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

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() DEC 1 5 2006

No. 06-593 OFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

LONG ISLAND CARE AT HOME, LTD.

and MARYANN OSBORNE,

Petitioners,

V.

EVELYN COKE,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF AMICUS CURIAE

HOME CARE COUNCIL OF NEW YORK CITY, INC.

IN SUPPORT OF PETITIONERS

PETER G. BERGMANN

Counsel of Record

KATHY H. CHIN

JARED L. FACHER

CADWALADER, WICKERSHAM

& TAFT LLP

One World Financia! Center

New York, New York 10281

(212) 504-6000

Attorneys for Amicus Curiae

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WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

= —-_—_—_— —_ -

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES............cessesessesessesseeneneeneees il

INTEREST OF AMICUS CURIAE ........cccccssccseseesseeeeeee ]

SUMMARY OF ARGUMENT ..............cccesscseseeeeeeeenes

| ________,_ EE TT OTENT NE TSE D SET OTD 4

I. THE FAILURE OF THE SECOND CIRCUIT

TO ACCORD APPROPRIATE DEFERENCE

TO AGENCY RULEMAKING HAS JEOP-

ARDIZED THE CONTINUED PROVISION

OF VITAL HOME HEALTH SERVICES ....... i

A. Judicial Deference To Agency Expertise

Has Its Basis In Sound Policy..................004. 4

B. The Second Circuit Decision Will Have A

Severe Negative Impact On Home Health

Care Services If Not Reversed..................... 8

C. The Importance Of These Issues Is Under-

scored By The Significant Number Of

Pending Cases Involving The Regulation ... 11

SII spscctncnncsinsccnsesmseneniiannnninienpntishanenintananins 14

il

TABLE OF AUTHORITIES

CASES Page

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984)...... 6

Coke v. Long Island Care at Home, Ltd., 267 F.

Supp. 2d 332 (E.D.N.Y. 2003), affd in part,

vacated in part, 376 F.3d 118 (2d Cir. 2004),

vacated, 126 S. Ct. 1189, on remand, 462 F.3d

48 (2d Cir.), petition for cert. filed (U.S. Oct.

RE 3, 5, 6,8

Laing v. United States, 423 U.S. 161 (1976)......... 12

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581

I PRSEEE DServe need re ee er 10

Paterson v. Lamb, 329 U.S. 539 (1947) ............04 13

Skidmore v. Swift, 323 U.S. 134 (1944).............. 6

United States v. Powell, 330 U.S. 238 (1947)....... -

United States v. Standard Oil Co. of Cal., 332

RIS weer nn NTO 13

FEDERAL STATUTES & REGULATIONS

es Oe ee cnciitnireencnccesecninesatinenecuinanee passim

66 Fed. Reg. 5,481 (Jan. 19, 2001)......... eee 6

67 Fed. Reg. 16,668 (Apr. 8, 2002).............cc0:0000 6

OTHER MATERIALS

Alene Hokenstad ef al., Medicaid Home Care

Services in New York City: Service Utilization

& Family Involvement (United Hosp. Fund of

ec ee ntcosedecstniensinotiicntenpiinediahabinsesiines 9

IN THE

Supreme Court of the United States

No. 06-593

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

BRIEF OF AMICUS CURIAE

HOME CARE COUNCIL OF NEW YORK CITY, INC,

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

Pursuant to Rule 37(2)(a) of the Rules of this Court, this

brief is respectfully submitted on behalf of amicus curiae

Home Care Council of New York, Inc. in support of the

Petition for a Writ of Certiorari filed by Petitioners Long

Island Care at Home, Ltd. and Maryann Osborne. The

consent of the parties to the filing of this brief has been

received, and has been submitted to the Court. '

' Pursuant to Supreme Court Rule 37.6, amicus states that no counsel

for a party authored this brief in whole or in part and no person or entity,

other than amicus, its members, its counsel, and the affiliate of one of its

-

-

2

The Home Care Council of New York City, Inc. (“HCC”)

is the largest professional home care organization of any

metropolitan city in the nation. Founded in 1983, HCC is a

not-for-profit professional association of home health care

providers, and currently includes among its members 64

proprietary and not-for-profit, community-based service pro-

viders operating in the five boroughs of New York City.

Together, HCC members provide over $1 billion in home

care services on an annual basis to more than 70,000 elderly,

disabled and frail New York City residents.

