Goodson v. OS Restaurant Services, LLC

Filing 16

ORDER denying 5 motion to dismiss. Signed by Judge Roy B. Dalton, Jr. on 5/11/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
VIRGIL GOODSON,
Plaintiff,
v.

Case No. 5:17-cv-10-Oc-37PRL

OS RESTAURANT SERVICES, LLC,
Defendant.
ORDER
This matter is before the Court on the following: (1) Defendant OS Restaurant
Services, LLC’s Motion to Dismiss Counts I and II and Supporting Memorandum of Law
(Doc. 5), filed January 18, 2017; and (2) Plaintiff’s Response to Defendants [sic] Motion to
Dismiss Count I and II of the Complaint (Doc. 11), filed January 31, 2017.
I.

BACKGROUND

In a five-count Complaint, restaurant server Virgil Goodson claims that his former
employer, Defendant OS Restaurant Services, LLC, violated overtime and minimum
wage provisions of the Fair Labor Standards Act (“FLSA”), Article X, § 24(c) of the Florida
Constitution (“Article X”), and the Florida Minimum Wage Act, Florida Statutes
(“FMWA”). (See Doc. 2.) Alleging that Defendant improperly took a “tip credit” against
Plaintiff’s wages while requiring Plaintiff to spend more than 20% of his time in nontipped work activities, Plaintiff asserts “Incidental Non-Tipped Labor” minimum wage
claims under the FMWA and Article X (“Non-Tipped Labor Claims”). (See id. ¶¶ 17–52
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(“Count I”); id. ¶¶ 35–52 (“Count II”).) Defendant moved to dismiss these claims as
legally insufficient (Doc. 5 (“Motion”)), and Plaintiff responded (Doc. 11 (“Response”)).
There is no dispute that legally insufficient claims are subject to dismissal under
Federal Rule of Civil Procedure 12(b)(6). 1 Here, the legal sufficiency of Plaintiff’s two
Non-Tipped Labor Claims turn on the following question:
Can tipped employees state unpaid wage claims under
Article X and the FMWA based on the “20% Rule” set forth
in § 30d00(e) of the Field Operations Handbook
(“Handbook”) issued by the U.S. Department of Labor
(“DOL”)?
(See Doc. 5; see also Doc. 11, pp. 4–5.) Defendant answers no. (See Doc. 5.) Plaintiff answers
yes. (See Doc. 11.) Although this Court and others have previously applied the 20% Rule
in several unpublished opinions, no binding precedent dictates which answer is correct.2
To resolve the issue as a matter of first impression, the Court must answer the following
administrative law question: Is the 20% Rule entitled to deference as a permissible
interpretation of the FLSA? For the reasons set forth below, the Court finds that the
answer to this question is yes; thus, the Motion is due to be denied.
II.

ADMINISTRATIVE LAW

When Congress has not directly spoken to a specific issue through legislative

The question whether a claim is legally sufficient—that is, authorized by law—is
properly addressed at the pleading stage. See Town of Castle Rock, Colo. v. Gonzalez,
545 U.S. 748, 178 (2005).
2See
May v. Steak N Shake Operations, Inc., No. 3:14-cv-912-J-32JRK,
2014 WL 7251637, at *2 (M.D. Fla. Dec. 18, 2014) (noting that some “district courts in this
circuit” have applied the 20% Rule, but the question has not been addressed in “binding
precedent”).
1

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enactment, administrative agencies like the DOL “often must interpret the enactments
Congress has charged them with enforcing and implementing.” Gonzales v. Or.,
546 U.S. 243, 255 (2006). 3 An agency’s interpretations may issue as: (1) formal “Rules” or
“Regulations,” which are published in the Code of Federal Regulations (“Code”); and
(2) informal “Sub-Regulations,” which may appear in opinion letters, handbooks, and
other papers issued by the DOL.
When a Rule is promulgated in accordance with the formal “notice and comment”
rule-making provisions of the Administrative Procedure Act (“APA”), 4 it is a

See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124–25 (2016) (noting that
courts and agencies both “must give effect to the unambiguously expressed intent of
Congress”).
4 Under the APA, a “Rule” includes statements of “‘general or particular
applicability and future effect’ that are designed to ‘implement, interpret, or prescribe
law or policy.’” See 5 U.S.C. § 551(4). “Rule making” refers to the “agency process for
formulating, amending, or repealing a rule.” Id. § 551(5). Pursuant to § 553 of the APA,
formal “notice and comment” rule making requires that the agency:
3

(1)

publish a “[g]eneral notice of proposed rule making”
in the Federal Register, which notice must include
information concerning public proceedings, reference
to the legal authority for the proposed rule, and a
summary of the proposed rule; and

(2)

“give interested persons an opportunity to participate
in the rule making through submission of [specified
comments]; and

(3)

consider the relevant comments and then “incorporate
in the rules adopted a concise general statement of
their basis and purpose.”

