Litigation Update: Biestek v. Berryhill

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Administrative Law & Regulation Practice Group, was recorded on Friday, May 24, 2019, during a live teleforum conference call held exclusively for Federalist Society members.    

 

Wesley Hodges:  Welcome to The Federalist Society’s teleforum conference call. This afternoon’s topic is a Litigation Update on Biestek v. Berryhill.  My name is Wesley Hodges, and I’m the Associate Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the expert on today’s call.

 

Today, we are very fortunate to have with us Professor Kent Barnett, who is the J. Alton Hosch Associate Professor of Law at the University of Georgia School of Law. Also with us today is Professor Richard J. Pierce, Jr., who is the Lyle T. Alverson Professor of Law at the George Washington University Law School. After our speakers give their remarks today, we will move to an audience Q&A, so please keep in mind what questions you have for this case or for one of our speakers. Thank you very much for sharing with us today. Dick, the floor is yours to begin.

 

Prof. Richard J. Pierce, Jr.:  Thanks, Wes. This is actually a pretty simple case, in terms of the facts. A fellow named Biestek applied for disability benefits at the Social Security Administration. When somebody does that, the applicant has the burden of proving that he has some disability. And then, assuming that he’s been successful in proving the existence of some disability, the burden shifts to the agency to show that there are jobs available in significant numbers that can be performed by someone with a combination of age, education, experience, and health state of the applicant. To handle its -- try to fulfill its burden, Social Security Administration in this case presented the testimony of an expert on vocational opportunities.

 

And that expert witness testified that there were a remarkably precise number of jobs that were available to somebody with Biestek’s characteristics. She talked about 120,000 of one kind of job and 210,000 of another kind of job. So Biestek’s lawyer then asked her, “Well, what’s the basis for that opinion?” And she said, “Well, it’s a combination of Department of Labor statistics and my own private work that I’ve done for other clients.” So since the lawyer knew that the Department of Labor did not report information with anything like the degree of detail required to support her claim, he knew she was relying entirely on her own surveys. So he asked her, “Well, can you make those available so that I can look at them?”

 

And she said, “No, I’m not willing to do that because they include proprietary information.” He then said, “Well, how about if you redact the proprietary information and then make them available to me in redacted form?” Before she could respond, the administrative law judge interrupted and said, “That’s not necessary. I will not require you to make them available in any form, redacted or otherwise.” He then relied exclusively on her opinion as the basis for his conclusion that there were these jobs available that could be performed by the applicant.

 

So the legal question was whether there was substantial evidence to support that decision. Sixteen years ago, Frank Easterbrook of the Seventh Circuit had said, “Well, you can’t have a decision that is based on expert testimony that is sufficient to satisfy the substantial evidence standard where the expert is not willing to make available the underlying data and methodology so that the opponent can know the basis for the opinion.” And that was the question before the court, really, whether that Seventh Circuit -- longstanding Seventh Circuit doctrine made sense.

 

The six-justice majority rejected the Easterbrook approach and said, “No, it’s just fine to rely on the testimony of an expert where the expert has good credentials and a good reputation, even when the experts is not willing -- or in this case, unable to provide support for the opinion in the form of any working papers or data or methodology.” The three justices dissented. And the easiest way to think about the dissenting opinion is that the author of the dissenting opinion noted that this case would never be allowed to occur in a federal court because the Supreme Court had issued its famous opinion in Daubert many years ago that had the effect of banning what is often referred to as junk science. That had been used frequently as the basis for judicial decisions.

 

And so what the Court held in Daubert is that a court can’t even admit, much less rely on, expert testimony where the expert is unwilling or unable to provide any support for the opinion. That was the basic debate. I’m definitely on the side of the dissenting justices here. I think the majority opinion is extraordinarily naïve when the author of the majority opinion says, “Well, it's enough if the person -- the expert has good credentials, good institutional background, and reputation and good educational credentials.” I would note that, at least once a month, major research institutions in the United States are forced to admit that some of their most important studies done by some of their most well-regarded researchers were fraudulent, and they had to withdraw those studies.

 

There’s also three teams of researchers who have been working very, very hard to try to replicate the results of hundreds of studies that have been published in peer reviewed journals where they get ahold of the underlying data and working papers and then try to replicate the results. And the results have been quite disappointing. Only about half have been replicated. The other half turned out that the numbers they came up with were quite different from the findings that were reported in the studies. So that causes me to believe that we have a big problem out there of expert opinion that is not adequately supported. And I think that the administrative state -- that agencies should be held to the same standards as courts.

