On August 16, 2019, in the case of Valent v. Saul, Commissioner of Social Security, BG&A filed a petition for writ of certiorari asking the U.S. Supreme Court to overrule or limit the doctrine of Chevron deference. Under the Court’s 1984 decision in Chevron, U.S.A. v. NRDC, courts defer to a government agency’s “reasonable” interpretation of the law whenever a statute is ambiguous.
In Valent, Sixth Circuit Judge Raymond Kethledge writing in dissent, accused his colleagues in the majority of “hardly employ[ing]” the “tools of statutory construction” before accepting the Social Security Administration’s conclusion that the relevant statute was ambiguous. And the interpretation to which the majority deferred, said Judge Kethledge, was “almost a test case for how far an agency can go in Chevron‘s ‘step two,’ ” because the agency “construes the words of the statute in a manner that no ordinary speaker of the English language would recognize.”
Although the Social Security Act provides that “no work activity engaged in by the individual may be used as evidence that the individual is no longer disabled,” the agency imposed $126,210 in monetary sanctions against a disabled woman for failing to disclose unpaid volunteer work she performed for her brother’s veterans’ organization. The Sixth Circuit deferred to the agency’s interpretation that such work activity was “material” and affirmed the monetary sanction.
Chevron deference has been criticized by multiple Justices of the Supreme Court as unlawful and unworkable, so the doctrine is ripe for judicial reconsideration. BG&A’s petition asks the Supreme Court to grant review to overrule Chevron or to narrow Chevron‘s reach. The petition argues that courts should not take an apparent conflict between two provisions of the same statute as an occasion to defer. As Chief Justice Roberts wrote for himself and two other Justices in 2014, “[d]irect conflict is not is not ambiguity, and the resolution of such a conflict is not statutory construction but legislative choice.”
The petition is available here.