Administrative Law

Problem Solving

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

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?

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?

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?

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

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Published if available and up to date WWW site Contact the agency if it is out of date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

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

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

Sample Problems

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?

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?

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?

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?

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?

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?

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?

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?

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?

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?

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?

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?

The Corp's Defenses

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

Scenario Two

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

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?

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?

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?

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?

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?

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?

End of the Course!!