Carrillo-Yeras v. Astrue is an important win for claimants seeking the disability benefits found in the Social Security Act. Ms. Carrillo applied for benefits and received a denial by Administrative Law Judge decision. She excercised her rights under the regulations to both file a request for review to the Appeals Council and to file a new claim for benefits with SSA. As of this year, the agency has withdrawn that dual track process as an option for claimants denied by an ALJ. Social Security Ruling 11-1p. The dual track appeal and refile remains a viable option for claimants once they receive a denial of review by the Appeals Council -- they may proceed to the District Court and file a new claim. This case will have continued ramifications even under current agency policy.
The case is simple. Ms. Carrillo re-filed in 2003 after the ALJ denied her first case. The agency decided that she met the requirements for disability. The Appeals Council granted the request for reivew of the first case and reopened the second case, sending them both back to the same ALJ for a new consolidated decision. It is clear that the only reason that the Appeals Council granted the request for review of the first decision was to provide a vehicle to reopen the second case and allow the ALJ to make one decision applicable to both. SSA calls this a "substitution of judgment." Any system based on discretion must reject the substitution of judgment of one fact finder by another. The regulations permit an out for this basic principle in reopening and revision. 20 C.F.R. §§ 404.988 and 416.1488.
I assume good faith unless bad faith reaches up and slaps me in the face. I entertain that the Appeals Council had a legitimate reason for reopening the grant of benefits on the subsequent claim that would permit the substitution of judgment. The Ninth Circuit decision describes a process that took 23 months from the date that the Appeals Council stated that it would reopen to the date that the ALJ told Ms. Carrillo that he found that she was never entitlted to the benefits paid to her and her family.
As an exception to the prohibition of a substitution of judgment, the regulations narrowly prescribe the circumstances that SSA can engage in a reopening and revision that constitutes a "take away." The agency must complete the investigation within 6 months or diligently under the circumstances. 20 C.F.R. §§ 404.991a, 416.1491. If the agency takes longer than 6 months and has not acted diligently under the circumstances, any change to the reopened decision must find in the claimant's favor, i.e. not a take away.
This maes sense. The reopening puts the claimant on the edge of the precipice. For the next 6 months or during a period of diligent investigation to the point of decision, that person's finances and health insurance hang in the balance. If the agency does not complete the investigation, it should not have the ability to claw back the properly paid benefits and cease the ongoing benefits. The agency can always conduct a continuing disability review to remove the person from the disability rolls later by showing improvement or that the first decision rested on error. SSA has its remedies. Restricting the reopening and revision process levels the playig field and removes the punitive component of taking away granted benefits to individuals acting in good faith for those claims on the cusp.
But did you notice the name of the lawyer representing Carrillo-Yeras? I enjoyed working on and arguing that case. The win is just sweet.
Wednesday, October 26, 2011
Monday, September 19, 2011
Aarestad v. Commissioner
I know, unpublished opinions are not precedent and don't matter much. Unless of course you are one of the litigants in an unpublished opinion. Aarestad v. Commissioner is a bad decision.
Aarestad applied for widow's benefits. The Court held that she "worked only sporadically before the alleged onset of disability (which suggests that her decision not to work was not based on disability) ..." Did I mention that Aarestad applied for widow's benefits? Of course she worked sporadically. She and her deceased husband made a socio-economic decision that she not work because not everyone has abandoned the one-income household model. Some couples don't have to send both people back to work.
There are clear advantages to a single income household. Not only the obvious with raising children but also in the mundane day-to-day of living. If both people work, the chores of cooking, cleaning, and laundry mean that one or both members of the family are working not 40 hours per week but more like 60 hours per week. That usually defaults to the wife, which is why married men live longer than their bachelor friends and married women don't live as long as their single friends. Life expectancy is how we make plans.
