Amicus Curiae Brief — Cleveland County, North Carolina, aka Cleveland County Emergency Medical Services, Petitioner v. Sara B. Conner, Individually and on Behalf of All Others Similarly Situated.
Supreme Court briefJul 8, 2022
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No. 21-1538
In the Supreme Court of the United States
CLEVELAND COUNTY, NORTH CAROLINA,
Petitioner,
V.
SARA B. CONNER,
Respondent.
——————
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF OF AMICI CURIAE STATE OF
WEST VIRGINIA AND 15 OTHER STATES
IN SUPPORT OF PETITIONER
PATRICK MORRISEY
Attorney General
OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
lindsay.s.see@wvago.gov
(304) 558-2021
LINDSAY S. SEE
Solicitor General
Counsel of Record
MICHAEL R. WILLIAMS
Senior Deputy Solicitor
General
CALEB A. SECKMAN
Assistant Solicitor General
Counsel for Amicus Curiae State of West Virginia
[additional counsel listed after signature page]
QUESTIONS PRESENTED
1. Whether the Fair Labor Standards Act allows an
employee, who has been paid more than the required
minimum wage and overtime at one and one-half times her
regular rate, to sue her employer for and recover unpaid
straight-time wages earned in weeks that she worked
overtime.
2. Whether Skidmore v. Swift & Co., 323 U.S. 134
(1944), allows courts to independently evaluate an
agency’s nonbinding interpretation of a statute.
II
TABLE OF CONTENTS
Introduction and Interests of Amici Curiae ..................... 1
Summary of Argument ........................................................ 2
Reasons for Granting the Petition...................................... 3
I.
The Decision Below Improperly Elevates
A Statute’s Purpose Over Its Text .............................. 3
II. The Decision Below Is The Right Vehicle
To Fix The Problems With Skidmore Deference .... 10
A. Judicial Confusion Worsens With Skidmore
Deference ................................................................ 11
B. The Court Should Scatter The Skidmore
Fog By Doing Away With The Doctrine ............. 15
Conclusion ........................................................................... 20
III
TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Wilson,
289 U.S. 20 (1933) ........................................................... 6
Argentina v. Weltover, Inc.,
504 U.S. 607 (1992) ......................................................... 6
Athan v. U.S. Steel,
364 F. Supp. 3d 748 (E.D. Mich. 2019) ......................... 4
Caminetti v. United States,
242 U.S. 470 (1917) ......................................................... 5
Carcieri v. Salazar,
555 U.S. 379 (2009) ......................................................... 6
Christensen v. Harris Cnty.,
529 U.S. 576 (2000) ....................................................... 11
Comm’r v. Gordon,
391 U.S. 83 (1968) ....................................................... 8, 9
Crowell v. Benson,
285 U.S. 22 (1932) ......................................................... 19
CSX Transp., Inc. v. Ala. Dep’t of Revenue,
562 U.S. 277 (2011) ......................................................... 6
Dir., Off. of Workers’ Comp. Programs v.
Newport News Shipbuilding & Dry
Dock Co.,
514 U.S. 122 (1995) ......................................................... 9
Dodd v. United States,
545 U.S. 353 (2005) ......................................................... 6
IV
TABLE OF AUTHORITIES
(continued)
Page(s)
E.I. Du Pont De Nemours & Co. v. Smiley,
138 S. Ct. 2563 (2018) .............................................. 18-19
Encino Motorcars, LLC v. Navarro,
138 S. Ct. 1134 (2018) ................................................... 10
Env’t Integrity Project v. EPA,
969 F.3d 529 (5th Cir. 2020) ......................................... 13
Gould v. First Student Mgmt., LLC,
No. 16-CV-359-PB, 2017 WL 3731025
(D.N.H. Aug. 29, 2017) ................................................... 4
Gutierrez-Brizuela v. Lynch,
834 F.3d 1142 (10th Cir. 2016) ............................... 18, 19
Hensley v. First Student Mgmt., LLC,
No. CV 15-3811, 2016 WL 1259968
(D.N.J. Mar. 31, 2016) .................................................... 4
Henson v. Santander Consumer USA Inc.,
137 S. Ct. 1718 (2017) ................................................. 7, 8
In Wilderness Watch v. Mainella,
375 F.3d 1085 (11th Cir. 2004) ..................................... 13
Kisor v. Wilkie,
139 S. Ct. 2400 (2019) ............................................. 17, 18
Koelker v. Mayor & City Council of
Cumberland,
599 F. Supp. 2d 624 (D. Md. 2009) .............................. 14
Limtiaco v. Camacho,
549 U.S. 483 (2007) ......................................................... 5
V
TABLE OF AUTHORITIES
(continued)
Page(s)
Little Sisters of the Poor Saints Peter &
Paul Home v. Pennsylvania,
140 S. Ct. 2367 (2020) ..................................................... 5
Lundy v. Catholic Health Sys. of Long
Island, Inc.,
711 F.3d 106 (2d Cir. 2013) ........................................ 1, 4
Michigan v. Bay Mills Indian Cmty.,
572 U.S. 784 (2014) ......................................................... 8
Mohamad v. Palestinian Auth.,
566 U.S. 449 (2012) ......................................................... 8
Monahan v. Cnty. of Chesterfield,
95 F.3d 1263 (4th Cir. 1996) ......................................... 14
Murphy v. First Student Mgmt. LLC,
No. 1:16-CV-01966-DAP, 2017 WL
346977 (N.D. Ohio Jan. 24, 2017) .................................. 4
N. Pipeline Const. Co. v. Marathon Pipe
Line Co.,
458 U.S. 50 (1982) ......................................................... 17
Nielsen v. AECOM Tech. Corp.,
762 F.3d 214 (2d Cir. 2014) .......................................... 13
Norfolk S. Ry. Co. v. Sorrell,
549 U.S. 158 (2007) ......................................................... 9
Rapanos v. United States,
547 U.S. 715 (2006) ....................................................... 10
Richards v. United States,
369 U.S. 1 (1962) ............................................................. 6
VI
TABLE OF AUTHORITIES
(continued)
Page(s)
Rodriguez v. United States,
480 U.S. 522 (1987) ................................................. 7, 8, 9
Rosario v. First Student Mgmt. LLC,
No. CV 15-6478, 2016 WL 4367019
(E.D. Pa. Aug. 16, 2016) ................................................. 4
Skidmore v. Swift & Co.,
323 U.S. 134 (1944) ................................................... 1, 17
Sturges v. Crowninshield,
17 U.S. 122 (1819) ........................................................... 9
Tualatin Valley Builders Supply, Inc. v.
