do not have the power to waiveexhaustion requirements, but that, even if they do,plaintiffs had not shown futility here, because theForest Service might have violated its settlementagreement and granted plaintiffs the relief theysought. While violation of the settlement agree-ment might have had negative consequences for theForest Service, the existence of the agreement wasmerely “an obstacle” to plaintiffs obtaining therelief they sought; it did not make the agency pow-erless to grant it.

to evolve in interesting ways. Last year’s volume fea-tured informative, thoughtful chapters prepared bythirty committees of the Section, an accomplish-ment that we hope to match or exceed this year.

At the risk of torturing this column’s centralmetaphor beyond endurance, I will conclude byobserving that, while our 55-year-old Section itself

may not fit everyone’s definition of “young,” it toohas plenty of life left in it. I encourage you to witnessits vitality up close by attending our AdministrativeLaw Conference this October 12-14. The meetingwill feature a dozen committee programs, our annualprogram on the year’s most noteworthy administrativelaw developments, a working session on the APAproject, a dinner honoring past and present SolicitorsGeneral of the United States, and of course our quar-terly Council meeting. You should find it to beinteresting, professionally rewarding and enjoyable.

Chair-Elect’sMessage continued from page 2

Robert W. Adler, American Trucking and theRevival (?) Of the Nondelegation Doctrine, 30ENVTL. L. REP. (Envtl. L. Inst.) 10,233 (2000).The D.C. Circuit Court of Appeals’ decision inAmerican Trucking Ass’n v. U.S. Environmental ProtectionAgency, 175 F.3d 1027 (D.C. Cir. 1999), cert. granted,No. 99-1426, (May 30, 2000), could signal a poten-tial revival of the nondelegation doctrine in U.S. con-stitutional and administrative law. However, asProfessor Adler points out, the D.C. Circuit’s analysisis neither the traditional nondelegation doctrine nortotally new. In the Lockout/Tagout cases in 1991, JudgeWilliams (the author of the nondelegation portion ofAmerican Trucking) used a virtually identical approach.Under this approach, an unlawful delegation will notbe found if the agency articulates an intelligible prin-ciple to guide and constrain its delegated power. Butthe new approach confuses the obligation ofCongress to provide sufficient “intelligible principles”with the agency’s independent obligation, under theAPA, to explain adequately the basis for individualrulemaking decisions. Adler also discusses the morerecent D.C. Circuit decision in Michigan v. EPA, inwhich the court oddly backtracked from its AmericanTrucking analysis by refusing to apply the nondelega-tion doctrine when a challenged rule has implicationsfor only a portion of the country or merely a sectorof the economy.

Curtis A. Bradley, Chevron Deference and ForeignAffairs, 86 VA. L. REV. 649 (2000). This articleconsiders the relationship between the judicial andexecutive branches in foreign affairs cases.Traditionally, courts have given broad deference tothe Executive branch in cases perceived as implicatingforeign affairs. The Supreme Court’s explanations forthis broad deference have been phrased in sweepingterms. Not surprisingly, academic commentators havebeen highly critical of the Supreme Court’s explana-tions. The usual conclusion of these commentators isthat courts should decide questions of foreign affairslaw without substantial deference to the Executivebranch and, in appropriate cases, should apply thislaw to override Executive branch action. These com-mentators almost invariably quote Marbury v. Madisonfor the proposition that it is the duty of the courts todetermine the law, and they typically describe thedeferential attitude of the courts as judicial abdication.This article refers to this view as the “Marbury per-spective.” The author suggests a different way of

thinking about this issue, one that is based on theChevron doctrine in administrative law. By its terms,the Chevron doctrine will apply to a growing numberof foreign affairs cases, as administrative agenciesincreasingly confront issues such as whether to com-ply with international law, whether to apply federalregulations to foreign conduct, and whether and howto incorporate the decisions of international institu-tions. More generally, the author argues that the“Chevron perspective” is a useful way of thinkingabout the relationship between the judicial and exec-utive branches in foreign affairs cases. Among otherthings, the Chevron perspective focuses attention onthe source of the law in question, something thatturns out to be especially important in the foreignaffairs area, given that it includes a number of non-traditional types of law. In addition, this perspectivefocuses attention on delegation of authority andthereby highlights claims of independent Executivelawmaking power - claims that often lurk beneath thesurface of foreign affairs cases. Finally, the Chevronperspective offers a realistic alternative to the extremesof both blanket judicial deference and the pureMarbury “rule of law” approach.

