Within the Scope

Blogging on Administrative Law and the Public Sector

Tuesday, July 31, 2007

Eighth Circuit: Medicaid’s New Stringency is Not a New Rule

The U.S. Court of Appeals for the Eighth Circuit issued an interesting opinion today, turning away an APA challenge from the Minnesota Department of Health.

MDH challenged the denial by federal authorities of an earlier-requested set of rate increases for nursing homes under the Medicaid program. As state officials argued, the review of their most recent round of requested increases was so much more cumbersome and paperwork-intensive than earlier reviews that the new hurdles amounted to a substantive change in the Medicaid rules.

Disagreeing, the appellate panel held that increased federal scrutiny and serial requests for information did not amount to a new, unpromulgated rule. As the panel reasoned, increased vigilance that was consistent with the Secretary of Health and Human Services’ obligation to prevent “abusive requests for Medicaid funding” – even when such extra vigilance was a departure from prior practice – was permitted.

The panel’s complete analysis is accessible here.

Federal Court Enjoins Minnesota Attorney General from Enforcing Credit Inquiry Law

In an Opinion and Order issued yesterday, U.S. District Court Judge Patrick J. Schiltz preliminarily enjoined the Minnesota Attorney General from seeking to enforce a recently-passed law regarding inquiries to national credit bureaus.

This past legislative session, the Minnesota Legislature enacted a statute barring the sale of lists which detail “the existence of a credit inquiry arising from a consumer mortgage loan application.” Mortgage, finance and credit card companies are always glad to know of persons in the consumer lending markets; and so these so-called “trigger-lists,” which can be sorted by zip code, are a valuable source of sales leads for these companies.

Arguing that the Minnesota statute was preempted by the federal Fair Credit Reporting Act, the Consumer Data Industry Association sought, and yesterday won, an injunction forbidding the enforcement of the new law.

Judge Schiltz’s Memorandum Opinion and Order, and interesting review of the domestic consumer credit industry, is accessible here.

Monday, July 30, 2007

Where There is Smoke, There are Toxins; Just Not Extra Pay

Today, the U.S. Court of Appeals for the Federal Circuit turned away the claims of federal prison guards who sought higher “environmental hazard pay” following their exposure to the second-hand cigarette smoke of the inmates they supervise.

While the appellate panel held that two statutes providing for additional compensation (for federal employees whose duties involve “unusual physical hardships or hazards” and “unusually severe working conditions or hazards”) were sufficient for the lower court to exercise jurisdiction over the pay claims, the panel went on to conclude that the employees could not state a proper claim for relief. As the Court concluded, the hazardous duty regulations relied upon by the prison guards simply “do not cover second-hand smoke.”

In addition to an interesting fact pattern and jurisdictional analysis, among the intriguing features of the opinion is the panel’s discussion of whether the toxins in tobacco smoke were the kind that trigger higher pay. Likewise interesting (particularly in light of my earlier post, here) was the panel’s dispatch of the agency’s claim that its reading of the regulations, advanced nowhere else but its appellate brief, was entitled to special deference from the Court.

The complete opinion, which may be enjoyed closer than 25 feet from the building entrance, is accessible here.

Sunday, July 29, 2007

Beach Reading for the Busman's Holiday

If you are like me, and the tales of the bounty hunters, terrorits and secret agents that fill this week's New York Times Best Sellers List doesn't seem like restful beach reading at all, I have compiled a few articles that might take one away; if not all that far:

Effective Brief Writing Despite High Volume Practice: Ten Misconceptions That Result In Bad Briefs. Associate Professor Sarah Rick and Senior Attorney Jane Itsvan lead advocates through more than a dozen tips towards better briefs, by gearing one’s writing toward the intended audience: The busy, generalist judge. (Downloadable here)

Blogs, Law School Rankings, and “The Race to the Bottom”. University of Denver Law Professor J. Robert Brown, Jr. details the changes that legal web logs are bringing to legal academia and argues that blogs "represent a cost effective mechanism for improving a law school’s reputational rankings and, perforce, its overall rankings in the infamous US News and World Report." (Downloadable here).