 

Now, when I shared my views about this opinion with friends at the Administrative Conference of the United States and the Social Security Administration, I was delighted to discover that the Social Security Administration actually knew that it had a problem in this general area and had come up with a pretty good solution that they’re planning to implement very soon where -- there’s a little background I have to give here. Jerry Mashaw, who just retired from the Yale faculty two years ago, served as a consultant to the Administrative Conference in 1978 and decided -- found in his study that SSA’s findings, with respect to availability of jobs and other vocational aspects of their decision making, were highly inaccurate and inconsistent.

 

And he recommended that they switch to a new method where they get the Department of Labor to come up with a grid that describes the kinds of jobs that are available and correlates them with education, experience, and health state. And then, that the Social Security Administration use that grid that it turned into a rule as the basis for making most of the decisions about availability of jobs. Social Security Administration did that, got DOL to make up the grid, and persuaded the Supreme Court in 1984, unanimously, to uphold that approach. Unfortunately, it fell apart because the Department of Labor last revised the grid in 1991. So it’s way, way out of date now.

 

Well, the good news is that the Social Security Administration, well aware that it still had a big problem in this area, has now entered into a new agreement with the Department of Labor, where it believes that the Department of Labor is going to be revising its data on a regular basis so that SSA can return to the practice it engaged in for a while in which it relies primarily on the data that is compiled by the Department of Labor as the basis for most of its decisions about the availability of jobs. So that’s a happy ending.

 

Here’s my concern, however. There are many, many agencies—most notably EPA—that have, on many occasions, relied on studies where the authors of the studies were not willing to provide the underlying data and methodology and working papers as the basis to make decisions that are very, very important, in the case of the EPA, decisions that force regulated firms to incur many billions of dollars in costs.

 

And I don’t think that it is a good idea to encourage that kind of practice. I think it’s actually quite a difficult task to try and figure out what to do about such studies because the authors of the studies often are reluctant to provide the underlying data because they consider it to be their intellectual property. I think what we have to do here is make a lot of changes in, among other things, the contracting practices of agencies so that, when they let contracts -- when they give grants for people to do studies, that they’re conditioned on the willingness of the grantee to make the underlying data and working papers available upon request by the granting agency.

 

In most cases, the data that EPA relies on was the findings -- the studies were conducted as a result of the EPA grants. And then, the grantees refused to provide the underlying data. I just think that’s an unacceptable situation. But that’s going to be debated in many, many cases. And now, the Biestek opinion is going to be exhibit number one in support of the view that expert opinions can be the basis for major important decisions made by agencies, even when the expert is not willing to provide access to any of the underlying data or methodology. And I find that of concern. Over to you, Kent.

 

Prof. Kent Barnett:  Thanks, Dick. I appreciate it. And I’m just going to jump off of what Dick was saying with three key points, and the first one considering a bit more the nature of the decision and the debate between the majority opinion and the dissenters, the second dealing with how this case that concerns social security disability claims applies to the APA and other ways of arguing these types of issues under the APA, and then, finally and extremely briefly, where does this case leave us. So let me start first with just the nature of the debate between the majority and the dissent. And the one thing I like about Biestek is that it has an unusual breakdown among the justices.

 

And these tend to be my favorite administrative law decisions, where we have writing for the court and the majority that rejects this claim Justice Kagan, joined by Justice Breyer, Justice Thomas, the Chief Justice, Justice Alito, and Justice Kavanagh. On the dissenting side, we have Justice Sotomayor, in a single justice dissent, and then Justice Gorsuch joined by Justice Ginsburg, not the usual bedfellows that we see together. And the key issue that is dividing their opinion is how we think about what the nature of the question presented was. And the majority understands the question presented to be whether there is a categorical rule -- a rule that will apply in all adjudications that says there is not substantial evidence if a petitioner seeks the underlying expert evidence and is rejected.

 

The dissenting opinions would, strangely, agree with that. There is no categorical rule. What the key distinction is is, in place of this categorical rule, how should the presumptions work. So with the majority -- the majority says there is no categorical rule that you always are going to be lacking substantial evidence if your request for the expert evidence is rejected. Instead, it’s going to be a case by case inquiry. And sometimes, that disclosure of the evidence is going to be required. But they say the question that was presented in this particular case was not case specific. It was only a question of whether a categorical rule exists at all. And it refuses to look at the specific facts of this particular case.

