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Not an Administrative Law Bang but a Whimper
In Kisor v. Wilkie, No. 18-15, the Supreme Court will decide this term whether to overrule or modify two prior decisions, Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), that require courts to defer to reasonable agency interpretations of their own regulations. The facts of Kisor suggest a very narrow ruling—that the court will either accept or reject an interpretation by the Department of Veterans Affairs (VA) of a technical regulation dealing with the effective date of a veteran’s benefits claim that the agency determines has been erroneously denied. Petitioner is aiming, however, at a larger target: striking the first blow against doctrines of judicial deference to an agency interpretation that is believed to sustain an ever-expanding administrative state.
To appreciate the controversy, think of three different stances or standards of review a court might adopt in dealing with an agency interpretation of its authorizing statute or regulation. One stance or standard is de novo review: the court decides the matter without according any particular significance or respect for the agency’s view; the agency’s view is given no greater weight than, say, a well-crafted law review article. An intermediate stance or standard is associated with the Court’s decision in Skidmore v. Swift & Co., 323 U.S. 134 (1944): the agency’s view is entitled to respect to the extent it has “power to persuade,” which would be a function of whether the view was consistently held and drew on the agency’s expertise or experience in the field. A third stance or standard at the other end of the deference spectrum is associated with the Court’s decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). When a court extends Chevron deference to an agency’s interpretation of its authorizing statute, the court has determined that the statute, properly read, indicates that Congress intended to delegate to the agency authority to make subsidiary policy decisions within statutory limits. In this context, unlike the other two, the agency is the principal decisionmaker within those limits; the court’s job is simply to make sure that the agency’s decision is a reasonable one even if the court, left to its devices, would come out another way.
The mistake the Supreme Court has made in this area, and this is largely due to Justice Scalia’s overeager embrace of the deference doctrine in Auer (which he later came to regret), was to apply Chevron-type deference to an agency’s interpretation of its own regulations. This was a mistake because, unlike Chevron, in the Auer context there is no delegation by Congress of authority in the agency to interpret its own regulations. Those regulations are legal instruments that stand or fall on their text which courts interpret all the time. Courts may accord Skidmore respect to an agency’s views if they reflect technical matters within the agency’s expertise or experience, or if the views are persuasive in their own right and have been consistently and openly held by the agency. Kisor presents an opportunity to make clear that Chevron-type deference is inappropriate and that at most Skidmore respect may be appropriate. The Court should do no more; it certainly should not raise questions generally about Chevron deference that rests on a congressional delegation of authority not present in the Auer context.
The Background of Kisor
Kisor comes to the Supreme Court by way of the US Court of Appeals for the Federal Circuit, which affirmed a decision of the US Court of Appeals for Veterans Claims (Veteran Appeals Court) holding that James L. Kisor was not entitled to an effective date earlier than June 5, 2006, for a grant of service connection for his post-traumatic stress disorder (PTSD) claim. Kisor served on active duty in the Marine Corps in Vietnam from 1962 to 1966. In December 1982, he filed an initial claim for disability compensation for PTSD. In March 1983 the VA regional office obtained a psychiatric examination for Kisor that did not diagnose him as suffering from PTSD although he had been involved in operations in which he came under attack, including an ambush which involved 13 deaths in a large company. Rather, it was the examiner’s view that Kisor suffered from an intermittent personality disorder which lacked a required service connection. Accordingly, in May 1983, the VA regional office rejected his claim. Kisor did not perfect an appeal at the time.
In June 2006, Kisor sought to reopen his denied claim. He presented evidence that included a July 20, 2007, report of a psychiatric evaluation diagnosing PTSD. In September of that year, a VA examiner diagnosed Kisor with PTSD. The VA regional office reopened the previously denied claim, this time granting Kisor a service connection for PTSD and assigning a 50 percent (subsequently raised to 70 percent) disability rating, effective June 5, 2006. Kisor challenged the effective date determination arguing that it should have been the date his initial claim was denied in May 1980. He based his argument in substantial part on 38 C.F.R. § 3.156(c), which provides:
(c) Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section [which requires “new and material” evidence]. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; * * * (3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.
