Amicus Curiae Brief — Kisor v. Wilkie, 139 S. Ct. 657 (2018) (No. 18-15)

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No. 18-15

IN THE

Supreme Court of the Gnited States

JAMES L. KISOR,

Petitioner,

Vv.

ROBERT L. WILKIE,

Secretary of Veterans Affairs,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

BRIEF AMICUS CURIAE OF THE

CENTER FOR WORKPLACE COMPLIANCE

IN SUPPORT OF PETITIONER

RAE T. VANN

MICHAEL P. BRACKEN

Counsel of Record

NT LAKIS, LLP

1501 M Street, N.W.

Suite 1000

Washington, DC 20005

mbracken@ntlakis.com

(202) 629-5600

Attorneys for Amicus Curiae

Center for Workplace

Compliance

WILSON-EPES PRINTING Co., Inc. — (202) 789-0096 — WASHINGTON, D. C. 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIES. .......0........cccccceseeeeeeees

INTEREST OF THE AMICUS CURIAE.............

STATEMENT OF THE CASE ...............cccceecceeeees

SUMMARY OF ARGUMENT .................0ccccc0ee0e0

|. AUER DEFERENCE UNREASONABLY

Il.

INTERFERES WITH EMPLOYERS’

ABILITY TO COMPLY WITH

ALREADY-COMPLEX REGULATORY

CIEE UP ccaseccssencccecsscesaresosesoesoncccsees

A. Auer And Seminole Rock Undermine

The Value Of Notice-And-Comment

TS Ane eee

B. Fulsome Judicial Review Of Agency

Policy Interpretations Provides A

Much Needed Check On The

AGENCIES TOO OFTEN ABUSE

DEFERENCE ACCORDED THEM

(i)

Q &» © Ww E:

TABLE OF AUTHORITIES

FEDERAL CASES Page(s)

Auer v. Robbins, 519 U.S. 452 (1997) ......... passim

Bowles v. Seminole Rock & Sand Co., 325

een passim

Christopher v. SmithKline Beecham Corp.,

ee CE: Se OE crircnctcansnsccsntnbesngecsenend passim

City of Arlington, Tex. v. FCC, 569 U.S. 290

anil ininssiaicendchhsiephdniianibiieanemanmanpeiaiiiennapetnicnts 5

Columbia Gas Transmission, LLC v. 1.01

Acres, 768 F.3d 300 (3d Cir. 2014) ........... 16

Decker v. Northwest Environmental Defense

Center, 568 U.S. 597 (2013).................. 5, 11, 15

Edelman v. Lynchburg College, 535 U.S.

SET TIIIT tiinsincsniiddapsattenipicamisdelediandaneiinidsiaiaanenates 2

Federal Express Corp. v. Holowecki, 552

ey SETI iccuniitenssstpecsenioisiiaiiibdesunempeses 2

In re Novartis Wage and Hour Litigation,

611 F.3d 141 (2d Cir. 2010), abrogated

by Christopher v. SmithKline Beecham

Corp., 567 U.S. 142 (2012)...................00. 11, 16

Long Island Care at Home, Ltd. v. Coke, 551

Se MTT cictiitderutssiniesinnetpdtnteapieneensense 10

Marbury v. Madison, 5 U.S. 137 (1803)....... 9

Marsh v. J. Alexander’s LLC, 869 F.3d 1108

(9th Cir. 2017), rev’d en banc, 905 F.3d

EER 12, 13

Morriss v. BNSF Railway Co., 817 F.3d

ee YC isistiintintctenncitcscsinntesiocen 14, 15

TABLE OF AUTHORITIES—Continued

Page(s)

