Present: Philip Harter (Chair), James O'Reilly (Chair-Elect), Janet Belkin (Past-Chair), Warren Belmar (Vice-Chair), Sidney Shapiro (Secretary), Russell Frisby (Assistant Budget Officer), Thomas Fritz (Board of Governors Liaison), Edward Grenier, Jr. (Section Delegate), and the following Council members: Lawrence Baxter, Susan Braden, David Cardwell, Sheila Hollis, Roberta Karmel, Jeffrey Lubbers, Elaine Reiss, and William Roush, Jr.

Absent: Richard Wiley, Barbara Bracher, John Holmes, Trevor Potter, Judge Judith Rogers, Stephen Ryan, and Peter Shane

Harter called to order at 8:00 a.m.

1. Chair's report (continued):
   1. Administrative matters: Harter indicated that the Section has hired Carrie Martin as an administrative assistant. He also asked for suggestions of persons who might assist the Section by interviewing candidates for the position of Administrative Law Judge in Philadelphia.

   2. Administrative Law Review: Harter presented a draft of the agreement negotiated between the Section and American University for the operation of the Administrative Law Review. O'Reilly moved to adopt the contract and Grenier seconded the motion.

      Harter assured the Council that the contract contemplates that a specific person will be designated by AU to be the contact concerning financial issues and other problems. He will clarify this point with AU as necessary. After some discussion concerning the design of the cover and the format of the review, Belkin requested that the contract include a term that any future changes in format must be approved by the Section. Harter indicated that the contract contemplated this requirement and that he would conform the language if necessary.

      Belmar objected to a contract term that provides that the Section's contribution to the Review can increase at no more than 3 percent a year for the life of the contract. He moved that this term be eliminated and O'Reilly seconded the motion. Belmar expressed his preference that the contract not obligate the Section to any increase concerning the amount that the Section will contribute towards the cost of publication. Frisby noted that historically the Section's publication expense have increased more than 3 percent per year. Harter pointed out that the Section and AU would still negotiate concerning the budget each year and that the contract term was intended only as a cap on expenditures. Belmar responded that a commitment to underwrite future expenses can discourage members of an organization to look for ways to reduce expenses. The Belmar motion failed with two abstentions (Reiss and Lubbers).

      The original motion then passed with two abstentions (Reiss and Lubbers).

2. Budget Officer's report: Frisby reported that the Council had neglected at the Midyear (Baltimore) meeting to approve revisions to the 1995-96 approved budget concerning the Administrative Law Review which are required because of an increased cost of $4,970 from the ABA Press. O'Reilly moved to approve the changes and Grenier second. The motion passed.

3. Membership Committee: Franklin said that the number of members in the Section had stabilized after a decline for several months. A membership survey approved at the last meeting will be mailed shortly and the results will be reported at the Annual meeting. Franklin has completed a draft of a new membership brochure at her law firm to save the Section some money. The Section will work with a group at the Georgetown Law School interested in alternative dispute resolution, but their proposal did not arrive in time for Council consideration at this meeting.

4. Section Delegate Report: Grenier reported that the House passed Resolution 100 which was sponsored by the Section, and he described the fate of several other resolutions discussed by Council members at the Winter meeting. He also noted that the Litigation Section had sponsored a late-arriving recommendation that concerned the principle of separation of powers, but despite this Section's interest in the subject, there had been no prior consultation.

5. FDA Committee: Joel Hoffman reported on his efforts to get the new FDA committee off and running. He has solicited 300 food and drug lawyers and 35 or 40 have so far indicated interest. It is not clear how many food and drug lawyers are now ABA members. Hoffman also reported that he is a member of a reform task force formed by the FDA committee in the Business Law Section which will prepare a blanket authority letter on FDA reform for the House and Senate committees considering legislative action. Although the effort is now bogged down, in part because of substantive disagreements, Hoffman hopes that the letter would go forward as a joint product of the FDA committees of both sections. Finally, it was noted that FDA's significant reliance on nonlegislative rules might be a subject for a section program or report.

6. Mini-Minder: Congressional Rule Review: Neil Eisner reported on the recently enacted Small Business Fairness Act which requires the submission of all final rules (and supporting documents) to Congress and the Comptroller General before a rule can take effect. A major rule (generally a rule that imposes costs of at least $100 million) can not take effect for at least 60 days after it is submitted to Congress, but non-major rules can take effect as otherwise provided by law after submission to Congress. Although Congress has always been able to overturn a rule by enacting legislation, this legislation contains special procedures for expedited review, and if a rule is overturned under these procedures, it is treated as though it had never taken effect.

7. Sunshine Act: May presented the recommendation and report concerning reform of the Sunshine Act which were based on work undertaken by the Administrative Conference shortly before its demise. May accepted as a friendly amendment a change along the following lines to the last sentence of paragraph 1:

   The results of such a pilot program should be examined carefully by Congress and other appropriate entities before it is extended or made permanent, and those provisions of the Sunshine Act should be terminated which adversely affect the quality of agency decisionmaking.

   O'Reilly moved adoption of the recommendation as amended. Frisby seconded. Cardwell moved to delete paragraph one and Roush seconded. The amendment failed to gain approval by a vote of fourteen to two. O'Reilly moved to amend the recommendation to add: "Nothing in this recommendation shall be deemed to apply to state and local government." Frisby seconded the motion. The recommendation with the two amendments passed with one no vote (Cardwell).

