Editor’s Note: The Campbell Law Observer is taking a break from its usual editorial cycle to present first-person accounts from our law students who have enjoyed summer internships across the nation. This is the third of four submissions to be published during the Fall 2014 semester.
Life is good in the Big Easy! As summer clerks for the Honorable Bruce Tucker Smith, Administrative Law Judge for the Department of Homeland Security, we spent eight weeks working, exploring, and taking in the city of New Orleans, Louisiana.
Administrative Law Judges (ALJs), like Judge Smith, adjudicate cases that have a federal agency as one of the parties. ALJs are appointed based upon merit and by the authority of Article I of the U.S. Constitution. ALJs are appointed for life, and they receive the mandate of their authority from the Administrative Procedures Act of 1946.
Although Judge Smith is part of the Department of Homeland Security, we heard many cases from a variety of federal agencies. Since there are so many federal agencies, covering a diverse range of subject matter, the types of cases we participated in varied greatly. We assisted Judge Smith with Merchant Mariner Credential suspension and revocation cases, as well as other cases initiated by the Department of Homeland Security and other agency hearings as assigned by the U.S. Office of Personnel Management. With no administrative law experience, we really did not know what we had signed up for!
All people, all agencies, and all attorneys are treated fairly and cases are decided promptly.
We learned quickly that the umbrella of administrative law is wide. As Americans, our day-to-day interactions are often regulated by unseen administrative agencies, and by their regulations as codified in the Code of Federal Regulations (CFR). Each agency has its own set of substantive and procedural regulations and all are found in the CFR. The CFR dictates everything from what we can carry into an airport to the procedure for filing a whistleblower complaint against a government employer.
Judge Smith is known for his accuracy and efficiency in the courtroom. All people, all agencies, and all attorneys are treated fairly and cases are decided promptly. This push for speedy and accurate treatment of all cases created a demanding and rewarding work environment.
Part of the challenge is that each administrative agency has its own rules of procedure and evidence. The regulations are constantly being updated, so we always had to be cognizant of the appropriate procedural rules. A procedure that is appropriate for a Transportation and Security Administration case is not necessarily the proper procedure for the Merit Systems Protection Board. The demand of keeping up with the various rules for the hearings forced us to sharpen our research skills. When preparing for a pre-hearing conference, creating the timelines for a hearing, or meeting the deadline to issue a decision, we constantly read and referred to the CFR.
Judge Smith set an outstanding example on how to be both fair and efficient when dealing with parties that had such different levels of experience.
Administrative proceedings often involve parties with vastly different levels of expertise. Many times, the agency attorneys were experienced litigants in their particular field while the respondents were often pro se. Judge Smith set an outstanding example on how to be both fair and efficient when dealing with parties that had such different levels of experience.
The unique rules of evidence in the ALJ courtroom allow for the admission of hearsay testimony into evidence. Although hearsay is admissible, there is no guarantee how much probative weight the court will assign. Administrative hearings have no jury; therefore, ALJs act as the trier of fact and the sole decisionmaker. As his summer clerks, we were able to sit on the bench with Judge Smith and observe all of the hearings. After the hearings, we joined him in chambers to discuss the case. We asked questions, debated the validity of the testimony, and ultimately participated in Judge Smith’s decision-making process.
Once Judge Smith made his decision, he tasked us with drafting several decisions. This was an invaluable educational and personal experience. Not many students are able to begin their legal career with the advice and guidance of an experienced judge. We now have a clearer picture of what a judge is looking for and how to be the best advocates for our clients.
Many of our cases involved the United States Coast Guard (USCG) bringing charges against a merchant mariner. Oftentimes, the USCG charged the mariner with use of or addiction to illegal drugs, and sought to revoke the merchant mariner’s credential (MMC). Without a MMC the mariner cannot be employed. Many mariners appeared pro se. The MMC is personal property and therefore the mariner is entitled to due process under the Fifth Amendment. The merchant mariner is entitled to a fair hearing before his/her MMC is revoked. The proceeding is typically initiated because the mariner allegedly tested positive for a controlled substance on a drug test. The issue at trial is often whether or not the drug test was administered in accordance with the regulations specified in the CFR.
