# Petition for Writ of Certiorari — Long Island Care at Home, Ltd. v. Coke > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0503%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 - **Citation:** 551 U.S. 158 ## Text Supreme . O p en (Court U.S. No. 06- 06-593 SEP 26 2006 F THE CLERK IN THE Supreme Court of the United States LONG ISLAND CARE AT HOME, LTD. AND MARYANN OSBORNE, Petitioners. Vv. EVELYN COKE, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit PETITION FOR A WRIT OF CERTIORARI DANIEL S. ALTER H. BARTOW FARR, Ill ALTER & ALTER (Counsel of Record) 300 East 42nd Street RICHARD G. TARANTO 10th Floor FARR & TARANTO New York, NY 10017 1220 19th Street, NW (212) 867-7777 Suite 800 Washington, DC 20036 (202) 775-0184 WiLSON-EPES PRINTING CO., INC - (202) 789-0096 -— WASHINGTON, D C. 20001 wae QUESTIONS PRESENTED 1. Whether the Second Circuit erred in refusing to give deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, inc., 467 U.S. 837 (1984), to a thirty-year-old Department of Labor regulation—a regulation that has twice been upheld by the Tenth Circuit—on the ground that, even though it was promulgated under express grants of legislative authority and after full notice-and-comment rulemaking, the regulation was contained in a subpart headed “Interpreta- tions.” 2. Whether, in holding that a longstanding Department of Labor regulation was not persuasive and thus undeserving of any deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), the Second Circuit erred by failing to address the governing provisions of the Fair Labor Standards Act and by declining to give any weight to the Department’s interpreta- tion of its own regulations. (1) il RULE 29.6 STATEMENT Petitioner Long Island Care at Home, Ltd. has no parent company, and there are no publicly held companies that hold any stock of Long Island Care at Home, Ltd. TABLE OF CONTENTS ee yg 8 1, | |.) TAFE BOLD DEPLETE cesesecccsssovssevssosnscsscsososssesensens OPENING BELOW .......00...rcceeoresversreesssosserssnsnenrecsesese ET vivcintisindeitinsihindciniineniiomnnnenuananernsionnnens STATUTORY AND REGULATORY PROVISIONS RES RES a I ir rece Ea ene Oe ee NES SE TIIIITTE ‘dchctuiopncicsindinmcdiniiseninniines A RANEES SS MOONE POD A. The Statutory and Regulatory Framework .......... She. nan ccinsthbdinadiabuiniiaspinnnesdinensenselisonipeiibieialtediiées REASONS FOR GRANTING THE WRIT .................. I. THE SECOND CIRCUIT DECISIONS, BY INVALIDATING A REGULATION TWICE UPHELD BY THE TENTH CIRCUIT, DIS- RUPT LONGSTANDING PRACTICES AND THREATEN A SERIOUS DISLOCATION Il. THE DECISIONS BELOW WRONGLY FAIL TO GIVE CHEVRON DEFERENCE TO A REGULATION PROMULGATED UNDER EXPRESS DELEGATIONS OF LAWMAKING AUTHORITY AND AFTER NOTICE-AND-COMMENT RULEMAKING. Ill. THE DECISIONS BELOW, IN REFUSING TO ACCORD EVEN SKIDMORE. DEF- ERENCE, CONTRAVENE THE PROVI- SIONS OF THE ACT AND IMPROPERLY DISREGARD THE DEPARTMENT’S IN- TERPRETATION OF ITS OWN REGULA- A NY NY NHN 10 13 16 23 iV TABLE OF CONTENTS—Continued CONCLUSION ... APPENDICES APPENDIX A: APPENDIX B: APPENDIX C: APPENDIX D: APPENDIX E: APPENDIX F: APPENDIX G: SEETHER EEE EEE HEE Oe SORE REET EEE EEE ERE EHH ee Second Circuit Opinion.................+. District Court Opinion ..............006 Second Circuit Stay Order-.............. Wage and Hour Advisory Memo- CRORE EEE EOE HETERO Statutes and Regulations.................. Se Page V TABLE OF AUTHORITIES CASES Page Alaska Dept. of Health and Social Services v. Centers for Medicare and Medicaid Services, 424 F.3d 931 (9th Cir. 2005)........... guagenbuaceaies 19 American Airlines, Inc. v. Dept. of Transporta- tion, 202 F.3d 788 (Sth Cir. 2000)...........00000... 22 American Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106 (D.C. Cir. ESSE eee eee 21 Arnold v. Ben Kanowsky, Inc., 361 U.S. 388 EL ce 6 Auer v. Robbins, 519 U.S. 452 (1997)........cccc000. 9,12, 18 Barnhart v. Walton, 535 U.S. 212 (2002) ............. 19, 23 Bowles v. Seminole Rock & Sand Co., 325 U.S. acini cdaessennenstaate 13, 28 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)... passim Christenser v. Harris County, 529 U.S. 576 SE cca eee 10, 17, 29 Chrysler Corp. v. Brown, 441 U.S. 281 (1979)..... 21 Columbia Broadcasting System v. United States, act cctaisaneenemsnannnenns 22 Gonzales v. Oregon, 546 U.S. __, 126 S. Ct. SEES ee 16, 17 Jay v. Boyd, 351 U.S. 345 (1956) .......cccccceereeees 29 Johnston v. Volunteers of America, Inc., 213 F.2d 559 (2000), cert. denied, 532 U.S. 1072 EEE re 8,11, 14 Koyo Seiko Co., Ltd. v. United States, 258 F.3d i irsicecntrcencennnenien 19 Lincoln v. Vigil, 508 U.S. 182 (1993)..........ccce 17 Long Island Care at Home, Ltd. v. Coke, 126 S. TT csc iniccitasesscsinbcippenctgnnnanseenanmcnceen 1] vi TABLE OF AUTHORITIES—Continued Page Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144 (1991) .............. 23, 29 Metropolitan Stevedore Co. v. Rambo, 521 U.S. Ir AITTITTITTUTINdshroisicianhiteiataiceaaaiinibaniaseentaliainlaisilatandadatiaaes 23 Mitchell v. Lublin, McGaughy & Assocs., 358 ST TET IT ichnidinsennltibinbinsteintthincdenabamiameniatiias 6 Motion Picture Ass'n of America, Inc. v. FCC, 309 F.3d 796 (D.C. Cir. 2002)..............00cceessees 20 National League of Cities v. Usery, 426 U.S. 833 PITTED seaiinsiheanennibaeibinaiisdiamcadiabateldiniaiiiediicahiiaaiag 3, 25 National Cable & Telecomm. Ass'n v. Brand X_ | Internet Services, 545 U.S. 967 (2005) ............. 12,19 Perez-Olivo v. Chavez, 394 F.3d 45 (lst Cir. STs eieseniheiaabaeielmailmnahietiastatimeenad 19, 20 Robertson v. Methow Valley Citizens Council, I I i sicicinlieiinitiintimerainiiantimetanis 28 Shotz v. City of Plantation, Fla., 344 F.3d 1161 IN, I icine aliaaitinttaiiieaa 12,19 Skidmore v. Swift & Co. 323 US. 134 Sa ciihishiniiniiesisisaiipaihdititiaintaeaaidnininniaeiaeamea 2, 8, 12, 23 Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000).... 22 Stinson v. United States, 508 U.S. 36 (1993) ....13, 28, 29 Sutton v. United Air Lines, Inc., 527 U.S. 471 SETI UI inseticiniiaciiaiipintndehitridaeiinnseiaamuinantteinainaiitaliaaiates 28 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 EU all rsishsiciesnnieeshiieinesinicenihuaibiisininniaiegbiadsaiiieninmeniee 22, 28 Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985).......cccccecceeeeees 3, 25 United States v. Cleveland Indians Baseball Co.., ee ae SUT citinsiichiscnshiniiiubincinenmsatnesiemann 29 United States v. Mead Corp., 533 U.S. 218 ITT atiasnsnetnineienennvengesebiannepmnmepnismmimeneR passim vil TABLE OF AUTHORITIES—Continued Page Whitaker v. Thompson, 353 F.3d 947 (D.C. Cir. Sianeli icitiniuititeieniadeeiiindaniintiienatianatininiiieapiiiaiadliniipmianines 12,19 White v. Scibana, 390 F.3d 997 (7th Cir. 2004)..... 12, 19 White v. Shalala, 7 F.3d 296 (2d Cir. 1993).......... 6 Yellow Transportation, Inc. v. Michigan, 537 Se IIIT ccusshsihissiistnicwcsiniiaiipulapatlenneiiilbdieiinatiiiia 18 OTHER MATERIALS ae Oe SE iciisdccniiccinssesndsiisieniiinnniniaianiniien 20 Be Or ia iccaiccsiscstssinnsiiitinnesialcabiitnsindadiiididiatin 2 Is TPTIIITT sscstsiieittbaicseceiincibatiahuciaddeininiialainiaiasneiibeniin 2 See kisisicicisieeniecliciicdaeinietieniaeliddhiadlieiiiabitie 3, 25 Ii STITT iciinethishcientitbiapciinahitanieldeasiidandaieiinimaihsialeediealie 3 SUT teehee 3, 25, 26 | ERE ene er ns nee a Se 3 His Sent inieuiniescciinchselebhiihinigielilaiaai 3, 25, 26 2} SNES ean ce sen nnn rence RO passim ie Oe TD sctosccinsitinieimnsinisniinates 3, 25 Ne a ccchicicesisiitiinniinnicineiihoniniigbicitioes 4 ee Se SNe ciansvadntninentsinnninapitniccnsiinisonsinnnsaie + I See actianccitincncenanansenssisinnsaninindnttiaiiniiion 5 ES SE GPIIIT nctsisssisnsnsennsslecsichnibeiaieneliaidisetbaniniaabilia + ee 5 ry I N echecncticncicninisceniiesisiieianiniininmmieiaticiinns 5 ee i Cee ecsicvvindinansnsncccnaisccninptcinncpuvennennges 5 ee ES citinictsncniccinstniseasictcataisaiaiseaaicatdueiiniaitn 5 RN I II hciisshscisesencttiiitsinitereninsehnsilviiiiiiteliainiiniiale 5 Se Ms ST tisinianssinicinsiseshininnticibtinstincionsininicniesigig 5 Se Pe Dl eicccnscccscescsccsnntsinsenianeinniensenniinen 6, 14 ens OF SU snicttntevciinevininiicaneicclasinniiatiannitiiio 4 Ss Ui stichaisniicssialisiiesitalneionianiiebshiahelsbidensiibiiaiiginiipin 2 i NTI iieiienlasthnsnepeiiidaieseanainastiaidiii 7 ie I dnisihininstibiniiesincienbhsnniiinentispnsienmpinnianibediicitineaiio’ passim Se ET scccisacnnniniinaniiineitcniteinpaiicvmmiaiitinitiaiin passim Vill TABLE OF AUTHORITIES—Continued Page EE TEIN: Ree ae REE 4 _*_ SCESE ELENA Seana eens nO oN 5, 22 I I nica iataceii atlanta ldaiaa passim ra UIITscasiushiieniieiieiitainiiaseiaiitiaiaiaaiagiiaiaiiininien 18 Department of Labor’s Wage and Hour Advisory Memorandum No. 2005-1 (December 1, 2005).” 126 S. Ct. 1189 (2006)... eee 9 H.R. Rep. No. 93-913, 93rd Cong., 2d Sess. 2845 STITT cciscceaninsdeatoesidehideicitiahiabesiaiaimannsidhdiniatnaeiigaieaatiee 3, 26 Fair Labor Standards Act of 1974, Amendments Pub. L. 93-259, 88 Stat. 55 § 29(b), 88 Stat. Web seihiniediiaseniiiiibianielaiittaminstien sdiisedbibeishtlaiandeaasaditiunanida 4, 18,21 IN THE Supreme Court of the Anited States No. 06-__ LONG ISLAND CARE AT HOME, LTD. AND MARYANN OSBORNE, Petitioners, Vv. EVELYN COKE, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit PETITION FOR A WRIT OF CERTIORARI Petitioners Long Island Care at Home, Ltd. and Maryann Osborne respectfully request that this Court issue a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit in this case. OPINIONS BELOW The opinion of the court of appeals on remand (Pet. App. la-6a) is reported at 462 F.3d 48. The initial opinion of the court of appeals (Pet. App. 7a-32a) is reported at 376 F.3d 118. The opinion of the United States District Court for the Eastern District of New York (Pet. App. 33a-48a) is reported at 267 F. Supp. 2d 332. 2 JURISDICTION The judgment of the court of appeals on remand was entered on August 31, 2006. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED The relevant provisions of the Fair Labor Standards Act, 29 U.S.C. § 201 ef seqg., and the relevant regulations of the Department of Labor promulgated thereunder, 29 C.F.R. § 552.2 et seq., are set forth at Pet. App. 65a-83a. STATEMENT This case involves a challenge to the validity of 29 C.F.R. § 552.109(a)—a regulation promulgated by the Department of Labor in 1975 after full notice-and-comment rulemaking— which declares that workers providing companionship ser- vices to the elderly and infirm are exempt from the minimum wage and overtime provisions of the Fair Labor Standards Act, see 29 U.S.C. § 213(a)(15) (providing exemption), even if they are employed by third parties rather than by the home- owner receiving care. Granting deference to the Department under the principles of Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), the district court upheld the regulation. Pet. App. 33a-48a. The Second Cir- cuit reversed, refusing to accord deference to the Department under either Chevron or Skidmore v. Swift & Co., 323 US. 134 (1944). Pet. App. 7a-32a. After this Court vacated that decision, and remanded the case for consideration of further guidance provided by the Department, the Second Circuit adhered to its prior ruling and again held Section 552.109(a) to be unenforceable. Pet. App. la-6a. A. The Statutory and Regulatory Framework The issues in this case arise under certain provisions of the 1974 Amendments to the Fair Labor Standards Act (the 3 “Act”). See Pub. L. 93-259, 88 Stat. 55. Prior to the Amend- ments, workers were typically entitled to receive a specified minimum wage and enhanced pay for overtime only if they were employed by an “enterprise engaged in commerce or in the production of goods for commerce.” See 29 U.S.C. §§ 206(a), 207(a). See generally National League of Cities v. Usery, 426 U.S. 833, 837-38 (1976); Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 295 n.8 (1985). At that time, the Act defined such an enterprise as an enterprise that, among other things, had annual gross sales of at least $250,000. See 29 U.S.C. § 203(s)(1) (1976). The annual limit has since been doubled to $500,000. See 29 U.S.C. § 203(s)(1)(A)(ii). In 1974 Congress broadened the Act to provide coverage for a particular class of workers: “Employees in domestic service.” Unlike earlier provisions of the Act, the new Amendments defined the scope of coverage for domestic service workers primaiily on the basis of the kind of work that they performed. Thus, Section 206(f) required payment of a minimum wage to “[a]jny employee—(1) who in any workweek is employed in domestic service in a household [if the employee’s compensation constituted wages under Title II of the Social Security Act] or (2) who in any workweek—(A) is employed in domestic service in one or more households, and (B) is so employed for more than 8 hours in the aggregate .. 29 U.S.C. § 206(f). Similarly, Section 207(/) man- dated enhanced overtime pay for “any employee in domestic service in one or more households [who is employed] for a workweek longer than forty hours... .” 29 U.S.C. § 207()). See also H.R. Rep. No. 93-913, 93rd Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 2811, 2845 (“i]t is the intent of the committee to include within the coverage of the Act all employees whose vocation is domestic service’’). Congress provided exemptions from coverage, however, for domestic service workers performing two specified jobs: 4 casual babysitting and companionship for the elderly and infirm. Section 213(a)(15) of the Act provides that the mini- mum wage and overtime provisions will not apply to “any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide com- panionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary).” 29 U.S.C. § 213(a)(15). The Act thus gave to the Department, in express terms, the authority to promulgate legislative rules to define and delimit the exemption provided by Section 213(a)(15). In addition, Congress conferred a general grant of rulemaking authority in the 1974 Amendments, stating that “the Secretary is authorized to prescribe necessary rules, regulations, and orders with respect to the amendments made by this Act.” 1974 Amendments, § 29(b), 88 Stat. 76. Pursuant to both of these express delegations of authority, see 40 Fed. Reg. 7405 (1975), the Department initiated a notice-and-comment rulemaking, which resulted in regula- tions subsequently published in the Code of Federal Regu- lations. See 29 C.F.R. §§ 516.34, 552.1-552.7, 552.101- 552.110. The critical regulation for present purposes is Section 552.109(a), contained in a subpart headed “Interpre- tations,” which declares that “[e]mployees who are engaged in providing companionship services, as defined in § 552.6, and who are employed by an employer or agency other than the family or household using their services, are exempt from the Act’s minimum wage and overtime pay requirements by virtue of section 13(a)(15).” 