Notice & Comment

Textualism in the Trenches: Judge Amul Thapar and the Administrative State, by Ben Beaton

“Do you know Amul Thapar?”

That’s a common question this week, as official Washington buzzes about the five (or so) Supreme Court short-listers identified in the wake of Justice Kennedy’s retirement. But it wasn’t common in 2007 when my father-in-law asked about a recent visitor to the Toyota plant where he worked in Georgetown. (No, not that Georgetown.)

As U.S. Attorney for the Eastern District of Kentucky, Thapar was visiting mines and manufacturers like Toyota to discuss drug testing and abuse. Meth labs were catching fire, literally and figuratively, across the country—and especially in places like Kentucky. My father-in-law was surprised at how much Thapar knew for a youthful and newly confirmed law enforcement officer. But I explained that Thapar had been working on these issues for years as a line prosecutor across the river in Cincinnati before his recent Senate confirmation (the first of many).

This is the administrative-law background that a Justice Thapar would bring to the Supreme Court: a boots-on-the-ground perspective on agency structure, process, and deference. More than any sitting Justice, Thapar made his career in trial courts in the middle of the country—where he was born and raised. First in Ohio as a line prosecutor pursuing drug dealers, gang members, and terrorist financiers. Then in Kentucky as a U.S. attorney and a trial judge known for his work ethic, writing, and teaching: he covered 3 far-flung courthouses in his own district (Covington, London, and Pikeville), volunteered to hear additional cases in Texas and on the Sixth and Eleventh Circuits, wrote awardwinning opinions, and lectured regularly at UVA, Vanderbilt, Yale, Harvard, and other top schools. As Judge Sutton put it during Thapar’s Sixth Circuit investiture, this man has a very high idle speed.

Justice White reportedly said that replacing any Justice creates a new Court. That would hold true with Thapar. His addition would—by itself—nearly double the other Justices’ collective trial-court experience, long criticized as insufficient by many litigators. And Judge Thapar’s administrative-law experience also contrasts markedly with that of the modern Supreme Court. He would not join the line of administrative-law professors who received tenure at One First Street, or the longer line of D.C. Circuit judges raised on a steady diet of Chevron deference before relocating five blocks east down Constitution Avenue, or the still longer list of high-ranking government officials tapped for the high court after a career in Washington.

It is from these precincts—the courts, agencies, and classrooms at the pinnacle of the federal administrative state—that modern presidents have disproportionately drawn their Supreme Court nominees. Justices White, Goldberg, Fortas, Marshall, Burger, Rehnquist, Scalia, Thomas, Ginsburg, Breyer, Roberts, and Kagan all fit the description to varying degrees. The result is a pool of lawyers more familiar with the promulgation of regulations than their enforcement. When it comes to D.C.-based administrative expertise at the Supreme Court, prior administrations have carried the proverbial coal to Newcastle.

Judge Thapar, however, has toiled in the mines. His years in the trial courts mean he has written fewer administrative-law decisions than some other short-listers. But the cases he has handled reflect a different side of the administrative state: the regulatory apparatus as applied across the country, not on its face in Washington. Judge Thapar’s most important decisions in this area feature rigorous treatment of cornerstone administrative-law principles, but set in contexts far more representative of most Americans’ interaction with the fourth branch:

  • Separation of powers: In a dispute between landowners and a mining company over a coal-mining permit and cessation order, when must a trial court require the parties to exhaust the process available at the (take a deep breath) Office of Surface Mining Reclamation and Enforcement? The opinion in M.L. Johnson Family Properties, LLC v. Jewell, 237 F. Supp. 3d 528 (2017), covered the jurisdictional, statutory, and procedural intricacies before concluding the plaintiff had cleared each hurdle into federal court. And Judge Thapar refused—on separation-of-powers grounds—to order the Justice Department to adopt a schedule micromanaging its determination whether to pursue the death penalty. United States v. Slone, 969 F. Supp. 2d 830 (E.D. Ky. 2013).
  • Procedural due process: During the hasty readjudication of thousands of tainted Social Security claims filed by the disgraced lawyer (and soon-to-be international fugitive) known as “Mr. Social Security,” did people who lost disability benefits forfeit their right to test the government’s eligibility determinations? Judge Thapar remanded these cases to the agency so recipients had a chance to challenge the government’s findings in Hicks v. Colvin, 214 F. Supp. 3d 627 (2016).
  • Interpretive deference (or lack thereof): After Social Security beneficiaries go to court and win a remand to challenge benefits determinations, do they receive an attorney-fee award? That depends on whether and when they “incur” attorney’s fees. Even though the challenger and the Social Security Administration agreed on their preferred reading, in Turner v. Astrue, 764 F. Supp. 2d 864 (E.D. Ky. 2010), Judge Thapar refused to defer, under Mead, to an interpretation at odds with the text of the statute. He again declined to defer, under Auer, to the interpretation of a Tennessee Valley Authority benefits plan in Duncan v. Muzyn, 885 F.3d 422, 425–26 (6th Cir. 2018).