Frank B. Cross, Pragmatic Pathologies of JudicialReview of Administrative Rulemaking, 78 N.C. L.REV. 1013 (2000). Agency rulemaking is designedto accomplish certain policy ends, but most adminis-trative law commentaries focus on the standardscourts apply and analyze those standards from a theo-retical, internal perspective. In this Article, ProfessorCross asserts that administrative law should considerthe external, pragmatic consequences of judicialdecisions. When consequences have been consideredin prior research, he contends, the considerationshave been naive and incomplete. Professor Crossargues that the consequences of judicial review ofrulemaking are consistently and inescapably perverse.The intrinsic nature of judicial review tends to dis-rupt and obstruct positive regulatory programs andreduce the quality of the few rules that agencies doissue. Professor Cross concludes with a public choiceexplanation of why powerful political and privateinterests perpetuate judicial review, even at theexpense of the public good.

Jody Freeman, The Private Role in PublicGovernance, 75 N.Y.U. L. REV. 543 (2000).This article proposes a conception of governance as


Recent Articlesof Interest

remand itself. The author examined the aftermathof the remaining 37 remands to determine whetherand to what extent the agency was able to recover.The results show that agencies usually succeed inachieving their regulatory goals through informalrulemaking. The author argues that these resultschallenge the ossification critique of hard lookreview, at least to the extent that the critique assertsthat hard look review significantly interferes withagency pursuit of regulatory goals through informalrulemaking. He suggests that the real story ofagency reliance upon informal rulemaking is one ofsubstantial success despite hard look review, and thatwe should consider returning to a cooperative part-nership model to characterize the agency-courtrelationship with respect to arbitrary and capriciousreview of agency rules.

Lars Noah, Peer Review and Regulatory Reform,30 ENVTL. L. REP. (Envtl. L. Inst.) 10,606(2000). Scientific peer review is frequently touted asan important quality control mechanism to improvethe quality of agency decisionmaking. Several peerreview agency reform measures have been proposedin Congress, and seemingly, as Professor Noahobserves, “essentially everyone applauds the idea ofusing” it. In this article, Noah strikes a moreambivalent note, pointing out that regulatory peerreview, as a replacement for public involvement in,or judicial review of, agency decisionmaking is notlikely to live up to expectations. After a discussion ofthe arguments pro and con, Noah describes severalways in which peer review processes can reach theirpotential, as a supplement to (rather than a replace-ment of) existing mechanisms of external scrutiny.Agencies, and courts, must understand the limita-tions of scientific review, such as the inability ofindependent experts to “certify” the agency’s scien-tific judgment. Moreover, peer review cannotreplace traditional notice-and-comment proceedings,during which there is an opportunity to commenton scientific data. Instead, independent peer view,preferably performed prior to publication of a pro-posed rule, can complement the notice-and-com-ment process. Likewise, Noah disagrees with theview that peer review could replace judicial review,and argues that judicial deference to peer reviewreports may be misplaced. He concludes that peerreview can facilitate reasoned agency decisionmakingbut ought not be viewed as a panacea.

a set of negotiated relationships between public andprivate actors. In this conception, public and privateactors negotiate over policymaking, implementa-tion, and enforcement. The conception evokes animage of decisionmaking in which there is no cen-ter of control, such as the agency. This alternativeconception challenges the public/private distinctionin administrative law and invites a reconsideration ofthe traditional administrative law preoccupationwith the accountability of “public” actors. It recog-nizes the pervasive and varied roles played by privateactors in every aspect of governance. The articleoffers theoretical support for the new conception,drawing on both public choice theory and criticallegal studies to argue that there is no purely privaterealm and no purely public one. There are onlynegotiated relationships between public and privateactors. The argument then proceeds through a seriesof empirical examples that demonstrate the rolesplayed by private actors in a variety of administrativecontexts, including health care delivery and prisonmanagement as well as regulatory standard-setting,implementation and enforcement. This inquiryforces administrative law to reckon with privatepower, but calls into question the field’s almost uni-form defensiveness toward private actors. Privateactors do not merely exacerbate the legitimacy crisisin administrative law; they may also be regulatoryresources, capable of producing accountability. Fromthe perspective of the new conception, public andprivate actors together produce accountability,through a combination of traditional and non-tradi-tional mechanisms.

