Regulation by Amicus :The Department of Labor’s Policy Making in the Courts

This Article examines the practice of “regulation by amicus”: that is, an agency’s attempt to mold statutory interpretation and establish policy by filing “friend of the court” briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs—in strategic and at times aggressive ways—to advance the political agenda of the President in the courts. Using the lens of the U.S. Department of Labor’s amicus activity in wage and hour cases, this Article explores the tension between the extraordinary power and efficiency of agency amicus policy making on the one hand, with the harms this less transparent approach may inflict on fundamental democratic values such as public participation and separation of powers. The Article first puts the issue in empirical context by examining the nature and impact of the DOL’s amicus filings in 324 Fair Labor Standards Act cases from the Roosevelt through Obama administrations. To evaluate the normative implications of amicus policy making, the piece then juxtaposes the especially active amicus strategies employed by the Bush administration—which manipulated deference principles to weaken worker protection laws—and the Obama administration—which increased amicus filings to revive enforcement of the Fair Labor Standards Act. This Article proposes an analytical framework for judicial review of agency amicus arguments that remains faithful to separation of powers—especially to the legislative public policy established in remedial statutes like the FLSA. ∗ Associate Professor of Law, University of Maryland Francis King Carey School of Law. For helpful comments I thank Timothy Glynn, Michael Waterstone, Charles Sullivan, Michael Zimmer, Susan Bisom-Rapp, Deborah Brake, Tristin Green, Elaine Shoben, Jeannette Cox, Ariana Levinson, and Sachin Pandya at the at the Sixth Annual Seton Hall Employment & Labor Law Scholars Forum; as well as Rena Steinzor, Mark Graber, Martha Ertman, and the participants at workshops at UM Carey Law and UNLV Boyd Law. I also thank Leif Jorgenson, appellate counsel in the Department of Labor Office of Solicitor Fair Labor Standards Division from 1978 to 2005, for historical insights; Brendan Hogan for superb research assistance; Andrew Montagna and Kerishe Allen for database assistance; Joan Brenner and the DOL staff for assistance in responding to FOIA requests; Caleb Robinson at the DOL Wirtz Labor Law Library; Susan McCarty for citation review; and Neil Eisenberg for his Excel expertise and endless support. 1 Eisenberg: Regulation by Amicus:The Department of Labor’s Policy Maki Published by UF Law Scholarship Repository, 2013 1224 FLORIDA LAW REVIEW [Vol. 65 INTRODUCTION 1225 I. BACKGROUND 1231 A. The Department of Labor and the FLSA 1231 B. Continuum of Agency Deference Regimes 1234 II. EMPIRICAL ANALYSIS OF DOL AMICUS ACTIVITY IN FLSA CASES FROM ROOSEVELT TO OBAMA 1243 A. Methodology 1243 B. Overview of DOL Amicus Activity from Roosevelt to Obama 1244 C. Courts Are Likely to Rule Consistently with the DOL’s Amicus Position 1250 D. Deference Arguments Asserted in DOL Amicus Briefs ... 1251 E. Court Response to Amicus Arguments 1254 F. Bush and Obama Use Deference Frameworks to Establish FLSA Policy in the Courts 1258 1. Bush Used a Coordinated Opinion Letter and Amicus Strategy to Undermine FLSA Coverage ..... 1258 a. Alvarez v. IBP, Inc. 1260 b. Gieg v. DDR, Inc. 1261 c. Long Island Care at Home, Ltd. v. Coke....... 1262 2. The Obama DOL Increased the Use of Amicus Briefs as an Enforcement Approach 1267 III. LEGAL AND NORMATIVE IMPLICATIONS OF THE AGENCY AMICUS STRATEGY 1273 A. The Benefits and Dangers of the Agency Amicus Strategy 1273 B. A Proposed Analytical Framework for Agency Amicus Briefs 1276 CONCLUSION 1280 APPENDIX 1281 2 Florida Law Review, Vol. 65, Iss. 4 [2013], Art. 4 http://scholarship.law.ufl.edu/flr/vol65/iss4/4 2013] REGULATION BY AMICUS 1225 It would be a considerable paradox if before 2001 the plaintiffs would win because the President was a Democrat, between 2001 and 2009 the defendant would win because the President was a Republican, and in 2012 the plaintiffs would win because the President is again a Democrat. That would make a travesty of the principle of deference to interpretations of statutes by the agencies responsible for enforcing them, since that principle is based on a belief either that agencies have useful knowledge that can aid a court or that they are delegates of Congress charged with interpreting and applying their organic statutes consistently with legislative purpose.