Administrative Law
Problem Solving
Is it an Administrative Law Problem?
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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
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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?
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City?
County/Parish?
Multi-county/parish districts?
Political subdivisions such as school districts?
State?
Federal?
Multiple levels of government?
Who is Taking the Lead?
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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
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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
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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 Contact the agency if it is out of date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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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!
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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
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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
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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
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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
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Peat moss? Who would have guessed? We are so
sorry.
Scenario Three
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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?
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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
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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?
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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
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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
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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!!