Through contracts with the City of New York’s Human

Resources Administration, 51 of HCC’s not-for-profit mem-

bers provide personal care services to Medicaid-eligible New

York City residents. HCC member agencies employ over

75,000 personal care aides, commonly referred to as home

attendants. These workers, who are specially certified under

New York State law, may not perform the medically-related

activities that a home health aide is trained to perform, but

provide often invaluable assistance with patients’ activities of

daily living and personal care, assistance that can mean the

difference between living independently at home and moving

into a nursing home for an elderly New Yorker.

HCC provides advocacy and educational opportunities for

its members. Previously, HCC submitted an amicus brief to

this Court in support of the Petition for a Writ of Certiorari to

review the United States Court of Appeals for the Second

Circuit’s July 22, 2004 decision herein. In that decision, the

Second Circuit deciined to enforce the longstanding regula-

tion that exempts home health care workers employed by

third-party employers from federal wage and overtime pay

requirements. On January 23, 2006, this Court granted the

requested Writ of Certiorari, vacated the Court of Appeals’

members, Visiting Nurse Service of New York, made a monetary con-

tribution to the preparation or submission of this brief.

3

judgment, and remanded the case back to the Court of

Appeals for further consideration in light of the Department

of Labor’s Wage and Hour Advisory Memorandum No.

2005-1 (“DOL Memorandum”) (December 1, 2005). 126 S.

Ct. 1189, on remand, 462 F.3d 48 (2d Cir. 2006). In its

memorandum, the agency reiterated its long-held position

that the companionship exemption pursuant to 29 C.F.R.

§ 552.109(a) “applies to companions employed by third party

employers.” Cert. Pet. App. at Sla. Despite this guidance,

the Second Circuit on remand adhered to its earlier decision.

HCC respectfully submits this brief in order to again

present to the Court the unique perspective of its members—

home health care providers to a Medicaid-eligible patient

base operating under contract with a governmental agency.

Resolution of the validity of the regulation is even more

critical today than it was previously, as the grant of certiorari

followed by the Second Circuit’s endorsement of its earlier

decision has tended to increase confusion among providers

and encourage the filing of collective and class actions for

back wages that will turn on the validity or invalidity of the

regulation. The continued enforceability of the third-party

employer regulation is of critical importance to HCC’s mem-

bers and to their ability to continue providing services to a

patient population that is largely elderly, indigent, and totally

dependent on these services.

SUMMARY OF ARGUMENT

By striking down a regulation that had been in effect for 30

years, the Second Circuit improperly substituted its judgment

for that of the agency charged with implementing and admin-

istering the regulation. The Court of Appeals’ failure to

accord the proper level of deference to the administrative

agency resulted in a ruling that is already having a profound

effect on the provision of home health care services in New

York City and, if not reversed, will negatively affect the

4

provision of essential services to the elderly, disrupt the

continuum of care, and impair the collective bargaining

agreements of New York City home health agencies with

their labor unions, all without improving the financial circum-

stances of home health workers. Additionally, since the

Court of Appeals’ original July 22, 2004 decision, numerous

lawsuits have been filed that will turn upon the continued

validity of the regulation. This Court should again grant

certiorari so that a definitive resolution of these issues can be

achieved.

ARGUMENT

I. THE FAILURE OF THE SECOND CIRCUIT TO

ACCORD APPROPRIATE DEFERENCE TO

AGENCY RULEMAKING HAS JEOPARDIZED

THE CONTINUED PROVISION OF VITAL

HOME HEALTH SERVICES

A. Judicial Deference To Agency Expertise Has

its Basis In Sound Policy

In its memorandum and order granting the motion of Peti-

tioners for judgment on the pleadings, the United States

District Court reached the following conclusion with respect

to the deference owed by the courts to the United States

Department of Labor (“DOL”):

The DOL’s interpretation of Section 213(a)(15) [of the

Fair Labor Standards Act (“FLSA”)] in 1975 evidence

that it believed the regulations were proper at the time

the 1974 amendments were enacted. The DOL’s with-

drawal of the proposed amendments [in 2002] shows

that it still believes that these long-standing regulations

are appropriate in the current home healthcare environ-

ment. Despite amending Section 213(a)(15) seven times

sihce [1974], Congress has chosen not to act. While this

Court is sympathetic to home care workers who perform

such laborious work under difficult circumstances, the

judiciary is not in a position to strike a regulation which

5

is reasonable in light of the DOL’s explicit Congres-

sional mandate.