United States,
522 F.3d 937 (9th Cir. 2008) ......................................... 12
United States v. Mead Corp.,
533 U.S. 218 (2001) ................................................. 12, 17
United States v. Ron Pair Enters., Inc.,
489 U.S. 235 (1989) ......................................................... 6
United States v. Union Pac. R. Co.,
91 U.S. 72 (1875) ............................................................. 5
Univ. of Tex. Sw. Med. Ctr. v. Nassar,
570 U.S. 338 (2013) ......................................................... 5
Va. Uranium, Inc. v. Warren,
139 S. Ct. 1894 (2019) ..................................................... 5
Watkins v. Cantrell,
736 F.2d 933 (4th Cir. 1984) ......................................... 12
VII
TABLE OF AUTHORITIES
(continued)
Page(s)
Constitutional Provision
U.S. CONST. art. III, § 1..................................................... 16
Statutes
5 U.S.C. § 706 ...................................................................... 16
29 U.S.C. § 206 ...................................................................... 3
29 U.S.C. § 207 ...................................................................... 3
Rule
SUP. CT. R. 37.2(a) ................................................................ 1
Other Authorities
Aditya Bamzai, The Origins of Judicial
Deference to Executive Interpretation,
126 YALE L.J. 908 (2017) ........................................ 14, 16
ANTONIN SCALIA & BRYAN B. GARNER,
READING LAW: THE INTERPRETATION
OF LEGAL TEXTS (2012) ................................................. 7
Frank H. Easterbrook, Statutes’ Domains,
50 U. CHI. L. REV. 533 (1983) ........................................ 7
Frederick J. de Sloovère, Textual
Interpretation of Statutes,
11 N.Y.U. L.Q. Rev. 538 (1934) ..................................... 7
VIII
TABLE OF AUTHORITIES
(continued)
Page(s)
Ilaria Di Gioia, A Tale of Transformation:
The Non-Delegation Doctrine and
Judicial Deference,
51 U. BALT. L. REV. 155 (2022) ................................... 11
John F. Manning, What Divides
Textualists from Purposivists?,
106 COLUM. L. REV. 70 (2006) ..................................... 10
Josef Kohler, Judicial Interpretation of
Enacted Law, in SCIENCE OF LEGAL
METHOD: SELECT ESSAYS BY VARIOUS
AUTHORS (Bos. Book Co. 1917) ..................................... 8
Joshua Weiss, Defining Executive
Deference in Treaty Interpretation
Cases,
79 GEO. WASH. L. REV. 1592 (2011) ............................ 13
Jud Mathews, Deference Lotteries,
91 TEX. L. REV. 1349 (2013)......................................... 15
Keagan Potts, A Solution to the Hard
Problem of Soft Law,
10 MICH. J. ENVTL. & ADMIN. L. 483
(2021) .............................................................................. 19
Kristin E. Hickman & Matthew D.
Krueger, In Search of the Modern
Skidmore Standard,
107 COLUM. L. REV. 1235 (2007) ................................. 14
IX
TABLE OF AUTHORITIES
(continued)
Page(s)
Laurence H. Tribe, “Comment,” in
ANTONIN SCALIA, A MATTER OF
INTERPRETATION: FEDERAL COURTS
AND THE LAW (1997)....................................................... 8
Marissa Corry, Kisor’s Chaos: Conflicting
Meanings of the Clean Air Act’s
“Applicable Requirements” in the Fifth
and Tenth Circuits,
74 SMU L. REV. 749 (2021) .............................. 13, 17, 18
Michael B. Rappaport, Classical Liberal
Administrative Law in a Progressive
World, in HANDBOOK ON CLASSICAL
LIBERALISM (Todd Henderson ed.,
Cambridge Univ. Press 2018) .......................... 15-16, 18
Michael B. Rappaport, Replacing Agency
Adjudication with Independent
Administrative Courts,
26 GEO. MASON L. REV. 811 (2019) ............................. 16
Michael P. Healy, The Past, Present and
Future of Auer Deference: Mead, Form
and Function in Judicial Review of
Agency Interpretations of Regulations,
62 U. KAN. L. REV. 633 (2014) ..................................... 11
Peter L. Strauss, “Deference” Is Too
Confusing-Let’s Call Them “Chevron
Space” and “Skidmore Weight,”
112 COLUM. L. REV. 1143 (2012) ................................. 11
X
TABLE OF AUTHORITIES
(continued)
Page(s)
Richard W. Murphy, Abandon Chevron
and Modernize Stare Decisis for the
Administrative State,
69 ALA. L. REV. 1 (2017) .............................................. 13
Robert A. Anthony, Which Agency
Interpretations Should Bind Citizens
and the Courts?,
7 YALE J. ON REG. 1 (1990) .......................................... 17
Sam DePrimio, Special Delivery: Young v.