The Board of Veteran Appeals denied Kisor’s entitlement to an earlier effective date because the service department documents received after the May 1983 rating decision were not “relevant” within the meaning of § 3.156(c)(1) because they did not document that he suffered from PTSD. The Veterans Appeals Court agreed. The Federal Circuit affirmed, deferring to the agency’s interpretation of “relevant” official department records under §3.156(c)(1). The court found that the meaning of the term “relevant” in the regulation was ambiguous and that the agency’s interpretation—that relevant records must bear on whether Kisor suffered from PTSD rather than from nonservice-connected stressors—was a reasonable one. “The Board’s ruling was thus based upon the proposition that that, as used in §3.156(c)(1), ‘relevant’ means noncumulative and pertinent to the matter at issue in the case…. Because Mr. Kisor’s 2006 records did not remedy the defects of his 1982 claim and contained facts that were never in question, we see no plain error in the Board’s conclusion that the records were not relevant for purposes of 3.156(c)(1).”
Skidmore Respect, Not Chevron-type Deference
Although the Federal Circuit purported to apply Auer, it is not clear that it was using a Chevron-type standard of review. Since the issue here seems to turn on what definition of “relevant” official records makes sense in setting effective dates for reversal of previously denied claims, this seems an area where courts should accord Skidmore respect to the agency’s view as to practicability and appropriate incentives for claimants. This is not a case involving an unfair notice of an agency’s novel interpretation of a regulation. Some arguments for rejecting Auer-Seminole Rock deference are overstated. Agencies are not incentivized by this doctrine to adopt ambiguous regulations. Agencies have every incentive to craft regulations that comply with legal requirements and make sense if they want to prevail in court—regardless of the deference regime. The case for rejecting Auer-Seminole Rock deference is that there is no analytical basis for Chevron-style deference in this context. All that is required is a sensible application of the Skidmore factors for when courts should pay respect to the agency’s view of the proper reach of its own regulations.
ABC Test and Restricts Use of Independent Contractors.
On Monday, April 30, 2018, the California Supreme Court issued a landmark decision in the matter of Dynamex Operations West, Inc. v. Superior Court of Los Angeles. In a voluminous, 82-page decision, the California Supreme Court reinterpreted and ultimately rejected the Borello ( S. G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341) test for determining whether workers should be classified as either employees or independent contractors for the purposes of the wage orders adopted by California’s Industrial Welfare Commission (“IWC”) in favor of a worker-friendly standard that may upend the existing independent contractor labor market.
In particular, the Court embraced a standard presuming that all workers are employees instead of contractors, and placed the burden on any entity classifying an individual as an independent contractor of establishing that such classification is proper under the newly adopted “ABC test” which will be discussed in further detail. The question of whether an individual worker should be classified as an employee or independent contractor has considerable significance for workers, businesses, and the public generally. If a worker is classified as an employee, the employer bears the responsibility of paying Social Security and payroll taxes, unemployment insurance taxes and state employment taxes, providing worker’s compensation insurance, and of course, complying with the endless labyrinth of state and federal statutes governing the wages, hours, and working conditions of employees. Indeed, many businesses, particularly those operating in the “gig economy,” are fundamentally premised on the use of independent contractors. In light of this case, any businesses operating in California that treat workers as independent contractors should confer with their legal counsel to review the relationship under the “ABC test” and determine whether any or all such workers should be reclassified.
Officers Involve Shootings – Review
Lori Saldaña: April 30, 2019
This is a response to the April 30 Board of Supervisors hearing, regarding proposed legislation to change guidelines re:
Use of deadly force by law enforcement officers:
When it comes to reviewing and reducing police-involved shootings in San Diego County, here are a few facts for Supervisors to consider in future hearings where they actually have some oversight.
Invite Sheriff Bill Gore and DA Summer Stephan to testify on the following:
– Why are African-Americans involved in 20% of police shootings in San Diego County- even though they are only 5% of the population? (Related: 20% of people who are homeless in San Diego County are African American.)
– Do current hiring and training practices contribute to having 71% of all shootings involve a white officer, and 41% of shootings involve a white law enforcement officer shooting a non-white suspect? If so- what changes could be made to address these disparities?
– Related: do white officers seem less likely to use deadly force against white suspects involved in the same level of violent behavior? (Only 26% of shootings involve a white officer shooting a white suspect.)
Analysis of Cases Reviewed by the San Diego County District Attorney’s Office 1993 – 2012
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Officer Involved Shootings are among the most thoroughly reviewed incidents in law
enforcement. This report was prepared by the San Diego County District Attorney’s Office
(SDCDA) in order to assist law enforcement and the community in examining the statistics to better understand the dynamics of officer-involved shootings in San Diego County.