Coke v. Long Island Care at Home, Lid., 267 F. Supp. 2d

332, 341 (E.D.N.Y. 2003), aff'd in part, vacated in part, 376

F.3d 118 (2d Cir. 2004), vacated, 126 S. Ct. 1189, on

remand, 462 F.3d 48 (2d Cir.), petition for cert. filed (U.S.

Oct. 26, 2006) (No. 06-593). As the District Court thus

pointed out, DOL has on at least two occasions subjected the

regulation at issue to intense scrutiny, once upon its prom-

ulgation and again more recently, when consideration was

given to its possible amendment. Under the circumstances,

deference to the agency’s considered judgment would seem

appropriate not only as a matter of sound application of

administrative law principles, but also as a matter of public

policy.

Amicus respectfully submits that in reversing the District

Court’s decision with respect to 29 C.F.R. § 552.109(a), and

then adhering to that decision on remand after consideration

of the DOL Memorandum, the Second Circuit improperly

substituted its judgment for that of the administrative agency.

Even while noting in its July 22, 2004 decision that an agency

action that is “*“the fruit[] of notice-and-comment rulemaking

or formal adjudication”” should generally be accorded

Chevron deference, and even while acknowledging that

Section 552.109(a) was promulgated following notice and

comment, the Court of Appeals declined to accord such

deference, deeming the notice and comment procedure

“substandard.” 376 F.3d at 130-31 (citation omitted).

The fact remains, however, that it is just such notice and

comment that provides an agency with the kind of informa-

tion that must enter into the rulemaking process. As the

District Court pointed out, when DOL withdrew the proposed

amendments to Section 552.109(a) in April 2002, it did so

because “‘numerous commenters on the proposed rule, in-

cluding multiple federal agencies . . . seriously called into

6

question the Department’s conclusion that there would be

little economic impact.”” 267 F. Supp. 2d at 338 (quoting 67

Fed. Reg. 16,668 (Apr. 8, 2002)). DOL terminated the

proposal, thereby choosing to leave the regulation in the form

first adopted in 1974 and abandoning the amendments, which

had been proposed in the Federal Register on January 19,

2001. See 66 Fed. Reg. 5481 (Jan. 19, 2001). DOL made

this determination in the exercise of its expertise and on the

basis of the “rulemaking record as a whole.” 67 Fed. Reg.

16,668. For the Second Circuit to strike this regulation down

in a case that has not yet proceeded beyond the pleading stage

not only flies in the face of established precedent, but also

illustrates why judicial deference to agency expertise is

appropriate.

Agencies have an expertise in their fields that judges and

legislators do not necessarily possess, and are generally in the

best position to determine how a proposed rule will affect the

industry and the public. Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 865-66

(1984). In Chevron, the respondents argued that the agency’s

interpretation was not entitled to deference because its latest

interpretation represented a sharp break from its prior inter-

pretations. This Court disagreed, noting that “the agency, to

engage in informed rulemaking, must consider varying inter-

pretations and the wisdom of its policy on a continuing

basis.” Jd. at 863-64. DOL has done precisely that in the

circumstances of this case. Nevertheless, its views have been

rejected by the Second Circuit. Even in Skidmore v. Swift,

323 U.S. 134 (1944), where this Court declined to defer to the

agency’s interpretations, this Court recognized that an admin-

istrator’s policies are based on expertise in the field. /d. at

139 (“But the Administrator’s policies are made in pursuance

of official duty, based upon more specialized experience and

broader investigations and information than is likely to come

to a judge in a particular case”). In this particular instance,

the Second Circuit could not know what the DOL learned

7

from the notice-and-comment proceedings, that is, the enor-

mous impact that the invalidation of Section 552.109(a)

would have on the home health care industry.

By its memorandum, which this Court specifically asked

the Second Circuit to consider, the DOL provided ample

response to the concerns raised by the Second Circuit, includ-

ing the question whether the agency promulgated the regu-

lation in the exercise of its delegated authority. The Depart-

ment explained that it “promulgated the Part 552 regulations

pursuant to its express statutory authority under section

13(a)(15) to define and delimit the terms of the exemption, as

well as its authority to issue regulations to implement all of

the 1974 FLSA amendments.” Cert. Pet. App. at Sla. The

Department stated unequivocally that it “considers the third

party employment regulations at 29 C.F.R. 552.109 to be

authoritative and legally binding.” Cert. Pet. App. at 63a.

