# Amicus Curiae Brief — Long Island Care at Home, Ltd. v. Coke

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 551 U.S. 158

## Text

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No. 06-593 LUSUPREME SOUOT US. |

In the Supreme Court of the Gnited States

LONG ISLAND CARE AT HOME, LTD., ET AL...
PETITIONERS

v.
EVELYN COKE

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS

PAUL D. CLEMENT
Solicitor General
Conusel of Record
PITT RE hs EDWIN 8S. KNEEDLER
STEVEN J. MANDEL Deputy Solicitor General

Associate Solicitor ;
DAVID B. SALMONS

JONATHAN L. SNARE
Acting Solicitor of Labor

PAUL L.. FRIEDEN Assistant to the Solicitor
Counsel for Appellate General
Litigation Department of Justice
EDWARD D. SIEGER Washington, D.C. 20530-0001
JOANNA HULL (202) 514-2217

Attorneys >
Department of Labor
Washington, D.C. 20210

QUESTION PRESENTED

Whether the court of appeals erred in holding that a
longstanding Fair Labor Standards Act regulation, 29 C.F.R.
552.109(a), promulgated by the Department of Labor pur-
suant to delegated rulemaking authority and after notice and
comment, was not entitled to deference under Chevron U.S.A.
Inc. v. NRDC, 467 U.S. 837 (1984), and was not enforceable.

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TABLE OF CONTENTS

Page
Interest of the United States ................. 0. ee eee eee 1
I Si cece hone Nena ékhee sabe pees bestest ce beet 1
NE 6 dc wi cextdeenbencecunntenendeee te 8
Argument:
I. DOL’s third-party employer regulation is entitled
rn is ce aces weennewas 10

A. Congress clearly granted rulemaking authority
to DOL concerning application of the

companionship services exemption ............. 11
B. DOL exercised its statutory rulemaking

authority in promulgating Section 552.109(a) .... 12
©. Chevron deference is appropriate even if 29

C.F.R. 552.109(a) is not a legislative rule ........ 16

Il. DOL’s third-party employment regulation is a

permissible interpretation of the FLSA’s
companionship services exemption ................ 17
A. DOL’s third-party employer regulation is

supported by the text and history of the

FLSA’s companionship services exemption .... .. 18
B. The third-party employer regulation is

consistent with Congress’s intent in enacting

the exemption for companionship services ....... 21
C. DOL’s third-party employer regulation is
consistent with other DOL regulations .......... 24

D. Invalidating DOL’s third-party employer
regulation would have substantial negative
Ss cccuus ccdakdnneteenensenuneke 27
SED 6c hbnetuuseuhiedeencuden eneeeeesn4éendekene 30

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IV

TABLE OF AUTHORITIES
Cases: Page
Auer v. Robbins, 519 U.S. 452 (1997) ...... 9, 11, 14, 25, 29
' Brigham v. Eugene Water & Elec. Bd., 357 F.3d 931

PP ciicccdldhidenhehedanesnhdnessueus 16
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) passim
Christensen v. Harris County, 529 U.S. 576 (2000) ..... 15
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .......... 14
CBS v. United States, 316 U.S. 407 (1942) .......... 14,15
CFTC v. Schor, 478 U.S. 833 (1986) ............... 20, 29

Fernandez v. Elder Care Option, Inc., No. 03-21998
(S.D. Fla. July 29, 2005), appeal docketed, No. 05-

16806 (11th Cir. filed Dec. 5, 2005) .............. 24, 26
Freeman v. NBC, 80 F.3d 78 (2d Cir. 1996) ........... 16
Holtville Alfalfa Mills, Inc. v. Wyatt, 230 F.2d 398

I a a i ee eeaee 19
Homemakers Home & Health Care Servs., Tne. v.