The Regulation Clock and Political Transitions: An Empirical Portrait of the Modern Administrative State. Professor Anne O’Connell, of the University of California at Berkley, explores the timing of federal rulemaking and why some recent administrations have had a flurry of regulatory activity near the close of the President’s term. (Downloadable here)

Finger to the Wind: The Influence of Retention Politics on Judges’ Decisions. Professor Joanna M. Shepherd, of Emory University, details her empirical study from which she concludes that judges are influenced by the political affiliations and ideological preferences of the groups that are later responsible for retaining those judges in office. If the ideological tilt of the “pickers” changes, Professor Shepherd argues that the decisions of those who wish to be retained as judges also changes. (Downloadable here)

And if you are a little bit sheepish about toting any of these items to the beach along with your umbrella and SPF 50, remember my maxim: These articles all fit neatly within the pages of Us Magazine or Guns and Ammo.

Saturday, July 28, 2007

Majority Rules – Except, Of Course, When It Doesn’t

After completing the first year of law school, I spent the summer working in the Voting Section of the Department of Justice’s Civil Rights Division. My role then was to assist Division staff and attorneys in their review of requests for “pre-clearance” of changes in election practice in “covered jurisdictions” – mostly in the Old South. The Voting Rights Act of 1965 rendered adjustments in local election practice unenforceable until they were approved by either the Attorney General of the United States (see, here) or a three-judge panel in the District of Columbia.

With the release this week of the decision by the U.S. Court of Appeals for the Eleventh Circuit in Thompson v. Glades County, I was transported back to those days and the complex problems facing the Voting Section.

At issue in Thompson was whether two African-American voters were entitled to maintain their challenge to an at-large system of electing County Commissioners, in a case where the plaintiffs’ alternative plan, at best, only had a very slim majority of minority residents in one of the single-member districts. In response to the plan, the District Court concluded that the plaintiffs still could not show that minority voters would have a genuine opportunity to elect a candidate that they preferred from "District 1" and therefore were not entitled to relief. As the District Court reasoned, plaintiffs could not establish their electoral opportunity in District 1 because the proposed plan included a numerical majority of only 5 African-American residents and not every minority resident was eligible to vote.

Among the questions that splintered the appellate panel, which reversed the lower court’s decision, was whether the historical “cross-over” votes of sympathetic whites could reliably be combined with those of African-Americans when determining whether minority voters had a genuine opportunity to elect a candidate of their choosing.

The panel’s compete analysis, and a series of really interesting brain teasers, is accessible here.

Friday, July 27, 2007

A Third, A Third, A Third

Alongside former Governor Al Quie, and Minnesota State Bar Association President Brian Melendez, I had a chance to be a part of a panel discussion at the Third Judicial District’s Judges’ Meeting today. Our panel made a presentation regarding possible reforms to Minnesota’s methods of judicial selection and retention as outlined earlier by the Quie Commission. (See here)

So interesting and spirited was the give-and-take, that it was one of those delightful and rare occasions where the invited panelists learned as much, or more, from the audience as the other way around.

Today's panel discussion was on the eve of some autumn meetings scheduled by the Minnesota District Judges Association. In balloting this September, MDJA members will consider whether to take a position on the Quie Commission recommendations and what (if any) reforms members favor.

The post-panel chat that is captured in the photograph above (appearing from left to right), includes yours truly, Chief Judge William A. Johnson and Governor Quie.

Thursday, July 26, 2007

Not a Race to the Boundary Adjustments Unit in Annexation Matters

On Tuesday, a unanimous panel of the Minnesota Court of Appeals held that merely because a municipality was the first to file for annexation of an adjacent township, this fact does not operate to exclude from consideration the annexation petitions from other would-be municipal suitors.

Moreover, instructs the panel, this openness to other filers applies even in those cases where the first-arriving petition is a joint application for annexation between the municipality and the target township.

At issue in the case was whether the Office of Administrative Hearings’ Municipal Boundary Adjustment Unit could consider competing proposals for annexation in a consolidated proceeding, or instead, was obliged to first process to completion the earlier-filed City-Township joint application.