When Judge Thapar has had the occasion to address questions like these, his approach is distinctive and consistent. From his earliest days on the bench, Judge Thapar has crafted scholarly opinions that did not merely regurgitate binding circuit precedent, but grappled with the sometimes-uneasy foundations of administrative law. The surface-mining decision in M.L. Johnson, for example, ultimately reached a modest conclusion: the court had subject-matter jurisdiction. But it did so only after meticulously considering the statutory text, arguably inconsistent circuit precedent, separation-of-powers principles, and the agency’s exercise of its delegated authority. This depth of treatment, and other opinions like it, went far beyond what is expected of a busy District Judge—particularly with no other judges to persuade or accommodate, as on the Court of Appeals.

And as a substantive matter, Judge Thapar’s approach to administrative law is equally clear: He is a rigorous textualist who—absent a clear instruction from Congress—is skeptical of both agency action and judicial abdication that alter the separation of powers.

1. Thorough-going textualist. This is the overarching theme of Judge Thapar’s entire body of judicial work, whether related to administrative law or not. Judge Thapar adheres to the brand of textualism, championed in the opinions of Justices Gorsuch and Thomas, driven by plain meaning, statutory structure, and the traditional tools of interpretation.

Earlier this year, Judge Thapar and I published an article espousing this view of textualism in the trenches. Responding to Judge Posner’s recent book, we explained that his brand of policy-oriented pragmatism is “fundamentally at odds with our experience litigating and deciding cases in the federal courts.” The Pragmatism of Interpretation, 116 Mich. L. Rev. 819, 820 (2018). That approach would “unleas[h] great unpredictability outside the courtroom,” too, making it harder to “advise clients, arrange legal relationships, and plan everyday conduct.” Id. By contrast,

the truly pragmatic judge is one whose rulings flow naturally from the governing legal text, the precedents reasonably interpreting that text, and the record of the case in a way that is predictable beforehand and ascertainable thereafter…. Even if our constitutional design didn’t demand that judges apply the law as written, doing so would represent the most pragmatic approach for someone with a lifetime commission to serve the United States under its Constitution and laws. From our perspectives on the law as practiced in and around the federal courts, the ordinary tools of interpretation make for a more intelligible, accessible, and efficient judiciary.

Id. at 828 (citations omitted).

A rigorous emphasis on text is evident in practically every Thapar opinion—even when other judges have gone another way. This paid off recently when the Supreme Court vindicated Judge Thapar’s exhaustive interpretive analysis of a related provision in the criminal-forfeiture statute not to impose vicarious liability. In a unanimous opinion in Honeycutt v. United States, 137 S. Ct. 1626 (2017), the Court agreed with the approach Judge Thapar carefully articulated in United States v. Solomon. His efforts were entirely dicta because he was bound by contrary (soon-to-be-overruled) Sixth Circuit precedent:

Are Frial-Carrasco, Solomon, and Elliott jointly and severally liable? Yes, because the Sixth Circuit has said so. See Honeycutt, 816 F.3d at 379–80. The criminal-forfeiture statute itself, however, does not.

United States v. Solomon, 2016 WL 6435138, at *4 (E.D. Ky. Oct. 31, 2016). Thapar’s ruling could offer no relief to Solomon himself. But this was very useful dicta: his close reading of the statute, and refusal simply to go along with authoritative-but-undertheorized decisions, helped show that vicarious liability in this context was at odds with “background law” going “back to the founding,” and required courts to read words “wholly out of the statute.”