United Parcel Service Revives the
Pregnancy Discrimination Act While
Denying Life to EEOC Guidance,
67 ADMIN. L. REV. 389 (2015) ...................................... 13
William N. Eskridge Jr., Expanding
Chevron’s Domain: A Comparative
Institutional Analysis of the Relative
Competence of Courts and Agencies to
Interpret Statutes,
2013 WIS. L. REV. 411 (2013) ....................................... 12
INTRODUCTION AND INTERESTS
OF AMICI CURIAE1
It’s a concept so often repeated that it may strike as a
truism: When construing a statute, a court must start with
the text. But courts still sometimes can’t resist the
temptation to ignore the words on the page to reach
desired ends. And indeed, the decision below is one more
example of that mistaken indulgence. The Court should
use this case to remind all courts that the tried-and-true
lesson of statutory construction still holds. Text reigns.
The Fourth Circuit here paired a purposivist approach
with an overreliance on agency deference to reach a result
that the text of the Fair Labor Standards Act cannot
sustain. The court below recognized that the Act does not
“include language” permitting employees to recover for
“overtime gap time.” Pet.App.14a. Yet the court marched
ahead anyway—repeatedly relying on its own conception
of the FLSA’s “purpose” to fashion a new remedy without
a statutory hook. Perhaps worse still, the Court further
applied something approaching blind deference to the
Department of Labor’s spin on the statute even while
recognizing that the “only other circuit” to “squarely
address” this question gave no deference to that
regulation precisely because it found “no statutory
support.” Id. at 24a (citing Lundy v. Catholic Health Sys.
of Long Island, Inc., 711 F.3d 106, 116 (2d Cir. 2013)). But
the Fourth Circuit thought the “considerable deference”
contemplated in Skidmore v. Swift & Co., 323 U.S. 134
(1944), still permitted it to rely on that interpretation.
1
Under Supreme Court Rule 37.2(a), amici timely notified counsel
of record of their intent to file this brief.
2
The amici States of West Virginia, Alabama, Alaska,
Arkansas, Indiana, Kentucky, Louisiana, Mississippi,
Missouri, Montana, Nebraska, New Hampshire,
Oklahoma, South Carolina, Texas, and Utah believe that
this sort of analysis—untethered from the language of the
statute—cannot and should not become the norm.
Legislatures express their purpose through the words
they enact into law. And notions of administrative
deference must not twist and stretch federal acts to reach
places that Congress never imagined.
Skidmore
deference and similar agency-forward concepts too often
invite mischief from administrative agencies. They
perhaps just as often lead courts astray; administrative
interpretations become the star of the show, and
congressional intent fades to the background. This case
presents an excellent vehicle to rebalance the inquiry.
Detours into purpose and ill-advised forms of
administrative deference should be put to rest.
SUMMARY OF ARGUMENT
The Court should take this case and reverse the
decision below for two reasons.
I. The Fourth Circuit’s opinion relegates statutory
text to a second-class role in statutory construction.
Instead, the court focused on the FLSA’s supposed
purposes. That approach flips the rightful order for
questions like these: Clear text should prevail over extratextual guesses at purpose. Because the text here is plain,
overtime-pay gap claims aren’t viable under the FLSA.
The Fourth Circuit’s purposivist re-drafting of the Act
usurps Congress’s role, leads to unpredictable outcomes,
and produces many other problems that this Court has
long fought off. The case thus provides a good vehicle to
remind courts once more that Congress’s words matter.
3
II. The Fourth Circuit’s opinion also reflects a rot that
has been festering within the doctrine of Skidmore
deference—serious confusion over what it is, when it
applies, and how to apply it. And some decay seeps deeper
than even these concerns let on. At bottom, Skidmore
strikes at the heart of our constitutional order. Now is the
time to look at whether Skidmore is even workable
anymore. And a close look shows that the more elegant
solution is to construe statutes de novo even when nonbinding administrative interpretations are in play; that’s
the review Article III courts were meant to conduct all
along.
REASONS FOR GRANTING THE PETITION
I.
The Decision Below Improperly Elevates A
Statute’s Purpose Over Its Text.
1. The Fourth Circuit interpreted the FLSA without
paying proper attention to the relevant statute’s text. One
provision of the Act requires employers to pay their
employees at a rate “not less” than the federal minimum
wage for every hour they work. 29 U.S.C. § 206(a)(1).
Another requires employers to pay their employees “at a
rate not less than one and one-half times” the employees’
regular pay rate for every hour over 40 hours per week.
Id. § 207(a)(1). But no provision gives an employee a
federal right to “recover unpaid straight time for a week
in which they … work[ed] overtime” when the straighttime pay they did receive at least exceeded federal
minimum wage. Pet.App.14a.
Petitioners are thus right that these “overtime-gaptime claims have no basis in the statutory text.” Pet.19.
The Fourth Circuit, too, acknowledged that “[t]he FLSA
does not include language about overtime gap time.”
4
Pet.App.14a; see also id. (“[N]o provision of the FLSA
explicitly governs employee claims to recover for unpaid
gap time.”). For many courts, this lack of language has
been reason enough to hold that overtime-pay-gap claims
aren’t viable under the FLSA. See, e.g., Lundy, 711 F.3d
at 117 & n.9 (rejecting contrary reading based on DOL
interpretive bulletins because it had “no statutory
support” and was “not grounded in the statute”); Athan v.
U.S. Steel, 364 F. Supp. 3d 748, 755 (E.D. Mich. 2019)
(“[T]he text of the statute is clear insofar as it does not
provide a remedy [for gap-time claims].”); Gould v. First
Student Mgmt., LLC, No. 16-CV-359-PB, 2017 WL
3731025, at *5 (D.N.H. Aug. 29, 2017) (finding that the text
of the FLSA does not permit overtime-gap claims and
rejecting overreliance on agency interpretations);
Murphy v. First Student Mgmt. LLC, No. 1:16-CV-01966DAP, 2017 WL 346977, at *4 (N.D. Ohio Jan. 24, 2017)
(“Because the meaning of the statute is clear and
unambiguous, the Court need not—and does not—look
beyond the plain meaning of the statute itself.”); Rosario
v. First Student Mgmt. LLC, No. CV 15-6478, 2016 WL
4367019, at *6 (E.D. Pa. Aug. 16, 2016) (“Allowing the
plaintiffs to assert an overtime gap time claim here would
be to work an expansion of the congressional intent
reflected in the text of the FLSA.”); Hensley v. First
Student Mgmt., LLC, No. CV 15-3811, 2016 WL 1259968,
at *4 (D.N.J. Mar. 31, 2016) (holding that “[t]he plain
language of the FLSA” rejects overtime-gap claims).