 

The dissenting opinions essentially flip this. And they agree to, again, that there is no categorical rule but instead that the presumption on the facts that are presented here indicate that the failure to provide the disclosure creates a problem for the agency where there isn’t substantial evidence to find that there were sufficient jobs in the national economy for Mr. Biestek, here. And indeed, if you think about the way Justice Sotomayor is considering this, she says that you would have to have really unique facts to establish the kind of case where disclosure isn’t required. She said perhaps there is a full description of the data or a full description of the methodology or that the agency can provide good reasons for why the disclosure shouldn’t occur, essentially a good cause type exception.

 

But she said none of that existed here. So Mr. Biestek was entitled to the requested data. Similarly, Justice Gorsuch would take a similar tack. And indeed, if anything, he pressed more on it’s important to decide this particular case that comes before us. To merely deal with the abstractions of categorical rules really gives no guidance to agencies and lower courts going forward. So in some way, the case is saying a lot and not so much. The fact that they say there’s no categorical rule really shouldn’t surprise anybody. We’re talking about the APA, and the APA’s adjudicatory sections do not speak very often in categorical rules. Instead, it speaks much more in vaguer terms that give discretion to the agency.

 

But the setting up of that presumption is going to have effects, as Dick was suggesting, with these adjudications going forward. And they’re going to be quite important to the parties as to figuring out when they’re going to be able to get the requested information and what kind of predicate they’re going to have to establish to indicate that there was prejudice in not getting it. Indeed, I was a bit concerned by the majority’s discussion of what else counsel and the agency for the petitioner should have done. And they suggested that he had other options on cross-examination.

 

They said he could have asked more about the methodology or more about the underlying data, even without receiving the data itself, so that he could further guide his questions. And I presume that many of the other litigators in the room feel similar to me that I don’t think that’s terribly helpful at all. When I was doing witness examinations, the last thing I was going to do on cross-examination was ask questions for which I didn’t know the answer. And the ability to ask probing questions that are going to be able to be useful in setting that predicate are going to be substantially hampered if I don’t have the underlying data that was requested.

 

I would say, as the last point on this first issue about how the parties split, I also felt a bit bad for the appellate counsel here because, obviously in submitting what the majority referred to as a question only on whether there is a categorical rule for the disclosure, of course, he’s setting up a categorical rule in order to get certiorari granted. Adjudication in administrative agencies often has quite a bit of variability, and it’s not something that may be that attractive to courts to consider announcing broad concepts of law. So instead, he’s going for a clean, easy rule to apply. And indeed, there may be some benefits of doing that, especially with a more conservative Court that tends to favor rule-bound statements of law as opposed to something that’s a bit more open-ended.

 

But of course, it hurts them on the back end where he’s then kind of hoisted by his own petard for saying “I want this categorical rule, but I also want you to look at the facts of the case.” And I don’t want to Monday morning quarterback because I’m not sure that there would have been a great solution to this. But it really shows you part of the sticky wicket that the appellate counsel had to jump through.

 

Second, I would then come to the question of how important is this decision going forward with other agencies? As Dick was suggesting, EPA and other agencies that rely upon evidence -- and I’m somewhat hopeful that there may be ways of limiting Biestek, if it turns out that it has more force than I think it might. And that’s by understanding that it was deciding only Section 405 of the security disability claims, and it was not interpreting the APA itself. Indeed, the opinions don’t even refer to the Administrative Procedure Act at all. And one of the key things that you’ll see that is mentioned numerous times in the majority is that the petitioner was not bringing a procedural claim.

 

Instead, the claim was only whether or not there was substantial evidence in the record to support the agency’s conclusion, given the fact that there wasn’t the disclosed underlying evidence. And indeed, the majority says there’s good reason that the petitioner didn’t bring a procedural claim. And the majority says the reason he didn’t do so is because the thing that he’s wanting is very close to Federal Rule of Civil Procedure 26(a)(2)(b), which requires witnesses to produce data upon which they’re going to rely. And of course, there’s nothing like this in the Social Security Act for disability claims. But what if we switch this a bit, and we assume this is coming under the APA? And we can also look at provisions under the APA which exist there but not under Section 405.

