Supreme Court Addresses Degree of Deference Owed to “Gap-Filling” Government Regulations and Interpretations
June 26, 2007Earlier this month, the Supreme Court issued its unanimous decision in Long Island Care At Home, Ltd. v. Coke, a case concerning compensation for in-home caregivers and the Department of Labor’s (“DOL’s”) interpretation of the Fair Labor Standards Act (“FLSA”). The Court’s decision, although anticipated, clarifies when an administrative agency’s “gap-filling” authority may be upheld as a permissible interpretation of the law. FDA, like many federal agencies, frequently uses this authority to promulgate regulations.
Evelyn Coke, a 73-year-old home healthcare attendant, sued her employer, Long Island Care at Home, Ltd., alleging that the company did not pay her the minimum wage or overtime compensation. The FLSA generally requires employers to pay the minimum wage and overtime, but has an exemption for “companionship services.” The DOL’s regulations (labeled as an “interpretation”) implementing the FLSA provide that the exemption applies to home health aides and similar employees who are “employed by an . . . an agency other than the family or household using the services” (i.e., third parties). 29 C.F.R. § 552.109(a). The DOL’s “General Regulations” at 29 C.F.R. § 552.3, however, define the statutory term “domestic service employment” as “services of a household nature performed by an employee in or about a private home . . . of the person by or for whom he or she is employed.”
The Supreme Court agreed to hear the case after the U.S. Court of Appeals for the Second Circuit overturned the DOL’s “interpretation” regulations. (There, the court concluded that the regulations conflicted with congressional intent.) The questions presented to the Supreme Court were:
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 [DOL] 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 “Interpretations.”
2. Whether, in holding that a longstanding [DOL] 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 [FLSA] and by declining to give any weight to [DOL’s] interpretation of its own regulations.
Ms. Coke argued that “a thorough examination of the [third-party] regulation’s content, its method of promulgation, and its context reveals serious legal problems. . . . In particular, . . . that the regulation falls outside the scope of Congress’ delegation; that it is inconsistent with another, legally governing regulation; that it is an ‘interpretive’ regulation not warranting judicial deference; and that it was improperly promulgated.”
In the Court’s decision (written by Justice Stephen Breyer) holding the regulation (i.e., 29 C.F.R. § 552.109(a)) valid and binding, the Court summed up the case as follows:
[T]he ultimate question is whether Congress would have intended, and expected, courts to treat an agency’s rule, regulation, application of a statute, or other agency action as within, or outside, its delegation to the agency of “gap-filling” authority. Where an agency rule sets forth important individual rights and duties, where the agency focuses fully and directly upon the issue, where the agency uses full notice-and-comment procedures to promulgate a rule, where the resulting rule falls within the statutory grant of authority, and where the rule itself is reasonable, then a court ordinarily assumes that Congress intended it to defer to the agency’s determination. . . . The three contrary considerations to which the Court of Appeals points are insufficient, in our view, to overcome the other factors we have mentioned, all of which suggest that courts should defer to the [DOL’s] rule. And that, in our view, is what the law requires.
Although this decision is important to those (i.e., employers, states, municipalities, and insurers) in the home-care industry, the decision also has significant implications for all regulated industries, and in particular, FDA-regulated industries, as it signals, among other things, greater judicial deference to agencies’ interpretations of their own regulations.
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