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Wednesday, July 24, 2019

Deference doctrine remains in place, but actions on government overreach still likely, D.C. attorney says

Attorneys & Judges

By John Breslin | Jul 2, 2019


WASHINGTON (Legal Newsline) – A U.S. Supreme Court decision cements a long-standing doctrine that federal agencies do have wide powers to oversee regulations, but other legal actions on claimed overreach are possible, according to one attorney with expertise in litigation challenging agency actions.

The case, Kisor v. Wilkie, centers on a Vietnam War veteran's dispute against the Veterans Administration over its denial of benefits. All nine justices agreed to vacate a lower court decision that they found did not properly apply the so-called Auer deference, which is given by courts to government agencies when interpreting regulations.

In a June 26 opinion written by Justice Elena Kagan, the court found that the doctrine, first stated in a 1945 case and applied as the Auer Deference in 1997, remains in place despite Kisor.

While there were no dissents to the decision in this case, four justices wrote arguments stating that they disagreed with certain elements of the opinion.

Conservatives have long questioned the doctrine, arguing that it allows government agencies to draw up, or take advantage of, ambiguously written rules, then bend them to move policy.

Supporters argued that it allows the government to act more nimbly, and that overturning Auer is part of a larger strategy to "disable public interest regulation," according to Sen. Sheldon Whitehouse (D-Rhode Island), who filed a friend-of-the-court brief with the Supreme Court.

Daniel Jarcho, an attorney with Alston & Bird in Washington, D.C,, who has been involved in litigation against federal agencies, predicted this was the end of the assault on Auer, but added that other questions about federal overreach could still be litigated.

"If it had turned out the other way, it would have fundamentally (changed) the balance of the law as it relates to the courts and government agencies," Jarcho said, adding that it would absolutely have led to more second-guessing of government agency initiatives.

Jarcho, who is a former trial attorney for the Department of Justice, said the decision restated the law and that Kagan catalogued all the present limitations on agency power, ones that all involved in the field are aware of, including what do regulations mean, how far can an agency go, and to what extent can they be restricted.

But, Jarcho believes, the balance is still very much in favor of government agencies in the courtroom, and even when judges may believe there is overreach, they will defer to the Auer doctrine

"There are many other legal doctrines that tip the field for the agencies," the attorney added.

However, Jarcho concludes, "What I would say is that I think that Justice Kagan's opinion is correct on the law but it will continue to make it challenging for private parties." 

The precedent on this issue dates back to the 19th century, he said.

"While it makes my job more difficult, I think the majority opinion...was correctly" interpreting the law and precedent, Jarcho said.

In Kisor v. Wilkie, James Kisor, a Vietnam War veteran, asked for disability benefits dating back to 1983. He claimed the Department of Veteran Affairs mislaid his service records.

A lower court deferred to the VA on its interpretation of what was relevant information, dismissing Kisor's argument that it should follow the Federal Rules of Evidence and make a decision based on facts that are "more or less probable."

Kagan, in her opinion, wrote, “The only question presented here is whether we should overrule those decisions, discarding the deference they give to agencies. We answer that question no. Auer deference retains an important role in construing agency regulations. But even as we uphold it, we reinforce its limits.”

She added, “The deference doctrine we describe is potent in its place, but cabined in its scope.  On remand, the Court of Appeals should decide whether it applies to the agency interpretation at issue.”

In his opinion, Justice Neil Gorsuch, who concurred in the judgment, nevertheless argued, “A legion of academics, lower court judges, and members of this court — even Auer’s author — has called on us to abandon Auer. Yet today a bare majority flinches, and Auer lives on."

He added, "Today’s opinion is more of a stay of execution than a pardon. The court cannot muster even five votes to say that Auer is lawful or wise. Instead, a majority retains Auer only because of stare decisis.”

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