As such, these regulations were not intended to be mere

“advisory interpretations” as the Second Circuit suggested

they were. Cert. Pet. App. at 63a. Rather, these regulations

were intended to, and did, have the force of law for more than

30 years. Home health workers, their union representatives,

and home health providers all assumed that the regulations

were the law, and governed their affairs accordingly.

Nevertheless, contrary to the DOL’s explicit assertion, the

Court of Appeals most recently held that Ҥ 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.” Cert.

Pet. App. at 3a. The Court of Appeals concluded that it found

“no reason to abandon the reasoning or the results reached in”

its prior decision holding Section 552.109(a) to be unen-

forceable. Cert. Pet. App. at 6a. By adhering to its original

decision, the Second Circuit continued to improperly substi-

tute its own judgment for that of the administrative agency

charged with implementing and administering the regulation

in question. The impact of that decision is far-reaching, with

8

consequences that the Court of Appeals could not have

anticipated.

B. The Second Circuit Decision Will Have A

Severe Negative Impact On Home Health Care

Services If Not Reversed

As the District Court herein pointed out in its analysis of

Congressional intent:

In regards to Section 552.109(a), the Court notes that the

reasoning behind the companionship services exemption

is arguably to allow those in need of such services to be

able to find such assistance at a price they can afford.

Whether that service is provided by the direct hiring

of an employee or through the use of an agency, the

objective is still the same; to allow for the procurement

of companionship services without being required to

meet the minimum wage and overtime provisions of the

FLSA.

267 F. Supp. 2d at 340. This reasoning holds especially true

for the patients served by the members of HCC in New York

City: where companionship services are being paid for from

already stretched Medicaid budgets, continued exemption from

the minimum wage and overtime provisions of the FLSA is

essential, and clearly in accord with the Congressional intent

to enable those who need home care services to obtain it.

Over the past decade, New York has cut Medicaid home

care funding by an estimated $1 billion. Already the State

and local administrators of the Medicaid program have had to

cut back on home care services, often reducing the hours of

service that the Medicaid program will cover. After the

initial Second Circuit decision was issued in July 2004, the

effort to reduce possible overtime liability led to further

efforts to reduce service hours, and unless the Second Circuit

decision is reversed, the outlook for continued service to the

Medicaid-eligible patients cared for by HCC member agen-

9

cies is bleak indeed. The City has most recently estimated

that the Second Circuit’s decision will increase the cost of its

personal care program by over $279 million annually. See

Brief of Amici Curiae City of New York and New York State

Association of Counties in Support of Petition for a Writ of

Certiorari, dated December 5, 2006, at 6.

If the City cannot obtain the additional Medicaid funding

needed to pay the provider agencies that comprise HCC’s

membership, they will face at best cash flow difficulties, and

at worst, insolvency. Many HCC members are small commu-

nity-based not-for-profit organizations that operate virtually

at cost; such entities will not be able to survive while State

and local governments seek additional funding for their pro-

grams. The providers can seek to minimize the impact of the

Second Circuit decision by reducing overtime hours, but such

efforts cannot cure the financial impact of the decision and

could lead to other unfortunate effects.

While efforts can be made to cap hours to reduce overtime

costs, reduction of covered hours can be devastating for

patients and their families. More than half of Medicaid home

care recipients in New York City have some degree of cogni-

tive impairment, and thirty percent have moderate to severe

cognitive impairment. Alene Hokenstad ef al., Medicaid

Home Care Services in New York City: Service Utilization

& Family involvement 12 (United Hosp. Fund of N.Y. May

1998). Changing from a single familiar attendant on duty for

twelve hours to multiple short shifts of attendants is a disrup-

tion of routine that can be disturbing or such patients. The

reduction of covered hours is a cause of distress for home

health care workers as well. Home health care workers gen-

erally prefer longer-hour cases. A twelve-hour shift enables

the worker to develop the kind of relationship with a patient

that best serves the needs and privacy concerns of the patient,

and relieves the worker from shuttling across the city from

patient to patient to make up a full day’s work. Shorter shifts

10

also pose problems in other ways, as servicing a single patient _

with multiple workers may require an increased number of

supervisory visits from registered nurses. With a recognized

acute shortage of nurses, an increased need for nurses in one

sector of the health care system affects availability in other

sectors as well.