 

And indeed, the provision I have in mind is the one from 556(d), which says “A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and”—here’s the important part—“to conduct such cross-examination as may be required for a full and true disclosure of the facts.” Now, notice this is a right to get a process to get at a full and true disclosure of whatever the facts are. Well, what would be part of that? It would be getting the underlying data from the expert so that one can actually get a full disclosure of the facts. This would not be tied to substantial evidence and the type of judicial review that would exist after the fact. It would be procedural, and it would affect the rights that one has in the middle of the evidentiary proceeding.

 

I like to think this is going to be a way, should the case be used in other agencies that are using adjudication pursuant the APA -- as a way of rethinking and limiting Biestek to those certain social security cases instead. The reason I think you can tie this to this provision over the full and true disclosure, as well -- it goes back to Justice Gorsuch’s view in his dissent, written by Justice Ginsburg, that, when one has the request denied for evidence, and there has been an actual request, it really is a way of getting at the inference that, at the beginning of the expert’s testimony, that it’s well-supported. And by making the request and not getting the evidence, you’ve overcome the presumption, and you have now put that evidence into question and its reliability.

 

Finally, the last point I would make is very brief. And you can already see from Dick’s discussion how this is likely to play out, even in the Social Security Administration, as well as perhaps other agencies. And it really goes to the fact that agencies still have quite a bit of discretion here. So is Biestek that problematic? Well, it depends how it is the agencies are going to respond to it. The agencies have discretion under APA Section 559 to enact procedural rules and, to the extent they’re dealing with claims under the APA, to effectuate the APA and to concern themselves with things like having a full disclosure of the facts on cross-examination. They are not hamstrung here.

 

They have the ability to create better processes that require the disclosure of the data. Indeed, I was the reporter for the Administrative Conference of the United States’ Model Adjudication Rules for all agencies that they could use either as a model or take wholesale and transplant into their proceedings. And we had a very similar rule to Federal Rule of Civil Procedure 26 that required the disclosure. And indeed, with the informal communications that we had to the people that were on the committee and those with whom they spoke, this had not been a significant issue within the proceedings with which they were familiar. Agencies generally were very good about having a more sophisticated expert practice.

 

Now, it really just puts the ball in the agency’s court. And they’re now going to have more of a duty to ensure that we have these sufficiently fair proceedings that allow a full fleshing out of the facts. So with that, I’ll end my remarks. And Wes, I’ll hand it back over to you.

 

Wesley Hodges:  Wonderful. Well, thank you both so much for your remarks. While we wait for any audience questions, I’ll ask a question of my own. In a very broad sense, it’s a simple question. Could you express how important this case and where you believe this will take us?

 

Prof. Richard J. Pierce, Jr.:  So let me start on that. I do have one point of disagreement with Kent. This case really revolved around the meaning of substantial evidence -- what qualifies as substantial evidence. That’s an APA question that cuts across all agencies in the context of adjudication, at least in Justice Scalia’s view. He long ago expressed a view that arbitrary and capricious and substantial evidence meant the same thing when it came to findings of facts. So it would cut across all rulemakings as well -- the factual predicates for all rulemakings.

 

And then, my concern -- I thought that Kent’s way of describing the case was very, very helpful. But using his way of describing it, my big concern is that it would be easy for a lower court or an agency to interpret the majority opinion in Biestek as a self-announcing a categorical rule. The categorical rule is that, if an expert has a good enough education and reputation, the expert need not provide any of the data or methodology or working papers on which the expert’s opinion is based. That’s my big concern.

 

Prof. Kent Barnett:  The only very minor response I would have is I agree that the substantial evidence discussion applies to those matters that are covered by it under the APA. I’m only arguing there may be another argument for decisions that are handled under the APA directly and don’t have their own individual process provision, like Section 405 did, which didn’t have the same provision that gave you a right to cross-examination that one gets under the APA. So I’m hoping there’s a second procedural argument that one could take instead and leave the substantial evidence categorical rule really on the cutting room floor. And we could attack it in a different way.

 

The second thing is I agree with you. I think it is problematic to the extent that the majority is holding that merely having pretty enough credentials are enough to stop you from having to provide your information. I would have been much more comfortable with Justice Sotomayor’s reverse presumption that there may be certain instances in which there is good cause not to require the disclosure of the evidence upon which the expert is relying. But those should be very unique and rare situations. For the larger question of what does this mean for other agencies going forward, I still think that’s what’s going to be hard to figure out.