Carden, 538 F.2d 98 (6th Cir. 1976) ...............-. 20
Jay v. Boyd, 351 U.S. 345 (1956) ...... 0. eee ce eee 29

Johnston v. Volunteers of Am., Inc., 213 F.3d 559
(10th Cir. 2000), cert. denied, 531 U.S. 1072 (2001) ... 15

Madison v. Resources for Human Dev., Inc., 233

Pe ED 5.65 accnceesttecepoveces és’ 15
McCune v. Oregon Senior Servs. Div., 894 F.2d 1107

Je koe i teeee ee iuasesebhene co os 15
National Cable & Telecomms. Assoc’n v. Brand X

Internet Servs., 545 U.S. 967 (2005) ............. 11,12
NationsBank of N.C., N.A. v. Variable Annuity Life

i UU oo scc5cssncnudsovessba 1

7

Olmstead vy. L.C. ex rel. Zimring, 527 U.S. 581 (1999)... 23
Pennzoil Co. v. FERC, 645 F.2d 360 (Sth Cir. 1981),

cert. denied, 454 U.S. 1142(1982) .................. 21

Cases—Continued: Page
Reich v. New York, 3 F.3d 581 (2d Cir. 1993), cert.
co rr ne 16
Skidmore v. Swift & Co., 323 U.S. 134 (1944) ........ 7,18
United States v. Gonzales, 520 U.S. 1(1997) .......... 18

United States v. Mead Corp., 533 U.S. 218 (2001) . passim

United Steelworkers of Am. v. Marshall, 647 F.2d
1189 (D.C. Cir. 1982), cert. denied, 453 U.S. 913

GURU +00cscccvedsdevedecesussatekenmeneeeeee 21
Welding v. Bios Corp., 353 F.3d 1214 (10th Cir.

FN rr bovcsahaseundamee 15, 22
Yellow Transp., Inc. v. Michigan, 537 U.S. 36

GED Congress has amended 29 U.S.C. 213 seven times since 1974 and has not
made any changes to the exemption. See Pub. L. No. 95-151, 91 Stat. 1245
(1977); Pub. L. No. 96-70, 93 Stat. 452 (1979): Pub. L. No. 101-157, 108 Stat. 938
(198%); Pub. L. Ne. 103-329, 108 Stat. 2382 (1994); Pub. L. No. 104-88, 109 Stat.
803 (1995); Pub) L. No. 104-188, 710 Stat. 1755 (1996); Pub. L. No. 105-78, 111
Stat. 1467 (1997). This failure to revise or repeal DOL’s longstanding inter-
pretation of the companionship exemption “is persuasive evidence that the
interpretation is the one intended by Congress,” or at least is within the range
of discretion Congress conferred on the ageney. CFTC v. Schor, A78 U.S. 835,
846 (1986) (citation omitted).

21

domestic service workers, DOL revised its rule to exempt all
employees providing companionship services, regardless of
their employer. See 40 Fed. Reg. at 7405 (“On further consid-
eration, I have concluded that the[{] exemption[]| can be avail-
able to * * * third party employers since [it] appllies| to
‘any employee’ engaged ‘in’ the enumerated services.”). The
agency explained that “[t]his interpretation is more consistent
with the statutory language and prior practices concerning
other similarly worded exemptions.” /bid.; see also Advisory
Mem., Pet. App. 52a, 53a.°

B. The Third-Party Employer Regulation Is Consistent
With Congress’s Intent In Enacting The Exemption For
Companionship Services

Section 552.109(a) also is consistent with Congress’s intent
in enacting the exemption for companionship services in the
first place, and it avoids the disruption to the provision of
companionship services to aged and disabled individuals that
would result if the regulation were invalidated.

As DOL stated soon after promulgating 29 C.F.R. 552.109,
see Op. Ltr. WH-368, 1975 WL 40991 (Nov. 25, 1975), allowing

* DOL’s change between its proposed rule in 1974 and the final rule adopted
in 1975, in response to comments, is not a reason Lo deny Chevron deference to
Section 552.10%a). See Yellow Transp., 537 U.S. at 45 (applying Chevron
where agency's position changed from proposed rule to final rule). Such
modifications are at the very “heart of the rulemaking process.” Penazoit Co.
v. FERC, 645 F.2d 360, 371-372 (5th Cir. 1981), cert. denied, 454 U.S. 1142
(1982). Further, respondent’s argument that the third-party employer regu-
lation is procedurally defective under the APA, 5 U.S.C. 551 ef seq.. is not prop-
erly before the Court because it was not timely raised, Pet. App. 382 9.3. and
the court of appeals did not decide the issue, id. at 27a-28a. The argument is
ulso meritless. DOL satisfied the APA's requirement at 5 U.S.C. 54380b)C3) by
setting forth the terms of the proposed Part 552, including the third-party
employer regulation. and then issuing a final rule that was a logical outgrowth
of the proposal. See 39 Fed. Reg. at 35.383-35,385; United Steelworkers of Am.
v. Marshall, 647 F.2d 1189, 1221 (D.C. Cir. 1981). Moreover, following notice
and comment in 1993, 1995, and 2001, DOL retained Section 552.10%a) as
worded. See pp. 4-5, supra.

