Thursday, August 27, 2020

Larson v. Saul and Skidmore Deference

 When you cannot possibly sleep at night and need a brain game as a complete distraction from the world, the deference doctrine is a good choice.  This is the Chevron watershed that stands at the heart of administrative law in the last 35 years. Deference is the doctrine that fills in the gaps where the law is ambiguous by a publication from the agency that is not law.  Deference to a statutory construct is the core of Chevron deference.  

If a statute is genuinely ambiguous, the path opens for the executive agency to interpret the statute.  Chevron, U.S.A., Inc v. Nat. Res. Def. Council, Inc..  The courts will defer to the agency's construction of the statute unless plainly erroneous or inconsistent with the statute.  

If a regulation is ambiguous, the agency can interpret is own lack of clarity.  Kisor v. Wilkie.  The courts will defer to the agency's construction of the regulation unless plainly erroneous or inconsistent with the statute or regulation.  

But when the statute is ambiguous and either the regulations do not interpret the statute or Congress did not delegate to the agency, full-blown deference under Chevron or Kisor does not attach.  Then the agency gets the power to persuade deference.   Skidmore v. Swift & Co.

Enter Larson v. Saul and the Windfall Elimination Provision of the Social Security Act.  42 U.S.C. § 415(a)(7).  The Eighth Circuit decided Petersen v. Astrue, finding that the WEP did not apply to dual status technicians (civilian workers that are members of the uniformed services).  The COSS responded to Petersen with Acquiescence Ruling 12-1(8)POMS 00605.380 regurgitates the ruling.  

After the publication of Peterson, the ruling, and POMS, three other circuits weighed in on the dual service technician issue.  In the Eleventh Circuit, Martin v. Social Security Administration Commissioner  relied at least in part on Skidmore deference to agree with the COSS.  The Sixth and Tenth Circuits did not get past the step one question (is the statute ambiguous) to require resort to a deference doctrine.  Babcock v. Soc. Sec. Comm'r; Kientz v. Comm'r, SSA

Larson rejected the non-ambiguity findings of Babcock and Kientz.  Larson found the WEP provisions truly ambiguous and that both the claimant and the COSS made reasonable arguments for the construction of the statute.  Based on that equipoise, Larson granted Skidmore deference to the ruling and POMS.  Larson's benefits were subject to the windfall elimination provision of the Act.  

There are two problems with the grant of deference by the Ninth and Eleventh Circuits.  The administrative state makes a decision about whether dual service technicians without input from the stakeholders and weighing of policy considerations in public.  Without notice and comment, the legislation by administrative fiat should not form part of the social contract.  Second, Congress punted.  Congress either did not consider in the statute whether dual service technicians would get unreduced Social Security benefits or did not want to make that decision public for fear of retribution by voters impacted by the WEP.  Members of Congress have plausible deniability in the effectuation of a statute on constituents.  

The four circuits and the COSS create another problem.  Dual service technicians should move to geographic boundaries of the Eighth Circuit before applying for Social Security retirement or disability benefits.  A national program lacks uniform application across the country.  But that is the nature of every Acquiescence Ruling that cabins a decision to a circuit -- a lack of uniform application of a national standard to residents of different states.  Nor is this the kind of problem that will ever get before the Supreme Court to resolve the split in the circuits.  It is not likely that any of the remaining circuits will ever disagree with the duo of decisions disagreeing with Petersen or the duo of decisions yielding under the deference doctrine to cabin Petersen to the Eighth Circuit.  

The practice pointer is simple.  A claimant for benefits in the dual service technician role should move to the Eighth Circuit before applying for benefits.  A concern for uniform application of a statute should prompt the agency to rescind the Acquiescence Ruling  and POMS with a regulation that addresses the problem and move forward with a request for Brand X deference.    


Suggested Citation:

Lawrence Rohlfing, Larson v. Saul and Skidmore Deference, California Social Security Attorney (August 27, 2020)

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