Judge Thapar’s most notable decisions reflect this textualist approach. Sitting by designation on the Sixth Circuit, a widely-quoted opinion remanded a diversity case back to state court because it was “exactly one penny short of the jurisdictional minimum of the federal courts.” Freeland v. Liberty Mut. Fire Ins. Co., 632 F.3d 250, 252 (6th Cir. 2011). According to the diversity jurisdiction statute, “the matter in controversy [must] excee[d] the sum or value of $75,000.” 28 U.S.C. § 1332. Judge Thapar held that only the amount of insurance coverage actually disputed by the parties was truly in “controversy” for jurisdictional purposes, even though the overall value of the policy at issue might be higher. “The words ‘in controversy’ have to mean something,” Judge Thapar reasoned. Freeland, 632 F.3d at 253. He admitted that “vacating the district court’s judgment and remanding this case is painfully inefficient,” but held that the statute’s text left the Court with no other choice. Id. at 255. Rulings like this one, and Judge Thapar’s recent Sixth Circuit opinion denouncing the government’s proposed “replace-some-words canon,” show he is unwilling to circumvent statutory text even when the consequences are significant. United States v. Perkins, 887 F.3d 272, 276-77 (6th Cir. 2018).

2. Resistance to deference. As Justice Scalia explained years ago, in administrative law a committed textualist finds less room for ambiguity, and therefore less cause to defer to agency interpretations. Chuck Cooper and Ryan Snyder made this point quite effectively in these pages when discussing the Chevron jurisprudence of Judge Thapar’s close friend Judge Kethledge. I can hardly improve on their treatment of the intersection of textualism and administrative deference, and predict that several of the Supreme Court short-listers would rule similarly in this area: effectively narrowing the space for “reasonable” agency interpretations by dint of judicial efforts to find the “right” interpretation of the statute.

Indeed, Judge Thapar has ruled that finding ambiguity essentially requires finding equipoise—which will be quite rare. Judge Thapar declined to defer to an agency’s interpretation of its own regulation in Duncan v. Muzyn, 885 F.3d 422 (6th Cir. 2018). In that case, plaintiffs had sued the Tennessee Valley Authority Retirement System after the TVA cut their pension benefits. Id. at 424. The TVA defended itself by offering a favorable interpretation of one of its regulations, and then invoking the doctrine of Auer deference to justify its stretching of the regulation. Id. at 425. Judge Thapar refused to grant the agency that deference, concluding that the regulation was “not ambiguous.” Id. He insisted that “simply calling something ambiguous does not make it so,” and that “where, as here, one interpretation far better accounts for the language at issue, the language is not ambiguous.” Id. at 425–426.

Setting aside whether particular language is ambiguous, Judge Thapar has also questioned the appropriateness of administrative deference under fundamental separation-of-powers principles. “The three branches of government are supposed to check and balance one another” so no agency may “insulate its own decisions from judicial review.” M.L. Johnson, 237 F. Supp. 3d at 544. Though constrained on the district court and court of appeals to follow binding Supreme Court precedent, Judge Thapar has cited Justice Thomas’ and then-Judge Gorsuch’s critiques of both Chevron and Auer deference. Id. at 544–45 (citing Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1216 (2015) (Thomas, J., concurring); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring)).

Judge Thapar has also expressed practical concerns about how the Supreme Court’s complex deference opinions actually operate in the lower courts. On this point, he and I found common ground with Judge Posner:

Muddled multifactor tests, convoluted tiers of deference, and illusory standards of review may prove good fodder for law-review articles; they do markedly less to serve clients’ interests in the stability, predictability, and (make no mistake) affordability of the law. Posner is right to target this sort of overly formulaic judging—exemplified by his concerns about deference to the administrative state—because it disserves litigants and sacrifices the legitimacy courts claim from publicly showing their work.