William S. Jordan, III, Ossification Revisited:Does Arbitrary and Capricious Review SignificantlyInterfere with Agency Ability to Achieve RegulatoryGoals Through Informal Rulemaking?, 94NORTHWESTERN L. REV. 393 (2000). This arti-cle reports the results of an examination of theeffects of a decade’s worth of D.C. Circuit remandsof informal rules under the “hard look” doctrine.The research identified 71 such remands. Of those,34 are characterized for a variety of reasons as hav-ing essentially no impact on the agency’s ability toachieve its goals through the informal rulemakingprocess. The reasons include the court’s explicitrefusal to vacate the rule, the court’s willingness todelay imposition of the mandate until the agencyhad recovered, and the insignificant nature of the


Lars Noah, Interpreting Agency Enabling Acts:Misplaced Metaphors in Administrative Law, 41WILLIAM & MARY L. REV. 1463 (2000).Commentators have suggested at least three compet-ing metaphors to describe statutes that delegateauthority to administrative agencies, likening these“enabling” acts to corporate charters, constitutions,or sources of common law norms. These differingconceptions of regulatory legislation reflect distinctivevisions about the distribution of power among thethree branches of government. Understanding organ-ic acts as corporate charters would hold agency offi-cials to the precise terms of the authority granted tothem by their legislative principal, and reviewingcourts would invalidate actions taken beyond suchexpressly delegated power as ultra vires. The constitu-tional metaphor, at least if read against the backdropof a tradition of flexible interpretation of the U.S.Constitution, would more readily recognize impliedagency powers to pursue the ends that underlie theenabling statute, but the judiciary would continue todefine and police these looser boundaries, invalidatingactions that exceed implied agency powers. Finally,the common law metaphor recently promoted byProfessor Cass Sunstein would free regulatory officialseven from the constraints of a flexibly interpretedconstitutive document by viewing the organic act asgranting agencies a general subject matter jurisdictionand accompanying power to generate common lawprinciples derived initially from, but not constrainedby, the enabling statute. This Article identifies flaws inthe latter conception, especially insofar as it condonesbureaucratic tendencies toward the expansion ofpower. It also rejects the affiliated suggestion thatcourts should extend Chevron deference to agencyinterpretations of ambiguities in their enabling statuteswhen these interpretations concern the very scope ofthe agency’s jurisdiction. Although the constitutionalmetaphor may still provide a plausible account ofearly statutes that represented open-ended delegationsof authority to administrative agencies, this Articleargues that the more restrictive charter metaphor pro-vides the default position that best accommodatesseparation-of-powers and federalism values expressedin existing doctrines concerning the delegation oflegislative power.

Jeffrey Polich, Note, Judicial Review and theSmall Business Regulatory Enforcement FairnessAct: an Early Examination of When and WhereJudges Are Using Their Newly Granted Power overFederal Regulatory Agencies, 41 WM. & MARY L.REV. 1425 (2000). This student note reviews thecases under the Small Business Regulatory

Enforcement Fairness Act (SBREFA) in which per-sons have challenged agency rules on the basis ofalleged noncompliance with the RegulatoryFlexibility Act and its requirements for RegulatoryFlexibility Analyses for rules that have a significanteffect on small entities. The author concludes thatsmall entities have prevailed using SBREFA in casesin which there was a gross violation of federal rule-making procedures by an agency, but failed whenusing SBREFA in cases in which the agency madesome effort to comply with those requirements.

Mark Seidenfeld, A Table of Requirements forFederal Administrative Rulemaking, 27 FLA. ST. U.L. REV. 533 (2000). This article displays in tabularform the various procedural requirements that federalagencies must comply with in adopting regulations.

CollectionsSymposium: American Regulatory Policy:Have We Found the “Third Way”? 48 U.KAN. L. REV. 689 (2000). Sidney Shapiro,Administrative Law after the Counter-reformation:Restoring Faith in Pragmatic Government; William B.Gould, IV, The Third Way: Labor Policy Beyond theNew Deal; Joel F. Handler, The “Third Way” or theOld Way?; Christopher H. Schroeder, Third WayEnvironmentalism; Joseph P. Tomain,networkindustries.gov.reg; Raymond J. Friel, Blair’sThird Way—thatcher’s Enduring Legacy.

3 J. INT’L ECON. L. No. 2 (2000). Daniel C. Esty,Regulatory Competition in Focus; Richard L. Revesz,Federalism and Regulation: Extrapolating from theAnalysis of Environmental Regulation in the UnitedStates; Daniel C. Esty and Damien Geradin,Regulatory Co-petition; A. O. Sykes, RegulatoryCompetition or Regulatory Harmonization? A SillyQuestion?; D. Vogel, Environmental Regulation andEconomic Integration; D. Charny, Regulatory Competitionand the Global Coordination of Labor Standards; M.Barenberg, Labor Federalism in the United States:Lessons for International Labor Rights; J.P. Trachtman,Regulatory Competition and Regulatory Jurisdiction; G.Hertig, Regulatory Competition for Eu Financial Services;J.M. Salazar-Xirinachs, the Trade-labor Nexus:Developing Countries’ Perspectives.