Perez v. Mortgage Bankers Association, 135

ee a: ee reriasicnceonscenanntenietscacimecns 8, 15

Skidmore v. Swift & Co., 323 U.S. 134

0 16, 17

Talk America, Inc. v. Michigan Bell

Telephone Co., 564 U.S. 50 (2011)...... 5, 7, 9, 16

United Student Aid Funds, Inc. v. Bible,

ee Gee ee Si csisnnsnancenccnccncccceseedse 16

Young v. United Parcel Service, Inc., 135

FB EE Cr 15

FEDERAL STATUTES

EE 4,5, 8,9

Americans with Disabilities Act,

42 U.S.C. $§ 12101 et sed. ..................20000- 7

Fair Labor Standards Act,

29 U.S.C. $§ 201 ef 8g. .......0.ecccceee- 7, 11, 12, 14

I calitirsrennsetacenssenssondenmeeeee 14

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000¢ et seq. ...............00.00000+- 7

FEDERAL REGULATIONS

ee I iio sinscnscnnsnccnsenninenensese 13

eA BB: | eee 14

29 C.F.R. app. § 1630.2(h)..............ccccceceeeeeee 14

ce 3

ee | ee 3,4

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES Page(s)

EEOC, Enforcement Guidance on Preg-

nancy Discrimination and Related Issues

uly I tah caer inet teichiai tenia emiciaieateiteatnds 15

U.S. Department of Labor, Wage & Hour

Division, Field Operations Handbook

LR SE 13

IN THE

Supreme Court of the United States

No. 18-15

JAMES L. KISOR,

Petitioner,

ROBERT L. WILKIE,

Secretary of Veterans Affairs,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

BRIEF AMICUS CURIAE OF THE

CENTER FOR WORKPLACE COMPLIANCE

IN SUPPORT OF PETITIONER

The Center for Workplace Compliance respectfully

submits this brief as amicus curiae.’ The brief

supports the position of Petitioner before this Court

and thus urges reversal of the decision below.

' The parties have consented to the filing of this brief. No

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

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

amicus curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

INTEREST OF THE AMICUS CURIAE

Founded in 1976, the Center for Workplace

Compliance (CWC) (formerly the Equal Employment

Advisory Council (EEAC)) is the nation’s leading

nonprofit association of employers dedicated exclu-

sively to helping its members develop practical and

effective programs for ensuring compliance with fair

employment and other workplace requirements. Its

membership includes more than 200 major U.S.

corporations, collectively providing employment to

millions of workers. CWC’s directors and officers

include many of industry’s leading experts in the

field of equal employment opportunity and workplace

compliance. Their combined experience gives CWC a

unique depth of understanding of the practical, as well

as legal, considerations relevant to the proper inter-

pretation and application of employment-related laws

and regulations.

Accordingly, the issue presented in this case is

extremely important to the nationwide constituency

that CWC represents. The question whether this

Court’s holdings in Auer v. Robbins, 519 U.S. 452

(1997), and Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410 (1945), should be overruled will have

substantial legal and practical impacts on all em-

ployers subject to federal agency regulation.

CWC has participated in a number of cases involv-

ing deference to agency interpretations of regulations

and statutes. See, e.g., Christopher v. SmithKline

Beecham Corp., 567 U.S. 142 (2012); Federal Express

Corp. v. Holowecki, 552 U.S. 389 (2008); and Edelman

v. Lynchburg College, 535 U.S. 106 (2002). Because of

its experience in these matters, CWC is especially

well-situated to brief this Court on the importance of

the issues beyond the immediate concerns of the

parties to the case.

STATEMENT OF THE CASE

Petitioner James Kisor is a Vietnam-War veteran

who applied to the Department of Veterans Affairs

(VA) for disability benefits in December 1982 for his

service-related post-traumatic stress disorder (PTSD).

Pet. App. 2a. After receiving conflicting reports on

Kisor’s diagnosis, the VA denied his application for

disability benefits. Pet. App. 3a.

On June 5, 2006, Kisor re-applied for disability

benefits on the basis .. PTSD. Pet. App. 4a. Based on

the materials presented in connection with the re-

application, the VA this time agreed that Kisor suf-

fered from service-related PTSD and assigned an

effective date for his benefits eligibility as June 5,

2006. Id.

Kisor appealed this determination to the Board of

Veterans’ Appeals (Board), arguing that pursuant

to 38 C.F.R. § 3.156(c) of the VA’s regulations,

his eligibility for benefits should be retroactive to

December 1982 when he initially applied. Pet. App.

