A judge says the 'deference' principle created by the Chevron ruling erodes judicial authority. (Photo: Thinkstock)

A U.S. Supreme Court decision widely criticized for giving too much power to executive agencies was panned by the U.S. Court of Appeals for the 3rd Circuit in a decision involving mixed-motive jury instructions in a Family and Medical Leave Act retaliation case.

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The 3rd Circuit’s ruling came out of an age discrimination and retaliatory firing lawsuit filed against the Delaware River Port Authority. In vacating a jury verdict against the plaintiff, Joseph Egan, the three-judge panel held that the district court should not have required Egan to provide direct evidence in his age discrimination case that he was fired in retaliation for taking medical leave because of migraine headaches.

The U.S. Supreme Court’s 1984 decision in Chevron v. Natural Resource Defense Council featured prominently in the 3rd Circuit’s opinion, written by Judge Patty Shwartz. In Chevron, the high court held that if Congress’ intent is unclear in a law, deference must be given to the appropriate executive agency for interpretation; in Egan’s case the U.S. Department of Labor is the authority on FMLA claims.

In this case, according to Shwartz, Labor Department guidance said a mixed-motive theory is permissible under FMLA rules. In response, while agreeing with the result in Egan’s case, Third Circuit Judge Kent A. Jordan took issue with the reliance on the Chevron decision.

The Chevron decision has been criticized by conservatives, including Supreme Court nominee Judge Neil Gorsuch, as diminishing the role of the judiciary in the system of checks and balances.

Jordan, in his lengthy concurring opinion to the Egan case, raised the same issue with Chevron, and a similar Supreme Court case, Auer v. Robbins.

He said the deference prescribed “erodes the role of the judiciary, it also diminishes the role of Congress” by allowing agencies to make the law when the laws are unclear.

“The consequent aggrandizement of federal executive power at the expense of the legislature leads to perverse incentives, as Congress is encouraged to pass vague laws and leave it to agencies to fill in the gaps, rather than undertaking the difficult work of reaching consensus on divisive issues,” Jordan said.

Zachary R. Davis of Stevens & Lee in Philadelphia, who represented the Delaware River Port Authority, did not return a call seeking comment.

Michael J. Salmanson of Salmanson Goldshaw in Philadelphia, who represented Egan, said the DRPA never argued about Chevron deference in its case.

“[Jordan's] concurrence, in my view, went beyond what they argued,” Salmanson said.

He did note that Chevron deference is a big deal. The 3rd Circuit’s decision, he said, “has the potential to raise a very big issue about Chevron deference, beyond the very significant FMLA question.”

Schwartz wrote that a mixed-motive theory was permissible under Title VII.

“Congress has endorsed the use of a lessened causation standard in Title VII’s anti-discrimination provisions,” Shwartz wrote. “Congress’s choice reflects a view that consideration of any of the protected characteristics set forth in the statute, namely race, color, religion, sex, or national origin, is never permissible, even if it is not the sole reason for the employment decision.”

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