There is a discrete difference between a lifetime of sloth and a legitimate sociological choice that is in the cultural norm. A history of sloth can form a legitimate basis for discounting a claim of disability. A legitimate choice to live on the wages of one partner in the marriage while the other stays home is not a history of sloth or a legitimate basis for discounting the surviving spouse's testimony.
A rule of law is based on the assumptions that under-gird that rule. Failing to recognize the nuances of the rationale behind a rule of law is dangerous not only to the person involved but to future cases. The infection starts in misapplication in unpublished opinions, spreads into published opinions, and pretty soon the law becomes absurd. Charging the stay-at-home partner for a life decision that finds solid cultural and sociological underpinnings is an attack on the social fabric and the family. The Court needs to divorce itself from the dangerous path that Aarestad takes. Whether she otherwise deserved to win is a different story but piling on bad reasons is the kind of hyperbole and exaggeration that we all find "not credible."
Aarestad applied for widow's benefits. The Court held that she "worked only sporadically before the alleged onset of disability (which suggests that her decision not to work was not based on disability) ..." Did I mention that Aarestad applied for widow's benefits? Of course she worked sporadically. She and her deceased husband made a socio-economic decision that she not work because not everyone has abandoned the one-income household model. Some couples don't have to send both people back to work.
There are clear advantages to a single income household. Not only the obvious with raising children but also in the mundane day-to-day of living. If both people work, the chores of cooking, cleaning, and laundry mean that one or both members of the family are working not 40 hours per week but more like 60 hours per week. That usually defaults to the wife, which is why married men live longer than their bachelor friends and married women don't live as long as their single friends. Life expectancy is how we make plans.
There is a discrete difference between a lifetime of sloth and a legitimate sociological choice that is in the cultural norm. A history of sloth can form a legitimate basis for discounting a claim of disability. A legitimate choice to live on the wages of one partner in the marriage while the other stays home is not a history of sloth or a legitimate basis for discounting the surviving spouse's testimony.
A rule of law is based on the assumptions that under-gird that rule. Failing to recognize the nuances of the rationale behind a rule of law is dangerous not only to the person involved but to future cases. The infection starts in misapplication in unpublished opinions, spreads into published opinions, and pretty soon the law becomes absurd. Charging the stay-at-home partner for a life decision that finds solid cultural and sociological underpinnings is an attack on the social fabric and the family. The Court needs to divorce itself from the dangerous path that Aarestad takes. Whether she otherwise deserved to win is a different story but piling on bad reasons is the kind of hyperbole and exaggeration that we all find "not credible."
Saturday, September 17, 2011
Social Security Ruling 11-1p
Effective July 28, 2011, the Social Security Administration (SSA) reverted back to an old policy that forbade claimants from filing new applications while they appealed an Administrative Law Judge (ALJ) decision to the Appeals Council (AC). The policy change is found in Social Security Ruling 11-1p. Claimants for benefits enjoyed the option of filing a new claim for benefits while pursuing an older claim before the Appeals Council when the agency changed its policy in 1999.
It wasn't just largesse that that pushed SSA to allow the new claim filing in 1999. It was then taking the AC about 3 years to decide whether to grant or deny review of an ALJ decision. The wait for 3 years and then another 2 years to get to an ALJ on a second claim for benefits put a staggering toll on claimants whose cases teetered on the cusp. For the chronically ill, the absence of access to medical care for 5 years or dependency on the public healthcare system was sometimes a death knell. The 1999 policy allowed those new claims to progress through the initial and reconsideration stages during that 3 year spell at the AC. Many of those people received benefits on the new application, a few on reconsideration, and others got in line at the hearing office to see an ALJ on that subsequent claim. The hearing office was not supposed to decide those cases pending at the AC, although it did happen from time to time.
Under Joanne Barnhart, SSA began to take a hard look at those egregious wait times for hearings and before the AC. When Michael Astrue took over as the new Commissioner of Social Security, that concern took concrete form. Commissioner Astrue mandated that the hearing offices decide all cases pending more than 1000 days old and gradually reduced that "aged" case mandate to 750 days. Average processing times have been reduced to between 186 and 504 days. The wait at the AC has been reduced from 3 years to about 1 year.
