Thursday, May 27, 2010

The word of the day is "deference"

If you practice administrative law, the only word you need to know is "deference." That is, deference to administrative law judges, deference to agency decisions. You can challenge an agency decision in court, but courts will for the most part defer to that agency's expertise.

The case is Wasser v. New York City Office of Vocational and Educational Services, decided on April 28. Michael Wasser is a disabled attorney who received services from VESID, a government entity that provides vocational assistance and services to disabled people. As a law student, Wasser received services including computers and transportation, and VESID also paid a portion of his law school tuition. When he graduated law school and joined the New York City Department of Law, VESID stopped providing services, and an impartial hearing officer upheld that determination over Wasser's objections.

Wasser is allowed to challenge VESID's adverse decision in federal court, but the factual conclusions reached by the administrative hearing officer are entitled to deference in federal court. Remember what I said about deference? Aggrieved persons who lose hearings under the Individuals with Disabilities in Education Act (IDEA) -- which applies to public school students who want certain services -- can also challenge those decisions in federal court, but the courts will defer for the most part to the findings reached by the impartial agency hearing officers, who are deemed experts.

Borrowing from IDEA cases that defer to agency determinations for disabled public students, the Court of Appeals (Walker, Straub and Livingston) now holds that the same deference applies to VESID determinations. Here is the governing standard:

“While federal courts do not simply rubber stamp administrative decisions, they are expected to give ‘due weight’ to these proceedings, mindful that the judiciary generally ‘lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.’”

Wasser is not only the plaintiff, he is his own lawyer. He knows enough to try to distinguish the IDEA cases. He argues that while courts may defer to the educational judgments of experts under the IDEA, the standard of review in VESID cases is "de novo" (or no deference at all) because "courts are uniquely positioned to evaluate the vocational rehabilitation services necessary for an individual to become a lawyer, which was plaintiff’s employment goal." The Court of Appeals is not buying this. VESID does not just provide services to people who want to become lawyers; it "provides services to individuals so that they 'can improve their ability to become gainfully employed' without regard to the type of employment sought by the individual. Thus, the only fair and workable standard to be applied is one that is the same regardless of the aggrieved party’s employment goal."

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