40 Fed. Reg. 7407. Although the original proposed regulation had not exempted workers providing companionship services “if the third party em- ployer is a covered enterprise,” 39 Fed. Reg. 35,385 (1974)— based on the premise that the Amendments did not intend to exempt “previously covered domestic service employees” (id. at 35,395)—the Department altered its course upon further 5 consideration. Explaining the change, the Department noted that the language of the exemption in the Act did not exclude third party employers but applied “to ‘any employee’ engaged ‘in’ the enumerated services.” 40 Fed. Reg. 7405. The De- partment concluded that the final regulation was “more consistent with the statutory language and prior practices concerning similarly worded exemptions.” /d. At the same time that the Department promulgated Section 552.109(a), it promulgated another regulation, 29 -C.F.R. § 552.3, which purported to define the term “domestic service employment.” That regulation, contained in a subpart entitled “General Regulations,” states that “[a]s used in section 13(a)(15) of the Act, the term ‘domestic service employment’ refers to services of a household nature performed by an employee in or about a private home (permanent or tempo- rary) of the person by whom he or she is employed.” The regulation then goes on to provide an “illustrative and not exhaustive” list of the kinds of work considered to be “do- mestic service employment.” 40 Fed. Reg. 7405. As ex- plained in the regulation, that work includes services by employees such as “cooks, waiters, butlers, valets, maids, housekeepers, governesses, nurses, janitors, laundresses, care- takers, handymen, gardeners, footmen, grooms, and chauf- feurs of automobiles for family use.” /d. Section 552.109(a) has remained in force for more than 30 years. The Department has periodically proposed eliminating the exemption for employees of third party employers, see 58 Fed. Reg. 69,310, 69,312 (1993); 60 Fed. Reg. 46,798 (1995); 66 Fed. Reg. 5485, 5488 (2001), but, following various peri- ods of comment, has invariably chosen not to do so. The most recent of these efforts took place five years ago when the Department, positing “an internal inconsistency” between Sections 552.109(a) and 552.3, sought to resolve it by limiting the exemption to workers employed by the person receiving care. See 66 Fed. Reg. 5485-86. The Department ultimately 6 withdrew the proposed change, however, after numerous commentators stressed the severe economic impact that would result. See 67 Fed. Reg. 16,668 (2002). B. This Litigation 1. Respondent, a worker employed by petitioner Long Island Care at Home, Ltd. to provide companionship services, brought this “test case” (Pet. App. 9a) challenging the application of Section 552.109(a) to workers employed by persons or entities other than the homeowners receiving care.’ Finding that the regulation was entitled to “strong deference” under Chevron, 467 U.S. at 844, see Pet. App. 46a, and pointing to the “explicit grant of authority to the [Department of Labor] to define and delimit Section 213(a)(15),” as well as “the fact that these regulations have ' been in effect for over twenty-eight years,” Pet. App. 46a, the district court held that Section 552.109(a) was a legitimate exercise of the Depart-ment’s authority. Pet. App. 46a. The Second Circuit reversed. Proceeding on the basis that “(b}jecause the [Fair Labor Standards Act] is a remedial act, its exemptions are to be narrowly construed,” Pet. App. 10a (citing Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960); Mitchell v. Lublin, McGaughy & Assocs., 358 U.S. 207, 211 (1959)), the court refused to accord Chevron defer- ence to Section 552.109(a), deeming it “an interpretive rather than a legislative regulation.” Pet. App. 26a. Although the court of appeals acknowledged that “the rule ‘grants rights, imposes obligations, or produces other significant effects on private interests,’ as legislative regulations do,” Pet. App. 26a (quoting White v. Shalala, 7 F.3d 296, 303 (2d Cir. 1993)), it held that the regulation did not merit Chevron deference under the test set out in United States v. Mead Corp., 533 U.S. 218, ' Respondent also challenged the validity of 29 C.F.R. § 552.6, which defines the term “companionship services.” The Second Circuit upheld Section 552.6, see Pet. App. 1Sa-22a, and it is not at issue in this petition. 7 226-27 (2001), because the Department “did not intend to use the legislative power delegated in [29 U.S.C.] § 213(a)(15) when it promulgated § 552.109(a).” Pet. App. 26a.” It found that iack of intention to be “most apparent from its inclusion of the regulation under ‘Subpart B-Interpretations’ as opposed to ‘Subpart A-General Regulations.” Pet. App. 26a.° It thus concluded that “§ 552.109(a) does not qualify for Chevron deference because, by the DOL’s own account, it was self- consciously not promulgated in exercise of Congress’s delegated authority pursuant to § 213(a)(15).” Pet. App. 26a. The Second Circuit then went on to reject the argument, made by the Department of Labor in an amicus brief, that Section 552.109(a) warranted deference as a legislative rule under Chevron because it had been “promulgated after notice and comment... .” Pet. App. 27a. Although the court recog- nized that “Mead explicitly instructs us to consider whether a rule was the product of notice and comment in assessing whether.to accord it Chevron deference,” Pet. App. 27a (cit- ing Mead, 533 U.S. at 230-31), it found no need to do so for a regulation that it had already classified as an “interpretive rule.” Based on that characterization of Section 552.109(a), the Second Circuit dismissed the importance of the notice- and-comment procedure by saying that “the agency under- took a notice and comment procedure for an interpretive * The Court in Mead held that “administrative implementation of a particular statutory provision qualifies for Chevron deference when it ap- pears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” 533 U.S. at 226-27. * The Second Circuit found additional support in the Secretary’s state- ment that “[t}he definitions required by section 213(a){15) are contained in §§ 552.3, $52.4, 552.5 and 552.6.” 29 C.F.R. § 552.2(c); see Pet. App. 26a. 8 regulation despite the fact that the procedure was not re- quired.” Pet. App. 27a.* The Second Circuit also declined to give deference to Sec- tion 552.109(a) under Skidmore v. Swift & Co., 323 U.S. 134 (1944). Addressing “Congressional purpose,” the court, with- out reviewing any statutory language, took the view that “persons who were employed by a third party were outside the category of ‘domestic service employees’ and were protected by the [Act] before the 1974 amendments,” Pet. App. 29a (citations omitted), and that “[i]t is implausible, to say the least, that Congress, in wishing to expand FLSA coverage, would have wanted the DOL to eliminate coverage for employees of third party employers who had previously been covered.” Pet. App. 30a. The court of appeals also placed considerable weight on what it regarded as a “stark internal inconsistency” between Section 552.3 (the regulation defining “domestic service employment’) and Section 552.109(a), Pet. App. 30a, finding that “[p]lainly, under § 552.3, employees employed by third parties do not qualify for the exemption” that Section 552.109(a) grants to them. Pet. App. 30a. Finally, the court pointed to the fact that the Department had proposed elim- ination of the exemption for third party employees on several occasions, deeming its position “hardly . . . a model of consistency,” Pet. App. 30a, and questioning both the Depart- ment’s reasoning and procedural regularity in adopting Section $52.109(a) in the first place. See Pet. App. 30a-3 la. 2. Petitioners filed a petition for certiorari, raising, among other issues, the failure of the Second Circuit to accord Chevron deference to the regulation, and emphasizing the * The Second Circuit recognized that the Tenth Circuit, affording Chevron deference, had upheld the validity of Section 552.109(a). See Pet. App. 25a (citing Johnston v. Volunteers of America, Inc., 213 F.2d 559, 562 (2000), cert. denied, 532 U.S. 1072 (2001)). Saying that Johnston had been decided before Mead, the Second Circuit declined to follow it. See Pet. App. 25a. 9 substantial harm likely to be caused by its invalidation. See Petition for A Writ of Certiorari, No. 04-1315. Submitting a brief by invitation, the United States stated that the decision of the Second Circuit was contrary to several decisions of this Court (including Mead and Auer v. Robbins, 519 U.S. 452 (1997)) and conflicted with decisions of the Tenth Circuit (Johnston and Welding v. Bios Corp., 353 F.3d 1214 (10th Cir. 2004)). U.S. Br. at 9, 15. The United States also argued that the decision was “inconsistent with the plain terms of the FLSA, which strongly support the construction adopted by DOL in Section 552.109(a),” and, as evidenced by the amicus briefs filed in support of the petition, “will have a significant and disruptive impact on the provision of government-funded home care to elderly and disabled individuals.” /d. It in- formed the Court that “[flor those reasons, and because of the important and recurring nature of the questions raised in the case, it would be appropriate for this Court to grant the peti- tion for a writ of certiorari to review the [deference ques- tion].” /d. However, noting that the Department of Labor had recently offered “authoritative agency guidance” making clear that it intended “Section 552.109(a) to be an exercise of its expressly delegated legislative authority,” id. (citing Wage and Hour Advisory Memorandum No. 2005-1), the Solicitor General recommended that the Court vacate the judgment and remand the case to the Second Circuit for consideration of the Department’s position. See U.S. Br. at 9-10.° The Court then granted the petition, vacated the judgment, and remanded the case “for further consideration in light of the Department of Labor’s Wage and Hour Advisory Memorandum No. 2005-1 (December 1, 2005).” 1265S. Ct. 1189 (2006). On remand, the Second Circuit adhered to its original rul- ings. With respect to Chevron deference, it again concluded, * The Advisory Memorandum, reprinted at Pet. App. 50a-64a, also set forth guidance regarding the proper reading of Section 552.3. See Pet. App. 54a-63a. 10 “for substantially the same reasons,” that “§ 552.109(a) was not intended, at the time of its promulgation, to be a legisla- tive rule; rather, it was meant to be an interpretive rule.” Pet. App. 3a. Finding “arguments to the contrary presented in the DOL Memo” to be “not persuasive,” Pet. App. 3a, it said that, even if the Department regarded Section 552.109(a) as “le- gally binding,” Pet. App. 3a, the regulation “could have been simply intended to provide guidance to DOL employees as to how the agency planned to interpret ‘domestic service em- ployment’ in the third-party employer context.” Pet. App. 4a. The court of appeals also declined, once again, to give Skidmore deference to the regulation, relying in particular on its view about the inconsistency between Section 552.109(a). and Section 552.3. In doing so, the Second Circuit rejected the Department’s explanation of why the two provisions could be read harmoniously, saying that it “need not defer to an agency’s interpretation of its own regulations when those regulations, like § 552.109({a) and §552.3, are unambiguous.” Pet. App. 5a (citing Christensen v. Harris County, 529 U.S. 576, 588 (2000)). It thus declared Section 552.109(a) unen- forceable. Pet. App. 6a.° REASONS FOR GRANTING THE WRIT The Second Circuit has twice struck down a Department of Labor regulation—promulgated more than 30 years ago after- notice-and-comment rulemaking and adhered to ever since— that exempts certain third party employees from cover- age under the Fair Labor Standards Act, see 29 U.S.C. § 213(a)(15), holding that the regulation is merely a nonbind- ing interpretation lacking the force of law and that it is unpersuasive. See Pet. App. 23a-32a (invalidating 29 C.F.R. § 552.109(a)); id. at la-6a (same). Following the initial deci- sion, petitioners sought review in this Court on the grounds, * As it had done after its initial decision, the Second Circuit stayed the mandate pending the filing of a Petition for a Wnt of Certiorari in this Court. See Pet. App. 49a . 