With quicker processing times both at the hearing level and at the AC, the need for the new application policy dissipated. Many claimants still filed new claims and got granted on those cases while old cases meandered through the administrative process. Since the AC continued to deny review of unfavorable ALJ decision 70-75% of the time, getting that new application in early did make a big difference.
The downside for claimants filing new applications rested in the nasty tendency of the AC to take the grant of the new application with the ALJ denial of the old claim, fold them together, and send both back to the denying ALJ for a second look. It doesn't take a rocket scientist to figure out what a lot of ALJs did with those now combined claims. It presented a situation fraught with peril as the disabled claimant had to decide with the ALJ's permission whether to dismiss the request for hearing on the old claim to keep the new claim or roll the dice and proceed to have both cases adjudicated. Some of these cases had explicit reopening of the second claim by the AC, others implicitly giving the ALJ permission, and some giving no hint at what the AC intended at all. Once in a while, a claimant would receive a remand on the old case from the AC with an express affirmation of the subsequent grant. The varied scenarios that a subsequent grant created with cases pending at the AC probably played a big part in rescission of the policy to allow the subsequent application.
As a proponent of not putting all of my client's eggs in one basket, I routinely advised my clients to reapply for benefits after filing a request for review or District Court action. That advice as to the latter stage will continue to constitute the modus operandi of responsible representatives absent circumstances such as an expired insured status for Title II (SSDIB) benefits and no eligibility for Title XVI (SSI). I have seen far too many times the absence of that subsequent application hurt the claimant that changed age categories or suffered medical deterioration come back and bite the claimant in the pocketbook. That general presumption to re-file at the AC level of review now requires finesse and lawyering.
The AC will treat the submission of new evidence that does not relate to the period of time adjudicated by the ALJ to represent a protected filing date of a new application. In practical terms, this means that representatives must submit new evidence to the AC throughout the process arguing both that the new evidence undermines the ALJ decision and that if the evidence is dated after the date of the ALJ decision that it constitutes a protected new filing date on a new claim should the AC not grant the request for review. Representatives that do not refresh the medical records before the AC or remind the AC that the claimant has now entered a new age category "and this is a protected filing of a new application" will commit material error on behalf of their clients. The word for that error is "malpractice." Just as attorneys and non-attorney representatives that did not advise on the filing of a new application in the past have hurt their clients, I fear that the non-diligent representatives will fail to take advantage of the rules that now require us to make the protected filing date pitch.
It wasn't just largesse that that pushed SSA to allow the new claim filing in 1999. It was then taking the AC about 3 years to decide whether to grant or deny review of an ALJ decision. The wait for 3 years and then another 2 years to get to an ALJ on a second claim for benefits put a staggering toll on claimants whose cases teetered on the cusp. For the chronically ill, the absence of access to medical care for 5 years or dependency on the public healthcare system was sometimes a death knell. The 1999 policy allowed those new claims to progress through the initial and reconsideration stages during that 3 year spell at the AC. Many of those people received benefits on the new application, a few on reconsideration, and others got in line at the hearing office to see an ALJ on that subsequent claim. The hearing office was not supposed to decide those cases pending at the AC, although it did happen from time to time.
Under Joanne Barnhart, SSA began to take a hard look at those egregious wait times for hearings and before the AC. When Michael Astrue took over as the new Commissioner of Social Security, that concern took concrete form. Commissioner Astrue mandated that the hearing offices decide all cases pending more than 1000 days old and gradually reduced that "aged" case mandate to 750 days. Average processing times have been reduced to between 186 and 504 days. The wait at the AC has been reduced from 3 years to about 1 year.
