U.S. Supreme Court

Chief Justice Criticizes 'Disingenuous' Characterization of Administration Flip-Flops


Chief Justice John G. Roberts Jr. made it clear during oral arguments on Tuesday that he wasn’t happy with footnote 9 in a brief by the Solicitor General’s office.

Roberts “publicly dressed down an Obama administration lawyer” for disguising policy changes made under new presidents, Reuters reports. Though it wasn’t the first time justices questioned consistency of administration positions, “Tuesday’s critique accusing the office of effectively camouflaging a new position may be the harshest yet,” the story says.

The footnote concerned the Secretary of Labor’s position on whether a medical plan was entitled to reimbursement from a personal injury settlement. According to a preview of the case by Pension & Benefits Daily, the self-funded medical plan had sought fees paid to the personal injury lawyers as well part of the employee’s settlement.

The footnote in the administration brief (PDF) said that “upon further reflection” and in light of the court’s discussion in a new case, the Secretary of Labor has taken a position that might be more favorable to an employee than the position taken in a 2004 case.

Roberts objected in an exchange (beginning at page 31 of the transcript (PDF)) with Joseph Palmore, an assistant to Solicitor General Donald Verrilli:

Roberts: “Counsel, the position that the United States is advancing today is different from the position that the United States previously advanced. You make their point in footnote 9 of your brief. You say that in prior case, the secretary of labor took this position. And then you say that, upon further reflection, the secretary is now of the view—that is not the reason. It wasn’t further reflection. We have a new secretary now under a new administration, right?”

Palmore: “We do have a new secretary under a new administration. But that—”

Roberts: “It would be more candid for your office to tell us when there is a change in position that it’s not based on further reflection of the secretary. It’s not that the secretary is now of the view—there has been a change. We are seeing a lot of that lately. It’s perfectly fine if you want to change your position, but don’t tell us it’s because the secretary has reviewed the matter further, the secretary is now of the view. Tell us it’s because there is a new secretary.”

Palmore: “With respect, Mr. Chief Justice, the law has changed since that brief was filed nearly 10 years ago in the court’s review.”

Roberts: “Then tell us the law has changed. Don’t say the secretary is now of the view. It’s not the same person. You cite the prior secretary by name, and then you say, the secretary is now of the view. I found that a little disingenuous.”

Pension & Benefits Daily says the case concerns equitable remedies under the Employee Retirement Income Security Act, “a hot topic for many years with the Supreme Court.” The Philadelphia-based 3rd U.S. Circuit Court of Appeals had ruled in the case that the health plan’s attempt to obtain the personal injury proceeds and attorney fees was not allowed under ERISA because it would not amount to “appropriate equitable relief.”

The employee, James McCutchen, was seriously injured in an auto accident that left him functionally disabled. He worked for U.S. Airways, which paid McCutchen’s medical bills and then claimed it was entitled to full reimbursement under the language of its plan.

The case is U.S. Airways v. McCutchen.

Additional coverage:

The Atlantic: “The Nerve of John Roberts”

Updated at 7 a.m. to link to additional coverage.

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