Administrative Law

1. Administrative Law Problem Solving

2. 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

3. 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?

4. 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?

5. 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?

6. 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

7. 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any • Statutes • Administrative code • Published if available and up to date • WWW site • Contact the agency if it is out of date • State Register

8. 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

9. 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

10. Sample Problems

11. 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?

12. 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?

13. 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?

14. 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?

15. 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?

16. 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?

17. 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?

18. 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?

19. 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?

20. 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?

21. 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?

22. 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?

23. The Corp's Defenses

24. 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

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

26. 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?

27. 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?

28. 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?

29. 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?

30. 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?

31. 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?

32. End of the Course!!