Administrative Law & Regulation Practice Group Podcast

On January 30, 2017, President Trump issued an Executive Order entitled Reducing Regulation and Controlling Regulatory Costs. The Executive Order instructs federal agencies to identify two existing regulations for repeal for each new regulation proposed. The Order further instructs the Director of the Office of Management and Budget to set an incremental cost target for each agency for each future fiscal year. Subject to certain exceptions, each agency must meet its target by offsetting the costs of new regulations by cost savings from repealed rules.

A lawsuit has been filed challenging the legality of the Executive Order in federal district court in Washington, D.C. The complaint argues, among other things, that the Order violates the separation of powers, the President's obligations under the Take Care Clause, and the Administrative Procedures Act. Thomas M. Johnson, Jr., is the Deputy Solicitor General of West Virginia and counsel of record on an amicus brief co-filed with the State of Wisconsin on behalf of a 14-state coalition supporting the legality of the Executive Order. Mr. Johnson joined us to discuss the Order and the pending litigation. This Teleforum is the fourth in our Executive Order Teleforum Series.


  • Thomas M. Johnson, Jr., Deputy Solicitor General of West Virginia
Litigation Practice Group Podcast

When is an alleged injury “concrete and particularized” under Article III of the U.S. Constitution? Spokeo, a self-proclaimed “online people search” site, was sued by Thomas Robins for publishing false information about him, which he claimed damaged his employment prospects. After being dismissed by the District Court and the Ninth Circuit for failing to state an injury “in fact,” the case was appealed to the Supreme Court where, one year ago, a 6-2 decision saw the Court vacate and remand the case. Legal experts Jeffrey Jacobson and Alan Raul joined us as we discussed the lasting implications of this decision on its first anniversary.   


  • Jeffrey S. Jacobson, Partner, Kelley Drye & Warren LLP
  • Alan Charles Raul, Partner, Sidley Austin LLP
SCOTUScast 5-17-17 featuring Brian Lichter

 On March 29, 2017, the Supreme Court heard oral argument in Turner v. United States, which was consolidated with Overton v. United States. In 1984, the body of Catherine Fuller was discovered in an alley after she had been beaten and raped. Sufficient physical evidence to identify the perpetrators was not recovered, and the medical examiner could not determine the number of attackers involved. Thirteen teenagers were initially indicted for being involved in a group effort to originally rob and subsequently assault and kill her. Two of them, Harry Bennett and Calvin Alston, pled guilty and agreed to testify, but the details in their accounts differed. Turner and nine other defendants were found guilty by a jury, and their convictions were affirmed on direct appeal. Nearly 25 years later, Turner and several of the other original defendants moved to have their sentences vacated, claiming that they had not received fair trials because the government had withheld exculpatory evidence in violation of Brady v. Maryland. They also argued that newly discovered evidence, including the recantations of Bennett and Alston, established that they were actually innocent of the crime. The trial court denied the motion, and the District of Columbia Court of Appeals affirmed. The Court held that the defendants had not shown a reasonable probability that the outcome of their trials would have been different with the new evidence.

The question now before the Supreme Court is whether the petitioners' convictions must be set aside under Brady v. Maryland.

To discuss the case, we have Brian Lichter, who is Associate at Latham & Watkins.

SCOTUScast 5-17-17 featuring Paul Stancil

On April 17, 2017, the Supreme Court heard oral argument in California Public Employees’ Retirement System v. ANZ Securities. Between July 2007 and January 2008, Lehman Brothers raised over $31 billion through debt offerings. California Public Employees’ Retirement System (CalPERS), the largest pension fund in the country, purchased millions of dollars of these securities. CalPERS sued Lehman Brothers in 2011, and their case was merged with another retirement fund’s putative class action suit against Lehman Brothers and transferred to a New York district court. Later that year, the other parties settled, but CalPERS decided to pursue its own claims individually. The district court dismissed for untimely filing, and the U.S. Court of Appeals for the Second Circuit affirmed.

The questions now before the Supreme Court is whether the filing of a putative class action serves, under the American Pipe & Construction Co. v. Utah rule, to satisfy the three-year time limitation in Section 13 of the Securities Act with respect to the claims of putative class members

To discuss the case, we have Paul Stancil, who is Professor of Law at Brigham Young University.

SCOTUScast 5-16-17 featuring Kristin Hickman

On March 21, 2017, the Supreme Court decided National Labor Relations Board v. SW General, Inc. SW General, Inc. provides ambulance services to hospitals in Arizona. A union had negotiated longevity pay for SW General’s emergency medical technicians, nurses, and firefighters. In December 2012, between the expiration of one collective bargaining agreement and the negotiation of a new one, SW General stopped paying the longevity pay. The union filed an unfair labor practices claim with the National Labor Relations Board (NLRB), which issued a formal complaint. An administrative law judge determined that SW General had committed unfair labor practices, but SW General contended that the NLRB complaint was invalid because the Acting General Counsel of the NLRB at the time, Lafe Solomon, had been serving in violation of the Federal Vacancies Reform Act (FVRA). President Barack Obama had nominated Solomon--who had then been serving as Acting General Counsel after the General Counsel had resigned--to serve as General Counsel, but the Senate had not acted on the nomination. The president had ultimately withdrawn the nomination and replaced it with that of Richard Griffin, who was confirmed. In the intervening period--including when the NLRB complaint had issued against SW General--Solomon had continued to serve as Acting General Counsel. SW General argued that under the FVRA, Solomon became ineligible to hold the Acting position once nominated by the president to the General Counsel position. The U.S. Court of Appeals for the D.C. Circuit agreed and vacated the NLRB’s enforcement order. The NLRB then obtained a writ of certiorari from the Supreme Court.

By a vote of 6-2, the Supreme Court affirmed the judgment of the D.C. Circuit. In an opinion by Chief Justice Roberts, the Court held that (1) subsection (b)(1) of the Federal Vacancies Reform Act of 1998, which prevents a person who has been nominated to fill a vacant office requiring presidential appointment and Senate confirmation from performing the duties of that office in an acting capacity, applies to anyone performing acting service under the FVRA and is not limited to first assistants performing acting service under Subsection (a)(1); and (2) Subsection (b)(1) prohibited Lafe Solomon from continuing his service as acting general counsel of the National Labor Relations Board once the president nominated him to fill the position permanently. The Chief Justice’s majority opinion was joined by Justices Kennedy, Thomas, Breyer, Alito, and Kagan. Justice Thomas filed a concurring opinion. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined.

To discuss the case, we have Kristin Hickman, who is the Distinguished McKnight University Professor, Harlan Albert Rogers Professor of Law, and Associate Director, Corporate Institute at the University of Minnesota Law School.