Writing for the panel, Judge Dietzen concluded that “we read Minn. Stat. ch. 414 to authorize the [Unit] director to exercise discretion in determining how competing proposals for annexation may proceed in a manner that satisfies the purposes of chapter 414.” Further, “we read Minn. Stat. § 414.0325 to authorize the director to proceed either on the joint resolution, or on a proceeding initiated by the director.”

The panel’s complete analysis, including a helpful refresher on mandamus practice, is accessible here.

Tuesday, July 24, 2007

Rulemaking Chair to Commentators: Think Strategically to Write Effectively

Richard Stohl, a partner in the law firm of Foley & Lardner, and co-chair of the American Bar Association's Rulemaking Committee, has written an interesting article in this month's issue of the Administrative and Regulatory Law News. The article is entitled "Effective Written Comments in Informal Rulemaking."

Among the points that Mr. Stohl makes in the article is that written comments on proposed rules should be seen as one part of a broader set of messages by stakeholders as to their regulatory objectives. For example, Stohl argues that regulated parties can (and many times should) use their comments to set the stage for later challenges in the courts on the resulting rules. Likewise, Stohl urges his readers to consider sending specially-crafted summaries of the submitted comments to more senior agency leaders and influential staff members, as part of a wider messaging strategy.

While Mr. Stohl is principally concerned with rulemaking under the federal Administrative Procedures Act, I thought that his messaging tactics might also be thought-provoking reading for folks here on the prairie.

And, for those of you who are not lucky enough to have Administrative and Regulatory Law News available at your local newsstand, the Foley & Lardner website has a link to the article here.

Monday, July 23, 2007

I Could Answer That Interrogatory, But Then I Would Have to Shoot You

Last Friday, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit unsealed a previously confidential decision that it handed down in late June.

The opinion in In Re: Sealed Cases reads a bit like a spy thriller and has a compelling set of discussions on the reach and operation of the state secrets privilege.

At issue in the case was whether an employee of the Drug Enforcement Agency, Horn, who was stationed in Rangoon, Burma, could sue his supervisor, Huddle, on claims that Huddle illegally recorded conversations occurring in Horn’s home. The United States sought dismissal of Horn’s claims on the grounds that proceeding on the suit would necessarily result in the disclosure of classified intelligence-gathering methods. Even then-CIA Director George Tenet filed an affidavit in the matter, expressing the Agency’s concern that national security could be compromised by certain litigation-related inquiries.

The panel’s analysis in affirming the trial court’s dismissal of Horn’s claims against the mysterious “Defendant II,” and reviving the claims against Huddle, is accessible here.

Thursday, July 19, 2007

Data Practices Act Refresher: Bring "Smoking Gun," Ask for Records

On Tuesday, the Minnesota Court of Appeals issued an interesting opinion in a case involving certain Data Practices Act requests from author, cable television host and gubernatorial candidate, Leslie Davis.

Mr. Davis sued the City of Minneapolis over what he believed were incomplete disclosures regarding the process by which Steven Bosaker was hired into City service. Mr. Bosaker, readers may recall, earlier served as the Chief of Staff for Governor Jesse Ventura.

The case is noteworthy because it restates two points which are unquestionably true – namely, that among the difficulties of maintaining suits to compel disclosure of government data is that the party seeking disclosure can only guess at what records are being withheld; and that much of the important work of government is conducted without creating written records at all, such that it is beyond the purview of the Minnesota Government Data Practices Act.

Mr. Davis pressed for further disclosures regarding Bosaker’s hiring and selection although he could not identify what documents, beyond the disclosures that the City had made to him, were being withheld. A sneaking suspicion that there must be more documents to be had on this subject was not enough to maintain his suit. (This is a position that might seem very familiar to those inquisitors who have propounded their own Data Practices Act requests.) Without a ‘smoking gun’ of agency error or misconduct, however, Mr. Davis was stuck.