With quicker processing times both at the hearing level and at the AC, the need for the new application policy dissipated. Many claimants still filed new claims and got granted on those cases while old cases meandered through the administrative process. Since the AC continued to deny review of unfavorable ALJ decision 70-75% of the time, getting that new application in early did make a big difference.
The downside for claimants filing new applications rested in the nasty tendency of the AC to take the grant of the new application with the ALJ denial of the old claim, fold them together, and send both back to the denying ALJ for a second look. It doesn't take a rocket scientist to figure out what a lot of ALJs did with those now combined claims. It presented a situation fraught with peril as the disabled claimant had to decide with the ALJ's permission whether to dismiss the request for hearing on the old claim to keep the new claim or roll the dice and proceed to have both cases adjudicated. Some of these cases had explicit reopening of the second claim by the AC, others implicitly giving the ALJ permission, and some giving no hint at what the AC intended at all. Once in a while, a claimant would receive a remand on the old case from the AC with an express affirmation of the subsequent grant. The varied scenarios that a subsequent grant created with cases pending at the AC probably played a big part in rescission of the policy to allow the subsequent application.
As a proponent of not putting all of my client's eggs in one basket, I routinely advised my clients to reapply for benefits after filing a request for review or District Court action. That advice as to the latter stage will continue to constitute the modus operandi of responsible representatives absent circumstances such as an expired insured status for Title II (SSDIB) benefits and no eligibility for Title XVI (SSI). I have seen far too many times the absence of that subsequent application hurt the claimant that changed age categories or suffered medical deterioration come back and bite the claimant in the pocketbook. That general presumption to re-file at the AC level of review now requires finesse and lawyering.
The AC will treat the submission of new evidence that does not relate to the period of time adjudicated by the ALJ to represent a protected filing date of a new application. In practical terms, this means that representatives must submit new evidence to the AC throughout the process arguing both that the new evidence undermines the ALJ decision and that if the evidence is dated after the date of the ALJ decision that it constitutes a protected new filing date on a new claim should the AC not grant the request for review. Representatives that do not refresh the medical records before the AC or remind the AC that the claimant has now entered a new age category "and this is a protected filing of a new application" will commit material error on behalf of their clients. The word for that error is "malpractice." Just as attorneys and non-attorney representatives that did not advise on the filing of a new application in the past have hurt their clients, I fear that the non-diligent representatives will fail to take advantage of the rules that now require us to make the protected filing date pitch.
Sunday, September 11, 2011
Electronic Folders ... the New SSA
We now live in two worlds. In one world, people we live in the communication age with electronics dominating our activities. In the other world, we live in the world of paper, real paper with edges and paper cuts. Practicing law is no different, not even with the Social Security Adminstration.
When I started this journey in 1985, files were all paper. Attorneys or their designated employee or copy service traveled to the Office of Hearings and Appeals to make copies of paper files. This laborious task required disassembling the files, removing staples, and running the exhibits through a copy machine. So high tech services scanned the pages, only to print them out later. The person making the copies had to reassemble all the exhibits into the folder. The paper folders got transferred from the field offices to the disability determination services, back again ... twice usually. Then the file would wind its way to the OHA hearing offices. If the case went onto review to the Appeals Council, the file got shipped off to Falls Church, Virgina. Extraordinary delays as paper got pushed back and forth through the system.
Enter the age of electronics and the digitization of files. The OHA became the Office of Disability Adjudication and Review. ODAR started sending and giving out discs with the claim files on them. This created security issues. To protect privacy, ODAR started encrypting discs that it mailed to the appointed representatives or to the unreprented claimants. But now the process has turned up another notch.
In the current age of file transmissions, representatives must sign up for the Electronics Records Epxress. The ERE requires the erstwhile representative to log in through 3 layers of seurity to get to the client's file. Viewing the TIF files as a photo is cumbersome and inefficient. Reviewing the files in PDF requires a download and conversion or download as a PDF file. The whole idea of securing the personal identifying information is a great idea but the keys for encryption on the representative end no longer comes automatically with possession of a password encrypted disc. It requires the representative to install and operate encryption software on the end user computers.