22

the exemption for all employees providing companionship
-services, regardless of the identity of their employer, is con-
sistent with Congress’s intent to keep such services afford-
able. See 119 Cong. Rec. 24,797 (1973) (statement of Sen.
Dorninick); id. at 24,798 (statement of Sen. Johnston); id. at
24,&01 (statement of Sen. Burdick); 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.”) (internal quota-
tion marks and citation omitted). This affordability concern
applies regardless of whether a person needing care employs
a companion directly or uses a third-party agency to obtain
such services.

Indeed, as DOL recognized when it decided not to revoke
the third-party employer regulation in 2002, the cost of com-
panionship services would dramatically increase without the
exemption. See 67 Fed. Reg. at 16,668 (citing comments from,
among others, the SBA and HHS, expressing concern that
extending the FLSA’s minimum wage and overtime coverage
to companions employed by third parties would increase the
cost. of such services). That is a concern not only for persons
who need those services, but also for third-party providers,
whose reimbursement is generally fixed through Medicare
and Medicaid, see, e.g., Nat’l Ass’n for Home Care & Hospice,
Ine. (NAHC) Amicus Cert. Br. 7-8, and for the federal govern-
ment, because Medicare and Medicaid together pay more than
half of the revenues to freestanding agencies. See 66 Fed.
Reg. at 5483 (“40 and 15 percent, respectively”).

Eliminating the third-party employer regulation would
have a substantial impact on home care beyond increased
costs, and could cause disruption in the care that frail elderly
and disabled individuals currently receive. For example, a
nuraber of home care providers believe that they would need
to limit workers to 40 hours of work each week to control
cosis if the exemption were not available. See, e.g., City of

23

New York Amici Cert. Br. 8; Home Care Council of New York
City Amicus Cert. Br. 8-9. Such a reduction in workers’ hours
would likely disrupt continuity of care, as many individuals
requiring companionship services need care for a significant
portion of the day and night, including, in some cases, round-
the-clock care. Continuing Care Leadership Coalition Amicus
Br. 8. In addition, home care providers have expressed con-
cern that restricting companions to 40 hours of work each
week could make it more difficult for those needing care to
find it “ity of New York Amici Cert. Br. 8, 11. Such difficul-
ties Wuuld lead to increased institutionalization, which is con-
trary to government policy. See Olmstead v. L.C. ex rel.
Zimring, 527 U.S. 581, 599-602 (1999); Exec. Order No.
13,217, 3 C.F.R. 774 (Community-Based Alternatives for Indi-
viduals with Disabilities). Nor is it obvious that the care-
givers would benefit. Some providers predict that caregivers’
total pay would actually be reduced because they would no
longer be able to depend on working overtime hours to sup-
plement their income. See New York State Ass’n of Health
Care Providers Amicus Cert. Br. 6. Moreover, the effects of
limiting the companionship services exemption to individual
employment would visit the greatest hardship on those el-
derly or infirm individuals—for example, those with Alzhei-
mer’s disease—who may be incapable of acting as employers.
See Home Care Ass’n of New York State Amicus Cert. Br. 17;
NAHC Amicus Cert. Br. 6.

Limiting the exemption to individual employment also
would deny the companionship exemption where a family
member hires a companion for an elderly or infirm relative
living in another household. There is no indication in the
FLSA itself, or its legislative history, that Congress intended
that result. Indeed, consistent with the textual reference to
“any employee,” there is no legal or policy justification for
treating employees providing companionship services differ-
ently under the FLSA based on the identity of the employer.

