Administrative adjudication

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Administrative

Adjudication*

CHAPTER 1

PART I. JUDICIAL DEVELOPMENTS

A. Supreme Court

1. Kisor v. Wilkie: Interpreting Agency Rules in Adjudication

Kisor is the administrative law case that garnered the most attention in

2019.1 While the case is notable for its further development of the doctrine of

Auer deference, under which a court may defer to an agency’s reasonable

construction of its own ambiguous rule, the case itself came about in the

context of an adjudication and involved an interpretation of a rule of adjudi-

cation. Appeals courts are already applying Kisor in the context of other

adjudication-related rules.2

At issue was a Department of Veterans Affairs’ (VA’s) rule under which

the agency may “reconsider” a previously denied claim if it receives certain

new and “relevant” records.3 A veterans law judge (VLJ) interpreted “rel-

* By Christopher J. Walker, Associate Professor of Law, The Ohio State Uni-

versity Michael E. Moritz College of Law and Vice Chair, ABA Section of

Administrative Law and Regulatory Policy; Matthew Lee Wiener, Vice Chair

and Executive Director, Administrative Conference of the United States;

and Jeremy S. Graboyles, Attorney-Advisor, Administrative Conference of

the United States.

1. Kisor v. Wilkie, 139 S. Ct. 2400 (2019).

2. See, e.g., Ovalle v. Attorney General United States of America, 791 Fed.Appx.

333 (3rd Cir. 2019) (relying on Kisor to cabin an earlier judicial interpreta-

tion of a rule granting the Board of Immigration Appeals discretion to

reopen proceedings sua sponte).

3. 38 C.F.R. § 3.156(c).

4Developments in Administrative Law and Regulatory Practice

evant” to mean the new evidence must change the outcome of the decision.

Kisor argued “relevant” requires only that the new evidence relates to the

claim for benefits. The Court of Appeals for Veterans Claims (CAVC) af-

firmed the VLJ’s decision, as did the Federal Circuit applying Auer defer-

ence. The Supreme Court ultimately remanded to the court of appeals for

further consideration of the deference issue.4

As a possible limitation on agencies’ broad discretion to make policy

either through rulemaking or adjudication,5 Chief Justice Roberts empha-

sized in his concurrence-cum-dissent that while an agency can interpret a

substantive rule issued through notice-and-comment rulemaking by other

means, it can only amend the rule by following the same notice-and-com-

ment procedures. “Whether an agency issues its interpretation in a press re-

lease or something it chooses to call an ‘adjudication,’” the Chief Justice

wrote, “all we have is the agency’s opinion about what an existing rule means,

something that the [Administrative Procedure Act] tells us is not binding in a

court of law or on the American people.”6

2. Biestek v. Berryhill: Vocational Expert Testimony in Social

Security Disability Cases

Applicants are entitled to Social Security disability benefits if they are

unable, due to physical and mental limitations, to perform their previous work

and cannot perform any other “substantial gainful work” that exists in signifi-

cant numbers in the national economy.7 Social Security Administration (SSA)

administrative law judges (ALJs) routinely elicit and rely on evidence from

vocational experts (VEs) to make these determinations. VEs are vocational

professionals who, under contract with SSA, provide “impartial expert testi-

mony.” Subject to ALJs’ reasonable control of hearings, claimants may cross-

examine VEs on “any pertinent matter within [their] area of expertise.”8

In response to questioning, the VE in Biestek testified there would be at

least 240,000 bench assembler and 120,000 sorter positions the claimant could

4. 139 S. Ct. 2418–24.

5. See infra Part I.C.

6. 139 S. Ct. at 58–60 (Roberts, C.J., dissenting).

7. 42 U.S.C. 423(d)(2)(A).

8. 20 C.F.R. §§ 404.1566(e), 416.966(e); SSR 00–4p, 65 Fed. Reg. 75,759

(Dec. 4, 2000); Soc. Sec. Admin., Hearings, Appeals, and Litigation Law

Manual § I-2–5-50, https://www.ssa.gov/OP_Home/hallex/I-02/I-2–5-

50.htm.

5Chapter 1: Administrative Adjudication

9. Biestek v. Berryhill, 139 S. Ct. 1148, 1152–54 (2019).

10. 42 U.S.C. § 405(b)(1).

11. 509 U.S. 579 (1993).

12. See McKinnie v. Barnhart, 368 F.3d 907, 910–11 (7th Cir. 2004); Donahue

v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002).

13. See Biestek v. Comm’r of Soc. Sec., 880 F.3d 778, 790 (6th Cir. 2017);

Welsh v. Comm’r of Soc. Sec., 662 F. App’x 105, 109–10 (3d Cir. 2016);

Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005); Brault v. Comm’r

of Soc. Sec, 683 F.3d 443, 449 (2d Cir. 2012).

14. Biestek, 139 S. Ct. at 1154–57.

perform. The VE relied, in part, on her “own individual labor market sur-

veys.” On cross-examination, the claimant’s representative requested access

to the surveys, either in full or with confidential information redacted. The

ALJ cut off questioning, stating he “would not require” the VE to produce

her data. The ALJ ultimately denied the claimant’s application for benefits

based, in part, on the VE’s testimony.9

Although the Social Security Act makes clear that formal rules of evi-

dence do not apply in SSA’s informal, non-adversarial hearings,10 the Sev-

enth Circuit had held in a series of cases that the logic underlying Daubert v.

Merrell Dow Pharmaceuticals11 and Federal Rule of Evidence 702 ordinarily

required VEs to provide the data underlying their testimony upon request.12

Other courts of appeals had rejected that approach, including the Sixth Cir-

cuit in Biestek.13

At the Supreme Court, Biestek argued for a rule that a VE’s refusal to

provide the data underlying her testimony upon request “categorically pre-

cludes her testimony from counting as substantial evidence.” Justice Kagan,

writing for the Court, rejected such a categorical rule. Emphasizing the in-

formal nature of SSA adjudications, the Court held that while a VE’s refusal

to provide the data underlying her testimony may, in some cases, preclude

her testimony from counting as substantial evidence; “[t]he inquiry, as is

usually true in determining the substantiality of evidence, is case-by-case.”

What matters, the Court held, is whether a claimant can meaningfully cross-

examine the VE. The Court noted that, even in the absence of specific data, a

claimant could meaningfully “probe the strength” of a VE’s testimony by

asking about her sources and analytical methods. Interpreting the question

presented narrowly, the Court declined to say whether the specific testimony

in Biestek could count as substantial evidence.14

Justice Gorsuch, joined by Justice Ginsburg, dissented. Reasoning that

“[t]he refusal to supply readily available evidentiary support for a conclusion

strongly suggests that the conclusion is . . . unsupported,” he argued that at