Teaching Administrative Law DiscussionForum, 38 BRANDEIS L. J. No. 2 (2000). RussellWeaver, Introduction; John and Tania Reese, TeachingMethods and Casebooks; Craig Oren, The Problems ofTeaching Administrative Law: We Can’t Solve ThemAlone; John Applegate, Using Cases as Case Studies for


Step One. Elizabeth Garrett, from the Universityof Chicago Law School, reported on how courtsdetermine at step one whether a statute speaks to theissue at hand or is ambiguous. Professor Garrettreports that “intentionalism” — defined as anapproach that relies not only on a reading of the lan-guage in the statute but its legislative history as well— has long been the dominant interpretive approachof the courts at step one. She described the compet-ing approach favored by Justice Scalia and his follow-ers as “textualism,” an approach that generallyeschews consideration of committee reports and thelike. But Garrett acknowledged the tension createdwhen judges who ignore legislative history reviewthe actions of agencies who because of their relation-ship with Congress have no option but to considerit. Common to both groups (intentionalists and tex-tualists) is the use of dictionaries, consideration of thestatute as a whole and reliance on the larger legisla-tive or statutory purpose. Garrett reports that courtstraditionally have relied on canons of construction atstep one, including textual canons, canons enforcingconstitutional norms, and substantive canonsdesigned to promote or vindicate policy values.

Step Two. Elizabeth Magill, from the Universityof Virginia School of Law, focused her review onhow step two — deciding whether an agency’sinterpretation is reasonable — works in practice.She described it as “a rule in search of context,”explaining that identifying the critical factors in aChevron step two analysis proved elusive becauseChevron step two invalidations are so rare. Never-theless, in comparing an agency interpretation withthe statute, Magill noted that courts typically reviewthe text of the statute, the overall structure of thestatute, the legislative history, and the statute’s overallpurpose. Sound familiar? Of course it does. It iswhat the court just did under step one. The only“clear pattern” at step two, according to Magill, isthat the court’s analysis of what is reasonable takesplace at “high level of generality.” Almost invariably,this leads to affirmance of the agency’s viewpoint.

against a party, that member should be referred toas an “adversary” for the purpose of determiningpermissible contacts. Finally, Asimow would alter554(d) to preclude contact between an ALJ andstaff members, except staff members employedexclusively in assisting ALJs and non-adversary staffmembers concerning matters other than facts inissue — such as law, policy, or discretion.

Scope of ReviewReporter Richard Revesz moderated the panel onscope of review and divided the discussion into:What is Chevron’s scope in terms of the types ofagency pronouncements accorded deference?;What is the judiciary’s role at step one?; and Whathas been the practice under step two?

Scope of Chevron. Steven Croley tackled thesubject of Chevron’s scope. Croley examinedwhich categories of agency interpretations enjoyChevron deference and which do not. Not surpris-ingly, he identified interpretations made throughnotice-and-comment rulemaking and formal adju-dication as most likely to receive deference, exceptthat deference in the latter case depends on theinterpreting agency have some policymakingpower, as opposed to purely adjudicatory powers.He also reported that courts normally accordChevron deference to an agency’s interpretation ofits own regulations. Interpretations not likely to beshown deference include those that are: purely theproduct of litigation; offered for the first time in alegal brief or, worse, during oral argument; theproduct of informal agency action, such as agencyguidelines, manuals, and opinion letters; issued byagencies that lack quasi-lawmaking or policymak-ing power; and duplicative of a prior court deci-sion construing the same statutory provision.Croley also reported that the law is unsettled as towhether an agency’s interpretation of its jurisdic-tion is entitled to deference.