1] among others, that the Second Circuit had failed to accord the regulation proper deference under the principles of Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984); that the decision was in conflict with a decision of the Tenth Circuit, Johnston v. Volunteers of America, Inc., 213 F.3d 559 (10th Cir. 2000); that the Second Circuit had mis- read the statute and other relevant regulations; and that the invalidation of Section 522.109(a) would cause extraordinary and unjustified harm. The United States informed the Court that “it would be appropriate for the Court to grant the petition for certiorari,” U.S. Br. at 9, but, noting that the Department of Labor had recently issued new “authoritative agency guidance” (id.), urged the Court to vacate and remand so that the Second Circuit could consider that guidance. The Court followed that course. See Long Island Care at Home, Lid. v. Coke, 126 S. Ct. 1189 (2006). On remand, however, the Second Circuit again declared Section 552.109(a) to be unenforceable. The decisions below now merit full review by this Court. To begin with, the result alone—overturning a thirty-year-old regulation twice upheld by another Circuit (see Johnston and Welding v. Bios Corp., 353 F.3d 1214 (10th Cir. 2004))—is sufficient to justify this Court’s attention. Not only does the Second Circuit’s disregard of agency authority disrupt long- standing wage-and-hour practices, it threatens to do so at potentially enormous cost. Only last Term numerous amici curiae informed the Court that the increased expense result- ing from invalidation of Section 552.109(a) would erode their ability to provide appropriate care for the elderly and infirm, a problem that the United States specifically noted in its brief supporting review. See U.S. Br. at 9. Those concerns are no less compelling today. The Second Circuit decisions are troubling for other rea- sons as well. The court of appeals’ principal rationale for withholding Chevron deference—that Section 552.109(a) was in a subpart entitled “Interpretations’—not only wrongly 12 assumes that an agency interpretation can never have the force of law, see United States v. Mead Corp., 533 U.S. 218, 227 (2001), but is flatly inconsistent with this Court’s deci- sion in Auer v. Robbins, 519 U.S. 452 (1997), giving Chevron deference to a different Department of Labor regulation con- tained in an identically labeled subsection. Moreover, by refusing to give Chevron deference to a regulation that was issued after notice-and-comment rulemaking and that bears other significant indicia of deliberate lawmaking, the court of appeals has seriously diminished the proper respect due to “relatively formal” agency action. See Mead, 533 U.S. at 230. While this Court has not finally resolved whether resort to notice-and-comment rulemaking is sufficient in and of itself to earn Chevron deference—compare National Cable & Telecomm. Ass'n v. Brand X Internet Services, 545 U.S. 967, 125 S. Ct. 2688, 2712-13 (2005) (Breyer, J., concurring) with id. at 2717-18 (Scalia, J., dissenting)—the federal courts of appeals, following the standard set forth in Mead, 530 U.S. at 226-27, have repeatedly emphasized the importance of notice-and-comment rulemaking in affording deference under Chevron. See, e.g., Whitaker v. Thompson, 353 F.3d 947, 950 (D.C. Cir. 2004); White v. Scibana, 390 F.3d 997, 1000 (7th Cir. 2004); Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1179 (11th Cir. 2003). | The Second Circuit also went astray in failing to accord even the lesser deference warranted by the doctrine of Skidmore v. Swift & Co., 323 U.S. 134 (1944). See Mead, 533 U.S. at 234-35. Although the court of appeals, relying primarily on another regulation promulgated by the Depart- ment, 29 C.F.R. § 552.3, ultimately found that domestic workers employed by third parties are not “employees employed in domestic service employment,” 29 U.S.C. § 213(a)(15), and thus cannot be exempted under that section, a proper reading of the Act as a whole shows that reading to be incorrect. In fact, Congress used the critical coverage term “employee[s] in domestic service” to broadly encompass 13 workers performing domestic jobs regardless of the workers’ employer—assuring that the coverage provisions of the Act would apply to domestic service employees across the board— and the exemption for those particular domestic service em- ployees providing “companionship services” also applies re- gardless of the workers’ employer, just as the Department has determined. Moreover, insofar as the Second Circuit sup- ported its contrary view with a reading of Section 552.3 that is at odds with the Department’s own reading of that regula- tion, the court flouted the well-established principle that an agency interpretation of its own regulation “must be given ‘controlling weight unless it is plainly erroneous or inconsist- ent with the regulation.”” Stinson v. United States, 508 U.S. 36, 45 (1993) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). Thus, at each possible step, the court of appeals wrongly substituted its view for the judgment of the agency charged with implementing the governing stat- ute. That judicial usurpation should not be allowed to stand. I. THE SECOND CIRCUIT DECISIONS, BY INVALIDATING A REGULATION TWICE UPHELD BY THE TENTH CIRCUIT, DIS- RUPT LONGSTANDING PRACTICES AND THREATEN A SERIOUS DISLOCATION OF CARE The Second Circuit, in declaring Section 552.109(a) to be nothing more than an unenforceable “interpretation,” rather than a rule of law, Pet. App. 26a, has ordered a dramatic reversal in wage-and-hour practices that have been in effect, without change, for more than 30 years. Ever since prom- ulgation of the regulation in 1975, the governing rule has been that, in kecping with the congressional intent to make companionship services affordable for the elderly and infirm, see Pet. App. 46a-47a, employers of workers providing those services are not required to pay the minimum wage or time- and-a-half wages for overtime. Importantly for present pur- 14 poses, that rule has applied regardless of whether the em- ployee was hired directly by the person receiving care or was employed by a third party such as a family member or an independent agency. Indeed, the exemption for employees of third parties has become so firmly established that, when the Department recently proposed eliminating it, it was forced to pull back because of concerns about the potential adverse economic effects. See 67 Fed. Reg. 16,668 (2002). By judi- cial fiat, however, the Second Circuit has done precisely what the agency, only a few years before, ultimately found it inadvisable to do. Quite apart from its overriding of the Department of Labor, the Second Circuit has also put itself into direct conflict with the Tenth Circuit, see Johnston, 213 F.3d at 561-62; Welding, 353 F.3d at 1217 n.3, creating a checkered regulatory scheme in which Section 552.109(a) is controlling in some states but not others. in Johnston, decided just six years ago, the Tenth Circuit expressly reyected the argument that Section 552.109(a) was merely an “interpretation which does not have the effect of law... .” 213 F.3d at 561. Applying Chevron, see 213 F.3d at 562, the court of appeals determined “that the secre- tary’s interpretation is not arbitrary, capricious, or manifestly contrary to § 213(a)(15).” 213 F.3d at 562. Unlike the Second Circuit, therefore, the Tenth Circuit held that “the fact that domestic service employees are not employed by the individual receiving care, does not alone exclude them from the exemption.” 213 F.3d at 562. This disagreement between the Second and Tenth Circuits shows no signs of abating. In its initial decision below, the Second Circuit openly declined to follow Johnston, pointing out that the Tenth Circuit had decided that case before this Court’s decision in Mead. See Pet. App. 25a. However, the Tent’: Circuit also handed down a decision after Mead, see Welding, 353 F.3d 1214, specifically relying on Johnston and reiterating that “(t]he domestic service employee need not be 15 employed directly by the person receiving the services or by that person’s family for the exemption to apply.” 353 F.3d at 1217 n.3; see also id. (“[t}he exemption can apply even when the domestic service employee is actually employed by a ser- vice agency ....”). The views of the Tenth Circuit thus are solidly behind the validity of Section 552.109(a). By con- trast, given an opportunity to reconsider its views upon remand from this Court, the Second Circuit firmly held to its earlier position, again declaring that Section 552.109(a) was unenforceable. The practical consequences of. the Second Circuit’s deci- sions are potentially enormous. At the petition stage last Term, the City of New York told the Court that invalidation of Section 552.109(a) would add nearly $300 million annu- ally to its costs of providing home care to the elderly and infirm. See City of New York, et al. Amici Br. at 2, 5-8. Other home care providers declared that they would simply be unable to bear the sharply increased costs resulting from the decision below. See, e.g., Home Care Ass’n of New York State, Inc. Amicus Br. at 2, 9-10. Faced with this new bur- den, therefore, many providers may be forced to significantly reduce their employees’ workweeks in order to avoid incur- ring ruinous time-and-a-half overtime obligations. See Pet. App. 85a (Declaration of Maryann Osborne). These measures will almost certainly cause severe disrup- tions for clients needing care. Most seriously, the clients will face a sharp drop in the continuity and stability of their care, with more caregivers being required in order to provide clients with the same or even fewer services. Given the highly personal nature of companionship services, “clients often are very unwilling to enter into such a relationship with more thar: one or two such individuals.” Pet. App. 100a (Declaration of Susan Choi-Hausman). Moreover, a shifting array of personal caregivers “assaults the dignity of patients, undermines the quality of care that they receive, and is there- 16 fore detrimental to their well being.” Pet. App. 86a (Declara- tion of Maryann Osborne). This problem will only get worse as the number of elderly needing care continues to grow. Yet, it is precisely those people likely to be harmed by the new judicially imposed regime—“individuals who (because of age or infirmity) are unable to care for themselves” (29 U.S.C. § 213(a)(15))—that Congress specifically meant to help by exempting personal companions from the coverage provisions of the Act. See id. This upheaval is as unnecessary as it is problematic. The Secretary correctly determined thirty years ago that the minimum wage and overtime provisions should not apply to caregivers employed by third parties. The Second Circuit’s decisions to the contrary warrant review. Il. THE DECISIONS BELOW WRONGLY FAIL TO GIVE CHEVRON DEFERENCE TO A REGULA- TION PROMULGATED UNDER EXPRESS DELEGATIONS OF LAWMAKING AUTHOR- ITY AND AFTER NOTICE-AND-COMMENT RULEMAKING The reasoning used by the Second Circuit to invalidate Section 552.109(a) also raises serious concerns. While the court was wrong not to give even Skidmore deference to the regulation, see pages 23-30 infra, it committed its first, and most striking, error by holding that Section 552.109(a)—a regulation promulgated by the Department of Labor under express grants of lawmaking authority and after full notice- and-comment rulemaking—did not have the “force of law” required for deference under Chevron. See Mead, 533 U.S. at 226-27 (agency implementation “qualifies for Chevron defer- ence when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promul- gated in the exercise of that authority”); Gonzales v. Oregon, 546US. __, 1268S. Ct. 904, 914-15 (2006) (same). Accord- 17 ing to the Second Circuit, the regulation did not merit Chevron deference because the Department had put the regulation “under ‘Subpart B-Interpretations’ as opposed to ‘Subpart A- General Regulations,’” Pet. App. 26a, and had stated that “*the definitions required by § 213(a)(15) [of Title 29] are contained in [29 C.F.R.] §§ 552.3, 552.4, 552.5 and 552.6 [of Subpart A].’” Pet. App. 26a. It thus concluded that the De- partment had failed to satisfy the second part of the Mead standard “because, by the DOL’s own account, [the regula- tion] was self-consciously not promulgated in exercise of Congress’s delegated authority pursuant to § 213(a)(15).” Pet. App. 26a . There are several notable flaws in this analysis. First of all, the Second Circuit is simply mistaken in supposing that a rule labeled an “interpretation” is not, and never can be, a rule with the force of law. On the contrary, numerous regulations “with the force of law effectively “interpret” the governing statute in the sense that they supply additional legal content to Statutory provisions that require further detail. See generally Chevron, 467 U.S. at 843 (discussing agency authority “to elucidate a specific provision of the statute by regulation”). Indeed, the Court in Mead acknowledged that interpretations can have the force of law, expressly declaring that Chevron deference is warranted when “the agency interpretation claiming deference was promulgated in the exercise of {delegated lawmaking] authority.” Mead, 533 U.S. at 227 (emphasis added); see also Gonzales, 126 S. Ct. at 914 (“[A]n interpretation of an ambiguous statute may also receive sub- stantial deference”) (citing Chevron); Christensen v. Harris County, 529 U.S. 576, 587 (2000). The proper question, then, is not whether an agency regulation “interprets” a statute, but whether the regulation does so only as a matter of agency guidance or whether it is meant to declare enforceable legal rights and responsibilities. Although the task of distinuishing between the two is not always easy, see Lincoln v. Vigil, 508 U.S. 182, 196 (1993), the labeling of a regulation as 18 an “interpretation” does not, by itself, consign it to the former category. The Second Circuit’s decision to the contrary, in fact, is directly at odds with this Court’s decision in Auer v. Robbins, 519 U.S. 542 (1997). In Auer, the Court upheld a Department of Labor regulation interpreting the term “bona fide executive, administrative, or professional capacity” for purposes of implementing a different exemption under the Fair Labor Standards Act. See 29 U.S.C. § 213(a)(1). At that time, the regulation at issue in Aver, like Section 552.109(a) here, was set forth in a Subpart B headed “Interpretations” instead of in Subpart A. See 29 C.F.R. 541.118(a) (1996). This Court held that it was entitled to full deference under Chevron. See 519 U.S. at 455-56. Rather than focusing almost exclusively on the label at- tached to the regulation, the Second Circuit should have paid more attention to affirmative evidence that the Department was exercising its lawmaking authority, in-particular the fact that the agency engaged in notice-and-comment rulemaking. This Court has indicated that congressional authorization of notice-and-comment rulemaking typically satisfies the first part of the Mead formulation, saying that “[i]t is fair to as- sume generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force.” 533 U.S. at 230; see also id. at 229 (authoriza- tion of rulemaking is “a very good indicator of delegation meriting Chevron treatment”); Yellow Transportation, Inc. v. Michigan, 537 U.S. 36, 45 (2002). Given that assumption, it is reasonable also to assume that an agency regulation actually resulting from that “process of rulemaking” will satisfy the second part of the Mead formulation, demonstrat- ing that the agency was indeed making law. To date, this Court has not directly addressed whether agency resort to 19 notice-and-comment rulemaking is itself sufficient, or at least presumptively sufficient, to establish that a regulation has the force of law, although individual Justices have expressed preliminary views on this question. See National Cable & Telecomm. Ass'n, 125 S. Ct. at 2712-13 (Breyer, J., concur- ring) (formal proceeding not always “a sufficient condition [for use of Chevron]”); id. at 2717-18 (Scalia, J., dissenting) (under Mead “some unspecified degree of formal process was required—or was at least the only safe harbor”).’ For their part, however, numerous federal courts of appeals have emphasized that use of notice-and-comment rulemaking is a strong, even dispositive, indication that an agency is exercising its delegated lawmaking power. See Whitaker, 353 F.3d at 950; White, 390 F.3d at .000; Shotz, 344 F.3d at 1179; Perez-Olivo v. Chavez, 394 F.3d 45, 53 n.6 (ist Cir. 2005); Koyo Seiko Co., Ltd. v. United States, 258 F.3d 1340, 1347 (Fed. Cir. 2001); Alaska Dept. of Health and Social Services v. Centers for Medicare and Medicaid Services, 424 F.3d 931, 939 (9th Cir. 2005). In Whitaker, for example, the D.C. Circuit stated that “[b]ecause we are reviewing an agency’s interpretation of the statute it is entrusted to admin- ister, and the agency reached its interpretation after a rela- tively formal process with public notice and comment... , we review under the familiar framework established by [Chevron}.” 353 F.3d at 950. Similarly, the Federal Circuit, reviewing an agency rule, noted that the methodology set forth in the rule “was adopted after notice-and-comment rulemaking, and thus is entitled to maximum deference.” Koyo Seiko, 258 F.3d at 1347. And, the First Circuit rejected an argument that a Bureau of Prisons rule was entitled to nothing more than Skidmore deference, remarking that, be- cause the interpretation was embodied in a regulation “which ’ The Court has made clear that notice-and-comment rulemaking is not necessary for a regulation to receive Chevron deference. See Barnhart v. Walton, 535 U.S. 212, 221-22 (2002); Mead, 533 U.S. at 231. 20 was adopted pursuant to the notice-and-comment proce- dure of the Administrative Procedure Act,” Perez-Olivo, 394 F.3d at 53 n.6, it was “[t]hus . . . entitled to full deference under Chevron.” Id.; see 5 U.S.C. § 553(b)(A) (notice-and- comment rulemaking not required for “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice”). The court df-appeals below dismissed the fact that the Department had promulgated the regulation after relatively formal rulemaking, saying that “the agency undertook a notice and comment procedure for an interpretive regulation despite the fact that the procedure was not required.” Pet. App. 27a; see also Pet. App. 27a (“following the notice and comment procedure, at most, buttresses a claim that the agency gave consideration to what it did; it does not alter the fact that the agency did not act pursuant to legislative authority”). But that approach gets things backwards. Rather than looking to the notice-and-comment procedure as a com- pelling indication that the Department had invoked its law- making authority, as other Circuits have done, the Second Circuit simply ignored it in deciding the critical issue— whether the regulation had the force of law or was merely interpretive—and then, once it finally turned to it, gave the procedure short shrift by treating it as unnecessary for what the Court had already deemed an interpretive rule. This cart- before-the-horse analysis necessarily undervalues the force of a promulgated regulation because, contrary to what the Sec- ond Circuit apparently believed, use of the notice-and-com- ment procedure does demonstrate that an agency meant to “act pursuant to legislative authority.” Pet. App. 27a. It thus can be an integral part of the inquiry into whether a rule has the force of law, not just an afterthought once the essential analysis has been completed. * * A rule promulgated following notice and comment may still be inva- lid, of course, if it fails the first part of the Mead test. See, e.g., Motion 21 To compound its error, the court then mostly ignored other strong indications that Section 552.109(a) is a legislative rule. Thus, it gave no weight to the fact that the Department, in promulgating the 1975 regulations, expressly relied on both the delegation of authority in 29 U.S.C. § 213(a)(15) to “define and delimit” the. terms of that provision and the general rulemaking authority conferred by Section 29(b) of the 1974 Amendments, granting the Department the power “to prescribe necessary rules, regulations, and orders with regard to the amendments made by this Act.” 1974 Amendments, § 29(b), 88 Stat. 76. Yet, the explicit reliance on those grants of authority, coupled with publication of the regulation in the Code of Federal Regulations, is itself telling evidence that the Department intended Section 552.109(a) to have the force of law. See American Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993).? And the very nature of the rule supports that view: by dictating who is required to pay, and who is entitled to receive, minimum wage and overtime pay, Section 552.109(a) directly “affects indi- vidual rights and obligations,” Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979), as legislative rules do. See id. Finally, the court of appeals erred by refusing to credit the Department’s own representation that, in promulgating Sec- Picture Ass'n of America, Inc. v. FCC, 309 F.3d 796 (D.C. Cir. 2002). An agency cannot claim authority that Congress did not delegate just by en- gaging in notice-and-comment rulemaking. In this case, however, the Act unmistakably grants the Department the authority to promulgate legisla- tive rules. See 29 U.S.C. § 213(a)(15); 1974 Amendments, § 29(b), 88 Stat. 76. * This evidence is not undercut by the statement that “(t]he definitions required by Section 213(a)(15) are contained in §§ 552.3, 552.4, 552.5, and $52.6.” 29 C.F.R. § 552.2(c). Even leaving aside that the Depart- ment was exercising its general Section 29(b) rulemaking authority as well as the more specific Section 213(a)(15) authority, the statement in Section 552.2(c) simply reflects that the regulations, as a whole, embody not just “definitions,” but additional substantive provisions specifying how the Act, including the “definitions,” is to operate. 22 tion 552.109(a), it had intended to, and did, exercise its lawmaking power. See Pet. App. 3a-4a. The December 2005 Advisory Memorandum, directly contradicting the Second Circuit, stated in plain terms that “the Department considers the third party -employment regulations at 29 C.F.R. § 552.109 to be authoritative and legally binding.” Pet. App. 63a. The Department pointed to specific language in the final 1975 notice to demonstrate that “at the time the final rule was promulgated, the Department believed that the availability of the companionship exemption to third party employers turned decisively on its pronouncement in the regulations—some- thing that could be true only of a legislative rule.” Pet. App. 63a-64a. It thus reiterated that “the Department has always treated the third party employment regulations as legally binding legislative rules... .” Pet. App. 64a. The Second Circuit should have paid more heed to these views. Although an agency’s characterization of its own actions is not dispositive, see, e.g., Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 416 (1942), several federal courts of appeals have held that the agency char- acterization carries at least some force, even when the agency is arguing that its rule was merely a matter of internal policy and thus not subject to formal rulemaking. See, e.g., American Airlines, Inc. v. Dept. of Transportation, 202 F.3d 788, 797 (Sth Cir. 2000) (“significant deference to an agency’s char- acterization of its own action”’); Splane v. West, 216 F.3d 1058, 1063 (Fed. Cir. 2000) (“a factor [to] consider’) (internal quotation marks omitted). The case for deference is stronger still when, as here, the agency has actually gone through the process of notice-and-comment rulemaking and seeks only to have its rule treated as law. See generally Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 517 (1994) (“Secretary was well within her discretion to interpret this language as imposing a substantive limitation ... .”) Here, the agency characterization is consistent with other historical evidence, and it accords with the agency’s application of the regulation 23 over a long period of time. See generally Barnhart, 535 U.S. at 220 (“this Court will normally accord particular deference to an agency interpretation of ‘longstanding’ duration”). There was no good reason for the Second Circuit to disregard it. Ill. THE DECISIONS BELOW, IN REFUSING TO ACCORD EVEN SKIDMORE DEFERENCE, CONTRAVENE THE PROVISIONS OF THE ACT AND IMPROPERLY DISREGARD THE DEPARTMENT’S INTERPRETATION OF ITS OWN REGULATIONS Having found Chevron inapplicable, the Second Circuit went on to hold that the Department’s interpretation did not merit any deference at all, even under Skidmore. See Pet. App. 29a-32a; 4a-6a. But this Court has observed that “an agency’s interpretation may merit some deference whatever its form, given the ‘specialized experience and broader inves- tigations and information’ available to the agency .. . , and given the value of uniformity in its administrative and judicial understandings of what a national law requires... .” 533 U.S. at 234 (quoting Skidmore, 323 U.S. at 139) (internal citations omitted). Although it is not entirely clear what the limits of that deference might be, the Court in Mead sug- gested that reasonable agency views are entitled to ““‘at least some added persuasive force,’” 533 U.S. at 235 (quoting Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 136 (1997)), or “some weight,” 533 U.S. at 235 (quoting Martin v. Occupational Safety and Health Review Comm'n, 499 US. 144, 157 (1991)), or a “respect proportional to [their] ‘power to persuade,” 533 U.S. at 235 (quoting Skidmore, 323 U.S. at 140). Thus, unless Skidmore deference is reduced to an empty circularity—that is, an agency interpretation warrants deference only to the extent that the court would adopt the same interpretation without giving deference—the views of an expert agency charged with administering a governing statute should at least tilt the balance with respect to unsettled 24 questions about the scope of proper implementation. Had the Second Circuit extended that deference here, it would have been required to uphold Section 552.109(a) as a well- grounded application of the 1974 Amendments. The Second Circuit declined to-do so, however, largely because it regarded Section 552.109(a) as inconsistent with another regulation promulgated by the Department to imple- ment the 1974 Amendments: Section 552.3. As the court of appeals saw it, Section 552.3 had defined the term “domestic service employment” in a way that excluded domestic service performed by third party employees. See Pet. App. 30a; 29 C.F.R. § 552.3 (referring to “services of a household nature performed by an employee in or about a private home .. . of the person by whom he or she is employed”). Using this as a starting point, the Second Circuit reasoned that, because the statutory exemption for “companionship services” applied, by its terms, only to those services provided by “employee[s]} employed in domestic service employment,” 29 U.S.C. § 213(a)(15), the Department was barred by its own regu- lation from exempting workers employed by third parties. See Pet. App. 30a. The most obvious shortcoming in this analysis is its lack of attention to the Act itself. Although any serious consideration of an interpretation’s “persuasiveness” must look to the lan- guage of the governing statute—it is, after all, the statute that the agency is interpreting—the Second Circuit’s discussion of the Act is both cursory and inaccurate. See Pet. App. 29a- 30a; 4a-Sa. Insofar as the Act is concerned, the court of appeals relies almost exclusively on the premise that domestic workers employed by third parties were already covered by the Act before 1974 and the idea that it is “implausible” to think that Congress would have intended to eliminate cover- age for previously covered employees. See Pet. App. 29a- 30a. But this off-hand treatment reflects a basic misunder- standing both of the Act’s history and of the changes brought about by the 1974 Amendments. 25 . Before the 1974 Amendments, workers in domestic service were subject to the minimum wage and overtime provisions of the Act only if they were employed by an “enterprise engaged in commerce or in the production of goods for com- merce.” See 29 U.S.C. §§ 206(a)(1); 207(); see generally National League of Cities, 426 U.S. at 837-38; Tony and Susan Alamo Foundation, 471 U.S. at 295 n.8. As the law then stood, an employer did not fall within that definition unless it had annual gross sales of at least $250,000 (since raised to $500,000). 29 U.S.C. § 203(s)(1) (1976). Thus, contrary to the Second Circuit’s understanding, domestic ser- vice workers employed by third parties were nof routinely covered by the Act before 1974: they were covered if, but only if, they worked for an employer of a certain minimum size. And, of course, domestic service workers were not covered at all if they were employed by individual home- owners or by their families. The 1974 Amendments significantly altered the Act with respect to domestic service workers, bringing them as a class within the scope of the minimum wage and overtime provi- sions. See 29 U.S.C. §§ 206(f); 207(/). Nothing in the lan- guage of the Amendments indicates that Congress meant the relevant provisions to apply only to workers employed by individual homeowners, rather than to all workers providing domestic services including those employed by third parties. Section 206(f), headed “Employees in domestic service,” directs that the minimum wage be paid to “[a]ny employee— (1) who in any workweek is employed in domestic service in a household [if the employee’s cash compensation constituted wages under Title II of the Social Security Act] or (2) who in any workweek—(A) is employed in domestic service in one or more households; and (B) is so employed for more than 8 hours in the aggregate.” That language is broad and inclu- sive, and the explicit mention of employees “employed .. . in one or more households,” see 29 U.S.C. § 206(f) (emphasis added), naturally tends to bring within the category of 26 “fe]Jmployees in domestic service” those domestic service workers most likely to be employed by third parties such as employment agencies. That reading is reinforced by the lan- guage of the new overtime subsection, 29 U.S.C. § 207(), which declares that “[njo employer shall employ any employee in domestic service in one or more households,” id. (emphasis added), without paying the required compensation. That terminology, too, strongly suggests that the provision extends to third party employers, which would commonly be the employer for domestic workers employed in more than one household. This reading of Sections 206(f) and 207(/) not only fits with the text of those provisions, it eliminates inexplicable gaps in coverage that would result from an interpretation that treats “[e]mployees in domestic service” as excluding third party employees. As we have explained, the Act before 1974 did not cover domestic service workers—an open-ended category of workers that includes not just companions but cooks, chauffeurs, maids, nurses, housekeepers, and so forth —unless the worker was employed by a covered “enterprise.” If the only workers regarded as “[e}mployees in domestic service” under the Amendments were workers employed by the individual homeowners receiving services, it would leave entirely outside the Act any worker employed by agencies too small to qualify as an “enterprise” and, seemingly, any worker employed by other third parties such as relatives of the homeowner. That would be a startling omission for a series of provisions that, subject to the prescribed exemptions, were meant “to include within the coverage of the Act all employees whose vocation is domestic service.” H.R. Rep. No. 93-913, 1974 U.S.C.C.A.N. 2845. If the coverage provisions of the Act apply to all domestic service workers including third party employees, it makes sense to think that the statutory exemption for domestic ser- vice workers providing “companionship services,” 29 U.S.C. § 213(a)(15), applies to them as well. Again, there is nothing 27 in the language of the Act to show that Congress intended the availability of the exemption to tum on who employed the worker. The focus of the provision is not on the nature of the employer, but on the type of work that the employees per- form: the exemption extends to “any employee employed in domestic service employment to provide companionship ser- vices for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary).” 