If home health care services must be reduced in the City,

the effect will be far-reaching. Hospitals seeking to comply

with pressure to discharge patients earlier will find that there

is no home health care service to discharge the patient to;

patients without family to fill the gap will find themselves in

nursing homes where the cost to the Medicaid system is

typically greater than the cost to maintain the same patient at

home. Arguably, this last unintended effect of the Coke

decision is inconsistent with New York’s efforts to comply

with this Court’s decision in Olmstead v. L.C. ex rel. Zimring,

527 U.S. 581 (1999).

If the companionship exemption is no longer available to

third-party agencies, then the only employers who will be

able to hire home health workers without being subject to

FLSA requirements will be the patient and the family of the

patient. Arranging for home health care for a patient in-

volves: (1) finding a qualified home attendant, which includes

checking qualifications and screening out applicants with

criminal backgrounds; (2) hiring that person, which includes

negotiating wages, arranging for workers’ compensation and

withholding of taxes; and (3) establishing schedules and cov-

erage for situations when the chosen worker does not arrive

as scheduled. These steps, in conjunction with the complexi-

ties of adherence to the requirements of government-funded

programs, are burdens that most patients and their families

simply cannot be expected to assume. Agencies such as

HCC’s members perform a vital function in the provision of

home health care in New York City; without their expertise,

the system would founder.

1]

In short, unless the Second Circuit decision herein is re-

versed and the exemption restored, the sudden increase in

costs to the home health system will pose grave difficulties to

Medicaid-funded home health care and ultimately to other

Medicaid-funded services as well. Longer stays in hospitals

and increased admissions to nursing homes for Medicaid-

eligible patients mean a funneling of patients to more expen-

sive forms of care. Moreover, patients will suffer loss of their

independence and the lot of home health workers will not be

appreciably improved. Without money budgeted for over-

time, employers will have to reduce shifts to avoid overtime.

Collective bargaining agreements developed with the princi-

pal labor union based in New York State that represents home

care workers, Local 1199, will have to be renegotiated, as

these agreements do not assume applicability of FLSA re-

quirements. Benefits previously granted in such agreements

may have to be reconsidered.

C. The Importance Of These Issues Is Under-

scored By The Significant Number Of Pending

Cases Involving The Regulation

The importance of the issues involved in this case is under-

scored by the significant number of cases pending before

courts around the country that turn on the validity of the

third-party employer regulations. Following the Second

Circuit Court of Appeals decision of July 22, 2004, which

refused to enforce 29 C.F.R. § 552.109(a), numerous new

cases have been filed in district courts, in the form of class

and collective actions, seeking to recover overtime pay for a

variety of home health workers. More than twenty such cases

have been brought in the Southern and Eastern Districts of

New York alone.” In addition, the validity of the third-party

> Counsel are aware of the following pending matters: Vaicaitiene

v. Partners in Care, Inc., No. 04-9125 (S.D.N.Y. filed Nov. 18, 2004);

Odinokova v. Association For Servs. For the Aged, No. 05-02576

12

employer regulation was recently the subject of oral argument

before the Eleventh Circuit.’ Under the circumstances, the

intervention of the Supreme Court is critical. See Laing v.

United States, 423 U.S. 161, 167 (1976) (certiorari granted

where 70 cases pending in the federal courts depended on

resolution); United States v. Powell, 330 U.S. 238, 240 (1947)

(“The cases are here on petitions for writs of certiorari which

we granted because of the importance of determining the con-

trolling principle for settkement of the many claims against

(S.D.N.Y. filed Mar. 4, 2005); Batchoo v. Self-Help Cmty. Servs. Inc., No.

05-02645 (S.D.N.Y. filed Mar. 8, 2005); Henry v. Alliance for Health

Inc., No. 05-01264 (E.D.N.Y. filed Mar. 9, 2005); Flores v. Bhrags Home

Care Corp., No. 05-0462! (E.D.N.Y. filed Sept. 29, 2005); Rempel v.

Home Attendant Serv. of Hyde Park, Inc., No. 05-05561 (E.D.N.Y. filed

Nov. 30, 2005); Herrera v. Council for Hum. Servs. Home Care Servs.

