Equal Protection question

Factual Questions
1

Lawyers and non-lawyers alike are welcome to take a crack at this; it’s more a matter of logical reasoning than anything else. I’d be grateful for anyone’s input…even (or especially) your gut reaction.

Let’s say you’ve got an organization – call them ABC. ABC wants to get Benefits from a federal agency. Usually to get Benefits you have to go through a lengthy and onerous application process under the relevant regulations. ABC, however, says to the agency, “We used to get Benefits, but then the Benefits stopped for some reason. All you need to do is reinstate the Benefits we used to get.”

The agency reviews ABC’s file and says, “Yes, you used to get Benefits. However, even people who used to get Benefits have to go through the lengthy and onerous application process.” So ABC goes through the lengthy process, and ultimately the agency denies ABC’s application for Benefits. No Benefits for ABC.

ABC brings suit against the agency challenging the decision to deny it Benefits. In the suit, ABC says, “Look at organizations JKL and XYZ. They used to get Benefits, just like us, and then their Benefits stopped, just like ours. If anything, we have a better case for Benefits than JKL and XYZ. But when they went to the agency, it simply reinstated their Benefits without making them go through the lengthy and onerous process! Because we are similarly situated to JKL and XYZ, and because the agency provides no explanation why it treated them differently than it treated us, we should get Benefits too.”

In response, the agency says, “Yes, JKL and XYZ got their Benefits reinstated without having to go through the lengthy and onerous application process. Yes, JKL and XYZ are just like ABC. But the fact that JKL and XYZ didn’t have to go through the application process has no bearing on ABC, because there are a lot of other organizations that used to get Benefits who did have to go through the process. Our regulations mandate that organizations have to go through the application process. Just because JKL and XYZ were exceptions for some reason doesn’t mean that ABC is entitled to be an exception too. If anything, ABC is arguing that we improperly gave JKL and XYZ Benefits without making them go through the process, and ABC doesn’t have the legal standing to do that. Also, we’re not telling you why JKL and XYZ are exceptions, because every case is different and it’s not relevant.”

Does the agency have a good argument? If the process is mandated by regulation, and a bunch of organizations (including ABC) had to go through it, does it matter that two organizations didn’t have to go through it? What if it’s undisputed that those two organizations were more similarly situated to ABC than any of the others? What would be the reasoning behind requiring the agency to justify the exceptions that it made for JKL and XYZ?

2

We don’t have enough information to tell for certain, but ABC is probably out of luck. If their only argument is that the other two organizations were “similarly situated,” the denial of benefits is going to be subject to a rational basis standard, which means that the action must merely be rationally related to any conceivable legitimate interest of the state. This is an extremely deferential standard. Basically, if the attorneys for the agency are able to come up with any legitimate reason to treat those two organizations, their logic wont be second guessed. So we have this::

If they can expand on what those differences are, ABC’s out of luck.

3

Thanks for the response, pravnik.

And they haven’t; they’ve declined even to address the issue. Which is what makes it interesting. :slight_smile:

Right. But – given the facts presented – would it be appropriate for the Court to direct the agency to expand on what those differences are, or is it enough for the agency to say, in essence, “Even if ABC, JKL, and XYZ are identical, ABC doesn’t get a free pass from the application process just because the other two happened to do so”?

That is, assuming that the process ABC went through is the normal process, is it relevant to ABC’s suit that two (for the sake of argument) identically-situated organizations got a free pass?

4

Hmm…upon further reflection, this question might be better suited for GD or IMHO. :slight_smile:

5

So, this is based on a real case? Do you have links to any news or court documents or such?

Technically, the agency wouldn’t be required to do anything; the burden of proof is on the party making the challenge under a rational basis standard. They have to show that there’s no justification whatsoever for the differential treatment. As a practical matter, though, the agency’s attorneys would be wise to draw some sort of distinction that necessitates the differential treatment, because the case law suggests that coming up with just about any dumb reason is good enough to satisfy the standard. If they’re making the argument that there doesn’t need to be any distinction or reason for the differential treatment, that’s an odd argument to make, since they’d be better off coming up with a bad reason than none at all. It’s a very low standard.

As I read it, yes, it should be. They need at least a rational basis for the differential treatment.

6

There would need to be some reason enunciated by the government as to why there is a difference in treatment. But as pravnik stated, the court’s gonna give the government a whole lot of leeway. Only if the government action is found to be irrational or capricious would the court consider striking it down as unconstitutional.
One thing I’m not sure about - if the government fails to state a reason, is it enough that the court on its own can come up with a possible reason? I guess that scenario would be unlikely in such a lawsuit…

I think the answer to your question is - yes, the agency has to have a reason. No, it doesn’t necessarily have to be a good one.

–KidScruffy

On preview, it looks like I’m repeating most of what pravnik is saying. Oh well, I guess I’ll finally have a double-digit post-count. :slight_smile:

7

It’s ongoing. If you see what I mean.

Right. So what’s happened is that the parties have filed cross-motions for summary judgment (where the administrative record is the complete record of the case), and one of ABC’s bases for summary judgment is, “Look, for all material purposes we’re identically situated to JKL and XYZ, and yet we had to go through the process and they didn’t. This is arbitrary and capricious, because they don’t explain why they’ve treated similar petitioners differently, and it’s a violation of equal protection, because the agency offers no justification for applying the most stringent standard to us and not to them.”

And the agency says, “You want a justification? The regulations require everyone to go through the process, that’s our justification. Let’s say you are identically situated to JKL and XYZ. That doesn’t change the fact that we clearly followed established procedures in your case, as we’ve done with dozens of other organizations. The fact that JKL and XYZ apparently bypassed the process for reasons that aren’t reflected in the administrative record of your case is immaterial; the process is required, and it’s required of you. End of story.”

So ABC seems to have demonstrated that there’s no justification other than general policy, which for whatever reason wasn’t applied to JKL and XYZ. The agency cites caselaw from another Circuit which states that “one inconsistent precedent does not entitle an agency litigant to demand that the [agency] ignore prior and subsequent holdings which have followed a uniform approach.” Puerto Rican Cement Co., Inc. v. EPA, 889 F.2d 292, 2999 (1st Cir. 1989). But this isn’t one inconsistent precedent, it’s several, and the organizations to which the inconsistent precedent was applied are allegedly identically situated to ABC. And, in any case, there’s nothing in the administrative record that reflects the criteria by which an organization is allowed to bypass the process, so for all we know the precedent isn’t actually inconsistent, just differently applied in a way that hasn’t been made sufficiently clear.

I hope I didn’t lose you with that last bit there; it was somewhat stream-of-consciousness.

Anyway, I’m just trying to figure out whether the Court would be justified in remanding the case to direct the agency to more fully explain, in the administrative record, what it was that allowed JKL and XYZ to bypass the “normal” process.

8

KidScruffy:

Thanks for your thoughts! Let me know if my response to pravnik didn’t fully answer some of your own questions.

It’s my understanding that the Court has to make its decision based on the representations and evidence in the administrative record…so even post hoc justifications offered by the agency wouldn’t necessarily be good enough.