29 U.S.C. § 213(a)(15). That language (“any employee employed in domestic service employment”) is once again broad and inclusive. This straightforward reading of the exemption also fits with its self-evident purpose. As the district court below pointed out, Congress included the exemption “to allow those in need of [companionship] services to be able to find such assistance at a price they can afford.” Pet. App. 46a. See also Welding, 353 F.3d at 1217 (“Congress created the ‘companionship services’ exemption to enable guardians of the elderly and disabled to financially afford to have their wards cared for in their own private homes as opposed to institutionalizing them”). This concern about affordable companionship ser- vices does not fluctuate depending upon whether the workers are employed directly by the homeowner or by a third party employer, or upon whether the workers were or were not previously covered by the Act. See Pet. App. 46a-47a. Indeed, the need to restrain costs in the case of third party employees has only become more acute as agencies provide an increasing amount of the needed care.'” '° The Second Circuit relied on the principle that exemptions to the Act “are to be narrowly construed.” Pet. App. 10a. But that principle is largely inapposite here. While a narrow definition of “employee in do- mestic service” would have the effect of limiting the Section 213(a)(15) exemption for workers providing companionship, it would have the much greater threshold effect of limiting the coverage of Sections 206(f) and 207(/), which apply to the full range of domestic service workers. That 28 Having paid little heed to the Act, the Second Circuit rested much of its decision to invalidate the exemption for third party workers on its belief that the exemption was incompatible with the Department’s regulatory definition of “domestic service employment” in Section 552.3. See Pet. App. 30a. The De- partment, however, has explained why this is not so. See Pet. App. 54a-63a. In its December 2005 Advisory Memorandum, the Department said that neither Section 552.3 nor Section 552.101(a)—a second regulation containing similar language —was intended to address the question of who employed the employee. See Pet. App. 55a-57a, 62a-63a. Rather, the purpose of those sections was only to specify what kind of work was required and where the work was to be performed:. that is, domestic services in a private home (as opposed to, say, a boarding house). See Pet. App. 58a. The Department also carefully reviewed the origin of the “person by whom he or she is employed” language, Pet. App. 57a-59a, stressing that its use was not meant to exclude third party employees from the category of workers covered by the domestic service provi- sions of the Act. See Pet. App. 63a. The Second Circuit, however, declined to give deference to the Department’s reading of its regulations, see Pet. App. Sa, again committing a critical error. This Court has long recognized that an agency’s interpretation of its own regula- tions “must be given ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’” Stinson, 508 U.S. at 45 (quoting Bowles, 325 U.S. at 414). See also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989). As the Court has stated, the role of the judiciary is “not to decide which among several Competing interpre- tations best serves the regulatory purpose.” Thomas Jefferson Univ., 512 U.S. at 512. Rather, a court must abide by any narrow reading, in turn, would offend the basic principle that a remedial act should be construed broadly. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 504 (1999). 29 reasonable agency reading. See id.; United States v. Cleve- land Indians Baseball Co., 532 U.S. 200, 219 (2001). To justify its lack of deference, the Second Circuit invoked the principle that a court “need not defer to an agency’s interpretation of its own regulations when those regulations, like § 552.109(a) and § 552.3, are unambiguous ... .” Pet. App. Sa (citing Christensen, 529 U.S. at 588). But, while the principle is sound—it prevents an agency, “under the guise of interpreting a regulation, [from] creat[ing] de facto a new regulation” (Christensen, 529 U.S. at 588)— its use here is not. The problem is that the Second Circuit made no effort to read the Department’s regulations as a whole. See Jay v. Boyd, 351 U.S. 345, 360 (1956) (“[w]e must read the body of regulations . . . 80 as to give effect, if possible, to all of its provisions”’). Instead, the tourt of appeals first read Section 552.3 in isolation and then, having ascertained its “unambiguous” meaning, decided that it prohibited the exemption granted by Section 552.109(a). As a result, the Second Circuit wound up attributing to the Department the extraordinarily improbable intention of, on the one hand, effectively declaring third party employees ineligible for the “companionship services” exemp- tion in Section 552.3 (by excluding them from “domestic service employment”) and then, em the other hand, simul- taneously proclaiming in Section 552.109(a) that it was going to exempt them anyway. It is hard to imagine that the Depart- ment actually meant to do that, and any reading that leads to such an absurd outcome is itself proof that the regulations contain an ambiguity and demand a more coherent cunstruc- tion. The Department has provided a reasonable one and, under traditional principles of deference, that is enough. See Stinson, 508 U.S. at 45; Martin, 499 U.S. at 150-51." '' Judicial deference does not disappear merely because the Depart- ment has explored the possibility of other interpretations over time. See Pet. App. 30a-31a; Sa. Agencies are regularly faced with a choice among competing interpretations of a statute that they are charged with admin- 30 In the end, therefore, the Second Circuit should have granted Skidmore deference to Section 552.109(a), even if the regulation were deemed merely “interpretive.” The decision to apply the Section 213(a)(15) companionship services exemption to third party employees, as well as homeowner- employed employees, is not just a reasonable, but in fact the better, interpretation of the critical statutory provisions. ~The Second Circuit should have given it more respect. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, DANIEL S. ALTER H. BARTOW FARR, III ALTER & ALTER (Counsel of Record) 300 East 42nd Street RICHARD G. TARANTO 10th Floor FARR & TARANTO New York, NY 10017 1220 19th Street, NW (212).867-7777 Suite 800 Washington, DC 20036 (202) 775-0184 istering. See Chevron, 467 U.S. at 844. It would introduce intolerable rigidity into this process if the choice made by an agency were regarded as undeserving of deference simply because the agency had expressed a tentative contrary view and sought public comment on the various possi- ble interpretations. APPENDIX oH. ino ae ia heels (poppe! wer la APPENDIX A UNITED STATES COURT OF APPEALS SECOND CIRCUIT Docket No. 03-7666-CV EVELYN COKE, Plaintiff-Appellant, V. LONG ISLAND CARE AT HOME, LTD., and MARYANN OSBORNE, Defendants-Appellees. Argued: March 4, 2004 Decided: July 22, 2004 Remanded: Jan. 23, 2006 Decided: Aug. 31, 2006 Before WALKER, Chief Judge, KATZMANN, Circuit Judge, and GLEESON, District Judge. Remand from the United States Supreme Court for recon- - sideration of a March 4, 2004, decision by this court (John M. Walker, Jr., Chief Judge) affirming in part and vacating in part a judgment of the United States District Court for the Eastern District of New York. Upon further consideration we adere to the disposition of our original decision. AFFIRMED in part, VACATED in part, and REMANDED. * The Honorable John Gleeson, of the United States District Court for the Eastern District of New York, sitting by designation. 2a PER CURIAM. A detailed discussion of the facts of this case and the regu- latory scheme at issue is set forth in Coke v. Long Island Care at Home, Ltd., 376 F.3d 118, 121-25 (2d Cir.2004) (“Coke I’). The procedural history is this: Plaintiff-Appellant Evelyn Coke appealed from a final judgment entered in the United States District Court for the Eastern District of New York (Thomas C. Platt, Judge) granting Defendants-Appellees Long Island Care at Home and Maryann Osborne judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). See Coke v. Long Island Care at Home, Ltd., 267 F.Supp.2d 332 (E.D.N.Y.2003). On appeal, this court af- firmed in part and vacated in part the district court’s judg- ment, holding that 29 C.F.R. § 552.6 is enforceable on its face but that 29 C.F.R. § 552.109(a) (“§ 552.109(a)”) is unen- forceable. See Coke J, 376 F.3d at 135. By an order dated January 23, 2006, the United States Supreme Court granted Defendants-Appellees’ petition for a writ of certiorari, va- cated this court’s 2004 judgment, and remanded the case to “the Second Circuit for further consideration in light of the Department of Labor’s Wage and Hour Advisory Memoran- dum No.2005-1 (December 1, 2005).” Long Island Care at Home, Ltd. v. Coke, --- U.S. ----, 126 S.Ct. 1189 (2006). For the reasons that follow, upon reconsideration in light of the Department of Labor’s Wage and Hour Advisory Memoran- dum (“DOL Memo”), we adhere to our original position. An administrative agency’s rule implementing a statutory provision is entitled to the deference described in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), “when it appears that Congress delegated author- ity to the agency generally to make rules carrying the force of law, and that the agency imterpretation claiming deference was promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). There is no dispute that Congress delegated to the Department of 3a Labor (“DOL” or “the Department”) the authority to promul- gate legislative rules, which carry the force of law. But for substantially the same reasons set forth in our 2004 decision, we conclude that § 552.109(a) was not intended, at the time of its promulgation, to be a legislative rule; rather, it was meant to be an interpretive rule. While the original notice of proposed rulemaking indicates that the entirety of Part 552 of the Code of Federal Regulations was adopted pursuant to the authority delegated by 29 U.S.C. § 213(a)(15), it also indi- cates that the DOL proposes to add Part 552 defining and delimiting, in Subpart A, the terms “domes- tic service employee,” [and other terms undefined in the Statute] and setting forth, in Subpart B, a statement of general policy and interpretation concerning the applica- tion of the Fair Labor Standards Act to domestic service employees. Employment of Domestic Services Employees, Recordkeep- ing, Definitions and General Interpretations, 39 Fed.Reg. 35,382, 35, 382 (Oct. 1, 1974). This statement acknowledges that Part 552 is divided into two subparts, each of which has a different purpose. That statement, in combination with the facts that Subpart B is labeled “Interpretations” and that 29 C.F.R. § 552.2(c) indicates that “[t}he definitions required by section 13(a)(15) [of the FLSA] are contained in §§ 552.3, 552.4, 552.5, and 552.6,” convinces us that our original con- clusion that § 552.109(a) is an interpretive rule was correct. As such, it is entitled only to the level of déference described in Skidmore v. Swift & Co., 323 U.S. 134 (1944) (courts should defer to non-legislative agency rules according to their power to persuade). See also Christensen v. Harris County, 529 U.S. 576, 587 (2000). The arguments to the contrary presented in the DOL Memo are not persuasive. The memo indicates that the DOL con- siders § 552.109(a) legally binding, and points out that, when it promulgated the final rule,yt explained that the original 4a version would not have “allowed” the exemption for employ- ees of third parties and that the DOL concluded that the exemptions “can be available” to such employees. The memo asserts that the quoted language indicates that DOL must have believed, at the time the rule was promulgated, that the availability of the exception to employees of third parties turned definitively on its pronouncement in § 552.109(a). But even if all other regulatory provisions were silent on the issue of third-party employees, § 552.109(a) could have been simply intended to provide guidance to DOL employees as to how the agency planned to interpret “domestic service employment” in the third-party employer context. This is, after all, the function that interpretive rules, opinion letters, © agency manuals, enforcement guidelines, and other non-legis- - lative agency rules that have been denied Chevron deference perform. See Christensen, 529 U.S. at 587. So even if the agency’s determination of whether employees of third parties qualify for the companionship services exemption has always been dependent on § 552.109(a), that does not mean that regulation was promulgated as a legislative regulation in- tended to have the force of law outside