APA Project contined from page 3

Teaching Administrative Law; William Andersen,Computer Graphics in the Teaching of Administrative Law;William Funk, My Ideal “Casebook” or What’s Wrongwith Administrative Law Legal Education and How to Fixit: in a Nutshell (so to Speak); Michael Asimow andRonald Levin, Thoughts and Heresies on TeachingAdministrative Law; Russell Weaver, Teaching (andTesting) Administrative Law; Mark Seidenfeld, TheChallenge of Teaching Administrative Law; Daniel

Rodriguez, Administrative Law and the Case Method;Charles Koch, An Extended Hypothetical for TeachingAdministrative Law; Sidney Shapiro, The Top TenReasons That Law Students Dislike Administrative Lawand What Can (or Should) Be Done About Them; YvetteBarksdale, Administrative Law Pedagogy DiscussionForum; Cooley Howarth, Teaching Administrative Law:Can “less” Be “More”?; Thomas Sargentich, Teachingand Learning Administrative Law.

standing problem is simple: the relator has sufferedno injury. The Court, however, unanimously foundin an opinion authored by Justice Scalia that theFalse Claims Act “can reasonably be regarded aseffecting a partial assignment of the Government’sdamages claim,” and an adequate basis for the rela-tor’s injury can be found in “the doctrine that theassignee of a claim has standing to assert the injuryin fact suffered by the assignor.” This “doctrine,”however, had never before been announced.Rather, the Court pointed out that in numerouscases the Court had heard cases by relators and sub-rogees, so that the doctrine has been implicit. Thiswas convenient because the Court went on todescribe the history of qui tam actions since theThirteenth Century, including their use in colonialAmerica, all suggesting that it would be anomalousfor such an accepted method of proceeding not tobe included within the “cases and controversies”over which federal courts may be given jurisdiction.

That said, the question still remained whetherthe False Claims Act authorizes qui tam suits againststates, which the Court said logically preceded theEleventh Amendment question. The majority saidno. To overcome the statute’s imposition of liabilityon “any person,” the Court invoked the “long-standing interpretive presumption that ‘person’ doesnot include the sovereign.” There was inadequateevidence in the statute of an intent to subject statesto qui tam actions. Moreover, the Court relied onthe doctrine of interpreting statutes to avoid diffi-cult constitutional questions. While not decidingthat the Eleventh Amendment would bar qui tamactions, the Court noted that at least there was“serious doubt” as to their constitutionality.

Justice Stevens, with whom Justice Souter agreed,took issue with this conclusion. In their view, first,the supposed presumption historically has onlyapplied to the sovereign enacting the law in question(which here would be the United States, not states),and second, the 1986 amendments to the FalseClaims Act clearly subjected states to the Act.Accordingly, they had to reach the EleventhAmendment issue, but they relied on their dissentsto Seminole Tribe of Fla. v. Florida, 517 U.S. 44(1996), that the Eleventh Amendment does not barCongress from subjecting states to suit under federallaw. Moreover, they said, even if Seminole did apply,here the relator stands in the shoes of the UnitedStates, and the Eleventh Amendment is not a bar toa suit by the United States.

Justice Ginsburg concurred in the judgment,agreeing that qui tam relators have standing and thatthe Act does not clearly subject states to qui tamactions, but in her view states could be sued direct-ly by the federal government under the FalseClaims Act, and she suggested the majority left thatquestion open. That reading, however, seemsstrained, although Justice Breyer, who concurred inthe majority’s opinion also concurred in JusticeGinsburg’s opinion.

As written, Vermont Agency of Natural Resourcescontinues the Court’s strong defense of state sover-eign immunity, here at least in part by expanding aninterpretive presumption. But the Court may notbe done with qui tam action questions. Looming onthe horizon is Riley v. St. Lukes Episcopal Hospital,196 F.3d 514, en banc hearing granted sua sponte, 196F.3d 561 (5th Cir. 1999), in which a panel of theFifth Circuit held that qui tam actions were uncon-stitutional as a violation of Article II’s provision thatthe President take care that the laws are faithfullyexecuted, a question the Supreme Court did notaddress in Vermont Agency of Natural Resources.

Unanimous Court Finds Regulations Withinthe Scope of Statute Without CitingChevronIn the Hound of the Baskervilles, Sherlock Holmesfound the critical clue in the fact that the dog didnot bark; in Public Lands Council v. Babbitt, 120S.Ct. 1815 (2000), the most notable administrativelaw facet was the failure of the Court to citeChevron v. NRDC. In 1995 the Department of theInterior adopted several significant amendments toits regulations under the Taylor Grazing Act of1934. That Act authorizes the Secretary to regulatethe use of the public lands for grazing purposes bycreating grazing districts, specifying the amount ofgrazing permitted in each district, issuing leases orpermits for grazing, and charging reasonable feesfor use of the land. And to promote stability theAct provided that: “So far as consistent with thepurposes and provisions of this subchapter, grazingprivileges recognized and acknowledged shall beadequately safeguarded, but the creation of a graz-ing district or the issuance of a permit . . . shall notcreate any right, title, interest, or estate in or to thelands.” The 1995 amendments effected changesdesigned to accelerate restoration of the rangeland,to make rangeland management compatible withecosystem management, and to make fees more fairand reasonable. Organizations representing ranch-ers challenged a number of the amendments asbeing beyond the Secretary’s authority under theAct. In the Supreme Court the issue was narrowed


SupremeCourt News continued from page 7

ambiguous, such as whether the term “stockowner” in the Act meant someone who ownedstock and was engaged in the livestock business oronly someone who owned livestock. To answerthat question the Court engaged in a close textualanalysis and a look at the legislative history.