See id. § 553(b); see also Perez v. Mortg. Bankers Assoc., 135 S. Ct. 1199, 1203
(2015).
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“Legislative Rule,” which has the “force and effect of law.” 5 A Rule that issues without
formal notice and comment rule-making is an “Interpretive Rule” that is merely
intended to “advise the public of the agency’s construction of the statutes and rules which
it administers.” 6 Rules, Regulations, and Sub-Regulations are entitled to varying degrees
of deference, which courts must discern. See Coke, 551 U.S. at 165 (advising that courts
must accept administrative “policy” and “rules” that “reasonably” fill “any gap left,
implicitly or explicitly by Congress” to the agency”).
A.

Chevron Deference

Under Chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837,
844 (1984), courts afford the highest degree of deference—Chevron Deference—to
regulations “when an agency properly exercises its authority, expressly or implicitly
delegated by Congress, to interpret an ambiguous statute” by promulgating “rules and
regulations carrying the force of law.” See Josendis v. Wall to Wall Residence Repairs, Inc.,
662 F.3d 1292, 1320 (11th Cir. 2011) (declining to afford deference to a regulation that
concerned an unambiguous statutory provision). 7 Regulations afforded Chevron Deference
are “controlling . . . unless they are arbitrary, capricious, or manifestly contrary to the

5See

Perez, 135 S. Ct. at 1203 (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302–03
(1979); see also 5 U.S.C. § 553.
6See Perez, 135 S. Ct. at 1203–04 (noting that the “precise meaning” of Interpretive
Rule is an unresolved issue debated by judges and scholars alike); Long Island Care at
Home, Ltd. v. Coke, 551 U.S. 158, 172 (2007) (explaining that—as a class—Interpretive Rules
“may persuade,” but will not “bind” the courts); see also 5 U.S.C. § 553(b)(A); infra, n.8.
7See Gonzalez, 546 U.S. at 258 (“If a statute is ambiguous, judicial review of
administrative rulemaking often demands Chevron [D]eference.”); U.S. v. Mead Corp.,
533 U.S. 218, 226 (2001).
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statute.” See Chevron, 467 U.S. at 844.
B.

Auer Deference

Under Auer v. Robbins, 519 U.S. 452, 461–63 (1997), courts afford “substantial
deference”—“Auer Deference”—to administrative pronouncements that interpret “the
issuing agency’s own ambiguous regulation.” See Gonzalez, 546 U.S. at 255. Courts do not
afford Auer Deference to interpretations of regulations that merely “restate the terms of
the statute itself.” See id. at 256. Rather, the interpreted regulation must give “specificity
to a statutory scheme [that the agency] was charged with enforcing” and it must reflect
“the considerable experience and expertise [the agency] had acquired over time with
respect to the [statute].” See id. Administrative pronouncements that are entitled to Auer
Deference are “controlling unless plainly erroneous or inconsistent with the regulation.”
See Auer, 519 U.S. at 461; Falken v. Glynn Cty., Ga., 197 F.3d 1341, 1350 (11th Cir. 1999)
(“We must defer to the DOL’s interpretation of its FLSA regulations unless the
interpretation is ‘plainly erroneous or inconsistent with the regulation.’”).
C.