24

The changing nature of the home care industry highlights
the importance of allowing the exemption for all companion-
ship services employees, regardless of their employer. Since
Congress enacted the exemption, “(tlhe number of for-profit
agencies | providing companionship services| * * * increased
** * from 47 in 1975 to 3,129 in 1999.” 66 Fed. Reg. at 5483.
Given the number of agencies now providing these services,
“lijf the companionship services exemption to the FLSA was
narrowed to only those employees hired directly by a family
member or the head of household, then the exemption would
encompass only 2% of employees providing companionship
services in private homes.” Fernandez v. Elder Care Option,
Tnc., No. 03-21998 (S.D. Fla. July 29, 2005), slip op. 45-46 (cit-
ing 66 Fed. Reg. at 5483), appeal docketed, No. 05-16806 (11th
Cir. filed Dec. 5, 2005). Such an outcome would not be consis-
tent with Congress’s intent to ensure the availability and
affordability of those services for working Americans.

C. DOL’s Third-Party Employer Regulation Is Consistent
With Other DOL Regulations

The court of appeals on remand acknowledged that consid-
eration of congressional intent “does not lead to any definitive
conclusion” about the validity of Section 552.109(a). Pet. App.
4a-5a. The court nonetheless invalidated that longstanding
regulation because it concluded that it is inconsistent with
other DOL regulations, particularly 29 C.F.R. 552.3, which
the court believed clearly limit the companionship services
exemption to employees working in the private home of the
person by whom she is employed. Pet. App. 4a-5a, 30a. Sec-
tion 552.3’s general definition of “domestic service employ-
ment,” however, does not support disregarding Section
552.109 a)'s specific treatment of third-party employers.

At the time the regulation was promulgated, DOL demon-
strated its understanding that Section 552.3 did not resolve
the issue of third-party employment by including a separate
section expressly addressing the subject in the context of

25

companionship services, Section 552.109. See 40 Fed. Reg. at
7407. If the definition of domestic service employment in
Section 552.3 had already excluded employees of third parties,
there would have been no point to the promulgation of Section
552.109(a). But DOL did promulgate Section 552.109(a),
which expressly includes employees of third parties within the
exemption. DOL surely did not intend, in the same rule-
making, to both exclude such third-party employees from the
exemption under Section 552.3 and include them under Sec-
tion 552.109(a). To be sure, Section 552.3 could have referred
to the home “of the person by” or for “whom he or she is em-
ployed.” But the absence of such language cannot suffice to
defeat the specific direction provided by Section 552.109(a).
Moreover, although the court of appeals believed that the
version of Section 552.109 proposed by DOL in 1974 sup-
ported its conclusion, see Pet. App. 13a, 30a-31a, it does not.
As originally proposed, Section 552.109 would have applied
the exemption to some third-party employers (i.e., those that
did not satisfy the “enterprise” test for coverage), and family
members living in another household), and therefore even the
original proposal would have been inconsistent with the court
of appeals’ reading of Section 552.3.

As DOL’s Advisory Memorandum explains, Section 552.3
does not limit the companionship services exemption to indi-
vidual employment, because its general definition of domestic
service employment addresses not the status of the employer,
but rather types of covered services and where they must be
provided. Section 552.109(a) is the only regulation that ad-
dresses third-party employment. See Pet. App. 5la-63a. The
agency's interpretation of its own regulations is entitled to
controlling deference. Auer, 519 U.S. at 461-463. Section
552.3 does incorporate language from the Act’s legislative his-
tory in its definition of “domestic service employment” as
“services of a household nature performed by an employee in
or about a private home (permanent or temporary) of the per-
son by whom he or she is employed.” 29 C.F.R. 552.5; see also

26

Advisory Mem., Pet. App. 57a-59a. However, when DOL bor-
rowed this language from the congressional committee re-
ports, it intended to adopt Congress’s emphasis on the nature
of the employee’s activities and the place where those activi-
ties are performed; it did not intend to impose any limitation
on the identity or status of the employer. See id. at 58a-59a.