 

I think if we leave the majority, as it is, alone, it could be fairly significant because an agency doesn’t have to do more than really lay the foundation for the witness’ expertise. But to the extent that the agencies take it upon themselves to create a better process, like the Social Security Administration is in the process of doing, then the effects of this decision will be sufficiently mitigated.

 

Wesley Hodges:  Dick, do you have any response?

 

Prof. Richard J. Pierce, Jr.:  No, I think we’ve teed up the questions adequately for others to begin to participate in the discussion.

 

Wesley Hodges:  Fantastic.  Well, thank you so much, Dick and Kent. We do have one question from the audience so far. Here’s our first audience caller.

 

Chris Green:  Hi, this is Chris Green from Ole Miss Law School. I’m curious. A lot of this discussion sounds like the sort of concern that at least, if a restriction on liberty had been involved, this would be a due process type issue. There’s questions about the extent to which it incorporates things akin to Confrontation Clause rights -- just the right to say, “Hey, why are you doing this? What’s the basis for this decision?” Was there -- and I just looked at the opinion. There wasn’t a word about due process. Was there anything in the briefing, or is that just turn on the fact this is a government benefit so it’s not a restriction of liberty?

 

Prof. Kent Barnett:  There was really only some stuff on the margins dealing with the procedural nature of this. From what I recall, the petitioner said several times he was not making a procedural claim. Instead, this was about substantial evidence and the nature of judicial review. And the government, in one key section that I recall, said, “Well, there’s good reason that they’re not making a procedural claim. And indeed, you shouldn’t think that the nature of this substantial evidence claim is somehow a backdoor due process claim.” Because there was an earlier decision called Consolidated Edison in which the Supreme Court separated out those two questions – one dealing with due processes, one dealing with substantial evidence.

 

And then, the government used that decision to say “All that they are bringing here is the substantial evidence claims. So any due process concerns that you have, you can leave those on the cutting room floor.” And the key question I had throughout my notes in this case, when reading the opinions and the briefing, was why? What is the problem with the procedural claim? Why aren’t they making more of that? And I don’t know if just thought that Perales, with its very liberal understanding of what discretion agencies have, was sufficient to make the claim not cert worthy. Dick, I don’t know what your thoughts were?

 

Prof. Richard J. Pierce, Jr.:  I agree with Kent there. There was really no discussion of that to any great extent. In the briefing, they treated it, I think, strictly as an administrative law substantial evidence case. I would note that, of course, under Goldberg and, even more directly, Mathews v. Eldridge, we do have a property right for due process purposes at issue in disability cases. So that is kind of lurking in the background. But I don’t think it’s likely that the Court will require procedures beyond those that are already being used. Indeed, in Mathews v. Eldridge, they upheld the procedures that Social Security uses on a regular basis against the due process attack.

 

So I don’t think due process would add anything that wasn’t already there in the case in the debate. Let me raise on other point -- issue, just to note what I consider to be the importance of this case. There has been a debate going on now for over 20 years about the EPA’s use of reliance on studies where the researchers were not willing to provide access to the underlying data. That began in 1997 with the issuance of the Six Cities study that found, for the first time, that there were quite a large number of deaths and other horrible health effects that resulted from exposure to a lot of small particulate matter.

 

When the firms that would have been subject -- that were eventually subject to duties to then scores of billions of dollars to eliminate that risk asked to see the underlying data and methodology and working papers, they were told that even APA couldn’t get them -- that the researchers, backed by Harvard, were unwilling to make them available. That became a big issue. It kind of got submerged in the resulting litigation because both the D.C. Circuit and the Supreme Court in the American Trucking Association case decided to make this case a big test of the modern version of the nondelegation doctrine and didn’t pay much attention to any of the smaller, shall we say, debates about the study.

 

The issue, though, is going to arise again -- has arisen again in the context of the proceeding on reman from the Supreme Court’s decision in Michigan v. EPA and, of course, in the rulemaking in which the EPA is attempting to replace the Clean Power Plan that the Obama administration issued with the Affordable Clean Energy Plan. And this debate is central to those efforts. So it’s going to come up again and again. I’m a bit uneasy that the people who are trying to accomplish that are not really trying to get decisions based on more solid science but just trying to roll back some air quality rules that they don’t like.

 

The issue arises with great frequency at EPA, and I think is quite difficult to address. And I don’t think the approach suggested by the majority opinion in Biestek is a good start at all in trying to address the problem.