A similarly important lesson – and a comfort for many government officials – is that the mental impressions or oral deliberations of officials are not themselves “data” that are subject to disclosure. As the appellate panel points out, the City of Minneapolis was not obliged to provide a catalogue of “facts” regarding “meetings or the discussions that took place relating to the position, or in which the position was discussed,” unless or until these facts were “recorded somewhere other than the human brain.” A Data Practices Act request does not operate like an interrogatory or a deposition.

The panel’s complete analysis is accessible here.

Sunday, July 15, 2007

The Otterstad Case: Does it Stand for the Proposition that the High Court Distrusts Law Enforcement? Or Something Else?

This past Thursday, the Minnesota Supreme Court issued an opinion that had me thinking all weekend. The case involved the conviction of two anti-abortion protesters who held up large (and graphic) posters on an overpass that crossed busy Highway 10 in Anoka. The posters criticized the abortion views of then-DFL candidate for Congress, Patty Wetterling.

Interestingly, while the Court was unanimous in holding that because the protestors had been charged and convicted under a version of a local sign ordinance that was not then in effect, thus rendering the convictions defective, the panel split on matters that were arguably dicta.

Justice G. Barry Anderson, writing for the majority, provoked vigorous comment from some of the other Justices with his view that the appellants’ anti-abortion message was no different than traffic or other signs that are posted alongside Minnesota highways. Three dissenting justices, led by Justice Alan Page, concurred in the result of overturning the convictions; but went on to state that it was “misguided” to equate the protestors’ message with traffic control signs and that the Police had, in fact, targeted the protestors because of the content of their message.

Because of the serial and pyramiding critiques of the local officials – some of which are arguably beyond what is needed to reach a substantive result in the case – is the take-away lesson from this opinion that this Court distrusts law enforcement?

Or, is a better explanation that because this Court already has such deep jurisprudential divisions, a natural default position is for the Justices to write separately; even on those occasions when a unanimous opinion might be within easy reach?

The Court’s complete analysis is accessible here and reader comments and reactions are welcomed at the E-mail link below.

Supreme Court Watchers Rejoice!

As the Justices of the U.S. Supreme Court make their way out of the Washington heat, with arms folded over piles of summer petitions for certiorari, the legal punditocracy has convened to review the work of the terms just concluded.

Linked at the "Judicial Notice" section of this blog, on the right side bar, below my profile, are recent Supreme Court Reviews hosted by the District of Columbia Bar, the Heritage Foundation, the American Constitution Society and the Federalist Society.

Court watchers all, these engaging videos are a great chance to tune in and tune up!

Wednesday, July 11, 2007

Chief Justice Anderson Makes Clarion Call on Campaign Cash

While I missed this year’s State of the Judiciary address when Chief Justice Russell Anderson delivered his remarks at the State Bar Convention in June, the text of the address was certainly worth returning to and reading.

Included among the 8 pages of remarks, was an emphatic declaration as to the corrosive effects of campaign cash on the state court system. The Chief Justice warns: “Make no mistake—unless we act—the ads, the money, and the partisanship we are likely to see threaten the public’s trust and confidence in all of our courts. A recent national poll revealed 81% of Americans believe judges are influenced by campaign contributions. And one in four judges agrees with them!”

The complete set of remarks is accessible here.

Tuesday, July 10, 2007

Does Local Law Enforcement Work to Seize a Drug Dealer’s Home Because They Want Him to Pay a Debt or Liability?

In a published opinion, issued this afternoon, a unanimous panel of the Minnesota Court of Appeals held that Minnesota’s drug forfeiture laws may not authorize the seizure of homesteaded property, because this property is shielded from seizure by Article I, Section 12 of the Minnesota Constitution.

In relevant part, Article I, Section 12 provides: “A reasonable amount of property shall be exempt from seizure or sale for the payment of any debt or liability.”