The whole process becomes cumbersome and costly. Another barrier to the entry into the marketplace of representing the disabled in their pursuit of benefits denied by the federal bureaucracy. As the federal government raises the cost of representing human beings, the federal government discourages representation. The loser in the final analysis is the person that finds it more and more difficult to find quality representation by attorneys with new and fresh ideas. That leaves the old guard in place with less competition from upstarts. Having been an upstart and having been in the business long enough to be considered old guard, I like to see young people getting into the business and forcing competition.
And that is the real problem. Technology puts us all at risk for identity theft. The winners in the battle agaist identity theft are the new parasitic industries that do not produce but only secure. While we need security, the cost of security dampens the market and squeezes marginally profit businesses out. Not a good result for the consumer ... not a good result at all.
When I started this journey in 1985, files were all paper. Attorneys or their designated employee or copy service traveled to the Office of Hearings and Appeals to make copies of paper files. This laborious task required disassembling the files, removing staples, and running the exhibits through a copy machine. So high tech services scanned the pages, only to print them out later. The person making the copies had to reassemble all the exhibits into the folder. The paper folders got transferred from the field offices to the disability determination services, back again ... twice usually. Then the file would wind its way to the OHA hearing offices. If the case went onto review to the Appeals Council, the file got shipped off to Falls Church, Virgina. Extraordinary delays as paper got pushed back and forth through the system.
Enter the age of electronics and the digitization of files. The OHA became the Office of Disability Adjudication and Review. ODAR started sending and giving out discs with the claim files on them. This created security issues. To protect privacy, ODAR started encrypting discs that it mailed to the appointed representatives or to the unreprented claimants. But now the process has turned up another notch.
In the current age of file transmissions, representatives must sign up for the Electronics Records Epxress. The ERE requires the erstwhile representative to log in through 3 layers of seurity to get to the client's file. Viewing the TIF files as a photo is cumbersome and inefficient. Reviewing the files in PDF requires a download and conversion or download as a PDF file. The whole idea of securing the personal identifying information is a great idea but the keys for encryption on the representative end no longer comes automatically with possession of a password encrypted disc. It requires the representative to install and operate encryption software on the end user computers.
The whole process becomes cumbersome and costly. Another barrier to the entry into the marketplace of representing the disabled in their pursuit of benefits denied by the federal bureaucracy. As the federal government raises the cost of representing human beings, the federal government discourages representation. The loser in the final analysis is the person that finds it more and more difficult to find quality representation by attorneys with new and fresh ideas. That leaves the old guard in place with less competition from upstarts. Having been an upstart and having been in the business long enough to be considered old guard, I like to see young people getting into the business and forcing competition.
And that is the real problem. Technology puts us all at risk for identity theft. The winners in the battle agaist identity theft are the new parasitic industries that do not produce but only secure. While we need security, the cost of security dampens the market and squeezes marginally profit businesses out. Not a good result for the consumer ... not a good result at all.
Tuesday, July 5, 2011
Electronic Banking and Social Security
The Social Security Adminsitration will no longer allow people to choose whether to have their benefits sent to them by paper check or deposited directly into their bank account. For people that apply for Social Security or Supplemental Security Income benefits on or after May 1, 2011, SSA will pay benefits electronically. People that are in pay status currently must transition to electronic benefit transmittal not later than March 1, 2013. The alternative, a Direct Express® card will provide the vehicle to pay benefits.
SSA intends this move as a cost saving measure. Cutting out the automated printing of checks with the costs of mailing with the substituted computer controlled transfer of funds will obviously save money. There is a downside.
With paper checks, the beneficiary has to go to the bank and cash or deposit the check. It takes a voluntary act. Without that voluntary act, I can see the estate of a deceased person getting hit with overpayments as post mortem bank transactions continue.
