As we explained in our case summary, the question in this case was whether the State Office of Victim Services (OVS) permissibly adopted regulations limiting the availability of attorneys’ fees in connection with applications for victim financial assistance. In a 5-2 decision, the Court (Stein, J.) held that OVS’s regulations were authorized and rational. Judge Wilson concurred in a separate opinion; Judge Rivera dissented in an opinion joined by Judge Fahey.
OVS administered a program that provided compensation to certain crime victims. The statute authorizing the program entitled applicants to $1000 reimbursement for “reasonable attorneys’ fees” for representation before the office or the Appellate Division. The statute also authorized OVS to adopt “suitable rules and regulations” to carry out the statute. Old OVS regulations allowed reimbursement of attorneys’ fees incurred in connection with any stage of an application for compensation. But in 2016, OVS amended its regulations to limit reimbursement for attorneys’ fees. Under the new regulations, attorneys’ fees were reimbursable only if they were incurred in an administrative proceeding for reconsideration of an OVS determination, or in a judicial proceeding for review of an OVS determination.
The Court sustained OVS’s amended regulations. First, the majority concluded that the regulations did not conflict with the statute. On the contrary, in the majority’s view, the statute authorized reimbursement for attorneys’ fees that were “reasonable” and directed OVS to promulgate regulations defining reasonable. The statute did not speak to a definition of reasonableness, the majority noted, and thus did not conflict with OVS’s regulatory determination that certain categories of attorneys’ fees were per se unreasonable. Second, the majority held that OVS’s regulatory definition of “reasonable” attorneys’ fees was not irrational. OVS’s definition, the majority explained, reflected the agency’s view that filing an application was “a relatively simple task, accomplished in most cases by the completion of a four-page form requesting basic information” that did not require assistance by an attorney. The majority refused to second-guess that judgment, based on OVS’s “expertise and experience with the [application] process,” even if there might be “other valid ways in which OVS could have defined ‘reasonable.'” Ultimately, OVS applied its “special expertise in a particular field” to interpret the statutory term and its rational interpretation was entitled to deference.
Judge Wilson concurred in the result and wrote separately to articulate a reading of the relevant statute that had not been advanced by either party. The statute authorized awards to crime victims that include money for out-of-pocket loss, and the provision of the statute defining out-of-pocket loss (Executive Law § 626) stated that it “shall include” reasonable attorneys’ fees. The parties’ dispute had focused on this mandatory language in Executive Law § 626 and whether it meant that OVS was required to award fees. But in Judge Wilson’s view, this provision merely defined the permissible elements of out-of-pocket loss; it did not authorize or compel OVS to include anything in any particular award. Based on that view, Judge Wilson wrote that the case was “very simple”: OVS had broad discretion to determine which of the allowable elements of an award should be granted, and rationally exercised that discretion here.
Judge Rivera dissented in an opinion joined by Judge Fahey. In the dissent’s view, the statute required compensation for attorneys’ fees and left to OVS’s discretion solely the question of whether fees were reasonable in individual cases. OVS’s regulations violated that statutory directive because they disallowed all attorneys’ fees in connection with certain stages of the application process, regardless of whether those fees were reasonable in an individual case. OVS’s “no-exceptions-ever approach,” the dissent explained, was not a permissible exercise of discretion; it was a refusal to exercise discretion.