Justice O’Connor, joined by Justice Thomas,concurred in the Court’s opinion but added thatwhile the regulations on their face were within theSecretary’s authority, specific applications mightviolate the Act. Moreover, she noted that theCourt was not faced with a claim that the regula-tions were arbitrary and capricious, a claim theplaintiffs had made in the district court but aban-doned on appeal.

to three specific regulations: one that defined “graz-ing preference,” one that newly allowed persons notinvolved in the livestock business to obtain grazingpermits, and one that vested title in the UnitedStates for certain new “permanent” rangelandimprovements. Because the challenges were facialchallenges to the regulations, rather than as applied,the question was whether the statute foreclosedsuch changes to the regulations. The Courtengaged in lengthy analyses of each of the regula-tions and the portion of the Act alleged to be vio-lated in order to determine that all of the regula-tions were within the Secretary’s authority, butnowhere did it invoke the Chevron mantra despitenumerous provisions that easily could be found


Rock deference would have full impact. An inter-pretation giving concrete substance to an ambiguousregulation will also “create de facto a new regulation.”It is new because its specific content will differ fromthat of the formal regulation, even if it does notconflict with it. Where the regulation is vague,with possible meanings spanning a broad and inde-terminate range, strong deference enables theagency informally to create binding new detailedrequirements in the guise of interpretations.

Concerns about results like these have given riseto judicial reaction along the following line:

It is certainly not open to an agency to promul-gate mush and then give it concrete form onlythrough subsequent less formal”interpretations.” . . .That technique would circumvent section 553,the notice and comment procedures of the APA. Paralyzed Veterans of America v. D.C. Arena, 117

F.3d 579, 584 (D.C.Cir. 1997). While we do notnecessarily agree with all the implications of the“mush” doctrine, we see it as an understandableresponse to the serious concern that, under astrongly deferential review standard for interpreta-tions of regulations, agencies can make law withoutobserving Congress’s requirements for doing so.

We think the courts would be better advised toreturn to the intent of the framers of the APA:affirm the power of agencies to issue interpretationsof regulations without notice-and-comment, butjunk the strong deference rule of Auer-SeminoleRock and substitute the Skidmore-Christensen test forreview of informally-issued interpretations of regu-lations. An interpretation (assuming it is a genuineinterpretation whose meaning somehow flows fromthat of the regulation) need not undergo the delay

and expense of notice-and-comment, and affectedpersons should be able to get prompt notice of theagency’s position. That is clearly what the framersof the APA contemplated in the “interpretativerules” exemption of section 553. Affected personsshould, however, get a fair chance to challenge aninterpretation’s substantive correctness in courtunder Skidmore-Christensen and APA section 706.

That approach respects the agency’s expertise,but preserves for the courts their traditional powerof interpretation where the agency has not promul-gated its position by exercise of delegated legislativepower. Probably in the great majority of cases theagency’s position will be upheld, especially wheretechnical matters are concerned, but that is a callfor the courts to make. Agency interpretations ofregulations, in formats that lack legal force, shouldnot bind the public or the courts.

Akzo Nobel Salt, Inc. v. Fed. Mine Safety & HealthRev. Comm’n, 212 F.3d 1301 (D.C. Cir. 2000), is arecent example of how it can matter whether Skid-more or Auer sets the measure of the courts’ reviewpower. The interpretation proferred by the agencywas concocted for purposes of the Akzo litigation,was poorly supported, and was inconsistent withother agency interpretations of the same regulation.But the court cited Christensen as noting thatagency interpretations lacking the force of law “doreceive deference under Auer when interpretingambiguous regulations.” It remanded to the agencyto clarify its position, and indicated that it was pre-pared to give Auer deference (subject to the fairnotice rule) to whatever the agency propounded.Skidmore would call for the court to resolve theinterpretive question, after according the variousagency positions and arguments the weight theydeserved.