2. Left without textual support, the Fourth Circuit
pushed the statute aside and instead focused its reasoning
on “the purposes of the FLSA” and certain administrative
interpretations. See Pet.App.23a; see also id. at 12a
(explaining that the Fourth Circuit would “begin” its
analysis with “the purposes of the FLSA”); id. at 23a
(finding that a contrary result would “defeat the
5
Congressional purpose” of the Act (cleaned up)). The
latter basis is problematic for many reasons. See infra
Part II. The former one is deeply wrong, too.
The Fourth Circuit mistakenly thought that purported
statutory silence licensed it to go on a hunt for purpose.
But nearly a century-and-a-half ago, this Court
admonished that “[c]ourts cannot supply omissions in
legislation, nor afford relief because they are supposed to
exist.” United States v. Union Pac. R. Co., 91 U.S. 72, 85
(1875). Nothing has changed since. See Little Sisters of
the Poor Saints Peter & Paul Home v. Pennsylvania, 140
S. Ct. 2367, 2381 (2020) (“It is a fundamental principle of
statutory interpretation that absent provisions cannot be
supplied by the courts.” (cleaned up)). After all, when it
comes to statutory interpretation, “it is [the courts’] duty
to respect not only what Congress wrote but, as
importantly, what it didn’t write.” Va. Uranium, Inc. v.
Warren, 139 S. Ct. 1894, 1900 (2019) (plurality op.). So
when a statute “says nothing about [certain types of]
claims,” it is generally “improper to conclude that what
Congress omitted from the statute is nevertheless within
its scope.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S.
338, 353 (2013). Silence thus begins and ends the analysis.
Starting with text in this way is a cornerstone of our
legal system. The “elementary” principle that “the
meaning of a statute must, in the first instance, be sought
in the language” appears—rightfully—at the start of most
every case involving statutory interpretation. Caminetti
v. United States, 242 U.S. 470, 485 (1917). Indeed, judges
should “always … begin with the text of the statute.”
Limtiaco v. Camacho, 549 U.S. 483, 488 (2007). But read
the decision below carefully: This long-held principle
appears nowhere in the opinion. Nor did the Fourth
Circuit tackle “whether the statutory text is plain and
6
unambiguous.” Carcieri v. Salazar, 555 U.S. 379, 387
(2009). Instead, it employed its passing shot mention of
“silence” and then jumped straight to purpose and
administrative deference.
3. But when—as here—what the text does and does
not say is clear, that clarity should end the matter. In
cases like this, “the sole function of the courts is to enforce
[the law] according to its terms.” United States v. Ron
Pair Enters., Inc., 489 U.S. 235, 241 (1989) (cleaned up).
“[T]he choice” to expand or contract a statute “is not [a
court’s] to make.” CSX Transp., Inc. v. Ala. Dep’t of
Revenue, 562 U.S. 277, 296 (2011). “Congress wrote the
statue it wrote,” and that is all courts can deal with. Id.
Indeed, even if there is a potential for “harsh results”
or “strict” dispositions, courts are “not free to rewrite”
statutes. Dodd v. United States, 545 U.S. 353, 359 (2005).
If the statute has an undesirable result, “[i]t is for
Congress, not [the courts], to amend” it. Id. Courts are
“bound to operate within the framework of the words
chosen by Congress and not to question the wisdom of the
latter in the process of construction.” Richards v. United
States, 369 U.S. 1, 10 (1962). Whether a statute
“differently conceived and framed would yield results
more consonant with fairness and reason” is irrelevant.
Anderson v. Wilson, 289 U.S. 20, 27 (1933). Courts “take
the statute as [they] find it.” Id.
Yet here the Fourth Circuit took up the drafting pen,
anyway.
The Fourth Circuit stepped beyond its proper role and
acted based on what it believed “Congress would have
wanted” instead of “what Congress enacted.” Argentina
v. Weltover, Inc., 504 U.S. 607, 618 (1992) (cleaned up).
Following this method takes courts down a treacherous
7
path of guessing games and uncertainty. Courts should
not pretend that they know the desires of legislators who
passed a law. And even if they could somehow peek into
one legislator’s mind, it is “impossible for a court—even
one that knows each legislator’s complete table of
preferences—to say what the whole body would have done
with a proposal it did not consider in fact.” Frank H.
Easterbrook, Statutes’ Domains, 50 U. CHI. L. REV. 533,
547-48 (1983).
In other words, when a court relies on purpose above
all else (as the Fourth Circuit did below), it encroaches on
the legislative process. The “very essence” of that process
is “[d]eciding what competing values will or will not be
sacrificed to the achievement of a particular objective.”
Rodriguez v. United States, 480 U.S. 522, 526 (1987).
Courts cannot identify a gap and then assume that the
legislature would have chosen to fill it in the way the court
believes. Such an approach would produce “little more
than wild guesses.”
Easterbrook, supra at 548.
Interpretations of this kind represent “a bald assertion of
an unspecified and hence unbounded judicial power to
ignore what the law says.” ANTONIN SCALIA & BRYAN B.