116 Mich. L. Rev. at 822 (citing Dep’t of Transp. v. Ass’n of Am. R.Rs., 135 S. Ct. 1225, 1242 (2015) (Thomas, J., concurring in the judgment); Perez, 135 S. Ct. at 1213 (Thomas, J., concurring in the judgment); Gutierrez-Brizuela, 834 F.3d at 1149 (Gorsuch, J., concurring); Philip Hamburger, Is Administrative Law Unlawful? (2014)).

3. Scrutiny of agency reasoning and process. Finally, when it comes to reviewing administrative decisionmaking and procedure, expect a Justice Thapar to be similarly scrutinous of agency action. The Social Security Administration has learned this lesson more than once in his courtroom. In Hicks v. Colvin, Judge Thapar held that the Social Security Administration violated the Due Process Clause by denying a beneficiary a meaningful hearing under existing Supreme Court precedent and rejected the agency’s claim for Chevron deference. 214 F. Supp. 3d 627 (E.D. Ky. 2016). There was little glamourous about this application of administrative-law principles, but the opinion rooted Ms. Hicks’ procedural rights firmly in their constitutional context:

If the government threw Amy Jo Hicks in jail because she was a member of Al Qaeda, she would get a chance to challenge that factual assertion before a neutral arbiter. See Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004). If the government fired her because she lied on an employment form, she would get a chance to challenge that factual assertion before a neutral arbiter. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 544 (1985). And if the government took away her stove because she was late on her installment payments, she would get a chance to challenge that factual assertion before a neutral arbiter. See Fuentes v. Shevin, 407 U.S. 67, 82– 84 (1972). But when the government redetermined her right to disability payments—and categorically excluded some of her medical evidence because it had “reason to believe” the evidence was fraudulent—she never got a chance to challenge that factual assertion before anyone.

Id. at 630. And as in the deference cases discussed above, Judge Thapar applied the Mathews v. Eldridge Due Process balancing test—even while acknowledging its substantial critics:

The Court applies the Mathews test while at the same time recognizing that it has lived under substantial—and persuasive —criticism, almost since the day that the Supreme Court created it. See generally Jerry L. Mashaw, The Supreme Court’s Due Process Calculus for Administrative Adjudication: Three Factors in Search of a Theory of Value, 44 U. Chi. L. Rev. 28 (1976). This case exemplifies one of the test’s many problems.

Hicks, 214 F. Supp. 3d at 641 n. 7.

Judge Thapar also refused to defer to longstanding agency practice in Turner v. Astrue, 764 F. Supp. 2d 864, 871 (E.D. Ky. 2010). In that case, the plaintiff had won a reversal of a Social Security Administration decision, and then sought attorney’s fees under the Equal Access to Justice Act. Id. at 866. But Judge Thapar noticed that the plaintiff’s contracts with his attorney specified that he would owe fees only if his attorney secured a successful result on remand. Id. Judge Thapar concluded that this meant the plaintiff had not yet “incurred” attorney’s fees within the meaning of the Act Id. He reached that conclusion despite the fact the parties agreed that fees were appropriate. He insisted that “the Court has an independent obligation to decide for itself whether the parties have accurately interpreted the statute.” Id. at 868. The plaintiff argued against this conclusion, citing the fact that such fee awards had been the “longstanding practice” of “both the Commissioner of Social Security and courts around the country.” Id. at 870. Though Judge Thapar “recognize[d] th[e] likely result” was unfortunate and “regret[ted] it,” he did not yield: “Years of erroneous practice to the contrary do not excuse this Court from performing its core function—faithfully interpreting and applying the law.” 871.

* * *

It’s quite clear what Judge Thapar would uniquely add to the Roberts Court: practical trial-court experience, a compelling immigrant success story, and representation of non-Ivy schools and Rust Belt states. He would also build on the textualist approach embraced by Justices Thomas and Gorsuch—one that in recent years has had important and fresh implications for administrative practice. If every new Justice makes a new Court, this one would add a perspective on textualism in the trenches with (in my view) rather clear effects on the Court’s deference case law in particular: less invocation of multilayered deference doctrines, greater attention to the soundness of agency reasoning and interpretation, and—above all—a persistent focus on the statutory text Congress enacted.


Benjamin Beaton is a litigation partner at Squire Patton Boggs. He coauthored with Judge Thapar a review of Judge Posner’s book on the federal judiciary in the Michigan Law Review.

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