Previously, the SDCDA’s Office collected and analyzed 11 years of data. That study was
released in 2007 and included data from 1996 through 2006. The current report covers a 20 year period from 1993-2012 and a total of 358 Officer-Involved Shooting events. The majority of the information comes from reports compiled by law enforcement investigators, forensic analysts, and medical examiners. Some of the information is contained in the letters sent to law enforcement agencies by the SDCDA summarizing the facts and legal analysis of shootings.
Some additional information was obtained from the various law enforcement agencies, in particular, the San Diego Police Department’s officer-involved shooting database.
Officer-Involved Shooting Reviews
The SDCDA has conducted reviews of all state and local officer-involved shootings (OIS) in the line of duty by San Diego County peace officers since the mid-1970s. The role of the District Attorney’s Office is to provide an independent review of all shootings and other use of deadly force, fatal and non-fatal, to determine if there is criminal liability. This review does not examine such issues as compliance with the policies and procedures of any law enforcement agency, ways to improve training or any issues related to civil liability.
Upon completion of the SDCDA’s review, where there is a determination the use of deadly force was justified, a letter summarizing the evidence, including statements of the deputy or officer and other witnesses, is written and delivered to the respective Police Chief or Sheriff. The time it takes for receipt of investigative materials, completion of the review, and issuance of the letter varies based on the complexity of the case, the forensic work necessary, and the length of time before the jurisdictional law enforcement agency completes its investigation and presents the case to the SDCDA. On average, for the 20 year period, the letter was sent 66 days after the incident occurred. The range of time from the OIS event until the completion of the SDCDA letter was from a low of 3 days to a high of 18 months.
Current SDCDA Protocol:
The “Protocol for Investigation and Review of Officer Involved Shootings and Other Uses of Force Resulting in Death” memorializes the general protocol for the investigation of Officer Involved Shootings in San Diego County. It is signed by the District Attorney, the San Diego County Sheriff, the Police Chiefs and other leaders of law enforcement in San Diego County.
The Protocol focuses on the following areas:
• The jurisdictional agency immediately notifies the designated representative of the
• The SDCDA Investigator responds and contacts the supervisor in charge of the incident
scene to receive a briefing and view the scene.
• The jurisdictional agency conducts the primary investigation of the incident.
• The jurisdictional agency provides a verbal briefing to the SDCDA within 3 days of the
incident (if fatal).
• Upon completion of the investigation, the jurisdictional agency submits the entire case to the SDCDA for independent review.
• The SDCDA conducts the independent assessment and writes a letter summarizing the
facts and legal conclusion.
OVERVIEW OF THE DATA
From 1993 through 2012, the SDCDA investigated 358 OIS cases with 367 subjects shot.
Of the total shootings, 54% were fatal. The percentage of shootings in a given year that was fatal ranged from a low of 36% (2008) to a high of 79% (2005).
WHEN DID THE SHOOTINGS OCCUR?
Total cases per year ranged from a low of 10 in 1996 to a high of 28 in 1993, with an average of just under 18 per year. Read More
CALIFORNIA NEW LEGAL STANDARD: USE OF FORCE
In light of the California Act to Save Lives, outlined criteria in California Penal Code Section 196 will no longer Prevent our Officers from being charged with manslaughter under PC Sec. 192. This law would additionally bar the use of self-defense if Officer/s acted in a criminally negligent manner that caused the death, including if the Officers’ criminally negligent actions created the necessity for the use of deadly force. ReadMore
The elections clause as a structural constraint on partisan gerrymandering of Congress
Richard H. Pildes is the Sudler Family Professor of Constitutional Law at NYU Law School.
The Supreme Court has struggled between seeing itself as an institution that only vindicates individual rights and as one that vindicates, at times, more structural or group-based interests. Partisan gerrymandering or vote dilution is obviously intended to advantage or disadvantage adherents of one political party. This is intrinsically a group-based injury, as are all vote-dilution injuries.
In the racial-vote-dilution context under the 14th Amendment, for example, the Supreme Court recognized from its earliest cases, including 1973’s White v. Regester, that the constitutional injury occurs when districts are designed “to cancel out or minimize the voting strength of racial groups.” Similarly, when the court drew on the racial-vote-dilution cases to hold for the first time, in 1986’s Davis v. Bandemer, that partisan vote dilution could also violate the 14th Amendment, the court recognized that “the question is whether a particular group has been unconstitutionally denied its chance to effectively influence the political process.” It makes no sense, either practically or conceptually, to “dilute” the vote of any individual voter in isolation. Vote dilution, whether racial or partisan, is about diminishing the overall political power of groups as groups, compared to the power those groups would have in a lawful plan. Read More
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