 

Prof. Kent Barnett:  And just one quick follow up to that, too. I think you’re right. One of the key concerns is accuracy. Are we getting a good decision and is it good policy making using the best data that one can? But tying this into Chris’ question too about due process, I did think it was interesting—although not framed as a due process constitutional claim—the dignitary concerns over the petitioner who’s involved in this process in the agency and trying to do something, as Chris was calling it a confrontation right, was something that you could tell was deeply troubling Justice Gorsuch and Justice Ginsburg in the dissent.

 

They really lead off with the statement of put yourself in Biestek’s shoes. You’ve won every element that you were supposed to win on this disability claim. We then get to the very last element, as to whether or not there are jobs in the economy that you can do, where it is now the agency’s burden of proof. The agency has an expert whose numbers you know can’t come merely from public data -- tells you she’s relying upon private information. She won’t hand it over. You say, “Go ahead and redact it, if you need to.”

 

And the agency, for whom the vocational expert is working, both say that you’re not going to get the information and then rules against you. I think those concerns that Chris was expressing is to both dignitary and accuracy you can see are going to impact other agencies but also impacting certain members of the Court.

 

Wesley Hodges:  Well, very good. Thank you so much, caller, for your question. We do appreciate the question and the conversation. Here’s our second caller.

 

Warren Belmar:  This is Warren Belmar calling from Florida. Thank you for the very informative program. I’m not calling with a question but just to share a development here in Florida that occurred yesterday when our Florida Supreme Court decided to finally have the Florida courts follow the federal courts. And they have adopted the Daubert standard for testimony by expert witnesses, which is a major change in the judicial practice here in Florida.

 

Prof. Richard J. Pierce, Jr.:  Well, thank you, Warren. That really is an important development, as I suspect most of the listeners know that Daubert is an opinion that applies only to federal courts. So state courts are entirely free either to adopt it or a variation on it or to reject it. Yeah. It’s important information that the Florida Supreme Court has decided to adopt it. I continue to think that Daubert is very, very important means through which the courts can avoid, or at least minimize, the risk of making decisions based on unsupported assertions by experts.

 

Warren Belmar:  Well, Florida being Florida, the legislature in 2013, I believe, had adopted the Daubert rule by statute. But the court, being independent, had decided not to adopt it in its rules. And there have been a number of new appointees to the Florida Supreme Court. And they decided that it was time follow the legislature’s decision and adopted the Daubert rule for judicial proceedings.

 

Prof. Richard J. Pierce, Jr.:  Thanks. That’s important information. I would -- since we’re a little short on questions, I wanted to make one other point that may explain why we’re not getting a lot of questions. I think a lot of people, probably including all nine of the justices, did not think about this initially as a case that had implications beyond the world of social security disability decision making. Indeed, the day after the Supreme Court decided Biestek, the Wall Street Journal ran an editorial in which it commended the Court of issuing a decision that would keep unworthy applicants off the rolls -- off of the welfare rolls.

 

So I think a lot of people looked at this opinion and said, “Oh, heck. It’s just about social security disability.” And I think that’s just absolutely the wrong way to think about this opinion. I don’t think that lower courts will have any choice but to conclude that the general reasoning in this case is as applicable to the Food and Drug Administration or OSHA or EPA or any other agency as it is to the Social Security Administration.

 

Prof. Kent Barnett:  And Dick, I think to tie to that, too, is the concern you see often with purely administrative law cases where the breakdown, not only among the justices but just ideologically, doesn’t fit quite as well either. So you have, as you were saying, an opinion piece that’s saying, “Well, this is great. It’s keeping unworthy people off the disability roll.” Well, that’s one way to think about it. You may think from certain more conservative views that’s good. It’s less on the federal dole. It’s reducing dependence on benefit structures from the federal government.

 

But there’s another way of thinking about it, too. The idea, of course, is that you’ve given agencies more discretion than I think some thought that they had had under 405 in setting up what the hearing’s going to look like. So you can see where, from again probably a more conservative point of view, that’s not the direction one would want to send this decision. And you can flip that on the liberal side where they may not approve of the outcome, at the end of the day, because Biestek doesn’t get his benefits.

 

But then flip that and from a more liberal point of view, it can behoove agencies who now have more discretion, again, than they thought they may have had under 405 and perhaps under the APA, as well. And I think it’s these ones that lead to these odd ideological breakdowns that tend to get swept under the rug pretty fast because no one’s completely sure what to do with them or what their full import’s going to be.

