In-House Counsel

Five Crucial Mistakes to Avoid During Pa. Administrative Litigation

, The Legal Intelligencer


For attorneys who routinely litigate matters adverse to federal and state government agencies, sometimes ­referred to as government and regulatory law, the trend has been easy to see. Over the last half century or so, the U.S. Supreme Court has gradually expanded the degree of deference traditionally afforded to the rules and adjudications of administrative ­agencies. This has included not only ­deference to legislative rules resting on legislatively conferred rulemaking powers, referred to as Chevron deference, but also to interpretive rules created by an agency based on its specialized role and expertise, referred to as Skidmore deference. This has even included deference to an agency's interpretation of its own regulations, referred to as Seminole deference, although this type of deference was limited somewhat by the U.S. Supreme Court in 2012. Of course, this expansive concept of deference has always included deference to an agency's factual findings and conclusions in an adjudication, akin to the deference afforded to trial courts on appeal. The Pennsylvania courts, ­battling large caseloads, have welcomed this expansion, incorporating these concepts into state law. As a result, the need to win a dispute at the administrative level—and therefore the need for counsel experienced in administrative practice and procedure—has never been greater.

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