8. Judicial Review Committee: Ron Levin gave a progress report on a resolution and report concerning the scope of a courts' discretion to remand an administrative action for further consideration without vacating the action being remanded. The recommendation would recognize that a court has discretion to determine whether or not to vacate an agency's action pending the remand proceedings, and it would suggest several criteria that a court might consider in making this decision. Council members were concerned about whether a court would have sufficient information before it to apply such criteria, particularly if the issue of vacation was not briefed by the parties. One way to address this problem would be for the government to ask the court not to vacate the rule in a motion for rehearing.

9. Mini-Minder: Civil Justice Executive Order: Jeff Lubbers reported that President Clinton had signed Executive Order 12988 on "Civil Justice Reform" (61 Fed. Reg. 4729 (Feb. 7, 1996)), which revokes and supersedes a similar order issued by President Bush. The content of both orders is similar -- both seek to promote greater emphasis on settlement and alternative dispute resolution in disputes between the federal government and private parties -- but it also contains some small policy shifts. These include permitting litigation counsel to use binding arbitration and to enter into fee-shifting arrangements, and eliminating certification to OMB that an agency has completed a "litigation impact statement." The order also breaks new ground in several areas. It admonishes litigation counsel not to raise unmeritorious threshold defenses, permits pro bono activity by federal employees, and requires agencies to reduce delays in adjudication and requires the development of methods, including the use of electronic technology.

10. CLE Committee: Jack Young reported that the CLE was considering three actions. First, the committee would like to improve coordination by establishing a " program committee" consisting of the Section chair, chair-elect, and the chairs of the CLE and membership committees. Second, the committee discussed a proposal to have a permanent structure for the Section meetings which would permit members to plan what activities would occur at which meeting. For example, each Fall meeting could include an annual review of administrative law developments. Because the Fall meeting is held in Washington, it would also be a good time to cover such topics as international issues or technology issues which utilize speakers who are likely to work in Washington. The Midyear and Annual meetings could focus on committee meetings and programs cosponsored with other sections because these meetings have the greatest attendance. The Spring meeting, which is often the least busy meeting, could cover Section planning activities and a discussion of these concepts yielded a general consensus that the committee should move to implement these ideas by appropriate action and make recommendations in the three areas outline in the report.

11. Mini-Minder -- Small Business Growth and Fairness Act: Neil Eisner reported on several aspects of the Small Business Growth and Fairness act passed in March, 1996. First, agencies are required to publish compliance guides material for any regulation for which a regulatory flexibility analysis is undertaken. Second, there will be an ombudsmen in the Small Business Administration who will, among other responsibilities, annually evaluate for Congress the enforcement activities of agencies including rating the responsiveness of to small business of agency programs and personnel. Third, a small business subject to an enforcement action will be able to recover its legal fees if the "demand" of the agency (i.e., its assessment of penalties) is "substantially in excess" of the decision of an adjudicator or reviewing court, and it is "unreasonable when compared to the decision under the facts and circumstances of the case." Fourth, a small business can seek judicial review of an agency's compliance with the procedu

12. Mini-Minder -- Unfunded Mandates Act: Grace Reedy reported on the Unfunded Mandates Act passed in March, 1995. The act requires agencies to assess the effects of proposed federal regulatory action on state, local, and tribal governments, and the private sector if the action requires the expenditure of $100 million or more. In addition to specifying what analysis must be taken, the Act requires agencies to develop a plan to seek input from small governments concerning any proposed action that significantly or uniquely affects them. Judicial review can be used to compel an agency to issue any assessment that is required, but the failure to issue a statement or develop a plan, or their inadequacy, can not be used as a basis for invalidating a rule.

13. Health Care Committee: Kinney reported that the committee has under way the following projects that could lead to recommendations for Council consideration: sanctions and penalties under the Medicaid and Medicare programs; adjudication issues for institutional providers under the Medicare program; and adjudication issues for consumers and their physicians under the Medicare program. The committee's long-term agenda includes the following issues: use of negotiated rulemaking and other reformed procedures for resolving disputes concerning coverage and scientific policies; improvements in state rulemaking procedures to expedite necessary policymaking in the Medicaid and other potentially future health care programs; and adjudication of disputes between consumers and providers under the Employment Retirement Income Security Act of 1973 (EIRSA).

14. Planning meeting: July Kaleta reported on the "strategic planning" session held by the Section prior to the spring meeting. The meeting started with an environmental scan which asked participants to discuss lawyers' perceptions of the potential values of joining the Section and the ABA and to consider how such perceptions have changed over the years. Participants were then asked to compare their own reasons for joining. In light of this discussion, the meeting attempted to gain some consensus concerning the mission of the Section, but the diversity of the backgrounds of those who participated made this difficult. The final issue of the meeting was a discussion of how to build on the insights gained from this planning exercise. The Council requested that the planning committee develop a formal report of its activities to date, to identify the issues that should be on the table for resolution, and to prepare a "straw person" set of recommendations concerning those issues to the extent a consensus existed or

The meeting was adjourned at 11:15 a.m.