Court’s Deferences continued from page 11


include the Office of Administrative Hearings,Workers Compensation, California OccupationalSafety Health Administration, Department ofSocial Services, Unemployment Insurance,Department of Human Services, Alcohol BeverageControl Board, Public Utilities Commission,Department of Insurance, Personnel Board, andAgriculture Labor Relations Board. For the firsttime since 1995, CA ALJs have received a payincrease. Incidental to the increase is a trainingcomponent for ALJs to attend the National JudicialCollege or an equivalent training program.

Many agencies are designing their own trainingprograms. For instance, Unemployment InsuranceALJs, through the Administrative Law Judge Asso-ciation (“ALJA”), provide training opportunities atan annual meeting. Discussions are underway toexpand ALJA to encompass all of the CA ALJs.

Other California DevelopmentsEffective July 1997, California adopted a newAdministrative Procedures Act. As a result, theOAH enacted procedural regulations and regula-tions governing alternative dispute resolution.

Now, parties have specific guidance regarding dis-covery and motions practice before the agency.Also, the ADR regulations permit agencies andparties to select private individuals to provideADR services.

CAOSHA anticipates an influx in hearings.Effective January 1, 2000, a new law tripled thepenalties for “serious” violations, while shiftingthe burden of proof to the employer to demon-strate a lack of prior knowledge or ability to learnabout the existence of the violation. The agencyexpects to hire at least two additional ALJs.

The Public Utilities Commission also expectsan increase in caseload due to the uncapping ofelectrical rates in San Diego and a recent wave ofblackouts in Northern California.

State Administrative Law ArticlesAsimow, Michael, Speed Bumps on the Road toAdministrative Law Reform in California and Pennsyl-vania, 8 WIDENER J. OF L. & PUB. POL 229 (1999).

Christensen, Meri K, Note, Opening the Doors toAccess: a Proposal for Enforcement of Georgia’s OpenMeetings and Open Records Laws, 15 GA. ST.U. L.REV. 1075 (1999).

Greenbaum, David and Lawrence E. Sellers, Jr.,1999 Amendments to the Florida Administrative Proce-dure Act: Phantom Menace or Much Ado about Noth-ing? 27 FLA. ST. U. L. REV. 499 (2000).

News fromthe Statescontinued from page 9

CouncilCapsules continued from page 5

and Informational Regulation and Informational Standing:Akins and Beyond, 147 U. PA. L. REV. 613 (1999).The council unanimously approved.

Mary C. Lawton Outstanding GovernmentService AwardThe Subcommittee on Outstanding GovernmentService recommended that Joan (Jodie) Z.Bernstein, the Director of the Bureau of ConsumerProtection of the Federal Trade Commission (FTC)receive the 2000 Mary C. Lawton award. Thecouncil unanimously approved.

Federal ADR Confidentiality ProjectCouncil Member Judy Kaleta briefed the councilon the status of the Dispute ResolutionCommittee’s project on federal ADR confiden-tiality. The project is being co-sponsored by theSection of Dispute Resolution and the Section ofPublic Contract Law. The Section of Labor andEmployment Law has a liaison to the group and

may also co-sponsor. The purpose of the projectis to develop confidentiality guidelines that wouldapply in dispute resolution proceedings beforefederal agencies. Kaleta informed the councilthat an organizational meeting had been sched-uled for July 11.

Section BudgetBudget Officer Leonard Leo presented the pro-posed 2000-2001 budget. Leo observed that fiscal-ly speaking the section had a good year. Programsand publication expenses generally came in at orunder budget. Reserves were drawn down to fundthe first issue of the Annual Developments book, buta full year’s reserve remains. Leo noted that the sec-tion is beginning to establish a good track recordfor producing publications that break even or makemoney. Publications Committee Chair RandyMay reported that three books were in progress andthat four monographs were in various stages of pro-duction. Ernie Gellhorn suggested the councilconsider creating an off-budget reserve for publica-tions. After some discussion, the budget wasapproved with minor changes.