In this information age, we have or at least could automate a significant portion of our banking. The regular ones that don't change -- mortgage, car payment, credit line payments, etc. It is forseeable that an individual could pass on from this experience and have banking transactions continue until someone else notifies the bank, SSA, and the other interested parties that the beneficiary has passed on.
Whether the agency has adequate safeguards to protect against what I perceive as inevitable overpayments remains to be seen. The push towards automation and the desire to save scarce government resources (i.e. shrinking government payroll) should move forward with caution to we as the taxpayers do not trade one set of fiscal problems for another set of fiscal problems.
SSA intends this move as a cost saving measure. Cutting out the automated printing of checks with the costs of mailing with the substituted computer controlled transfer of funds will obviously save money. There is a downside.
With paper checks, the beneficiary has to go to the bank and cash or deposit the check. It takes a voluntary act. Without that voluntary act, I can see the estate of a deceased person getting hit with overpayments as post mortem bank transactions continue.
In this information age, we have or at least could automate a significant portion of our banking. The regular ones that don't change -- mortgage, car payment, credit line payments, etc. It is forseeable that an individual could pass on from this experience and have banking transactions continue until someone else notifies the bank, SSA, and the other interested parties that the beneficiary has passed on.
Whether the agency has adequate safeguards to protect against what I perceive as inevitable overpayments remains to be seen. The push towards automation and the desire to save scarce government resources (i.e. shrinking government payroll) should move forward with caution to we as the taxpayers do not trade one set of fiscal problems for another set of fiscal problems.
Sunday, June 19, 2011
More on Judges that Vary from the Norm
The House of Representatives Subcommittee on Social Security from the Ways and Means Committee sent an inquiry to the Office of Inspector General about Administrative Law Judges that say "yes" too often. The Committee on Ways and Means summarizes the letter as asking five basic questions:
There is a wide discrepancy between ALJs in the nation, within a region, and within a single office. The Wall Street Journal reported the numbers. Just focusing on merits decisions, the average over the last couple years hovers around 65% favorable decisions. The standard deviation is about 18%, meaning that 68% of judges will pay between 47% and 83% of cases that they hear. That means that an ALJ can grant 100% of cases and still fall within 2 standard deviations from the average, but there is a whole raft of judges that pay so few cases that they are are in the 2nd or less percentile. If Congress wants to encourage the agency to push ALJ's towards a smaller deviation standard and with a possibllity of an ALJ falling outside of 2 standard deviations from the mean by paying too many and too few cases, bring it on. There are far too many judges paying too few than there are two many cases.
What factors cause the wide discrepancy and what can SSA do about it? That brings up my pet peeve: judges that just don't follow the law. The reason that some judges don't pay deserving cases can be as varied as the size of the ALJ corps. But judges that are bent on denying claims will look for reasons that violate the beneficial intent of the Social Security Act, the regulations, and agency policy every day. The damage done to deserving individuals and families in pulling the rug out from beneath society's promise to help the disabled contravenes the idea of the social compact. Disability benefits becomes an entitlement when people lose the ability to work - substantial gainful activity under the Act.
I look forward to an investigation into the discrepancies and variances between judges hearing cases. The public deserves predictability in cases. It should not be a lottery but a fair and evenhanded adjudication that does not depend on which office or which judge in the office gets assigned. As long as cases get heard by human beings we can expect mistakes. That is human frailty rearing its head. But 13% to 100% is too far of a stretch to believe that bias on both sides is not at issue.
- Revew ALJ workloads, adherence to Agency policies and procedures, and related monitoring.
- Provide information on those ALJs who differ very significantly from their peers in their productivity or decisional outcomes.
- Assess what factors may account for any variances in these rates, as well as how the ALJs obtained the cases they worked and whether they held hearings. The
- Describe and assess the use and effectiveness of management controls regarding ALJ adherence to SSA policies and procedures and any constraints, including statutory limitations, which make it difficult to ensure ALJs’ adherence to those policies and procedures.
