Cleveland County wage dispute could strike blow against administrative state

The U.S. Supreme Court could decide soon whether to take up a case involving a wage dispute between Cleveland County and an emergency medical services worker. At least one group hopes the case will help restrain the power of the federal administrative state.

Sara Conner filed suit in 2018. She argued that her employer, Cleveland County EMS, failed to pay her correctly. In weeks when she worked overtime, the county reduced her regular rate of pay, she claimed. The pay structure created “overtime gap time.” Conner’s suit sought to restore lost wages.

A trial court ruled in favor of the county, but the 4th U.S. Circuit Court of Appeals reversed course in January. Appellate judges ruled Conner could pursue her claims against the county.

The local government appealed to the nation’s highest court in June. That appeal attracted attention from the New Civil Liberties Alliance, a group founded “to challenge multiple constitutional defects in the modern administrative state.”

“The ‘civil liberties’ of the organization’s name include rights at least as old as the U.S. Constitution itself, such as free exercise of religion, due process of law, and the right to be tried in front of impartial judges who provide their independent judgments on the meaning of the law,” according to NCLA’s friend-of-the-court brief in Cleveland County v. Conner. “Yet these selfsame civil rights are also very contemporary — and in dire need of renewed vindication — precisely because executive agencies and even the courts have neglected them for so long.”

The alliance pushes for “constitutional restraints on the modern administrative state.”

“Although Americans still enjoy a shell of their Republic, a very different sort of government has developed within it — a type, in fact, that the Constitution was designed to prevent,” NCLA argued. “This unconstitutional state within the Constitution’s United States is the focus of NCLA’s concern.”

Of special interest in the Conner case is the 4th Circuit’s approach to a federal agency’s interpretation of an unclear law.

“NCLA is particularly disturbed by the Fourth Circuit’s decision to grant ‘considerable deference’ to the U.S. Department of Labor’s non-binding interpretation of the Fair Labor Standards Act without undertaking the basic step of determining whether that interpretation is consistent with the statutory language,” NCLA attorneys wrote. “The Fourth Circuit exhibited an all-too-frequent tendency among lower courts ‘to defer to the interpretive views of executive agencies, not as a matter of last resort but first.’”

Congress writes federal laws. Government agencies administer those laws. When the laws are unclear, courts can decide whether the agencies are complying with Congress’ intent.

A judge exercises deference when he accepts an agency’s interpretation of a law without conducting his own review. Critics of the administrative state argue that judges can be overly deferential, substituting the agency’s legal arguments for the type of scrutiny one should expect from the judicial branch.

In Conner, NCLA targets the 4th Circuit’s approach to “Skidmore deference,” named for a court precedent from 1944.

“The shorthand ‘Skidmore deference’ is somewhat of a misnomer because Skidmore v. Swift and Co. does not allow a court to truly defer, i.e., subordinate its independent judgment, to an agency’s non-binding interpretation of law,” the NCLA brief argued. “Rather, non-binding interpretations ‘are “entitled to respect” [under Skidmore], but only to the extent that they are persuasive.’”

The Supreme Court “unfailingly” subjects Skidmore cases to judicial analysis, NCLA asserted.

“Lower courts do not uniformly apply Skidmore in this manner,” according to the brief. “Some follow this Court’s independent judgment approach and accept only non-binding agency interpretations that they deem persuasive. Many others, however, subordinate their own judicial judgment in favor of agencies’ views based on the mistaken belief that Skidmore commands deference rather than respect.”

The U.S. Department of Labor believes “unpaid gap time” violates the Fair Labor Standards Act. The 4th Circuit granted the department “considerable deference,” without analyzing the law or making any kind of finding about whether the department’s interpretation proved persuasive.

But a 2013 case from the 2nd Circuit came to an opposite conclusion. Appellate judges in that dispute considered similar facts and found the Labor Department’s interpretation unpersuasive.

Now the case from Cleveland County offers the Supreme Court an excellent opportunity to clarify any confusion. NCLA hopes the Supreme Court will call for lower courts to follow its lead and reject the 4th Circuit’s approach.

“By compelling judges to abdicate the ‘duty of the judicial department to say what the law is,’ the Fourth Circuit’s ‘considerable deference’ approach undermines the separation of powers,” according to the alliance’s brief. “Moreover, when the government is a party to the case, ‘considerable deference’ requires judges to favor the government’s interpretation. That is, it tells judges to exhibit systematic bias in favor of one of the parties — the most powerful of parties.”

The Supreme Court will review Cleveland County’s appeal this fall. Critics of the administrative state will watch the court’s decision with interest.

A case from North Carolina could end up playing an important role in helping to define the federal government’s limits.

Mitch Kokai is senior political analyst for the John Locke Foundation.