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

Chair-ElectC. Boyden GrayWashington, DC202/663-6056

Vice ChairNeil R. EisnerWashington, DC 202/366-4723

SecretaryCynthia A. DrewWashington, DC202/616-7554

Assistant SecretaryJonathan J. RuschWashington, DC 202/514-0631

Budget OfficerKathleen A. BuckWashington, DC202/879-5060

Asst Budget OfficerDavid W. RodererWashington, DC 202/974-1012

Section DelegatesErnest GellhornWashington, DC202/319-7104

Ronald A. CassBoston, MA617/353-3112

Immediate Past ChairJohn Hardin YoungWashington, DC 703/216-0039

CouncilMichael J. AstrueBelmont, MA617/484-6166

Phyllis E. BernardOklahoma City, OK 405/521-5181

Steve CalkinsDetroit, MI 313/577-3945

John F. CooneyWashington, DC 202/962-4800

David FrederickWashington, DC 202/514-1030

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

Judith S. KaletaWashington, DC202/493-0992

Renee M. LandersBoston, MA 617/951-7000

Daniel R. OrtizCharlottesville, VA804/924-3127

Daniel RodriguezSan Diego, CA619/260-4527

Lisa A. WhitneyNew York, NY 212/659-5306

Lynne K. ZusmanWashington, DC202/659-1971

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

Executive BranchDaniel MarcusWashington, DC202/514-9500

JudiciaryMerrick GarlandWashington, DC202/273-0376

Legislative BranchJames W. ZiglarWashington, DC202/224-2341

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 Law and Separation of PowersThomas O. SargentichWashington, DC 202/274-4238

Daniel E. TroyWashington, DC202/719-7550

Corporate CounselRichard J. WolfParsippany, NJ 973/496-5286

Dispute ResolutionCharles E. PouWashington, DC202/887-1037

Government Information and Right to PrivacyJames T. O’ReillyCincinnati, OH 513/556-0062

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, DC 202/518-6366

Antitrust andTrade RegulationWilliam H. PageJackson, MS601/925-7143

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

David W. RodererWashington, DC202/974-1012

BenefitsJodi B. LevineOklahoma City, OK405/231-4451

Rudolph N. Patterson Macon, GA 912/745-1651

Beverage Alcohol PracticeStephen DiamondCoral Gables, FL 305/284-2259

James L. WebsterChicago, IL312/587-8800

CommunicationsHelgi C. WalkerWashington, DC202/418-2000

Consumer ProductsRegulationDavid 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

EducationMartin MichaelsonWashington, DC 202/637-5745

ElectionsTrevor PotterWashington, DC 202/719-4273

Jamin B. RaskinWashington, DC202/274-4011

Joseph E. SandlerWashington, DC202/543-7680

EnergyKenneth G. HurwitzWashington, DC202/962-4850

Environmental andNatural ResourcesJames O. Neet, Jr.Kansas City, MO 816/474-6550

Wendy WagnerCleveland, OH216/368-3303

Food and DrugScott BassWashington, DC 202/736-8684

Nick LittlefieldBoston, MA617/832-1105

Government Operations& PersonnelJoel P. BennettWashington, DC202/625-1970

Lynne K. ZusmanWashington, DC 202/659-1971

Health andHuman ServiceH. Stephen BrownMemphis, TN 901/767-1234

Michael MalinowskiWilmington, DE 302/477-2120

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

Immigration and NaturalizationHiroshi MotomuraBoulder, CO 303/492-7008

Anna 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, DC 202/962-4800

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

OmbudsmanSharan Lee LevineKalamazoo, MI616/382-0444

Postal MattersWilliam B. BakerWashington, DC 202/719-7255

Public Contracts and ProcurementCharles D. AblardWashington, DC202/789-8787

John W. ChierichellaWashington, DC202/639-7140

Securities, Commodities and ExchangesTimothy R. DonovanChicago, IL 312/923-2871

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, DC 202/416-7792

James W. StewartWashington, DC 202/554-3501

Barton F. StichmanWsahington, DC202/265-8305

Officers, Council and Committee Chairs

Nonprofit Org.U.S. Postage

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Volume 26, Number 1, Fall 2000Published by the Section of

Administrative Law and Regulatory PracticeAmerican Bar Association750 N. Lake Shore DriveChicago, IL 60611-4497

ADMINISTRATIVE & REGULATORY LAW NEWS

Upcoming Meetings2001 Section Spring Meeting

Sundial Beach ResortSanibel Island, FLApril 26-29, 2001

2001 ABA/Section Annual MeetingThe Drake Hotel

Chicago, ILAugust 2-5, 2001

2000 Administrative Law ConferenceWestin Fairfax Hotel (formerly the Ritz Carlton)

Washington, DC October 12 – 14, 2000

2001 ABA/Section MidYear MeetingHilton at Mission Bay

San Diego, CAFebruary 15-18, 2001

ence of Administrative LawJudges, was elected to theABA Board of Governors.

At the Annual Meeting,John Vittone, the Sec-tion’s liaison to the Confer-

News that you would like shared with the Section should be sentto: Professor William Funk, Lewis & Clark Law School, Portland, OR 97219; FAX (503) 768-6671; E-mail:[email protected]. Items should be received not later thanDecember 11.

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