- Describe and assess the effectiveness of SSA’s quality review system for ALJ decisions, including reviews by the Appeals Council and the Office of Quality Performance.
There is a wide discrepancy between ALJs in the nation, within a region, and within a single office. The Wall Street Journal reported the numbers. Just focusing on merits decisions, the average over the last couple years hovers around 65% favorable decisions. The standard deviation is about 18%, meaning that 68% of judges will pay between 47% and 83% of cases that they hear. That means that an ALJ can grant 100% of cases and still fall within 2 standard deviations from the average, but there is a whole raft of judges that pay so few cases that they are are in the 2nd or less percentile. If Congress wants to encourage the agency to push ALJ's towards a smaller deviation standard and with a possibllity of an ALJ falling outside of 2 standard deviations from the mean by paying too many and too few cases, bring it on. There are far too many judges paying too few than there are two many cases.
What factors cause the wide discrepancy and what can SSA do about it? That brings up my pet peeve: judges that just don't follow the law. The reason that some judges don't pay deserving cases can be as varied as the size of the ALJ corps. But judges that are bent on denying claims will look for reasons that violate the beneficial intent of the Social Security Act, the regulations, and agency policy every day. The damage done to deserving individuals and families in pulling the rug out from beneath society's promise to help the disabled contravenes the idea of the social compact. Disability benefits becomes an entitlement when people lose the ability to work - substantial gainful activity under the Act.
I look forward to an investigation into the discrepancies and variances between judges hearing cases. The public deserves predictability in cases. It should not be a lottery but a fair and evenhanded adjudication that does not depend on which office or which judge in the office gets assigned. As long as cases get heard by human beings we can expect mistakes. That is human frailty rearing its head. But 13% to 100% is too far of a stretch to believe that bias on both sides is not at issue.
Monday, June 13, 2011
Scalia Prepares to do a 360?
The Supreme Court decided Talk America, Inc. v. Michigan Bell on June 9, 2011. The FCC says that the telephone company has to allow competitors to connect with their system so that we can call each other. The rule is not in the statute or regulations, it is in an explanation of the regulations. Just a plain old application of my pet peeve, Auer v. Robbins. Antonin Scalia wrote the opinion of the Court in Auer announcing the rule that when an agency interprets its own regulations that the Court will defer to that interpretation unless it is plainly erroneous.
Justice Scalia did not just sign on to the decision in Talk America. Instead, Justice Scalia wrote a separate concurring opinion that says two things: (1) he would reach the same decision in Talk America with Auer; and (2) he is ready to reconsider whether Auer should survive. Hold on, my neck is sore from the snap.
Justice Scalia writes now "For while I have in the past uncritically accepted that rule, I have become increasingly doubtful of its validity." Uncritically accepted? That is a true understatement. It is more accurate that Justice Scalia has championed Auer deference. Justice Scalia contrasts Auer with Chevron deference, saying that if Congress does not like the regulations that an agency promulgates it can amend the statute, preventing a complete merger of legislative and executive government functions. Congress has an interest is keeping power and therefore does not have an incentive to issue vague statutes.
Justice Scalia contrasts the incentive of agencies to issue vague regulations so that they can do what they please in future adjudications. That just is not a fair reading of the Auer doctrine. The Courts do not defer to the agency's interpretation of a vague regulation when the agency is defending agency action. The Courts defer to the agency's interpretation of a vague regulation when either the agency is not a party to the litigation or the interpretation is not part of the litigation itself, i.e. it was published independent of the litigation. The stretch in the concurring opinion is unwarranted.
In closing out his concurrence, Justice Scalia states the Auer deference makes the Court's job easier and lends "certainty and predictability to the administrative process." But that really is not the point. While we want government to function and to be both certain and predictable, we want it for our own good and not for the good of either the agency or the courts. The public needs to know what the statute and regulations mean. Unless we want the federal government to triple its annual output of statutory-regulatory morass, there will always exist from degree of ambiguity in what Congress and the agencies say. We, as the public, need predictability and certainty in the administrative process.