6a. Section 3.156(cX1) provides that the VA will

“reconsider” a claim if it “receives ... relevant official

service department records that existed and had not

been associated with the claims file when VA first

decided the claim ....” Pet. App. 7a (emphasis added).

The Board denied Kisor’s request for retroactive

benefits on the ground that he failed to present

“relevant” records as required by 38 C.F.R. § 3.156(c\1)

because none of the records demonstrated that the VA

erred in 1983 when it found that he did not suffer from

PTSD. Pet. App. 8a.

Kisor appealed the Board’s adverse ruling to the

U.S. Court of Appeals for Veterans Claims, and losing

there, Pet. App. 9a, further appealed to the U.S.

Court of Appeals for the Federal Circuit, arguing that

the VA’s interpretation of what constitutes “relevant”

records under 38 C.F.R. § 3.156(c)(1) was erroneous.

Pet. App. 10a. On appeal, the Federal Circuit affirmed

the Board’s denial of retroactive benefits. Pet. App.

19a. The court found that § 3.156(c)(1) was ambiguous

as to the meaning of the term “relevant” and applying

Auer v. Robbins, 519 U.S. 452 (1997) and Bowles v.

Seminole Rock & Sand Co., 325 U.S. 410 (1945), it

deferred to the VA’s interpretation of the regulation.

Pet. App. 14a-19a.

Kisor filed a petition for a writ of certiorari, which

this Court granted on December 10, 2018. Kisor v.

Wilkie, 2018 WL 6439837 (Dec. 10, 2018).

SUMMARY OF ARGUMENT

Auer deference undercuts the rule of law by thwart-

ing a regulated entity's right to fair notice and

certainty about what it must do to comply with the

multitude of complex federal laws and regulations

that apply to it. This is especially true of U/S.

employers who are subject to myriad workplace rules

enforced by multiple federal agencies. For decades,

federal courts have relied on the Court’s rulings in

Seminole and Auer to justify giving controlling weight

to an agency’s interpretation of its own ambiguous

regulation, even when set forth in an informal pro-

nouncement, such as an amicus brief.

Under the U.S. Constitution and the Administrative

Procedure Act (APA), however, it is the responsibility

of the federal judiciary to interpret federal law. Auer

interferes with that duty. It emboldens an already

powerful and increasingly politicized administrative

state, making it more difficult for the courts to “police

the boundary between the Legislative and the

Executive ....” City of Arlington, Tex. v. FCC, 569 U.S.

290, 327 (2013) (Roberts, C.J., dissenting). In addition,

Auer deference deprives employers of advance notice

of an agency’s change in position, thus denying com-

panies the due process protections afforded by the

interpretations of its own regulations not only under-

mines the critical purpose of notice-and-comment rule-

making, but also encourages regulators to promulgate

intentionally vague rules armed with the knowledge

that they will be accorded significant leeway — indeed,

controlling deference — in future interpretations beyond

the scope of public input and scrutiny.

The application of Auer deference as a device for

standard, controlling deference is accorded even to

novel agency positions or those that do not represent

the best interpretation of the regulation at issue. See

Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 613 (2013)

(applying Auer deference and ruling that “an agency’s

interpretation need not be the only possible reading

. —or even the best one—to prevail”); Talk America,

Ine. v. Mich. Bell Tel. Co., 564 U.S. 50, 64 (2011)

(“novelty alone is not a reason to refuse deference” to

an agency explanation of its own ambiguous rule).

Agencies take advantage of Auer by pronouncing

new interpretations of their own regulations, often in

amicus briefs, knowing that such explanations are

likely to be afforded controlling deference. There are

countless examples of agencies like the DOL and the

EEOC pressing breathtakingly broad, informal regu-

latory interpretations and when challenged, arguing

for, in effect, unquestioned deference under Auer. See

infra, Section II.

Auer makes it more unlikely for courts to delve

into the reasonableness of an agency’s interpretation,

which greatly impacts posturing when a dispute arises

over an ambiguous rule. Agencies are willing to take

a harder pre-litigation stance, and employers are less

willing to challenge even wildly overbroad agency

positions, knowing that chances are good the agency,

invoking Auer, will likely prevail.