of the agency. Applying Skidmore deference to § 552.109(a), we see noth- ing in the DOL Memo to persuade us that our original con- clusion was in error. We rested that conclusion on our: deter- minations that the regulation is (1) inconsistent with Con- gress’s likely purpose in enacting the 1974 amendments; (2) inconsistent with other regulations; (3) inconsistent with other DOL positions over time; and (4) insufficiently ex- plained by DOL, evidencing a lack of thorough consideration. Coke 1, 376 F.3d at 133. _ After consideration of the DOL Memo, we acknowledge that, like most complex statutes, the FLSA has multiple purposes, some of which are in tension with one another. Among these purposes are a desire to expand the coverage of the FLSA to domestics, S.Rep. No. 93-690, 93d Cong., 2d Sa Sess., at 16, 18-20 (1974), to exempt companionship services from that coverage, id. at 20, to ensure that companionship and babysitting services remain affordable for working fami- lies, 18 Cong. Rec. 24,715 (1972), and to ensure minimum wage and overtime compensation for domestic workers who were regular bread-winners, responsible for supporting their families, S.Rep. No. 93-690, at 20. The third-party employer ~ regulation as currently written would be consistent with some of these purposes and inconsistent with others. Consideration of congressional intent therefore does not lead to any defini- tive conclusion regarding the enforceability of § 552.109(a). Our previously expressed concerns about the regulation remain valid. To the extent that the DOL Memo invites us to reconcile § 552.109(a) and 29 C.F.R. § 552.3 (“§ 552.3”) with one another by ignoring the “extraneous vestige of the lan- guage’s origin” included in the text of § 552.3, we decline to accept the invitation. While we agree that we must make every effort to interpret regulations in such a way as to give each of them meaning and effect, an effort that requires us to ignore the plain language of a regulation with the force of law places more weight on that rule of construction than it can bear. Moreover, we need not defer to an agency’s interpreta- tions of its own regulations when those regulations, like § 552.109(a) and § 552.3, are unambiguous. Christensen, 529 U.S. at 588, 120 S.Ct. 1655. With respect to the agency’s inconsistent positions regard- ing § 552.109(a), we acknowledge DOL’s statement in the DOL Memo withdrawing and repudiating all previous state- ments questioning the validity of that regulation. But a cur- rent repudiation of those past positions does not mean that they were never advanced. As firm as DOL’s conviction is now that the current form of § 552.109(a) is the appropriate one, it cannot change tke fact that, at multiple times in the past, the Department’s position has been otherwise. 6a Finally, in our original opinion, we were specifically con- cerned with DOL’s failure to explain both the inconsistency between § 552.109(a) and § 552.3 and the Department’s deci- sion in 1975 to promulgate a rule that was contrary to the one originally proposed. Coke J, 376 F.3d at 134. We acknowl- edge that the DOL Memo is evidence that the agency has spent some time considering its position with respect to § 552.109(a). We also recognize that the agency has con- sidered and decided against amending the regulation on sev- eral occasions. But these facts do not address our concerns regarding the thoroughness of the original consideration and reasoning that went into the promulgation of § 552.109(a). To be sure, the DOL Memo attempts to explain the inconsis- tency between § 552.109(a) and § 552.3, but, as noted above, we find this explanation unpersuasive. And with respect to the “about-face,” Coke /, 376 F.3d at 134, which the Depart- ment performed between the initial notice of proposed rule- making and the adoption of the regulation in its current form, the DOL Memo is silent. As we pointed out in our March 2004 opinion, the explanation proffered in the Federal Regis- ter, see 40 Fed.Reg. 7404, 7405 (Feb. 20, 1975), ignored the plain language of the statute. Coke /, 376 F.3d at 134. The DOL Memo not only fails to acknowledge this faulty reason- ing, it actually advances it once more as an argument that the current form of § 552.109(a) is consistent with the statutory text of 29 U.S.C. § 213(a)(15). After reconsidering our 2004 decision in light of the DOL Memo, we find no reason to abandon the reasoning or the results reached in that decision. For the reasons set forth above and in our 2004 opinion, we AFFIRM the district court’s ruling that 29 C.F.R. § 552.6 is enforceable on its face; VACATE the district court’s ruling that 29 C.F.R. § 552.109(a) is enforceable; and REMAND the case for further proceedings. Ta APPENDIX B UNITED STATES COURT OF APPEALS SECOND CIRCUIT Docket No. 03-7666 EVELYN COKE, Plaintiff-Appellant, Vv. LONG ISLAND CARE AT HOME, LTD., and MARYANN OSBORNE, Defendants-Appellees. Argued March 4, 2004 Decided July 22, 2004 Before: WALKER, Chief Judge, KATZMANN, Circuit Judge, and GLEESON, District Judge. ' JOHN M. WALKER, JR., Chief Judge: At issue in this appeal is the enforceability of two reg- ulations promulgated by the Department of Labor (“DOL”) that define and interpret the “companionship services” ex- emption in the Fair Labor Standards Act (“FLSA” or “the Act”), 29 U.S.C. § 213(a){15). The Act generally requires minimum wage and overtime compensation; the “companion- ship services” exemption relieves employers from paying such compensation to those employees who work in domestic service as babysitters and companions to the elderly and ' The Honorable John Gleeson, of the United States District Court for the Eastern District of New York, sitting by designation. 8a infirm. The regulations at issue implement the exemption with respect to companions. The first regulation we consider is a regulation that defines the exemption. It includes within the exemption (1) those who perform household work related to the care of the elderly or infirm and (2) those who also perform housework inci- dental to their “companionship services” as long as the housework accounts for less than twenty percent of the weekly hours worked. See 29 C.F.R. § 552.6. The second regulation we consider applies the exemption to “[e]mployees who are engaged in providing companionship services, as defined in § 552.6, and who are employed by an employer or agency other than the family or household using their ser- vices.” See 29 C.F.R. § 552.109(a). The district court found both of these regulations to be entitled to the highest form of deference available to agency regulations and, accordingly, found them legally enforceable. See Coke v. Long Island Care at Home, Ltd., 267 F.Supp.2d 332 (E.D.N.Y. 2003). We affirm the enforceability of the first regulation, § 552.6, according it the highest level of deference available to agen- cies pursuant to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). But we conclude that the second regulation, § 552.109(a), is neither entitled to Chevron deference nor enforceable; we find it to be entitled only to the more limited level of deference announced in Skidmore v. Swift & Co., 323 U.S. 134 (1944), and reaffirmed in United States v. Mead Corp., 533-U.S. 218 (2001). Be- cause the second regulation is unpersuasive in the context of the entire statutory and regulatory scheme, it fails Skidmore’s test and cannot be enforced. Accordingly, we AFFIRM in part, VACATE in part, and REMAND for further proceed- ings. FACTUAL BACKGROUND Plaintiff-appellant Evelyn Coke appeals from the judgment on the pleadings, entered pursuant to Federal Rule of Civil 9a ° Procedure 12(c), in favor of defendants-appeliees Long Island Care at Home, Ltd. and owner Maryann Osborne, by the United States District Court for the Eastern District of New York (Thomas C. Platt, District Judge). See Coke, 267 F.Supp.2d at 332-41. The Secretary of Labor submitted an amicus brief arguing on behalf of defendants-appellees that the district court’s ruling should be affirmed. Unlike most, if not all, of the other courts that have consid- ered the issues in this appeal,” we review Coke’s case before the summary judgment stage and, thus, without any factual development. All we know is that Coke filed this action under the FLSA, alleging that she was employed as a “home healthcare attendant” by defendants, who did not pay her minimum wage or overtime compensation. While such com- pensation is generally required under the FLSA, Coke ac- knowledges that the “companionship services” exemption to the FLSA, as defined and interpreted by the DOL regulations, applies to her employment and that if the regulations at issue are enforceable, she cannot prevail. Her arguments are purely legal. Coke contends that the two regulations defining and inter- preting “companionship services” are unreasonable and imper- missible in light of the statute’s clear language and statutory purpose. Coke candidly calls her action a test case, “chal- lenging the regulation{s] on [their] face.” She does not allege ? We collect the full citations to such cases here in chronological order for ease of reference: McCune v. Or. Senior Servs. Div., 894 F.2d 1107 (9th Cir.1990); Cox v. Acme Health Servs., Inc., 5S F.3d 1304 (7th Cir. 1995); Salyer v. Ohio Bureau of Workers’ Comp., 83 F.3d 784 (6th Cir. 1996); Terwilliger v. Home of Hope, Inc., 21 F Supp.2d 1294 (N.D.Okla. 1998); Johnston v. Volunteers of Am., Inc., 213 F.3d 559 (10th Cir.2000); Madison v. Res. for Human Dev., Inc., 233 F.3d 175 (3d Cir.2000); Harris v. Dorothy L. Sims Registry, No. 00 C 3028, 2001 WL 78448, 2001 U.S. Dist. LEXIS 23263 (N.D.III. Jan.29, 2001); Welding v. Bios Corp., 353 F.3d 1214 (10th Cir.2004). 10a that the regulations are being improperly applied to a subclass of employees but, rather, that they contravene legislative will and are therefore unenforceable. After the district court ac- corded the two regulations Chevron deference and found them to be permissible under the statute, it granted defen- dants’ motion for judgment on the pleadings. This appeal followed. DISCUSSION 1. Standards of Review We review the decision of the district court de novo both because the judgment below was entered on the pleadings on a matter of statutory construction, Levy v. Southbrook Int'l Invs., Ltd., 263 F.3d 10, 14 (2d Cir.2001); Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir.1994), and, more specifically, because the decision as to whether an FLSA exemption may be applied to a class of claimants is a question of law, Freeman v. NBC, 80 F.3d 78, 82 (2d Cir.1996). Moreover, the ques- ~ tion of the appropriate level of deference to accord agency regulations is one purely of law, subject to de novo review. See Ossen v. Dep't of Soc. Servs. (In re Charter Oak Assocs.), 361 F.3d 760, 764 (2d Cir.2004) (pure questions of law are reviewed de novo). See generally 5 U.S.C. § 706 (“[T]he re- viewing court shall decide all relevant questions of law. . . .”). At this stage of the litigation, it is conceded by both parties that there are no disputed issues of material fact. Our review in the FLSA context is guided by a few special- ized principles. Because the FLSA is a remedial act, its ex- emptions are to be narrowly construed. See Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960); Mitchell v. Lublin, McGaughy & Assocs., 358 U.S. 207, 211 (1959). And an em- ployer bears the burden of proving that its employees fall within an exemption in the FLSA. See Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974); Arnold, 361 U.S. at 392; Donovan v. Carls Drug Co., 703 F.2d 650, 652 (2d Cir.1983). In sum, “[t]o extend an exemption to other than a ' lla those plainly and unmistakably within its terms and spit 't is to abuse the interpretative process and to frustrate the an- nounced will of the people.” A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945). Bearing these guiding principles in mind, we undertake our de novo review of the district court’s decision upholding the two regulations at issue here. II. Statutory Scheme The FLSA, enacted by Congress in 1938, requires that most workers receive minimum wage and overtime com- pensation for hours worked in excess of forty per week. See generally 29 U.S.C. § 201 et seq. In 1974, Congress amended the FLSA to broaden its coverage to a new set of workers, previously unprotected by the Act: employees performing “domestic services.” While the statute itself did not define “domestic service employment,” the Senate Committee Re- port confirms the commonly understood meaning of the term to include those employed within the home as cooks, butlers, valets, maids, housekeepers, governesses, jaiiitors, laundresses, caretakers, handymen, gardeners, footmen, grooms, chauf- feurs, and the like. See S.Rep. No. 93-690, at 20 (1974); see also H.R.Rep. No. 93-913, at 35-36 (1974), U.S.Code Cong. & Admin.News at 2811, 2845. However, while extending FLSA protections to employees in domestic service, Congress — carved out an exemption for employees engaged in “baby- sitting services” and “companionship services.” The exemp- tion withholds FLSA benefits from: any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employ- ment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary [of Labor]).... 29 U.S.C. § 213{a)(15). In order to more clearly delineate those who are subject to the exemption, the Secretary of 12a Labor, soon after the adoption of the 1974 amendments, promulgated a series of regulations, including the two that Coke challenges here. Ill. Regulatory Scheme The first regulation Coke challenges was promulgated in exercise of the authority delegat@&#by ¥ 21 3(a)(15) to define “companionship services.” It defines “companionship ser- vices” as those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: Provided, however, [t}hat such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked. 29 C.F.R. § 552.6. A related regulation (not challenged here), also prom- ulgated in clear exercise of the authority delegated by § 213(a)(15), adopts the House Committee Report’s defini- tion of “domestic service employment.” That regulation. states that domestic service “refers to services of a household nature performed by an employee in or about a private home .... Of the person by whom he or she is-employed.” 29 C.F.R. § 552.3 (emphasis added); cf H.R.Rep. No. 93-913, at 35, U.S.Code Cong. & Admin.News at 2845 (defining “domestic service employment” to be “services of a household nature performed by an employee in or about a private home of the person by whom he or she is employed”); see also S.Rep. No. 93-690, at 20 (stating that the House’s construction of “domestic service employment” to exclude third party employment is “generally accepted”). 