Friday, April 15, 2011

Pending at the Supreme Court

Lockwood v. Astrue is currently pending before the Supreme Court.  Your erstwhile writer acts the attorney of record.  Lockwood concerns application of the borderline age case for an individual about 1 month from turning 55 but the Administrative Law Judge treats her as 54.  The regulations promise that the ALJ won't do that.  The program operations manual tells SSA to explain why it did or didn't take a flexible approach to age.  At issue is whether the Social Security Administration can promise the public one thing in a policy and procedure manual and then run away from that promise in federal court.

It is the social contract theory in administrative law.  The Supreme Court changed the paradigm in Chevron.  Regulations, not the Courts, get first crack at refining an ambiguous statute.  Auer extends that doctrine.  The agency gets the first crack at refining an ambiguous regulation.  But the Social Security Administration want to defend ALJ decisions in Court more than it wants to defend the right of every federal agency to promulgate regulations and then tell the world what those regulations mean.

Just to make it interesting, the Acting Solicitor General declined to tell the Supreme Court what the executive branch of government thinks about Auer deference.  The SG didn't do that in Parra v. Astrue, when the government to the Supremes that the Ninth had the whole deference thing wrong.

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