Auer deference undercuts the rule of law and harms

responsible employers by, among other things, elimi-

nating the regulatory certainty and reliability that

flows from notice-and-comment rulemaking. Bound

by this precedent, courts across the country default to

the position that an agency’s interpretation of its own

ambiguous regulation “becomes of controlling weight

unless it is plainly erroneous or inconsistent with

the regulation.” Seminole Rock, 325 U.S. at 414.

Employers already face numerous challenges in

attempting to comply with the many complex laws and

regulatory schemes that govern their actions, includ-

ing rules implementing the Fair Labor Standards Act,

29 U.S.C. §§ 201 et seq., Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §§ 2000e et seg., and the

Americans with Disabilities Act, 42 U.S.C. §§ 12101

et seqg., to name but a few. From an employer's

perspective, it is imperative that a company be able

to rely upon the text of a regulation, without fear that

with every change in administration, the promulgat-

ing agency will seek to effectuate a change in position

simply by issuing a new “informa!” policy document or

inserting itself into litigation as an amicus curiae.

Auer deference encourages federal agencies to

draft ambiguous rules during the notice-and-comment

period, while at the same time discouraging them from

informal avenues, that an agency otherwise would be

unwilling or unable to advance through formal notice-

and-comment rulemaking. Thus, “deferring to an

agency's interpretation of its own rule encourages the

agency to enact vague rules which give it the power, in

future adjudications, to do what it Pleases. This

Talk America, 564 U.S. at 69 (Scalia, J., concurring).

The Auer doctrine allows agencies to significantly

alter employers’ compliance obligations simply by

announcing a change in enforcement philosophy

either through a policy document or an amicus curiae

brief filed with any one of the nation’s more than

100 federal district and circuit courts. It discourages

agency transparency and encourages abuse by remov-

ing the important notice-and-comment procedures

required by the APA.

Notice-and-comment rulemaking allows employers

to provide critical insight into proposed rules on real-

world issues that a regulator might otherwise over-

look. By allowing agencies to promulgate guidance

outside of notice-and-comment rulemaking, that then

effectively is treated as controlling, Auer deprives

employers of the ability to provide meaningful input

into the rules that govern them. It also blurs the line

between legislative and interpretive rules, which this

Court has said carry different legal weight. See Perez

v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1211-12

(2015) (Scalia, J., concurring) (“By supplementing the

APA with judge-made doctrines of deference, we have

revolutionized the import of interpretive rules’

exemption from notice-and-comment rulemaking.

Agencies may now use these rules not just to advise

the public, but also to bind them”).

In short, Auer deference changes the field of employ-

ment regulations from complex to unfair for employers

that are trying earnestly to play by the rules.

Regulated entities need the best and most reasoned

guidance possible. By shirking the vital notice-and-

comment rulemaking process, Auer inserts uncer-

tainty and inconsistency into an employer’s ability to

reasonably interpret employment regulations and

avoid unfair surprise.

B. Fulsome Judicial Review Of Agency

Policy Interpretations Provides A Much

Needed Check On The Administrative

State

Rather than making employers subject to the whims

of a questionably-motivated regulator, a neutral court

should decide what a regulation means, using the

same tools that are at the disposal of a private party

who is trying to comply with the regulation. This rule

is not only sensible and in line with constitutional

separation of powers principles, but also is mandated

by the APA, which requires “the reviewing court [to]

determine the meaning or applicability of the terms

of an agency action.” 5 U.S.C. § 706. Neutral courts

are in the best position to decide how an ambiguous

regulation, as written, and considering all permissible

additional materials, should reasonably interpreted by

a regulated employer. Unlike the DOL and the

EEOC, federal judges have little incentive to mold

existing rules to fit any given Administration’s often

ephemeral policy goals. A court is in as good or better

a position as the agency to interpret the text of a

regulation that carries the force of law, and under the

Constitution, “[i]t is emphatically the province and

duty of the judicial department to say what the law is.”

Marbury v. Madison, 5 U.S. 137, 177 (1803).