Certainty and predictability have positive results for us. Certainty and predictability decrease litigation. You and I would not spends hundreds of thousands of dollars on a law suit when we both know the result. Those cases get resolved quickly if they are ever filed. But when the result is uncertain or unpredictable, then we proceed full steam ahead with litigation spending hundreds of thousands of dollars over garden variety ambiguity.
It would certainly be a different matter if the Court were persuaded that the presence of ambiguity in the regulations were an intentional subterfuge that Justice Scalia hints at in Talk America. That would constitute a valid basis for rolling back Auer to curb administrative excess. It comes down to "good faith." If the agency's interpretation constitutes a good faith policy interpretation of a regulation that is vague, then the Court should defer to that interpretation. If the agency's interpretation of a regulation is not a fair and considered judgment, then the Court ought not defer. But that is already the law according to the Supremes.
For whatever the signal is about, Justice Scalia's hint that he might change Auer just adds to litigation and detracts from the certainty and predictability that we need to permit an ordering of our lives. That is good for people and good for the economy.
Justice Scalia did not just sign on to the decision in Talk America. Instead, Justice Scalia wrote a separate concurring opinion that says two things: (1) he would reach the same decision in Talk America with Auer; and (2) he is ready to reconsider whether Auer should survive. Hold on, my neck is sore from the snap.
Justice Scalia writes now "For while I have in the past uncritically accepted that rule, I have become increasingly doubtful of its validity." Uncritically accepted? That is a true understatement. It is more accurate that Justice Scalia has championed Auer deference. Justice Scalia contrasts Auer with Chevron deference, saying that if Congress does not like the regulations that an agency promulgates it can amend the statute, preventing a complete merger of legislative and executive government functions. Congress has an interest is keeping power and therefore does not have an incentive to issue vague statutes.
Justice Scalia contrasts the incentive of agencies to issue vague regulations so that they can do what they please in future adjudications. That just is not a fair reading of the Auer doctrine. The Courts do not defer to the agency's interpretation of a vague regulation when the agency is defending agency action. The Courts defer to the agency's interpretation of a vague regulation when either the agency is not a party to the litigation or the interpretation is not part of the litigation itself, i.e. it was published independent of the litigation. The stretch in the concurring opinion is unwarranted.
In closing out his concurrence, Justice Scalia states the Auer deference makes the Court's job easier and lends "certainty and predictability to the administrative process." But that really is not the point. While we want government to function and to be both certain and predictable, we want it for our own good and not for the good of either the agency or the courts. The public needs to know what the statute and regulations mean. Unless we want the federal government to triple its annual output of statutory-regulatory morass, there will always exist from degree of ambiguity in what Congress and the agencies say. We, as the public, need predictability and certainty in the administrative process.
Certainty and predictability have positive results for us. Certainty and predictability decrease litigation. You and I would not spends hundreds of thousands of dollars on a law suit when we both know the result. Those cases get resolved quickly if they are ever filed. But when the result is uncertain or unpredictable, then we proceed full steam ahead with litigation spending hundreds of thousands of dollars over garden variety ambiguity.
It would certainly be a different matter if the Court were persuaded that the presence of ambiguity in the regulations were an intentional subterfuge that Justice Scalia hints at in Talk America. That would constitute a valid basis for rolling back Auer to curb administrative excess. It comes down to "good faith." If the agency's interpretation constitutes a good faith policy interpretation of a regulation that is vague, then the Court should defer to that interpretation. If the agency's interpretation of a regulation is not a fair and considered judgment, then the Court ought not defer. But that is already the law according to the Supremes.
For whatever the signal is about, Justice Scalia's hint that he might change Auer just adds to litigation and detracts from the certainty and predictability that we need to permit an ordering of our lives. That is good for people and good for the economy.
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