GARNER, READING LAW: THE INTERPRETATION OF
LEGAL TEXTS 343 (2012). And practically speaking,
doctrines that ignore text “lead more often” to “spurious
interpretation and to completely unforeseeable and
unreasonable results.” Frederick J. de Sloovère, Textual
Interpretation of Statutes, 11 N.Y.U. L.Q. Rev. 538, 542
(1934). Legislative divination is not—and should not—be
the way that judges treat duly enacted laws.
Congress, of course, makes many concessions and
sacrifices in passing laws. After all, “[l]egislation is … the
art of compromise.” Henson v. Santander Consumer
USA Inc., 137 S. Ct. 1718, 1725 (2017). So by the time a
8
law is adopted, “all that is really agreed upon is the
words.” Josef Kohler, Judicial Interpretation of Enacted
Law, in SCIENCE OF LEGAL METHOD: SELECT ESSAYS BY
VARIOUS AUTHORS 187, 196 (Bos. Book Co. 1917). Yes, a
judge sitting in the quiet of chambers years later may spot
something to advance the statute’s seeming purpose. But
omitting that something from the text may have been “the
price of passage.” Henson, 137 S. Ct. 1725. Thus, “it is
the text’s meaning, and not the content of anyone’s
expectations or intentions, that binds us as law.”
Laurence H. Tribe, “Comment,” in ANTONIN SCALIA, A
MATTER OF INTERPRETATION: FEDERAL COURTS AND
THE LAW 65, 66 (1997). “[I]t frustrates rather than
effectuates legislative intent simplistically to assume that
whatever furthers [a] statute’s primary objective must be
law.” Rodriguez, 480 U.S. at 526 (emphasis in original).
The rule holds even if everyone agrees the general
purpose of a statute might counsel toward a particular
(but extra-textual) result. Courts are “not free to
disregard” text to “achiev[e] the general purpose” of a
statute in a particular case. Comm’r v. Gordon, 391 U.S.
83, 93 (1968). Judges do not have a “roving license … to
disregard clear language simply on the view that
Congress must have intended something broader.”
Michigan v. Bay Mills Indian Cmty., 572 U.S. 784, 794
(2014). Rather, it is a court’s job to “apply faithfully the
law Congress has written.” Henson, 137 S. Ct. at 1725. A
“purposive argument simply cannot overcome the force of
the plain text.” Mohamad v. Palestinian Auth., 566 U.S.
449, 460 (2012).
4. True, courts can use purpose in narrow places—
but to bolster the text. A court might use purpose “in case
of ambiguity” “to find present rather than absent
elements that are essential to operation of a legislative
9
scheme.” Dir., Off. of Workers’ Comp. Programs v.
Newport News Shipbuilding & Dry Dock Co., 514 U.S.
122, 136-37 (1995). But under that view, a statute’s
purpose cannot be used to “add features that will achieve
the statutory ‘purposes’ more effectively” in a court’s eyes.
Id. at 137 (emphasis added). Statutes propose “not only to
achieve certain ends, but also to achieve them by
particular means.” Id. In ignoring this reality, the Fourth
Circuit elided a key feature of our constitutional system:
the “legislative battle over what those means ought to be.”
Id. A statute’s purpose might also become important
when “a genuine question” arises “as to the meaning of
one of the requirements Congress has imposed.” Gordon,
391 U.S. at 93. Yet notice what else is missing from the
Fourth Circuit’s opinion—any true suggestion that the
statute presents a “genuine question” or ambiguity.
Instead, the opinion proceeds to purpose simply because
the panel was evidently uncomfortable with leaving a
federal remedy off the table (even though state law would
provide relief).
And even if the FLSA’s purpose were useful here—it’s
not—the Fourth Circuit used it incorrectly, anyway. In
its hunt for the spirit of the law, the Fourth Circuit forgot
that a law’s “spirit” must be “collected chiefly from its
words” and not from a court’s own beliefs or assumptions.
Sturges v. Crowninshield, 17 U.S. 122, 202 (1819). Unless
the text confirms a purpose, courts should not speculate
about what the legislature would have had the law do in a
given scenario. And “no legislation pursues its purposes
at all costs.” Rodriguez, 480 U.S. at 525-26. So a statute’s
purpose “cannot compensate for the lack of a statutory
basis.” Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 171
(2007).
10
5. This Court has “often criticized” the use of purpose
as a “last resort of extravagant interpretation.” Rapanos
v. United States, 547 U.S. 715, 752 (2006) (plurality op.).
For good reason. The Fourth Circuit took a broad concept
of purpose—the idea that the FLSA was meant to protect
workers from low wages and long hours, Pet.App.12a—
and reasoned from there. But that chain of logic would
lead courts to find a federal remedy for a plaintiff invoking
the statute in just about any work-pay-related context.
Nothing suggests Congress wanted that. See Encino
Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018)
(rejecting the notion that the FLSA should be construed
broadly and emphasizing that the Act gives courts “no
license to give [the text] anything but a fair reading”).
Laws do not always “fully address a perceived mischief.”
John F. Manning, What Divides Textualists from
Purposivists?, 106 COLUM. L. REV. 70, 104 (2006). Often,
legislators compromise and “accept[] half a loaf to
facilitate a law’s enactment.” Id. Courts should not try to
bake the other half back in.
The Court should thus grant certiorari not just to fix
the acknowledged circuit split here, but also to remind
courts to stay firmly focused on text.
II.
The Decision Below Is The Right Vehicle To Fix
The Problems With Skidmore Deference.
Although Petitioner’s plain-text reading shows the
sufficiency of de novo statutory construction, Pet.19-20,
other problems with the Fourth Circuit’s ruling
underscore its need. Finding no succor in the text, the
Fourth Circuit also tried to patch its opinion with
Skidmore deference. But courts and scholars alike
haven’t been sure what to do with Skidmore deference for
a long while. This confusion assumes many forms. And it
11
has now reached a point when the Court should step in to
clarify just what to do about it—including whether the
doctrine should disappear entirely.