While it may seem intuitive to defer, at least in some

sense, to an agency’s interpretation of its regulations,

according “controlling” deference to regulatory inter-

pretations expressed through informal means tramples

on the “fundamental principles of separation of

powers,” leaving the agency—or, more properly, the

agency’s drafting attorney—with both legislative and

executive powers. Talk America, 564 U.S. at 68

(Scalia, J., concurring).

It is also important to recognize that while a few

employers may be willing to incur the significant

expense of fighting an agency on the questionable

interpretation of its own regulation, most employers

will not take that risk, knowing that most courts

reflexively will defer to an agency’s explanation, with-

out delving into the reasonableness of that explana-

tion. At the same time, Aver emboldens agencies to

take harder pre-litigation stances on questionable

regulatory explanations. As a result, employers are

left settling enforcement actions for large sums

or expending substantial resources to comply with

a wrong-headed interpretation of an ambiguous

regulation.

Auer deference also encourages the DOL and other

federal agencies to act as regulatory “watchdogs,”

often appearing as amicus curiae in cases solely to

advance their novel interpretation of inherently and

intentionally ambiguous regulations, without the

consideration or benefit of public notice and comment.

See, e.g., Long Island Care at Home, Ltd. v. Coke, 551

U.S. 158, 170-71 (2007) (applying Auer to an agency

interpretation that was inconsistent with a previous

interpretation of the same regulation and that

changed during pending litigation to support a litigant

who lost in trial court). To the extent that Aver has

enabled such behavior, it serves no legitimate purpose

and should be overruled.

IL. AGENCIES TOO OFTEN ABUSE DEFER-

ENCE ACCORDED THEM UNDER AUER

Federal agencies like the DOL of course are entitled

to express their opinions through informal means such

as policy documents and amicus briefs, but those

opinions cannot and should not be given “controlling”

deference merely because they are not “plainly

erroneous or inconsistent.” Christopher v. SmithKline

Beecham Corp., 567 U.S. 142, 154-55 (2012). Under

Auer, however, an agency’s rationalization “need not

be the only possible reading ... —or even the best

one—to prevail.” Decker v. Nw. Envtl. Def. Ctr., 568

U.S. 597, 613 (2013). Agencies regularly take ad-

vantage by imploring courts to not worry themselves

with the proper interpretation of a rule in the name of

Auer.

In In re Novartis Wage and Hour Litigation, for

instance, the Second Circuit held that pharmaceutical

sales representatives (PSRs) were considered non-

exempt from overtime pay under the FLSA’s “outside

salesmen” exemption. 611 F.3d 141, 153-55 (2d Cir.

2010), abrogated by Christopher v. SmithKline

Beecham Corp., 567 U.S. 142 (2012). For decades,

PSRs were considered to fall within this exemption,

and the DOL had done nothing to challenge their

exempt status. Then in 2009, the DOL filed an amicus

brief with the Second Circuit in which it argued, for

the first time, that under its FLSA regulations, PSRs

fell outside of the law’s exemption and thus were

entitled to overtime pay. In re Novartis Wage and

Hour Litigation, 611 F.3d 141 (2d Cir. 2010) (Brief for

the Secretary of Labor as Amicus Curiae (Oct. 13,

2009)). The Second Circuit, citing to Auer, deferred to

the DOL’s novel interpretation and ruled against the

employer. Id. at 153-55.

Two years later, this Court, ruling in a different case

on that same issue, held that the DOL’s position was

not entitled to any deference because nothing in the

plain text of the FLSA or the DOL’s implementing

regulations provided “clear notice” to employers that

PSRs were nonexempt. SmithKline, 567 U.S. at 157.

Furthermore, despite the industry's decades-long

practice of classifying PSRs as exempt, the DOL

never initiated any enforcement actions or otherwise

suggested that it thought the industry was acting

unlawfully. Id.

It is one thing to expect regulated parties to

conform their conduct to an agency’s interpreta-

tions once the agency announces them; it is quite

another to require regulated parties to divine the

agency’s interpretations in advance or else be held

liable when the agency announces its interpreta-

tions for the first time in an enforcement proceed-

ing and demands deference.

