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Tuesday, October 06, 2015

Ind. Decisions - 7th Circuit issued one re Indiana appeal yesterday

In Bryana Bible v. United Student Aid Funds, Inc (SD Ind., Pratt), a 6-page (in total) opinion denying rehearing, where "no judge in active service has requested a vote on the petition for rehearing en banc, and all judges on the original panel have voted to deny the petition," Judge Easterbrook writes a 5-page opinion concurring in denial. Some quotes:

Each member of the panel wrote separately. * * *

But Judge Flaum thought that the court is required by Auer v. Robbins, 519 U.S. 452 (1997), to accept the agency’s view that collection costs may not be assessed against borrowers who sign rehabilitation agreements—even though this view was announced in a brief filed as amicus curiae in this suit and contradicts some earlier statements by the Department of Education (although it is arguably consistent with the position taken in one filing in one district court in 2004 but never laid out in the Federal Register or another place the regulated industry might access; compare Judge Hamilton’s conclusion, slip op. 28–29, with Judge Manion’s, slip op. 66–70).

The petition for rehearing en banc asks the court to consider whether Auer supports the Secretary’s current position, when applied to conduct that predates the Secretary’s amicus brief. That is a substantial and potentially important question, but an antecedent issue is whether Auer is sound. In concurring opinions to Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (2015), three Justices (including Auer’s author) expressed deep reservations about deferring to the position an agency adopts through means other than rulemaking. See also Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012); John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996).

Prof. William Baude ‏@WilliamBaude referenced the Bible denial in a tweet yesterday, asking "Is Judge Easterbrook highlighting a vehicle to overrule Auer v. Robbins?"

ILB: See also this SCOTUSblog post from March 22, 2013.

Posted by Marcia Oddi on October 6, 2015 08:49 AM
Posted to Ind. (7th Cir.) Decisions