As DOL pointed out in its Advisory Memorandum, Con-
gress never directly addressed the issue of employer identity
during its consideration of the companionship services exemp-
tion but, rather, focused on the employee’s activities and
where those activities are performed. Pet. App. 52a-53a, 57a-
58a. The legislative history refers to regulations addressing
“{djomestic service in a private home of the emplayer” in the
Social Security context, 26 C.F.R. 31.3121(a)(7)-1(a)(2), and
a “generally accepted meaning” of the term “domestic ser-
vice” that “relates to services of a household nature per-
formed by an employee in or about a private home of the per-
son by whom he or she is employed,” S. Rep. No. 300, 93d
Cong., Ist Sess. 22 (1973), to address the kind of work that
Congress sought to cover as “domestic service.” Those refer-
ences do not establish an intent to limit either FLSA coverage
of domestic service employees, or the companionship services
excmption, based on the identity of the employer. See Advi-
sory Mem., Pet. App. 52a-53a, 57a-58a. Instead, in addressing
the companionship exemption, “[mJost of the statements of
the Congressmen focus on the nature of companionship ser-
vices (e.g., ‘elder-sitting’ or providing companionship to an
elderly person through conversation and shared activities)
and the location of such services (ensuring affordable care for
the elderly within their own homes), rather than the em-
ployer.” Fernandez, slip op. 44-45.’

Under the Social Security system, a tax is imposed on wages and benefits
are based on wages. ‘ee 26 U.S.C. 3101(a) and (b); 42 U.S.C. 402(a), 415.
“Wages” general! means all remuneration for employment. 26 U.S.C.3121(a);
42 U.S.C. 4094). One exception excludes wages below a certain threshold paid
for “domestic service in a private home of the employer.” 26 U.S.C.

27

Moreover, the committee reports’ description of the indi-
viduals who would benefit from the companionship services
exemption, namely, individuals who are “unable to care for
themselves,” H.R. Rep. No. 913, 93d Cong., 2d Sess. 46 (1974);
see also S. Rep. No. 690, 93d Cong., 2d Sess. 20 (1974), sug-
gests that Congress did not intend to exclude those most
acutely in need of help—i.e., individuals who are not capable
of acting as an employer. See, e.g., Home Care Ass’n of NY
State Amicus Cert. Br. 17. Thus, Section 552.3 should not be
read as having so limited the companionship services exemp-
tion.*

D. Invalidating DOL’s Third-Party Employer Regulation
Would Have Substantial Negative Consequences

Respondent’s and the court of appeals’ contrary reading
of Section 552.3 as excluding third-party employment would
create a number of other problems. First, that reading would
create an inconsistency with DOL’s regulation at 29 C.F.R.
552.101, which elaborates on the definition of domestic service
employment set out in Section 552.3. Section 552.101 states
that “the term Tdomestic service employment] includes per-
sons who are frequently referred to as ‘private household
workers.” 29 C.F.R. 552.101(a). Both DOL and Congress

3121(aX(7A) and (B); 42 U.S.C. 409%(a\6)(A) and (B). The Social Security
regulations to which the legislative history of the 1974 Amendments referred
address the kind of work that qualifies for this exception. That work differs in
some respects from another kind of “domestic service” pertormed by college
students in college clubs, fraternities, and sororities that is not considered
“employment” for Social Security purposes pursuant to 26 U.S.C. 3121(b)(2)
and 42 U.S.C. 410(a)(2). See 26 C.F_.R. 31.3121(b)(2)-1; 20 C.P.R. 404.1009(b)
(1974). The existence of both types of “domestic service” in the Social Security
regulations highlights that the “private home of the employer” language in the
F LSA’s legislative history was used to distinguish domestic service performed
mea private home from such service performed in a different setting.

* DOL’s references to domestic services in the home “of the employer,” in
describing the scope of coverage for babysitters, see 29 CFR. 552.105(a), like
the references in 29 C.F.R. 552.3 and 552.101(a), is used to distinguish service
in a private household from service outside the household.

28

understood the phrase “private household workers” to include
employees of third-party employers. Advisory Mem., Pet.
App. 61a-62a (citing references in legislative history to DOL’s
1973 Report to Congress defining “private household work-
ers” as “anyone aged 14 and over working for wages * * *
in or about a private residence who was employed by * * *
a household service business whose services had been re-
quested by a member of the household occupying that resi-
dence”). Because Section 552.101(a) thus includes at least
some domestic workers employed by third parties within the
definition of domestic service employees, it makes no sense to
construe Section 552.3’s language that domestic service be
performed “in or about the private home of the employer” as
excluding them. /d. at 62a.