13a The second regulation Coke challenges, 29 C.F.R. § 552.109(a), also promulgated soon after the 1974 amend- ments, expressly extends the exemption by including employ- ees “who are employed by an employer or agency other than the family or household using their services.” Section 552.109(a) appears under the “Subpart B” heading, “Inter- pretations,” as opposed to the “Subpart A” heading, “General Regulations,” under which §§ 552.3 and 552.6 are listea. This regulation exempted employees who the DOL concedes were not exempt prior to the 1974 amendments. See Employ- ment of Domestic Service Employees, 39 Fed.Reg. 35, 382, 35, 385 (proposed Oct. 1, 1974) (finding that “[e]mployees who are engaged in providing . . . companionship services and who are employed by an employer other than the families or households using such services” were “subject to the [FLSA] prior to the 1974 Amendments”). Prior to the promulgation of § 552.109(a), the DOL put out a different proposed rule for notice and comment: one that specifically declined to apply the “companionship services” exemption to employees of third party employers. See id. Following notice and comment on that proposed regulation, the agency reversed its position and offered the following explanation: “On further consideration, [the Secretary of Labor] ha[s] con- cluded that these exemptions can be available to such third party employers since they apply to ‘any employee’ engaged ‘in’ the enumerated services.” Application of the Fair Labor Siandards Act to Domestic Service, 40 Fed.Reg. 7404, 7405 (Feb. 20, 1975) (codified at 29 C.F.R. pts. 516, 552). The statement accompanying the regulation did not explain how bringing these previously sovered employees of third party employers within the exemption furthered the congressional purpose of expanding, and not narrowing, FLSA coverage from what it had been prior to 1974. The DOL did not extend the exemption to apply to those employees employed by third parties that provide “babysitting services.” See 29 C.F.R. § 552.109(b). l4a The DOL has enforced the two regulations at issue since their promulgation in 1974 and Congress has not disturbed the details of the scheme recounted here in the nearly thirty years they have been in force. In early 2001, however, the agency proposed amendments to the regulations pertaining to the “companionship services” exemption, which were subse- quently abandoned. In proposing the amendments, the DOL Stated: Due to significant changes in the home care industry over the last 25 years, workers who today provide in- home care to individuals needing assistance with activi- ties of daily living are performing types of duties and working in situations that were not envisioned when the companionship services regulations were promulgated. The number of workers providing these services has also greatly increased, and most of these workers are being excluded from the FLSA under the companionship ser- vices exemption. The Department has reevaluated the regulations and determined that—as currently written— they exempt types of employees far beyond those whom Congress intended to exempt when it enacted section [2]13(a)(15). Therefore, the Department proposes to amend the regulations to revise the definition of “com- panionship services,” which sets out the duties that a companion must be employed to perform in order to qualify for the exemption, to more closely mirror Con- gressional intent. See Application of Fair Labor Standards Act to Domestic Service, 66 Fed.Reg. 5481, 5482 (proposed Jan. 19, 2001). The DOL further explained what it undérstood to have been the congressional intent in 1974: [I]t clearly was Congress’ intent under the 1974 FLSA Amendments to cover all workers who performed do- mestic services as a vocation, excluding casual baby- sitters and providers of companionship services who lSa were not regular bread winners or responsible for their [own] families’ support, . . . Personal and home care aides perform a variety of tasks in the home, including household work and assistance with nutrition and cleanli- ness. Employers have generally treated workers em- ployed as home health aides and personal and home care aides as exempt companions, based upon the Depart- ment’s current regulations. . . . As a result, the Depart- ment believes it is necessary to amend the regulations to focus them on fellowship and protection duties that Con- gress originally intended the companion exemption to cover. Id. at 5483. The 2001 proposed amendments to the regu- lations would have extended FLSA protection to employees who are hired by “someone other than a member of the family in whose home he or she works.” /d. at 5482. The DOL expressly acknowledged that there exists an internal inconsistency between § 552.109(a) and § 552.3 and that § 552.3 is more consistent with the congressional purpose as it existed in 1974. /d. at 5485. Nonetheless, without further addressing the inconsistency, the DOL withdrew the proposed amendments in April 2002 because “numerous comments] on the proposed rule, including [comments offered by] multi- ple government agencies . . . seriously called into question the Department’s conclusion that there would be little economic impact.” Application of the Fair Labor Standards Act to Domestic Service, 67 Fed.Reg. 16,668 (Apr. 8, 2002). Upon withdrawing the proposed amendments, the DOL did not question or otherwise comment upon its 2001 conclusion about what congressional intent had been in 1974. IV. The Enforceability of 29 C.F.R. § 552.6 A. Degree of deference to accord to the DOL The district court accorded Chevron deference to § 552.6’s definition of “companionship services.” Neither party in l6a this case objects to this because the statute directed the DOL to promulgate legislative regulations to define the term “com- panionship services” as it appears in 29 U.S.C. § 213(a)(15), and the regulations are plainly an exercise of that authority. See Mead, 533 U.S. at 226-27, 121 S.Ct. 2164 (clarifying that ' Chevron deference is appropriate when a statute clearly dele- gates authority to an agency and the agency acts purporting to exercise that authority); Chao v. Russell P. Le Frois Builder, Inc., 291 F.3d 219, 226 (2d Cir.2002); 29 C.F.R. § $52.2(c) (expressly stating that “[t]he definitions required by § [2]13(a)(15) are contained in §§ 552.3, 552.4, 552.5 and 552.6”). Accordingly, § 552.6 is binding on the courts unless procedurally defective, “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 844. Here, Coke argues that § 552.6 is unenforceable as being manifestly contrary to the statute. In applying Chevron deference, we follow a two-step analysis: “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43. When the terms of a statute are unambiguous, the judicial inquiry is complete. However, if there is ambigu- ity in the statute, we proceed to step two and inquire whether the agency’s legislative regulation is a reasonable and per- missible construction of the statute. /d. at 843-44. “If the agency’s reading fills a gap or defines a term in a reasonable way in light of the Legislature’s design, we give that reading controlling weight, even if it is not the answer the court would have reached if the question initially had arisen in a judicial proceeding.” Regions Hosp. v. Shalala, 522 U.S. 448, 457 (1998) (internal quotation marks omitted) (citing Chevron, 467 U.S. at 843 n. 11). We are also mindful that “‘a long-standing, contemporaneous construction of a statute by the administering agenc[y] is entitled to great weight.” Leary v. United States, 395 U.S. 6, 25 (1969) (internal quotation marks and citations omitted). YY 17a B. Application of Chevron Coke argues that we needn’t arrive at step two of the Chevron inquiry and that we should find that the statute plainly and on its face prohibits the agency’s definition of “companionship services.” In particular, she contends that the regulation’s inclusion within the definition of both house- work related to the care of the elderly or infirm and house- work incidental to that care are violative of the statute’s command to fashion an exemption only for “companionship services.” Coke suggests that the large amount of incidental housework permitted by the current regulation (twenty per- cent of the work) is an abuse of the delegation under the statute. Indeed, she argues, under a particular reading of the regulation’s second sentence (the one that allows work “re- lated to” the care of the elderly or infirm), “household work” would be exempt even if no companionship were provided at all: “Under the regulation, an elderly person unable to care for him or herself could hire a full-time companion and a full- time cook, pay the cook less than the minimum wage, and successfully assert that cooking is a companionship service .... Appellant’s Br. at 16. Thus, because Congress clearly indicated that “companionship services” were meant to be a subset of domestic services, and the regulation can be read to exempt pure domestic service without companionship, Coke argues that the regulation was drawn too broadly on its face. Since Congress wanted to make sure domestic service em- ployees got FLSA protection, she argues that § 552.6’s exten- sion of the exemption to “meal preparation, bed making, [and] washing of clothes” places too many domestic service employees within the exemption, a result that Congress could not have intended. The district court properly rejected these arguments. ~The statute plainly gives the DOL authority to define “companionship services,” a vague term with no obvious plain meaning; and the DOL did so very soon after the 18a passage of the amendments to the FLSA. On the face of the statute, we discern no unambiguous congressional intent to keep all “incidental” services and domestic services “related to” the care of the elderly and infirm outside the exemption, especially when such services would naturally follow from or be part of a reasonable job description of a companion to the elderly or infirm. Although the Supreme Court has issued mixed messages as to whether a court may consider legislative history at this stage of the analysis (step one of Chevron),’ that history plainly presupposes that some incidental or other related housework would accompany “companionship.” For exam- ple, Senator Quentin Burdick wanted to extend FLSA cov- erage for “professional domestic[s]” but was concerned about the potential burden on household employers where “people who might have an aged father, an aged mother, an infirm father, an infirm mother, and a neighbor comes in and sits with them. This, of course, entails some work, such as perhaps making lunch . . . . This would be incidental to the main purpose of the employment.” 119 Cong. Rec. 24,773, > Compare FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 137, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (effectively consid- ering legislative history at step one of Chevron analysis), Pauley v. BethEnergy Mines, Inc., 50\ U.S. 680, 697-99, 111 S.Ct. 2524, 115 L.Ed.2d 604 (1991) (same), Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 649-50, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) (same), and Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 233-41, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) (same), with K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 293 n. 4, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988) (opinion of Kennedy, J.) (noting in the first step of a Chevron inquiry that “any reference to legislative history [ ] is in the first instance irrelevant”), Sutton v. United Air Lines, Inc., 527 U.S. 471, 482, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (finding statutory text clear enough to ignore any arguments from legislative history), and Nat'l R.R. Passenger Corp. v. Boston & Me. Corp., 503 U.S. 407, 417, 112 S.Ct. 1394, 118 L.Ed.2d 52 (1992) (finding only statutory text to be relevant for first-step Chevron “analysis). 19a 24,801 (1973). Senator Harrison Williams explained the purpose of the “companionship services” exemption through an analogy to the “babysitting” exemption: We use the situation in which people are in a household not to do household work but are there, first, as baby- sitters. I think we all have the full meaning in mind of what a babysitter is th ere for-to watch the youngsters. “Companion,” as we mean it, is in the same role-to be there and to watch an older person, in 2 sense. {Household work] which is purely incidental would not change the category of the person being there in the household. Id. Without attaching primacy to using legislative history at _step one, it seems to us more likely than not that Congress understood that when employees are in the home “first” to be companions or babysitters, they may engage in “incidental” housework without falling outside the exemption. The DOL’s regulatory choice of the twenty percent allowance for inci- dental work is not clearly contravened by either the text of the statute or the intent of Congress to the extent it is discernable. More troubling is the second sentence of the regulation, which is not delimited by the twenty percent rule. It does seem to allow, as Coke argues, virtually unlimited household work as long as it is “related to the care of the aged or infirm person.” The DOL, however, in its amicus brief explains: Under section 552.6, an employee must “provide fel- lowship, care, and protection” for a person unable to care for himself in order to meet the requirements of the “companionship services” exemption. While the regu- lation allows for the performance of some household work, it must be either “related to” or “incidental” to the “care of the aged or infirm person. See 29 C.F.R. 20a 552.6.” Thus, contrary to [Coke’s] suggestion, an em- ployee hired only to perform household work or as a “full-time cook” would not meet the requirements of the regulation. An employee who has not been hired pri- marily to provide “fellowship, care, and protection” will not be considered exempt under the Act or the regulations. Br. of Amicus Curiae DOL at 19 (citations omitted). The ‘DOL’s explanation is adequate. At best, the regulation is ambiguous on the question of whether the first sentence of the regulation must be satisfied—that an employee must first provide “fellowship, care, and protection” —before proceed- ing to the inquiry about whether to exempt the. “related” household work. We note, however, that we have no occasion to limit the . enforcement of § 552.6 to the DOL’s litigation position here because Coke concedes that her challenge is:to the regulation “on its face,” that is, in all its applications. Coke has specifically refused to challenge the regulation “as applied” to any particular class of employees. We do not rule out the possibility of an application that would contravene the plain statutory mandate, but because there are many applications of the regulation that are consistent with the statute, we cannot declare it invalid on its face. See generally Reno v. Flores, 507 U.S. 292, 301 (1993) (extending the no-set-of-circum- stances test for facial constitutional challenges to statutes under United States v. Salerno, 481 U.S. 739 (1987), to Chevron challenges). In any event, Coke presents no facts upon which we could conclude that the agency has ever applied the regulation in the purportedly impermissible way she envisions. If we refused to consider the unequivocal legislative his- tory at step one of Chevron, the statute is at best ambiguous on the question of whether incidental services and household work related to the care of the individual may accompany the x 2la fellowship and companionship focus of the exemption.