Skidmore Deference

Under Skidmore v. Swift & Company, 323 U.S. 134, 140 (1944), courts defer to
Interpretive

Rules

and

Sub-Regulations—but

only

to

the

extent

that

such

pronouncements have the “power to persuade” (“Skidmore Deference”). See Christensen
v. Harris Cty., 529 U.S. 576, 587 (2000) (citing Reno v. Koray, 515 U.S. 50, 61 (1995)). 8 The

8See

also Gonzales, 546 U.S. at 268–69; Whirlpool Corp. v. Marshall, 445 U.S. 1, 11
(1980) (stating that Interpretive Regulations are “entitled to deference unless it can be said
not to be a reasoned and supportable interpretation of the [FLSA]”); Schumann v. Collier
Anesthesia, P.A., 803 F.3d 1199, 1210 (11th Cir. 2015) (holding that a pronouncement in a
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“power to persuade” turns on “Skidmore Factors,” including: (1) the “thoroughness”
evident in the agency’s consideration of its interpretation and the validity of its reasoning,
see Skidmore, 323 U.S. at 140; (2) how consistent the interpretation is “with earlier and later
pronouncements,” see id.; (3) the level of “expertise” the agency has in the regulated area,
see Gonzales, 546 U.S. at 269; (4) the “length of time” the agency has maintained its
interpretation;9 (5) whether the interpretation has been accepted by the federal courts, see
Schuman, 803 F.3d at 1209; and (6) “all those factors which give [the interpretation] power
to persuade, if lacking power to control,” see Skidmore, 323 U.S. at 140.
III.

DISCUSSION

According to Defendant, it cannot be held liable for violating the 20% Rule because
the “so-called rule” does not “carry the force of law” and it deserves no “respect or
deference whatsoever.” (Doc. 5, pp. 3, 7.) In support, Defendant contends that:
(1)

“Congress never specified in the text of the FLSA itself
that the use of the tip credit was subject to a ‘20% rule’”
(id. at 6);

DOL Field Operations Handbook was entitled to Skidmore deference “at most”); Lanfear
v. Home Depot, Inc., 679 F.3d 1267, 1279, n.15 (11th Cir. 2012) (noting that an amicus brief
submitted by the DOL “is entitled to, at most, Skidmore [D]eference”); Gregory v. First Title
of Am., Inc., 555 F.3d 1300, 1302 (11th Cir. 2009) (noting that agency “opinion letters” are
entitled to Skidmore Deference only to the extent that they have the “power to persuade”);
Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1268, n.5 (11th Cir. 2008) (noting that
the court and parties erred in characterizing an interpretive “bulletin” published in the
Code as a “regulation” entitled to Chevron Deference when only Skidmore Deference was
warranted); Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1255–56 (11th Cir. 2001) (finding
provision of DOL Field Operations Handbook persuasive under Skidmore).
9See Kasten v. Saint-Govain Performance Plastics Corp., 563 U.S. 1, 15–16 (2011);
Ramos-Barrientos v. Bland, 661 F.3d 587, 598 (11th Cir. 2011) (noting that agency
interpretations of longstanding duration are afforded deference under Skidmore).
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(2)

no “official interpretive bulletins issued by the
Secretary” has referenced the 20% Rule (id. at 8);

(3)

the 20% Rule appears only in a Handbook that was not
“developed after ‘notice-and-comment rulemaking’”
and “was never intended by the DOL as a means to
establish interpretive policy”;

(4)

the Dual Job Regulation itself is merely an interpretive
“bulletin” entitled to Skidmore Deference at most; and

(5)

imposing liability on employers like Defendant based
on the 20% Rule “would violate the doctrine of the
separation of powers, as it would allow the DOL to
usurp Congress’s role and insert new substantive
requirements into the FLSA.”

(See Doc. 5, pp. 6–12.) Defendant also argues that analysis of the Skidmore Factors establish
that the 20% Rule is entitled to no deference because it has no power to persuade. (See id.)
Plaintiff counters that unpublished decisions from district courts located in
Florida—which have permitted similar incidental non-tipped labor claims—are binding
authority and are fatal to Defendant’s arguments. 10 This argument is easily rejected
because the law is clear that: (1) “only the decisions of the Supreme Court and [U.S. Court
of Appeal for the Eleventh Circuit] are binding on the district courts of the [Eleventh
Circuit];” 11 and (2) “unpublished opinions are not considered binding precedent”—although
“they may be cited as persuasive authority.” See 11TH CIR. R. 36-2. 12