Id. at 158-59.

After determining that DOL’s new interpretation

was not entitled to any deference, the Court then

conducted its own analysis of the text of the FLSA and

the implementing regulations to determine whether

PSRs are exempt. The Court answered in the affirma-

tive, vindicating the employers’ attempted reliance on

the best reading of the pertinent regulation.

Another example of Auer’s harmful impact on

employers is demonstrated by Marsh v. J. Alexander's

LLC, 869 F.3d 1108 (9th Cir. 2017), rev'd en banc, 905

F.3d 610 (9th Cir. 2018), which addressed whether an

employer can take a “tip credit” towards the minimum

wage calculation for an employee that works for tips

but also performs other related non-tip functions. The

DOL’s regulation clarifies that while a “tip credit” can

only be taken for wages earned in connection with

hours worked in a tipped job, where a tipped employee

has separate but related non-tip duties, such as a

waitress who sper is part of her time cleaning and

setting tables, toasting bread, making coffee and

occasionally washing dishes or glasses, the employer

can claim the tip credit for all wages earned. 29

C.F.R. § 531.56(e).

The DOL purported to further “interpret” this

“related duties” rule in a Field Operations Handbook,

which provided that it would treat individuals

“effectively employed in dual jobs” the same as indi-

viduals actually employed in dual jobs. U.S. Dep’t of

Labor, Wage & Hour Div., Field Operations Handbook

§ 30d00(f) (2016) (“Handbook”). The Handbook clari-

fied that any employee who worked “in excess of 20

percent of the hours worked in the tipped occupation

in the workweek” doing tasks besides working directly

for tips (e.g., “washing dishes or glasses as opposed to

waiting on customers”) would be considered “effec-

tively employed in dual jobs,” id., meaning that the

employer would have to pay the regular minimum

wage for that time, without being able to discount the

employee’s tips earned during that time. This “80/20

rule” found in the Handbook was directly at odds with

the DOL’s own regulation, which included a similar

waitress example for when related duties would not be

considered a separate job.

In Marsh v. J. Alexander’s LLC, a three-judge panel

of the Ninth Circuit ruled that the employer had

properly relied on the regulation when it applied the

tip credit to wages earned in connection with related

non-tipped jobs performed by tipped employees. 869

F.3d 1108 (9th Cir. 2017). However, the full court

sitting en banc reversed, holding that Auer required

deference to the DOL’s informal Handbook inter-

pretation of the tip credit regulation. Marsh v. J.

Alexander’s LLC, 905 F.3d 610 (9th Cir. 2018) (en

banc).

This ruling demonstrates how Auer deference

makes it incredibly difficult for employers to comply

with any number of complex regulations. Here, the

most reasonable reading of the regulation did not

control because the en banc court, rather than inter-

preting the text for itself, deferred to the agency's

reading, even when it was not the best one. Under the

FLSA, the harm caused by Auer to employers is even

greater because a violation of the minimum wage rule

can result in liability not only for “unpaid minimum

wages, [but also for] an additional equal amount as

liquidated damages.” 29 U.S.C. § 216(b).

The DOL is not alone in attempting to press novel

interpretations of its own regulations in the name of

Auer. In Morriss v. BNSF Railway Co., for instance,

the EEOC filed an amicus brief contending that “ an

individual is not required to show an underlying

physiological cause to establish the impairment of

morbid obesity.” 817 F.3d 1104 (8th Cir. 2016) (Brief

of U.S. Equal Employment Opportunity Commission

as Amicus Curiae on Behalf of Appellant Melvin

Morriss in Support of Reversal, at 13). The agency

argued that this interpretation was entitled to con-

trolling deference under Auer, despite the fact that the

EEOC’s regulations implementing the ADA define

the term “|p|hysical or mental impairment” as “[a|ny

physiological disorder or condition, cosmetic disfigure-

ment, or anatomical loss affecting one or more body

systems.” 29 C.F.R. § 1630.2(h\(1) (emphasis added).

