Notice & Comment

Author: Bernard Bell

Notice & Comment

The First Casualties of Emergency Relief Programs

This post discusses the media plaintiffs’ prospect in WP Co. LLC v. U.S. Small Business Administration, seeking information about government disbursement of funds under two programs being used to address the severe economic dislocations attendant the coronavirus pandemic. “In war, truth is the first casualty.” Aeschylus “Not Now!:” FOIA Requests and the Small Business Administration’s […]

Notice & Comment

Compact Agencies and Transparency (Part II)

This post is the second in a two-part series exploring recent proposals or innovations to extend public access obligations to bi-state or multi-state agencies created to administer interstate compacts, i.e., compact agencies.  Compact agencies have traditionally occupied a lacunae in which neither federal nor state freedom of information (“FOI”) laws applied.  In Part I, I […]

Notice & Comment

Compact Agencies and Transparency (Part I)

States use interstate compacts to address various multi-state regional problems.[1]  Sometimes compact signatories create a “compact agency” to administer the compact.  Must such agencies provide access to their records? Every state public records law grants the public access to the records of state agencies. The federal Freedom of Information Acts (“FOIA”) imposes similar public access […]

Notice & Comment

The Deliberative Process Privilege and Nonacquiescence: Hall & Associates v. EPA

Agencies can withhold documents pursuant to Freedom of Information Act’s (FOIA) deliberative process privilege only if the documents are both predecisional and deliberative.[1]  If an agency refuses to apply a court of appeals decision outside of that Circuit, that is, if it engages in “intercircuit nonacquiescence,”[2] when is “the decision” to do so made?  In […]

Notice & Comment

Asking An Agency to Make A Silk Purse Out of A Sow’s Ear?: Union Pacific v. Pipeline & Hazardous Materials Safety Administration (Part I)

Cooperative federalism often involves information sharing between different levels of government. What are the implications of such information sharing for application of federal and state freedom of information/public records statutes?  When private entities are required to share information with state governments under a federal mandate, is release of that information governed by the federal Freedom […]

Notice & Comment

A Preemptive Grin Without the Statutory Cat?: Congressional Review Act Disapproval Resolutions & State Legislative Initiatives (Part II)

Pursuant to the Congressional Review Act (“the CRA”), Congress can adopt, with the President’s concurrence, a resolution disapproving an agency rule within 60 days of notification that the rule has been adopted.  Section 801(b)(2) of the CRA provides that disapproval resolutions preclude the agency from adopting “a new rule that is substantially the same as” […]

Notice & Comment

A Preemptive Grin Without the Statutory Cat?: Congressional Review Act Disapproval Resolutions & State Legislative Initiatives

The Congressional Review Act (“the CRA”)[1] establishes an expedited legislative process for preventing final agency rules from going into effect.  It provides a sixty-day period for Congress to adopt and the President to sign a resolution disapproving an agency rule.  5 U.S.C. §802(a).  If a disapproval resolution is adopted, the agency can neither “reissue [the […]

Notice & Comment

Greater Philadelphia Chamber of Commerce v. City of Philadelphia: Are Employer Information Requests Commercial Speech?

Several states and municipalities, including the City of Philadelphia, have adopted laws prohibiting employers from asking prospective employees for their wage and salary history.[1]  Such statutes and ordinances are designed to attack persistent wage disparities between White and non-White as well as male and female employees.  The Greater Philadelphia Chamber of Commerce challenged the Philadelphia’s […]

Notice & Comment

Third Circuit Holds Claimants May Raise Lucia Challenges to SSA ALJs for First Time in District Court

Today the Third Circuit issued an opinion regarding application of exhaustion requirements to Lucia v. SEC, 138 S. Ct. 2044 (2018), challenges to Social Security Administration ALJs – Cirko v. Commissioner, 2020 WL 370832. Lucia decided that the SEC’s ALJs were officers of the United States, and thus that their appointments were unconstitutional because the […]

Notice & Comment

“The Fugitive:” ICE, Fugitives, and FOIA (Part II)

This two-part series discusses Smith v. U.S. Immigration & Customs Enforcement, involving ICE’s policy for responding to FOIA requests made by fugitive aliens.  My first post discussed the policy’s inconsistency with FOIA Exemption 7(A).  This post discusses whether the “fugitive disentitlement doctrine.” The Fugitive Disentitlement Doctrine In Ortega-Rodriguez v. U.S., 507 U.S. 234 (1993), the […]

Notice & Comment

“The Fugitive:” ICE, Fugitives, and FOIA (Part I)

This two-part series discusses Smith v. U.S. Immigration & Customs Enforcement, involving ICE’s policy for responding to FOIA requests made by fugitive aliens.  This post discusses the policy’s inconsistency with FOIA Exemption 7(A), which allows agencies to withhold law enforcement records that “could reasonably be expected to interfere with enforcement proceedings.”  The second post discusses […]

Notice & Comment

Fortieth Anniversary: The Commerce Department’s Foray Into Re-Writing Products Liability Law

On October 31, 1979, forty years ago this week, the Department of Commerce published its Model Uniform Products Liability Act (now commonly referenced as the “Uniform Product Liability Act”) in the Federal Register, 44 Fed. Reg. 62714 (1979).  “The Commerce Department?,” you might respond with bemusement.  Ordinarily uniform and model state laws are crafted by […]

Notice & Comment

The October 9 Executive Orders and Government Acquisition of Information

As Aaron Nielson has noted, two new Executive Orders were issued yesterday.  He has described some of the major provisions.  But, in addition, there are provisions in the “Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication” regarding government inspections and information collection. With respect to […]