When I was a member of the Minnesota House, we always had lots of debate as to the scope and bite of the forfeiture laws – but those closest to the process never assumed that these court actions were motivated by the prospects of big cash payouts. This is because, as noted in one State Auditor’s report, the vast majority of forfeiture actions involve low dollar items; sometimes resulting in “negative recoveries” because the seizure-related expenses outstrip the value of the underlying property. Accordingly, among policy makers in Saint Paul, a sustained interest in forfeiture policies signified an ardor to deprive convicted criminals of the instrumentalities of committing crimes – not the hope that agencies would cash in. Indeed, the State Auditor’s office goes on to report that in 2005, the government targeted big ticket items rarely – with homes comprising one-tenth of one percent of the forfeiture actions that year.

In today’s opinion, however, the appellate panel comes at the state’s forfeiture laws very differently – as akin to other efforts to collect money damages or contract indebtedness.

The panel’s interesting and thought-provoking analysis is accessible here.

Monday, July 09, 2007

To Defer, or Not to Defer – That’s a Really Good Question

Last week, a panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an interesting opinion as to whether and when a court should defer to an agency’s reading of a statute that the latter administers. Specifically, the appellate panel considered whether it should defer to the agency’s construction of the certain provisions of the Indian Gaming Regulatory Act, regarding the establishment of casino gaming on newly-created reservations.

A citizens group opposed to the establishment of a new casino in Michigan challenged the Department of the Interior’s reading of the IGRA and the agency’s conclusion that the Nottawaseppi Band of Huron Potawatomi Indians could establish a federally-recognized reservation upon which casino gaming might be permitted. Central to the citizen’s group challenge, and its claim that the agency’s reading of the Act should be ignored, was that the agency’s reading of the statute had not followed either a formal adjudication or notice-and-comment rulemaking.

Disagreeing, the appellate panel concluded that a formalized process of deliberation – but not necessarily formal adjudication or notice-and-comment rulemaking – was required before the court would defer to the Department’s reading of the IGRA. Significant to the analysis was the fact that the agency “gave formal public notice in the Federal Register of the determination and the basis for it, including the opinion letter on which the Secretary relied.” While the Court went on to caution that “[a]lthough publication in the federal register is not in itself sufficient to constitute an agency’s intent that its pronouncement have the force of law, where, as here, that publication reflects a deliberating agency’s self-binding choice, as well as a declaration of policy, it is further evidence of a Chevron-worthy interpretation.”

The panel’s complete analysis is accessible here.

Sunday, July 01, 2007

Where the Rubber Meets the Road: The Standing to Insist that Others are More Rigorously Regulated

Midway through June, a panel of the U.S. Court of Appeals for the District of Columbia issued an interesting decision as to the standing that is required to challenge an agency’s decision not to regulate an industry more rigorously.

Carrying out a Congressional directive to “complete a rulemaking for a regulation to require a warning system in new motor vehicles to indicate to the operator when a tire is significantly under inflated,” the National Highway Traffic Safety Administration promulgated a standard which obliged automakers to install tire pressure monitors and defined the terms “significantly under-inflated.” Under the new standard, a tire was “significantly under-inflated,” and required a warning signal, when its pressure was 25 percent below the manufactures’ posted “placard” pressure, or 20 psi or less.

A trade association of tire manufacturers and the public-interest group Public Citizen each urged the agency to define “significantly under-inflated” much more rigorously – namely, as any drop below the level of pressure that would be required to support the maximum load that could be carried by a given vehicle.

Because the neither the tire manufacturers, nor Public Citizen, were the regulated parties – the NHTSA standards were applicable to automobile manufacturers – the appellate panel took a close look at the claimed injuries asserted by the petitioners. The tire manufacturers claimed that without the higher pressure standards, more tires would fail, and they would be drawn into more warranty litigation. Public Citizen alleged that without the higher pressure standards, more tires would fail, resulting in injuries to its membership.

In what is an interesting analysis, and worthwhile reading, a divided panel concludes that the tire manufacturers’ claimed injuries were too speculative to maintain its claims, but that Public Citizen would be granted an additional opportunity to establish by affidavit “whether Standard 138 as adopted creates a substantial increase in the risk of death, physical injury, or property loss” to its members.

The complete analysis, and the rationale for differing results, is accessible here.