The agency further explains in its ADA Interpretive

Guidance that impairment “does not include physical

characteristics such as eye color, hair color, left-

handedness, or height, weight, or muscle tone that are

within ‘normal’ range and are not the result of a

physiological disorder.” 29 C.F.R. app. § 1630.2(h)

(emphasis added). The Eighth Circuit fortunately

recognized that this new interpretation was unsup-

ported by the EEOC’s regulation and its own sub-

regulatory enforcement guidance, refusing to defer to

the agency’s interpretation. Morriss, 817 F.3d at

1108-09.

Another egregious example of agency overreach

through informal guidance is found in the EEOC’s

attempt in 2014 to revise its pregnancy accommoda-

tion subregulatory enforcement guidance to impose

an affirmative obligation on employers to provide

pregnancy-related workplace accommodations to the

same extent as are provided to non-pregnant workers

“similar in their ability or inability to work.” EEOC,

Enforcement Guidance on Pregnancy Discrimination

and Related Issues, at 1.A.5 (July 2014). However,

such an interpretation was inconsistent with the

agency's regulation and longstanding policy inter-

pretations, which did not impose an affirmative obliga-

tion on employers to provide workplace accommoda-

tions to those who, due to ordinary pregnancy (as

opposed to a pregnancy-related disability), are unable

to perform the essential functions of their jobs. Before

this Court, the Solicitor General, joined by the EEOC,

argued, albeit unsuccessfully, that the guidance should

be given “special, if not controlling, weight.” Young v.

United Parcel Serv., Inc., 135 8. Ct. 1338, 1351 (2015).

In the past few years, members of this Court have

recognized the abuses that result from application of

Auer deference. See, e.g., Perez v. Mortgage Bankers

Ass'n, 135 S. Ct. 1199, 1215 (2015) (Thomas, J.,

concurring) (“Seminole Rock was constitutionally

suspect from the start, and this Court’s repeated

extensions of it have only magnified the effects and the

attendant concerns”); Decker, 568 U.S. at 615

(Roberts, C.J., concurring) (“It may be appropriate to

reconsider [Auer deference] in an appropriate case”);

SmithKline, 567 U.S. at 158 (“Our practice of deferring

to an agency’s interpretation of its own ambiguous

regulations ... creates a risk that agencies will

promulgate vague and open-ended regulations that

they can later interpret as they see fit ....”) (citation

omitted); Talk America, 564 U.S. at 68 (Scalia, J.,

concurring) (Auer deference is “contrary to

fundamental principles of separation of powers to

permit the person who promulgates a law to interpret

it as well”).

The Court has made efforts to rein in the “unfair

surprise” problem that naturally flows from this

doctrine, see, e.g., SmithKline, 567 U.S. at 155-57, but

courts continue to defer to agency interpretations

without due consideration of the reasonableness of the

explanation. See, e.g., Novartis, 611 F.3d at 153-55

(court deferred to DOL’s interpretation of FLSA

even though it was unsupported by implementing

regulations and agency’s course of conduct); see also

Columbia Gas Transmission, LLC v. 1.01 Acres, 768

F.3d 300, 316-17 (3d Cir. 2014) (Jordan, J., dissenting)

(criticizing majority for deferring to an agency inter-

pretation that was at odds with regulatory language

and was adopted in a footnote to “an unrelated

rulemaking ... in reaction to the District Court’s

decision in [that] case”); United Student Aid Funds,

Inc. v. Bible, 136 S. Ct. 1607, 1608 (2016) (Thomas, J..,

dissenting from denial of certiorari) (the case is

“emblematic of the failings of Seminole Rock

deference”).

If any deference is to be given to an agency’s inter-

pretation of its own ambiguous regulation, a standard

akin to that found in Skidmore v. Swift & Co., is more

appropriate. Under Skidmore, whether deference to

an agency interpretation is warranted depends on “the

thoroughness evident in its consideration, the validity

of its reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it

power to persuade.” 323 U.S. 134, 140 (1944).

CONCLUSION

For the reasons set forth above, the amicus curiae

Center for Workplace Compliance respectfully sub-

mits that the Court should overrule Auer and

Seminole Rock, and that the decision below should be

reversed.

Respectfully submitted,