Corp., No. 05-10734)\(S.D.N.Y. filed Dec. 22, 2005); Sierra v. Special -

Touch Home Care Servs., Inc., No. 06-00333 (E.D.N.Y. filed Jan. 26,

2006); Hatcher v. Concerned Home Mgrs. for the Elderly, Inc., No. 06-

00705 (S.D.N.Y. filed Jan. 31, 2006); Hamilton v. Unlimited Care, Inc.,

No. 06-00706 (S.D.N.Y. filed Jan. 31, 2006); Greggs v. Utopia Home

Care, Inc., No. 06-00469 (E.D.N.Y. filed Feb. 2, 2006); Lyles v. Besta-

care, Inc., No. 06-00583 (E.D.N.Y. filed Feb. 9, 2006); Vente v. Tender

Care Prof'l Servs., Inc., No. 06-00682 (E.D.N.Y. filed Feb. 16, 2006);

Toussaint v. Quality Health Care, Inc., No. 06-00886 (E.D.N.Y. filed

Mar. 1, 2006); Seymour v. Carelink, Inc., No. 06-1293 (E.D.N.Y. filed

Mar. 22, 2006); Grandison v. Family Care Servs., Inc., No. 06-02795

(S.D.N.Y filed Apr. 11, 2006); Grandison v. North Gen. Home Attendant

Corp., No. 06-02971 (S.D.N.Y. filed Apr. 18, 2006); Liverpool-Turner v.

En-Care, Inc., No. 06-03002 (S.D.N.Y. filed April 19, 2006); Lucas v.

School Settlement Home Attendant Servs., Inc., No. 06-02410 (E.D.N.Y.

filed May 18, 2006); Jenkins v. Hanac Home Servs., Inc., No. 06-03592

(E.D.N.Y. filed July 21, 2006); Pierce v. Progressive Home Health Servs.

Inc., No. 06-13113 (S.D.N.Y. filed Nov. 13, 2006); Harris v. “Gentiva

Health Servs., Inc., No. 06-06331 (E.D.N.Y. filed Nov. 28, 2006). Addi-

tional cases may have been brought in the Northern District of New York

as well, including Landerway v. Home Health Care & Companion

Agency, Inc., No. 06-01451 (N.D.N.Y. filed Dec. 4, 2006).

> Buckner v. Florida Habilitation Network, Inc., No. 06-11032-EE

(argued Nov. 6, 2006).

13

the Government”); United States v. Standard Oil Co. of Cal.,

332 U.S. 301, 302 n.2 (1947) (“[W]e granted certiorari be-

cause of the novelty and importance of the principal

question.” The Court noted that the suit was “representative

of a number already commenced”). These pending cases

have affected scores of home health agencies and have the

potential to impact hundreds, if not thousands, of home health

employees, as agencies that relied upon a 30-year old regu-

lation defend themselves against claims based on the regula-

tion’s invalidity. See Paterson v. Lamb, 329 U.S. 539, 541

(1947) (“This holding not only decided important questions

concerning the power of the War Department, but also upset

twenty-five years of important War Department rulings and

practices which have affected, and will hereafter affect, the

status and claims of thousands of draftees of the First World

War. This called for our review, and we granted certiorari”).

Because of the limited nature of the record before the Sec-

ond Circuit when it rendered its decision reversing dismissal

on the pleadings, and because it does not possess the exper-

tise of the responsible agency, the Court of Appeals could not

be aware of the far-reaching impact of its invalidation of 29

C.F.R. § 552.109(a). Under the circumstances, deference to

the Department of Labor would have been the appropriate

course. Amicus curiae Home Care Council of New York City

respectfully requests that this Court grant certiorari to em-

phasize the dangers inherent in striking down a long-

established regulation and to resolve the question of the

enforceability of 29 C.F.R. § 552.109(a).

14

CONCLUSION

For all of the foregoing reasons, and those stated in the

Petition, we respectfully request that this Honorable Court

grant the Petition for a Writ of Certiorari.

Dated: New York, New York

December 15, 2006

Respectfully submitted,

PETER G. BERGMANN

Counsel of Record

KATHY H. CHIN

JARED L.FACHER-

CADWALADER, WICKERSHAM

& TAFT LLP

One World Financial Center

New York, New York 10281

(212) 504-6000

- Attorneys for Amicus Curiae