Imagine two people facing an adverse decision from a government agency. Both are thinking about appealing. Is who they’re appealing against a factor? It probably shouldn’t be, but sometimes, it is. Let’s take a look at two not so imaginary litigants who ended up in front of the United States Supreme Court.
The first one was facing the city of Indianapolis. The city had changed its funding system for some improvements (sewers in this case) from assessments imposed on the houses served to financing from general taxes. Before that change, people who were assessed could pay all at once or pay over time, with the typical trade off of having more time but paying a bit more in the end because of interests. When the city changed tack, those who were paying over time could stop paying there and then, and thus ended up paying only part of the assessment. But those who had paid in full did not receive any money back.
That was fine by the Supreme Court, because the City had a rational basis for distinguishing the two, namely, that it was too complicated administratively to figure out how much to pay back and how to make everyone mathematically (and financially) equal. If it sounds dubious to you, it did to a 3-Justice minority (and to me) as well.
But more to the point, the court’s opinion was full of statements singing the praises of local government and direct democracy. Courts, they say, must respect the local legislative bodies’ judgments. Those have great latitude in how to conduct their business. Any plausible policy by the city would do. So mere “administrative considerations can justify a tax-related distinction.” Even “administrative convenience” may do the trick.
Now our second litigants are landowners locked in a dispute with the EPA, which was trying to make them perform some specific remediation work on their land. The EPA stood ready to assess hundreds of dollars a day in penalty. But it would not sue to enforce it, which also prevented the landowners from suing to contest the EPA’s decision, leaving them stranded while penalties accumulated.
The Supreme Court would have none of it, and criticized the EPA as enthusiastically as it supported the City of Indianapolis. The EPA, it said, was not allowed by federal law (the Clean Water Act in that instance) to strong-arm the citizenry. It would not let the rights of ordinary people rest at the mercy of administrative fiat, Justice Alito added in substance in his concurring opinion, leaving “property owners at [an administrative] agency’s mercy.” Justice Alito worried that even with a newly increased right of access to the courts, too many landowners would find themselves forced to “dance to the EPA’s tune” and urged Congress to do more.
The two cases are not as far from each other as might appear at first blush. For one thing, the Court certainly interpreted two different laws, so it could certainly come out with two different results. But the language in the opinions leads one to believe that a key factor was also the identity of the parties involved. The closer one is to local democracy, such as a City or County, the more hesitant the courts will be to intervene. Administrative agencies are on a more equal footing with the average Joe once.
All this adds a layer of complication to situations that are always complicated to start with. When considering appeal, either to the court from an administrative decision, or to an appellate court from a lower court’s opinion, “who” must be considered alongside “what.”