Second, reading Section 552.3 as excluding third-party
employment would affect not only the scope of the exemption
but would actually exclude many domestic service workers
from FLSA coverage in the first instance, despite Congress’s
intent to cover “all employees whose vocation is domestic ser-
vice,” with the exception only of casual babysitters and com-
panions for the aged and infirm. S. Rep. No. 690, supra, at 20
(emphasis added); see also H.R. Conf. Rep. No. 413, 93d
Cong., Ist Sess. 27 (1973) (same).” Before the 1974 Amend-
ments, two categories of domestic workers generally were not
covered under the Act: those employed by homeowners be-
cause there usually was no basis for individual coverage, and
those employed by third parties that did not meet the test for
enterprise coverage. See 29 U.S.C. 203(s) (1970) (defining
“covered enterprises” as businesses with annual gross sales
of at least $250,000 that emploved at least two employees in

* As DOL explained in its Advisory Memorandum, although Section 552.3
states that it defines domestic service employment “lajs used in section
13(:.15) of the Act,” “the Department in fact intended the provision to supply
a general definition of the term as used throughout the Act.” Pet. App. 60a n.1.
Thes, Section 552.3’s definition applies equally to the general coverage of
domestic service workers and the companionship services exemption.

29

interstate commerce). Congress clearly intended the 1974
Amendments generally to cover both of those categories of
workers, with a few expressly enumerated exceptions, such as
for companions. See S. Rep. No. 690, supra, at 20; H.R. Conf.
Rep. No. 413, supra, at 27 (same). But if Section 552.3 were
construed to exclude third-party employers from the defini-
tion of domestic service employment, then those domestic
workers who are employed by third-party employers that are
not covered enterprises would, to this day, not be covered by
the FLSA. That result is contrary to clear congressional in-
tent. Advisory Mem., Pet. App. 60a.

DOL’s reading of Sections 552.3 and 552.109(a) as comple-
mentary (with only the latter specifically addressing the ques-
tion here), rather than contradictory, gives effect to each pro-
vision and is therefore consistent with the obligation to read
a regulation “so as to give effect, if possible, to all of its provi-
sions.” Jay v. Boyd, 351 U.S. 345, 360 (1956). Moreover,
DOL’s statement in its Advisory Memorandum that “[t]he
regulations address the issue of third-party employment in
only one place—section 552.109(a), which clearly and explic-
itly provides that companions employed by third parties can
qualify for the exemption,” Pet. App. 54a,—is itself entitled to
controlling deference, as is DOL’s full and fair consideration
of its own regulations expressed in this brief. See Auer, 519
U.S. at 461-463 (controlling deference to DOL’s interpretation
of FLSA regulation expressed in amicus brief to the Court).
Thus, this Court should conclude that there is no conflict be-
tween Sections 552.3 and 552.109(a), and that Section
552.109(a) alone—and permissiblv—addresses the question of
third-party employment.”

” DOL’s previous statements in its notices of proposed rulemaking that See-
tions 552.3 and 552.100 a) were inconsistent. see, ¢.g.. 66 Fed. Reg. at 5485, are
entitled to little weight because they were expressed in proposed amendments
tu Section 552.109 that were never promulgated as a final rule. See Schor, 478
U.S. at 845 (“It goes without saying that a proposed regulation does not repr-
esent an agency's considered interpretation of its statute and that an agency

30

CONCLUSION
The judgment of the court of appeals should be reversed.

Respectfully submitted.
PAUL D. CLEMENT

JONATHAN L. SNARE Solicitor General
Acting Solicitor of Labor EDWIN S. KNEEDLER
STEVEN J. MANDEL Deputy Solicitor General
Associate Solicitor DAVID B. SALMONS
Assistant to the Solicitor

PAUL L. FRIEDEN
Counsel for Appellate
Litigation
EX,DWARD D. SIEGER
JOANNA HULL

Attorneys
Department of Labor

General

FEBRUARY 2007

is entitled to consider alternative interpretations before settling on the view it
considers most sound.”). [In any event, the Advisory Memorandum expressly
repudiates and withdraws those and all other previous inconsistent statements,
thus clarifying any ambiguity they may have caused. Pet. App. ti3a; see, ¢.¢..
Wage and Hour Division, Field Operations Handbook § 11d00(e) (1994).

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