A. Judicial Confusion Worsens With Skidmore
Deference.
1. Right at the start, no one truly knows whether
Skidmore even calls for deference to informal agency
interpretations. See, e.g., Michael P. Healy, The Past,
Present and Future of Auer Deference: Mead, Form and
Function in Judicial Review of Agency Interpretations of
Regulations, 62 U. KAN. L. REV. 633, 669-70 (2014) (“The
Skidmore regime does not actually involve deference by a
court.” (emphasis in original)). According to this Court,
informal interpretations are “‘entitled to respect’ … but
only to the extent that those interpretations have the
‘power to persuade.’” Christensen v. Harris Cnty., 529
U.S. 576, 587 (2000). Some have called this idea a doctrine
of “weight.” See, e.g., Peter L. Strauss, “Deference” Is
Too Confusing—Let’s Call Them “Chevron Space” and
“Skidmore Weight,” 112 COLUM. L. REV. 1143, 1145 (2012)
(“‘Skidmore weight’ addresses the possibility that an
agency’s view on a given statutory question may in itself
warrant respect by judges who themselves have ultimate
interpretive authority.”). Others see it as a “standard” of
“pragmatic considerations.” Ilaria Di Gioia, A Tale of
Transformation: The Non-Delegation Doctrine and
Judicial Deference, 51 U. BALT. L. REV. 155, 167 (2022).
Whatever the label, this view of Skidmore implies that the
agency’s opinion plays a smallish role in a court’s
analysis—not a judicial-abdication one.
Below, the Fourth Circuit went a different direction
entirely: It afforded the interpretation of the Labor
Department’s Wage and Hour Division Administrator
12
“considerable deference.” Pet.App.16a. And it did so
based on a Fourth Circuit case that cited pre-Chevron
authority on the Housing and Urban Development
Department’s interpretation of the Fair Housing Act. See
Watkins v. Cantrell, 736 F.2d 933, 943 (4th Cir. 1984)
(quoting Gladstone, Realtors v. Vill. of Bellwood, 441 U.S.
91, 107 (1979)). In practical effect, the Fourth Circuit
seemed to presume that the agency’s view should prevail
so long as it wasn’t unreasonable—a standard perhaps
even more forgiving than traditional Chevron deference.
But whatever the Fourth Circuit’s approach was, it went
well beyond Skidmore’s “respect.” Worse, other courts
have appeared to make the same mistake. See, e.g.,
Tualatin Valley Builders Supply, Inc. v. United States,
522 F.3d 937, 942 (9th Cir. 2008) (purporting to apply
Skidmore but then affording an IRS revenue procedure
“significant deference”).
2. Beyond this basic problem of defining Skidmore
“deference,” courts have struggled to explain when it
should apply as opposed to other administrative deference
doctrines. One study, for example, found that even this
Court has “applie[d] [the federal deference regime] in a
haphazard manner.” William N. Eskridge Jr., Expanding
Chevron’s Domain: A Comparative Institutional
Analysis of the Relative Competence of Courts and
Agencies to Interpret Statutes, 2013 WIS. L. REV. 411, 447
(2013). When trying to categorize cases by the type of
deference they applied, researchers were forced do some
“inventive coding,” effectively inventing a new doctrine of
“Skidmore Lite” deference to account for the wild
variances in its application. Id.
Even after United States v. Mead Corp., 533 U.S. 218,
234 (2001), courts have still had trouble deciding whether
Skidmore or Chevron deference applies in a given case.
13
See, e.g., Marissa Corry, Kisor’s Chaos: Conflicting
Meanings of the Clean Air Act’s “Applicable
Requirements” in the Fifth and Tenth Circuits, 74 SMU
L. REV. 749, 759 (2021) (“Mead’s revival of Skidmore has
only added to the confusion surrounding Chevron.”); Sam
DePrimio, Special Delivery: Young v. United Parcel
Service Revives the Pregnancy Discrimination Act While
Denying Life to EEOC Guidance, 67 ADMIN. L. REV. 389,
397 (2015) (citing Reno v. Koray, 515 U.S. 50 (1995), as
“one example of the Court applying a Chevron deference
analysis to a fact pattern that warrants Skidmore
deference”); In Wilderness Watch v. Mainella, 375 F.3d
1085, 1091 & n.7 (11th Cir. 2004) (applying Chevron after
admitting that Skidmore applies “when, as here, the
agency interpretation does not constitute the exercise of
[the agency’s] formal rule-making authority”). So more
than a few courts decline to decide that question at all,
further muddling the two concepts. See, e.g., Env’t
Integrity Project v. EPA, 969 F.3d 529, 540 (5th Cir. 2020);
Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 220 (2d Cir.
2014); see also Joshua Weiss, Defining Executive
Deference in Treaty Interpretation Cases, 79 GEO. WASH.
L. REV. 1592, 1599 (2011) (citing a “growing body of
evidence” suggesting that courts do not treat Chevron and
Skidmore as meaningfully different); Richard W. Murphy,
Abandon Chevron and Modernize Stare Decisis for the
Administrative State, 69 ALA. L. REV. 1, 41 (2017)
(“[S]ome judges take the view that Skidmore, at bottom,
really calls for the same level of scrutiny as Chevron’s
rationality review.”).
In this case, of course, the Fourth Circuit at least
purported to choose Skidmore over Chevron. But even
then it landed on something much closer to Chevron in
substance. The footnote the Fourth Circuit leaned on had
“recognize[d] that there is a difference between
14
‘regulations’ … and ‘official interpretations.’” Monahan
v. Cnty. of Chesterfield, 95 F.3d 1263, 1273 n.10 (4th Cir.
1996). But Monahan also quickly emphasized substantial
deference for even these informal statements. Id. From
this decades-old footnote’s discussion of deference, courts
in the Fourth Circuit have fashioned a doctrine that very
nearly defers automatically to longstanding agency
interpretations, formal or informal. See, e.g., Koelker v.
