Administrative Law

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Administrative Law

• Problem Solving

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Is it an Administrative Law Problem?

• Is there a government agency involved?
• Is the agency acting in an administrative role or
  is it working through the courts?
• DEQ civil enforcement is pure adlaw
• DEQ criminal enforcement is mixed
• DOJ or AG prosecutions are pure criminal or
  civil, although adlaw principles may be at issue

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Administrative Law issues in Private Litigation

• Torts
• Are agency standards being used for standard of
  care or negligence per se?
• Contracts
• Are there allegations of failures to comply with
  agency requirements
• Did a building project fail because it could not
  get a permit or because the defendant did
  properly apply for a permit?

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What Level of Government is Involved?

• City?
• County/Parish?
• Multi-county/parish districts?
• Political subdivisions such as school districts?
• State?
• Federal?
• Multiple levels of government?

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Who is Taking the Lead?

• Is the agency taking action against your client?
• How far along is the proceeding?
• Have rights already been jeopardized?
• Does your client need something from the agency?
• Permit?
• License?

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Researching Federal Administrative Law Questions

• Agency WWW site
• Are there guides to area of law you need?
• Are there contact numbers or email?
• Are there guidance documents or regs?
• Practice Guides
• Statues
• CFR
• Federal Register

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State

• Agency WWW site
• Practice guides, if any
• Statutes
• Administrative code
• Published if available and up to date
• WWW site
• Contact the agency if it is out of date
• State Register

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City, Country, Parish

• Life gets complicated
• Some materials for bigger cities are online on
  their WWW sites
• Time to get up close and personal with paper
• Head down to the city/county/parish law library
• Get to know the law librarian
• If you practice in the area, do this ahead of
  time when you have nothing else to do

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Working with the Agency

• Your best research tool is your phone list
• Figure out who knows what at the agency
• Be pleasant and friendly - even if it is an act
• Check out the agency reading room and documents
  repository
• Remember, they will be there on your next case
• Do not give them a reason to use agency
  discretion to screw your client

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Sample Problems
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Opening a Bar and Grill

• You have a client who wants to open a bar and
  grill
• What agencies do you think will be involved?
• How do you find out what you need to do to handle
  the permits?

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Getting the Building Built

• Your client needs to get a zoning variance before
  he can build
• What do you tell him about the variance process
  in general?
• Can he just sue them to get the variance?

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The Building Inspector

• You find your client sic'ed his dog on the
  building inspector because he did not have a
  warrant
• What do you tell your client about why he needs
  to get the building inspector back and what can
  happen if he does not?

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The Food Handling License

• The restaurant inspector refuses to sign off on
  the kitchen design because it does not have the
  required 3 compartment sink
• Your client says with his new automatic
  dishwasher he does not need the sink and it will
  take up too much room
• He wants to go to court to show that his design
  is fine
• What do you tell him?

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The Inspection

• Your client is beginning to understand why needs
  to call you before he does stupid things
• You get a call at 4 in the afternoon asking if he
  has to let the restaurant inspector into the
  kitchen.
• What do you tell him?
• He says the kitchen is spotless, but there might
  be some stolen guns in the back of the freezer
• What do you tell him now?

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Getting His License Back

• Assume that your client did not call you and did
  not let the inspector in
• The inspector stuck a placard on the door and
  closed the bar.
• Your client did not put up a fight, not wanting
  to get the police involved
• He has cleaned out the freezer and wants to open
• What should you do?

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Employee Rights

• You client was fired from McDonalds for
  criticizing the war in Iraq
• What are his due process rights?
• Your client was fired from LSU for criticizing
  the war in Iraq
• What are his due process rights?

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FEMA Flim Flam

• Your client says FEMA paid for his apartment for
  the last two months, but now says no more
  apartment rent after 1 Dec.
• He wants to sue FEMA because they are supposed to
  take care of him
• What do you need to know to decide if he has a
  valid claim?

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FEMA Round Two

• Assume you found that the FEMA enabling law said
  that FEMA would pay for rentals at the time of
  the hurricane, but when Congress saw how much it
  was costing, they changed the law effective Dec 1
• Can they do this?
• Can your client get an injunction to keep the
  payments going?

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Clean Up that Trash!

• The Orleans Parish Sanitation Department is
  dumping all the nasty stuff from the hurricane
  clean up into the old Gentilly land fill
• The landfill will leak and probably stink
• The EPA has granted a variance you want to
  challenge
• You think the White House leaned on the EPA to
  grant the variance
• How would you bring this in court and what would
  you need to show to prevail?
• What could the court order?

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Kicking the Corp's Butt on 17th Street

• You have clients in the Lakeview area, which
  flooded from the 17th street canal
• This is a flood control canal
• They want to sue the Army Corp of Engineers
• Will the Flood Control Act of 1928 apply?
• What if the local Corp commander took a bribe to
  signoff on improper construction?

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Kicking the Corp's Butt on the Industrial Canal

• The Industrial Canal is a navigation canal
• Will the Flood Control Act of 1928 control?
• Assuming the Flood Control Act of 1928 does not
  control, what act will you use to claim for
  flooded houses?
• What do you do first to meet the jurisdiction
  standards of the act?

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The Corp's Defenses
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Scenario One

• We knew there was peat moss under the levee, but
  Congress said to build a levee and only gave us x
  dollars
• We did the best for the money, knowing it was not
  as strong as it could be

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Scenario Two

• Peat moss? Who would have guessed? We are so
  sorry.

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Scenario Three

• The Corp - We used the best expertise available
  at the time to build the levee and we believed it
  was strong enough, despite the peat moss
• You have experts who will testify that even at
  the time there was disagreement on the standards
  for building on peat moss and that the Corp
  should have used a different design
• How will the court treat this evidence?

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Where are those Documents?

• You are using FOIA to request all the documents
  the Corp has about the levees
• The Corp responds that they will not give you
  critical reports because they have been
  classified to prevent terrorists from using them
  to attack New Orleans
• Can they do this under the FOIA?
• What do you have to show to get the documents?

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Documents, Round Two

• You have asked the Corp for documents about the
  decisions leading up to the final design of the
  Industrial Canal
• What defense will they raise and can you defeat
  it?

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Was Mike Brown on Drugs?

• As an investigative reporter, you want to find
  out if Mike Brown was on drugs, or only seemed
  that way
• Can you get his personnel records from the
  federal government to see if there is anything
  you can use?

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Bird Flu and You

• You represent a local folk life organization that
  preserves quaint old Louisiana traditions, like
  raises fighting chickens. (They are only for
  show, of course, because they are very valuable.)
• Can the health department inspect the chickens
  for bird flu?
• Can they destroy the chickens because one chicken
  has bird flu?
• Must they compensate the owners?

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Bird Flu, Round Two

• Your client is a devoted chicken fancier and
  allows the chickens to live in the house with
  him.
• He called work and said he was sick, and his
  employer called the health department
• Can they quarantine him for possible bird flu?
• Can they force him to undergo testing and
  treatment?
• What are his due process rights?

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End of the Course!!