 

Wesley Hodges:  Well, very good. Thank you for that conversation. Now, Dick, from your remarks there, do you feel like -- you might have already appropriately answered this question, but I’ll ask anyway in case you have further thoughts. So what do you think this case tells us about the Court’s thinking on limitations on the administration as a whole? You mentioned that they perhaps weren’t considering past Social Security.

 

Prof. Richard J. Pierce, Jr.:  I just don’t know because I just have difficulty imagining what this opinion would look like if you just varied the facts by saying, “Okay. This is a rulemaking in which the Environmental Protection Agency has decided to rely exclusively on a study as the basis to impose $20 billion in costs on electric generating companies in the United States. And the agency will not require the authors of that study to make available, to anyone, any of the underlying data or methodology.”

 

And I don’t know whether that would cause any of the justices to change their opinions. Though, I think it might have quite a big effect on the alignment of the justices. I’m quite sure it would have a dramatic effect on the editors of the Wall Street Journal who would find that an outrageous decision.

 

Prof. Kent Barnett:  I would just say it has some echoes of an argument that Aziz Huq at Chicago has made that I keep returning to frequently -- where he has argued that, to the extent cases seem extremely rote and rather boring in the details, those are the ones, of course, that the Court is going to create doctrines by which it need not review stridently, or it gives great discretion to either a lower court or an agency or other form of tribunal. But to the extent that it’s something that appears interesting and has political salience to it, then it’s something that they will get their hands dirty with and ensure that they still have a role in. And I think this may be just one of those other pieces of evidence that you could add to the pile.

 

Wesley Hodges:  Thank you, Kent, and thank you, Dick. It does look like we do have two more questions in the queue. Let’s see if we can get to them before we wrap up today. So next caller, you are now up.

 

Gerald Gruber:  Hello, I’m Gerald Gruber from Fulton, Maryland. I’m not an attorney, and I’m only a citizen. Perhaps I can say intelligent but not very sophisticated. At any rate, as just a citizen, looking at this and the facts, I’d say whatever happened to truth? If the truth is not presented by reason of unsubstantiated evidence, then I think there’s a wrong that’s being done. And I can’t imagine the public being satisfied with that. That’s it. Thank you very much.

 

Prof. Richard J. Pierce, Jr.:  Yeah. I guess my response is I agree. And my concern is we will simply never know whether this expert witness had a very good basis for her opinion and perhaps even was sitting in the hearing room with all of the redacted version of the working papers available and was prepared to make them available to the opposition, thereby allowing a test of her opinion, or whether -- the other possibilities are there were no studies. She was lying.

 

Another possibility is there were studies but the data didn’t support the opinions. Or the data might have been all right, but the methodology was an unreliable methodology. All of that, I think, falls in the category of trying to figure out what the truth is. And I agree with the caller that the majority opinion does not do a very good job of helping agencies figure out how to determine what the truth is in important classes of cases.

 

Prof. Kent Barnett:  I agree, too. I’ll only play devil’s advocate just a little with this. That of course, with any kind of adjudication but primarily so with adjudication that occurs in high numbers, such as social security claims, there is always going to be some tension between the efficiency and cost of the proceeding and the truth-seeking function. We may invest quite a bit more, of course, in something like a criminal trial in which the remedy – being locked away or the death penalty – is much more significant than the awarding of benefits to someone.

 

So with that in mind, there’s always going to be some give and take on what the appropriate process is. But I still agree with the caller and with Dick that, to my mind, giving over this expert evidence, which was the foundation for the government to prove the element of its burden here, is really the minimum that one can do in order to see that we get at an accurate determination.

 

Wesley Hodges:  Well, thank you caller. We do appreciate you asking the question. We do have another question in the queue. Let’s go ahead and go to our next caller.

 

Caller 4:  Hi, it seems to me that the sort of thing she was testifying to, the jobs that might be available to a person of his abilities, wouldn’t have required a whole lot of data. And it might have just been common sense to listen to that testimony because we have some idea of what these jobs are all about. Whereas, shutting down the coal industry because somebody believes that carbon makes warmth might require a little more data.

 

Prof. Richard J. Pierce, Jr.:  I have no idea how she came up with 120,000 of one job and 210,000 of another. Maybe there’s some very simple source. Maybe there’s some very simple methodology. I don’t know. We’ll never know. The judge certainly couldn’t know. The agency couldn’t know. When the judge interrupts and says, “Well, I’m not going to make you provide anything,” well, that just leaves us in a position where we can never know whether there was a real simple, straightforward basis for this opinion or something else.