Our role in these proceedings was two-fold. First, we read the file and briefs, observed the proceedings, and discussed the case with Judge Smith. Second, we researched the CFR criteria for USCG mandated drug tests. We learned that many times the procedure and credibility of the USCG drug-testing program is weak. In chambers, we debated the current law and potential solutions to strengthen the drug-testing program. We loved contributing to these change-of-law discussions and ultimately writing portions of the decisions. We enjoyed seeing a real problem that affects thousands of mariners and working to offer a solution that would better allow for accurate drug testing procedures. Seeing our work in an issued opinion was incredibly rewarding.
Our docket was very busy which made for a fast-paced and demanding summer.
The role of the ALJ in these proceedings is to ensure that the hearings are run expeditiously and fairly, while giving both the USCG and the Respondent their day in court. With such a strong focus on efficiency, and with so many simultaneous cases, we assisted the court staff with keeping pre-hearing conferences, hearings, discovery deadlines, and decisions moving. Our docket was very busy which made for a fast-paced and demanding summer.
One of our more memorable memoranda was assigned when an agency attorney failed to attend a court-ordered pre-hearing conference. As this was not the first time she had failed to abide by a court order, Judge Smith asked us to prepare a memorandum on the court’s available sanctions. Within a few hours, we had researched the applicable sanctions for this particular agency and situation. Judge Smith used our memorandum to determine the appropriate course of action and he had us draft an order to be sent out the following day. It was both fulfilling and challenging to have our work relied upon in such a meaningful way.
Part of our summer experience involved sharpening our courtroom skills. We came to New Orleans with no courtroom experience, but we certainly left with some! After observing attorneys in court and then hearing Judge Smith’s feedback, we had a basic foundation for how to conduct ourselves in the courtroom. This was only the beginning, because a few weeks later we began our own courtroom exercises. Judge Smith challenged us with several courtroom scenarios. We were given a set of problems where we took turns presenting direct examinations of both lay and expert witnesses. The exercises built in complexity over time, culminating in the direct examination of expert witness testimony. We had to do an interview, prepare questions, and then present the examination in court before the judge. Although this was only a practice experience we felt the pulse of adrenaline and the shaky nerves of being on the spot. We learned how to manage our nerves, focus on attention, and be aware of everything happening around us.
In addition to the rigors of clerking for Judge Smith, we observed a multitude of proceedings at U.S. Court of Appeals for the Fifth Circuit and the U.S. District Court for the Eastern District of Louisiana. We befriended the Court Security Officers, and together with Judge Smith’s court staff, we always knew where the most interesting cases were being litigated!
One of the highlights was being in the courtroom when the former mayor of New Orleans, C. Ray Negin, was sentenced for corruption charges based upon his behavior in the aftermath of Hurricane Katrina. Being present in the courtroom when Negin received his controversial sentence was a historic moment we won’t soon forget. Having the opportunity to discuss the sentence and the case with Judge Smith and his staff provided valuable insight and a local perspective.
The first day Judge Smith told us, “You will not be a potted plant here, get ready to work.” He was right!
Our summer experience was focused on “doing” and not simply “observing.” The first day Judge Smith told us, “You will not be a potted plant here, get ready to work.” He was right! The most rewarding part of the summer was our contributions to the court’s legal work. Judge Smith and his staff relied on our work to keep their docket moving. This summer externship was full of professional and personal experiences that will long shape our futures. Judge Smith, his attorney-advisor Katy Duke, Esq., and the court staff went above and beyond to push us to be our best. We will forever remember our big summer in the Big Easy!
Joshua Hall is a 2L at Campbell University School of Law who will graduate in May 2016. He may be reached by email at jr********@em***.edu.
Whitney Jansta is a 2L on sabbatical exploring Europe while her husband, a Captain in the United States Air Force, is temporarily stationed at Lakenheath, England. She may be reached by email at wg**********@em***.edu.