* And step two of Chevron requires us to inquire if the DOL’s regulation “harmonizes with the language, origins, and pur- pose of the statute.” Bankers Life & Cas. Co. v. United States, 142 F.3d 973, 983 (7th Cir.1998). Consideration of legislative history is generally accepted at this stage of the analysis. E.g., Toibb v. Radloff, 501 U.S. 157, 162 (1991); Bankers Life, 142 F.3d at 983. Coke also argues that § 552.6 fails step two of Chevron. Coke repeats the arguments she makes in connection with step one and also focuses on Senator Burdick’s statement in the legislative history that sums up the “companionship ser- vices” exemption as one targeted for “elder sitter[s].” See 119 Cong. Rec. at 24,801. Coke intimates that a sitter must only sit, without lifting a hand to help the elderly or infirm with incidental housework. But, again, we agree with the district court that § 552.6 survives the Chevron inquiry. The Senate Report, cited by Coke, makes clear that some inciden- tal household work and housework related to the care of the elderly or infirm does not contravene the purpose of the exemption. See 119 Cong. Rec. at 24,801 (1973). The idea that a sitter merely sits is belied by Senator Burdick’s anal- ogy: Sitters provide care, and care entails other incidental tasks such as food preparation, feeding, cleaning up messes, changing diapers, and other services. Accordingly, given the deference afforded the agency under Chevron, we are unable * The DOL’s 2001 statements do not prove that § 552.6 is unenforce- able. First, the DOL’s contemporaneous assessment of congressional in- tent is more probative: Apparently, the DOL thought § 552.6 represented congressional intent in 1974 and the enacting Congress expressed no dis- content. Second, the DOL’s interpretation of congressional intent, whether in 2001 or 1974, could never be dispositive for our Chevron inquiry. Of course, the entire purpose of the Chevron inquiry is to determine congres- sional intent quite apart from what the agency interprets that intent to be. Only if we conclude that the enacting Congress's intent is ambiguous do we defer to reasonable interpretations of the gap left by the ambiguity. 22a to conclude that § 552.6 is arbitrary, capricious, or manifestly contrary to the statute with respect to either (1) the twenty percent allowance for incidental housework in the agency’s legislative regulation, or (2) the agency’s allowance for household work related to the care of the individual. Every circuit to have considered the question of the en- forceability of § 552.6 has found the regulation enforceable on its face. See, e.g., Johnston, 213 F.3d at 565; Salyer, 83 F.3d at 787; McCune, 894 F.2d at 1110. Only Harris, 2001 WL 78448, at *5, 2001 U.S. Dist. LEXIS 23263, at *17, a district court decision from the Northern District of Illinois, found the regulation too broad. Harris, of course, in no way binds us. Moreover, Harris was an “as applied” case and its ultimate pronouncement was narrow. While it calls § 552.6 “unreasonably broad” in the text of the opinion, id. at *3, 2001 U.S. Dist. LEXIS 23263, at *11, it is more circumspect when it announces its final holding: “§ 552.6, as currently drafted, is invalid fo the extent it exempts homemakers from [FLSA] coverage,” id. at *5, 2001 U.S. Dist. LEXIS 23263, at *17 (emphasis added); only the particular case of the regulation “as applied” to homemakers—as the plaintiffs were in that case—was held to be outside the “companionship services” exemption. ; In the case before us, however, because Coke does not tell us anything about what “home healthcare attendants” actually do, it is impossible for us to pass on the question of whether the particular work she did was considered by Congress to be outside the exemption. Consistent with her facial challenge to § 552.6, Coke refused to amend her complaint to be more specific about what she does. For the foregoing reasons, the regulation withstands Chevron deference on this challenge. Accordingly, we AFFIRM the district court’s ruling with respect to the enforceability of § 552.6. 23a V. The Enforceability of 29 C.F.R. § 552.109(a) We now turn to Coke’s challenge to § 552.109(a), which applies the exemption to “companionship services” rendered by those who are employed by third parties, rather than by the family of the recipient of the services. A. Degree of deference to accord to the DOL The threshold question concerning § 552.109(a)’s enforce- ability is the degree of deference to be afforded the DOL. Coke argues that the district court erred by according Chevron deference to the regulations that the DOL itself calls “inter- pretations.” The DOL argues that such deference was appropriate. Although the district court did not directly consider the question, it is purely one of law, which we con- sider de novo. See Ossen, 361 F.3d at 764. In favor of applying Chevron deference is Chevron ‘s own broad statement and Mead’s endorsement of that statement: When Congress has “explicitly left a gap for an agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,” and any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or Capri- cious in substance, or manifestly contrary to the statute. Mead, 533 U.S. at 227 (citation omitted) (quoting Chevron, 467 U.S. at 843-44). Thus, to the extent that the statute is silent on the definition of a “domestic service employee” and contains no reference to third party employers, such matters might be understood to be appropriately delegated to the DOL. An agency interpretation “qualifies for Chevron de- ference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Mead, 533 U.S. at 226-27, 121 S.Ct. 2164 (emphasis added). The 24a statute, 29- U.S.C. § 213(a)(15), expressly delegated authority to the DOL to define and delimit the terms “companionship services” and “domestic service employee,” and the DOL argues that Chevron deference follows accordingly. Moreover, the regulation at issue is “a long-standing, con- temporaneodus construction of a statute,” and, as such, “enti- tled to great weight.” Leary, 395 U.S. at 25 (internal quota- - tion marks omitted). Indeed, Congress has revisited § 213 by amending it seven times since 1974, without expressing any disapproval of the DOL regulation at issue, see Pub.L. No. 95-151 (1977); Pub.L. No. 96-70 (1979); Pub.L. No. 101-157 (1989); Pub.L. No. 103-329 (1994); Pub.L. No. 104-88 (1995); Pub.L. No. 104-188 (1996); Pub.L. No. 105-78 (1997). Such congressional acquiescence is “persuasive evidence that the [agency] interpretation is the one intended by Congress.” Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 846 (1986).° Finally, when an agency action is “‘the fruit{ } of notice- and-comment rulemaking or formal adjudication,’” courts generally accord the agency Chevron deference. Chao, 291 F.3d at 227 (quoting Mead, 533 U.S. at 230). Here, no one contests that, although the agency calls § 552.109(a) an * The argument from congressional acquiescence-affectionately known as the “dog didn’t bark canon”-must always be qua’fied by the observa- tion that evidence of what subsequent Congresses intend pales in compari- son to probative evidence about what the enacttng Congress intended; even Schor did not rely on what it called the “silence” rule. 478 U.S. at 846, 106 S.Ct. 3245. See generally William N. Eskridge, Jr. et al., Cases and Materials on Legislation: Statutes and the Creation of Public Policy 1020-21 (3d ed.2001) (discussing the “dog didn’t bark canon”). Further- more, because Congress, in amending § 213, never reenacted the FLSA or the relevant provisions thereof, this is not a case that implicates the “re- enactment rule” delineated in Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), where “Congress is presumed to be aware of an administrative . . . interpretation of a statute and to adopt that interpretation when it re-enacts a statute without [relevant] change.” 25a “interpretation,” it was promulgated following notice and comment procedures. However, it is also true (and a cause of concern) that the rule the agency adopted after comments were received was the opposite of the rule proposed in the original notice. There was no separate notice and comment on the rule as ultimately adopted. All courts that have considered § 552.109(a) have accorded it Chevron deference. See, e.g., Johnston, 213 F.3d at 561- 62; Terwilliger v. Home of Hope Inc., 2\ F.Supp.2d at 1299 n. 2. But Coke is correct that none of these prior cases care- fully considered the question before us now: Does Mead, which post-dates the cases affording § 552.109(a) Chevron deference, require a different analysis yielding a different re- sult insofar as it holds that some agency regulations should be accorded less than Chevron deference? Coke argues that Mead requires us to apply a lesser degree of deference to § 552.109(a) as an “interpretive,” rather than a “legislative” regulation. Indeed, “interpretive rules . . . enjoy no Chevron status as a class.” Mead, 533 U.S. at 232. This circuit, even before the Supreme Court’s clarification in Mead, contemplated that interpretive regulations should not receive full Chevron deference. In Reich v. New York,3 — F.3d 581, 587 (2d Cir.1993), we considered DOL regulations promulgated to define and delimit the administrative exemp- tion in the FLSA at 29 U.S.C. § 213(a)(1). We held, “In contrast to the controlling authority given the [DOL’s] /egis- lative rules—i.e., those promulgated pursuant to an express grant of Congressional authority—the respect accorded the [DOL’s] interpretive regulations depends upon their persua- siveness ... .” /d. We foretold the precise distinction later drawn in Mead when that Court distinguished between those regulations that are accorded Chevron deference and those that are not. In Reich v. New York, the interpretations from which Chevron deference was withheld were classified as “interpretations” by the regulations themselves. See also 26a Freeman, 80 F.3d at 83-84 (refusing to accord Chevron defer- ence to DOL interpretations under the FLSA despite their promulgation with notice and comment procedures); Reich v. Gateway Press, Inc., 13 F.3d 685, 699 n. 18 (3d Cir.1994) (“The DOL interpretations do not have the force of law.”). We find § 552.109(a) to be an interpretive rather than a legislative regulation. While the rule “grants nghts, imposes obligations, or produces other significant effects on private interests,” as legislative regulations do, White v. Shalala, 7 F.3d 296, 303 (2d Cir.1993) (internal quotation.marks omit- ted), a rule can only be legislative “if the agency intended to use [the legislative power delegated to it by Congress] in promulgating the rule at issue,” American Postal Workers Union, AFL-CIO v. United States Postal Serv., 707 F.2d 548, 558 (D.C.Cir.1983). Here, the DOL did not intend to use the legislative power delegated in § 213(a)(15) when it promul- gated § 552.109(a). This is most apparent from its inclusion of the regulation under “Subpart B—Interpretations” as op- posed to “Subpart A—General Regulations.” This appear- ance is supported by substance. Congress expressly delegated to the DOL authority to de- fine terms in § 213(a)(15), and the DOL expressly states in 29 C.F.R. § 552.2(c) that “[t]he definitions required by § [2]13(a)(15) are contained in §§ 552.3, 552.4, 552.5 and 552.6.” Accordingly, the regulation at issue, § 552.109(a), is effectively conceded by the DOL not to have been prom- ulgated pursuant to Congress’s express legislative delegation in § 213(a)(15). Mead holds that administrative implementa- tion of a particular statutory provision does not qualify for Chevron deference unless “it appears that the agency inter- pretation claiming deference was promulgated in the exercise of that authority.” 533 U.S. at 226-27. Thus, § 552.109(a) does not qualify for Chevron deference because, by the DOL’s own account, it was self-consciously not promulgated in exer- cise of Congress’s delegated authority pursuant to § 213(a)(15). 27a The DOL places emphasis on the fact that in 1974 § 552.109(a) was promulgated after notice and comment and, ~ indeed, Mead explicitly instructs us to consider whether a rule was the product of notice and comment in assessing whether to accord it Chevron deference. Mead, 533 U.S. at 230-31, 121 S.Ct. 2164. However, “while notice and comment are required for legislative rules, they are by no means prohibited for interpretive rules.” Mejia-Ruiz v. INS, 51 F.3d 358, 365 (2d Cir.1995). Mead does nothing to undermine this conclu- sion. See Mead, 533 U.S. at 230-31, 121 S.Ct. 2164; Thomas W. Merrill, The Mead Doctrine: Rules and Standards, Meta- ' Rules and Meta-Standards, 54 Admin. L.Rev. 807, 814 (2002) (“1 do not think the Court was saying [in Mead]... that if an agency adopts notice-and-comment or trial-type hearing procedures on its own authority, its interpretation is presumptively entitled to Chevron deference.” (emphasis re- moved and emphasis added; citations omitted)). In this case, the agency undertook a notice and comment procedure for an interpretative regulation despite the fact that the procedure was not required. While Mead does not offer specific guidance on wheiher putting a proposed interpre- tation out for notice and comment [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0503%3A02. Public record. Not legal advice.