Mayor & City Council of Cumberland, 599 F. Supp. 2d
624, 633 (D. Md. 2009) (relying on DOL interpretations,
with no discussion of their persuasiveness, in holding that
overtime-gap time must be paid under the FLSA).
3. Even when courts identify Skidmore as the right
standard, and even when they properly characterize the
weight it requires, there’s still plenty of confusion about
the mechanics of applying it. Skidmore itself “did not
provide a theoretical basis for its multifactor approach,”
“explain why the approach was appropriate,” or describe
how other unlisted factors with the power to persuade
might work. Aditya Bamzai, The Origins of Judicial
Deference to Executive Interpretation, 126 YALE L.J. 908,
979 (2017). Lacking this foundation, courts—including
this one—“[a]lmost immediately” began applying the
Skidmore principles “inconsistently.” Id. Among other
problems, “[t]he cases reveal disparate approaches to
which factors should be applied first, how the factors
relate to each other, and what each factor means.” Kristin
E. Hickman & Matthew D. Krueger, In Search of the
Modern Skidmore Standard, 107 COLUM. L. REV. 1235,
1291 (2007).
What’s more, as Petitioner explains, the circuit courts
have developed two competing frameworks for applying
Skidmore. See Pet.16-19 (discussing the “independent
judgment” and “sliding scale” approaches). It’s not clear
15
how consistent these frameworks are with one another.
At least according to some scholars, they could hardly be
more different: Courts applying a sliding scale “are
sensitive to indicia of agencies’ reliability and fidelity,”
while the independent-judgment model “is tantamount to
de novo review.” Jud Mathews, Deference Lotteries, 91
TEX. L. REV. 1349, 1369 (2013). So even if litigants can
foresee that Skidmore will apply, they are still left to
guess what the net effect of that “deference” might be.
Skidmore, then, stands in a bewildering state of play.
Is it deference, weight, or something else? Does it apply
to all informal agency decisions, or just some? And
fundamentally, how should courts apply it? The Court
should grant certiorari to answer at least some of these
questions with finality. It makes no sense to keep courts
confused when engaging with such important concepts.
B. The Court Should Scatter The Skidmore Fog
By Doing Away With The Doctrine.
And in truth, the Court should grant review to do more
than nudge courts to more carefully apply Skidmore. It
should go further and dispense with Skidmore entirely.
If one beam shines through this confusion, it’s this:
Skidmore is no good way to build a jurisprudence of
statutory interpretation. It likely never was. Rather than
grappling with whether and how to apply Skidmore
deference (weight? respect? independent judgment?
sliding scale?), we should put Skidmore to rest. And the
amici States aren’t alone in saying so. Others are on
board, too. See, e.g., Mot. for Leave to File Amici Brief by
Pacific Legal Foundation at 5-8, E.I. Du Pont De
Nemours & Co. v. Smiley, No. 16-1189 (U.S. May 3, 2017)
(explaining in detail why “Skidmore Unconstitutionally
Cedes Judicial Power to the Executive Branch”); Michael
16
B. Rappaport, Classical Liberal Administrative Law in a
Progressive World, in HANDBOOK ON CLASSICAL
LIBERALISM 29 (Todd Henderson ed., Cambridge Univ.
Press 2018), available at https://bit.ly/3xCFvz9 (arguing
that Skidmore should be rejected for improperly
“confer[ring] a privilege on the government”). And for
good reason.
First, ending Skidmore deference in favor of a de novo
judicial interpretation restores balance to our
constitutional separation of powers. The Constitution is
clear: “The judicial Power of the United States, shall be
vested in” the Article III courts. U.S. CONST. art. III, § 1.
The Administrative Procedure Act is clear, too: Article III
courts, not Article II agencies, “shall decide all relevant
questions of law.” 5 U.S.C. § 706. Had the APA’s enactors
“wanted to require courts to give additional weight to
agency expertise,” they could have done so. Bamzai,
supra at 985-86. Section 706 was in fact based on a
proposed bill that had “a single, glaring difference” that
ended up on the cutting room floor: “a proviso requiring
that a reviewing court give ‘due weight’ to agency
‘technical competence’ and ‘specialized knowledge.’” Id.
These origin stories make clear that Congress always
planned for an independent judiciary, and it was always
the point. When courts compromise that commitment, it
endangers the entire system.
Some might complain that de novo review is too
unpredictable, while agency deference offers consistency.
But a case-specific approach is a feature, not a bug, of our
“strong separation of powers.” Michael B. Rappaport,
Replacing Agency Adjudication with Independent
Administrative Courts, 26 GEO. MASON L. REV. 811, 832
(2019). “[O]ur Constitution unambiguously … commands
that the independence of the Judiciary be jealously
17
guarded.” N. Pipeline Const. Co. v. Marathon Pipe Line
Co., 458 U.S. 50, 60 (1982) (plurality op.). So the Court
should defend it now by ending Skidmore. In contrast,
routinely accepting the agency’s view without real
engagement on the substance “endow[s]” the agency’s
views “with force of law where Congress did not intend
them to have such force.” Robert A. Anthony, Which
Agency Interpretations Should Bind Citizens and the
Courts?, 7 YALE J. ON REG. 1, 57 (1990). Predictability,
then, comes at a steep cost.
Second, ending Skidmore deference will improve every
part of how federal courts decide administrative cases.
From the initial inquiry, to the consideration of expertise,
to the leveling out of an agency’s “power to persuade,”
Skidmore, 323 U.S. at 140, treating all litigants the same
(instead of favoring agencies and their informal
statements) will give them the “neutral forum for their
disputes that they rightly expect and deserve.” Kisor v.