 

Prof. Kent Barnett:  And to reveal some of my own ignorance on this, it isn’t clear to me from the briefing, and even some of the regulations that I was reading, over exactly what it is that the government has to prove on whether or not these jobs are available in the national economy. If the answer simply has to be yes or no, where it’s going to be a question that’s that stark -- well, if she simply said yes, and they say, “Well, how do you know?” “Well, because I’ve placed people in jobs like this.”

 

Well, that would strike me as likely sufficient, if that’s all the government has to do. But if a government has to provide more quantitative evidence of what the number of the jobs are in the national economy, then, yeah, I think, like Dick says, we’ve got to have the underlying information to figure out from where one has gleaned those numbers.

 

Prof. Richard J. Pierce, Jr.:  Yeah. I’d add to that -- I mean, I agree completely with Kent. If this witness had just said exactly that and said, “I believe that there are jobs available, and here are two types of jobs,” and that you can get out of the BLS publications. “Here are these two types of jobs. And I know that there are jobs of that type available because I’ve helped clients get jobs of that type.” I would have any problem with that. But when the witness says there’s 210,000 of one and 120,000 for the other, I don’t know where the hell those numbers came from. And I have a suspicious as to which part of her anatomy she got them from. And I don’t like that.

 

Wesley Hodges:  Well, very good. We do have one more question in the queue. Let’s go to that caller before adjourn for the day. So next caller, you’re up.

 

Warren Belmar:  Hi, Dick. It’s Warren Belmar again. One aspect that you may want to address -- give your thoughts on has to do with the administrative record that the Court is going to have to review. In absence of the kind of support that one would expect the Court would look to raises great concern and the ability of the agency, even when it has access to some of the information but doesn’t share it with the party before it raises questions as to whether it would then include evidence or material in the administrative record which goes to the Court. So different kinds of examples beyond the Social Security that you were talking about. This becomes even much more complex.

 

Prof. Richard J. Pierce, Jr.:  As usually, Warren, I find that a very helpful addition.

 

Wesley Hodges:  Well, very good. Thank you so much, Warren. We do appreciate your input. Well, seeing that queue is now empty, I do want to turn the mic back to Dick and Kent, in that order, to see if they have any closing thoughts for us before we wrap up today.

 

Prof. Richard J. Pierce, Jr.:  I’d just add something that kind of fits with some of Kent’s points. There’s language in both the majority opinion and the dissenting opinion that suggest that the Court is going to be -- this is just the first of several opinions in which the Court will be talking about what it takes to support a finding of fact in agency action. And I can only say that that optimistic perspective is one I hope turns out to be true.

 

Prof. Kent Barnett:  And only very briefly I would say that I am at least heartened by the fact that the Court is reviewing, once again, agency adjudication. There has been a significant focus on agency rulemaking or the category of statutory interpretation, a la Chevron deference or Auer deference, which could be either rulemaking or adjudication, but not focused on administrative adjudication process. And I’m heartened to see this, again, because it is, as we can tell from this case and from what some of the callers were saying, extremely important just in the numbers and the meaningfulness of the benefits that cases like this have for the citizenry at large.

 

Prof. Richard J. Pierce, Jr.:  I guess I’d add one other thing, and this, again, ties into a point that Kent made. Kent said, well, you know, without having this data, you’d be a fool to ask questions on cross-examination. First, you get the data; then, you ask the questions about the data. Well, this ties to what I think is an institutional weakness at the Supreme Court. Most of the justices, certainly including Justice Kagan, have never seen a court room, in terms of a trial. They don’t know what it takes to cross-examine a witness.

 

They don’t know the first rule: you never ask a question that you don’t know the answer to. So I think that’s a problem, and I think the justice who provided the most sophisticate response here was Justice Sotomayor, who has, unlike most of the justices, spent a lot of time in the process of trying cases.

 

Prof. Kent Barnett:  I think that’s exactly right.

 

Wesley Hodges:  Wonderful. Well, Dick and Kent, really thank you so much for spending time with us today and sharing your expertise. So everyone, on behalf of The Federalist Society, I’d like to thank our experts for the benefit of their very valuable time and expertise. We welcome all listener feedback by email at [email protected]. Thank you all for joining the call today. This call is now adjourned.

 

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