Wilkie, 139 S. Ct. 2400, 2448 (2019) (Gorsuch, J.,
concurring in the judgment). Take the threshold question,
for starters. The same type of “multi-step, multi-factor
inquiry” with which the Court recently saddled lower
courts applying Auer deference has already burdened
those same courts as they sort through Skidmore. Id. at
2447-48; see Mead, 533 U.S. at 235 (expanding the
Skidmore factors to include “the merit of [the agency]
writer’s thoroughness, logic, and expertness, its fit with
prior interpretations, and any other sources of weight”
(emphasis added)). Indeed, “after Kisor, the Skidmore
and Auer analyses overlap almost entirely, making it
doubtful that Skidmore will resolve any of the issues that
Auer has generated.” Corry, supra at 780. Now, as a
result, “lower courts may be even more uncertain about
how to apply Skidmore compared to Auer,” and “given the
overlap between these doctrines, one could criticize
18
Skidmore deference for all the same reasons Auer has
been criticized.” Id. The Court should untie this knot.
Skidmore proponents often justify its spot on the
federal deference continuum by noting that generalist
judges lack the agencies’ expertise. But courts have
expertise in statutory interpretation. By elbowing out a
text-based de novo review, Skidmore thus gets the
calculus backwards. De novo review helps ensure a right
result. Required deference to the “persuasive power” of
“an agency’s interpretation” does not. Kisor, 139 S. Ct. at
2424 (Roberts, C.J., concurring in part). Judges need
flexibility to do “their job of interpreting the law.” Id. at
2426 (Gorsuch, J., concurring in the judgment). And “it is
not necessary to have Skidmore deference to incorporate
expertise” into a true de novo review: The court receives
the papers from the parties, and “[i]f an agency exhibits
expertise, then its actions will be more persuasive to the
court than if the agency does not do so.” Rappaport,
Classical Liberal Administrative Law in a Progressive
World, at 29. The same is true for a private party. See id.
The courts “would then fulfill their duty to exercise their
independent judgment about what the law is” by weighing
the most convincing arguments. Gutierrez-Brizuela v.
Lynch, 834 F.3d 1142, 1158 (10th Cir. 2016) (Gorsuch, J.,
concurring) (emphasis in original).
By adhering to de novo judicial review of the law’s
meaning, “an agency” would also have a reduced
“ability … to alter and amend existing law.” GutierrezBrizuela, 834 F.3d at 1158. This benefit cannot be
overstated. “After all, Skidmore deference only makes a
difference when the court would not otherwise reach the
same interpretation as the agency.” E.I. Du Pont De
Nemours & Co. v. Smiley, 138 S. Ct. 2563, 2564 (2018)
(statement of Gorsuch, J., joined by Roberts, C.J., and
19
Thomas, J., respecting the denial of certiorari). Agencies
sometimes “use [] guidance documents to circumvent
accountability requirements and issue regulations without
public input,” but this “cause for concern” would be
deflated without Skidmore deference there to keep it
afloat. Keagan Potts, A Solution to the Hard Problem of
Soft Law, 10 MICH. J. ENVTL. & ADMIN. L. 483, 495 (2021)
(citing Nina A. Mendelson, Regulatory Beneficiaries and
Informal Agency Policymaking, 92 CORNELL L. REV.
397, 408 (2007) (explaining how guidance documents are
subject to lesser public input and congressional and
executive oversight)).
Relatedly, a system is not worth its salt if its litigants
have no “assurance that the rug will not be pulled from
under them tomorrow, the next day, or after the next
election.” Gutierrez-Brizuela, 834 F.3d at 1158 (Gorsuch,
J., concurring). And our system of government favors
public participation, rather than agency heads developing
policies in the dark. A federal-deference doctrine that
encourages agencies to undermine both these principles is
not worth keeping around. Courts should resist this kind
of “sap[ping] [of] judicial power … under the federal
Constitution” and “establish[ment] [of] a government of a
bureaucratic character alien to our system.” Crowell v.
Benson, 285 U.S. 22, 57 (1932). Skidmore “deference”
threatens that character by muddying the waters of what
Article III judges consider when assessing non-binding
agency interpretations. Ending Skidmore will go a long
way to clearing things up. And along the way, it will
reaffirm two key principles: A court should not interpret
a statute based on either its well-intentioned notion of how
to achieve the statute’s “purpose” or an agency’s
bureaucratic gloss on how the statute should read. The
Court should grant certiorari to insist lower courts heed
both.
20
CONCLUSION
The Court should grant the Petition and reverse.
Respectfully submitted.
PATRICK MORRISEY
Attorney General
OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
lindsay.s.see@wvago.gov
(304) 558-2021
LINDSAY S. SEE
Solicitor General
Counsel of Record
MICHAEL R. WILLIAMS
Senior Deputy Solicitor
General
CALEB A. SECKMAN
Assistant Solicitor General
Counsel for Amicus Curiae State of West Virginia
21
ADDITIONAL COUNSEL
STEVE MARSHALL
Attorney General
State of Alabama
AUSTIN KNUDSEN
Attorney General
State of Montana
TREG TAYLOR
Attorney General
State of Alaska
DOUGLAS J. PETERSON
Attorney General
State of Nebraska
LESLIE RUTLEDGE
Attorney General
State of Arkansas
JOHN FORMELLA
Attorney General
State of New Hampshire
THEODORE E. ROKITA
Attorney General
State of Indiana
JOHN M. O’CONNOR
Attorney General
State of Oklahoma
DANIEL CAMERON
Attorney General
State of Kentucky
ALAN WILSON
Attorney General
State of South Carolina
JEFF LANDRY
Attorney General
State of Louisiana
KEN PAXTON
Attorney General
State of Texas
LYNN FITCH
Attorney General
State of Mississippi
SEAN D. REYES
Attorney General
State of Utah
ERIC S. SCHMITT
Attorney General
State of Missouri
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.