Doc. 11, pp. 4–7 (discussing Crate v. Q’s Rest. Group, LLC, No. 8:13-cv-2549T-24EAJ, 2014 WL 10556347, at *3 (M.D. Fla. May 2, 2014) and Schamis v. Josef’s Table, LLC,
2014 WL 1463494, at *4 (S.D. Fla. Apr. 15, 2014)).
11See Arriaga v. Fla. Pac. Farms, LLC, 305 F.3d 1228, 1240, n.15 (11th Cir. 2002).
12
See United States v. Almedina, 686 F.3d 1312, 1316 n.1 (11th Cir. 2012); see also
White v. NIF Corp., No. 15-322-WS-N, 2017 WL 210243, *5 (S.D. Ala. Jan. 18, 2017).
10(See

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Plaintiff also argues that the Court should—as other courts have done—follow the
U.S. Court of Appeals for the Eighth Circuit’s decision in Fast v. Applebee’s International,
Inc., 638 F.3d 872, 880–81 (8th Cir. 2011), which addressed “and rejected” the same
arguments raised by Defendant here. (See Doc. 11, pp. 7–9.) Anticipating Plaintiff’s
reliance on Fast, Defendant argues that Fast was “wrongly decided” in that the Fast Court:
(1) afforded the Dual Job Regulation Chevron Deference and failed to recognize—due to
the Fast parties’ agreement concerning application of Chevron—that the Dual Job
Regulation is an Interpretive Rule entitled to only Skidmore Deference; and
(2) “compounded its [initial error] by awarding Auer deference” to the 20% Rule. (See
Doc. 5, pp. 14–15.)
Although it is not binding authority, as directed by the Eleventh Circuit, this Court
must carefully review the Fast decision and give it due respect. See Arriaga, 305 F.3d at
1240, n.15. The Fast plaintiffs—like the Plaintiff here—worked in a restaurant for tips and
relied on the 20% Rule to assert unpaid wage claims against their employer (“Fast
Claims”). Fast, 638 F.3d at 874–75. Arguing that the 20% Rule did not support such claims
as a matter of law, the Fast defendant moved for summary judgment, which the district
court denied after concluding that the 20% Rule “was reasonable, persuasive, and entitled
to deference.” See id.
The Fast defendant filed an interlocutory appeal, and the Eighth Circuit affirmed
the district court’s decision. See id. In agreeing with the district court that the 20% Rule
was valid and entitled to deference, the Fast Court initially determined that the Dual Job
Regulation is a Legislative Rule entitled to Chevron Deference. See id. at 877. Then, the Fast
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Court determined that the 20% Rule reasonably clarified various ambiguities in the Dual
Job and other Tip Credit Regulations. See id. at 879–80. As such, the Fast Court afforded
the 20% Rule Auer Deference and determined that it “certainly is not ‘clearly erroneous
or inconsistent with the [Tip Credit Interpretations].” See id. at 881. Concluding that the
20% Rule provided a valid legal basis for the Fast Claims based on Auer, the Fast Court
did not explicitly address the Skidmore Factors. See id. at 879–81.
The Fast Court’s analysis of the 20% Rule has rarely been criticized.13 Rather, it has
been relied on and cited favorably by courts across the country. 14 Although this Court
agrees with the majority position and finds Fast persuasive, 15 it will nonetheless address

District courts in Arizona appear to take the minority position in rejecting the
Fast decision. See Kirchgessner v. CHLN, Inc., 174 F. Supp. 3d 1121, 1126–30 (D. Az. 2016);
Montijo v. Romulus Inc., No. CV-14-264-PHX-SMM, 2015 WL 1470128, at *9 (D. Az.
Mar. 31, 2015); Schaefer v. P.F. Chang China Bistro, Inc., No. CV-14-185-PHX-SMM,
2014 WL 3809069, at *6 (D. Az. Aug. 1, 2014).
14See Romero v. Top-Tier Colo., LLC, 849 F.3d 1281, 1282–84 (10th Cir. 2017)
(reversing dismissal of wage claims premised on the 20% Rule); Barnhart v. Chesapeake
Bay Seafood House Assocs., LLC, No. JFM-16-01277, 2017 WL 1196580, at *5–6 (D. Md.
Mar. 31, 2017); Knox v. Jones Group, 201 F. Supp. 3d 951, 960–61 (S.D. Ind. 2016) (deferring
to 20% Rule and denying motion to dismiss Tipped Employee claims); McLamb v. High 5
Hosp., 197 F. Supp. 3d 656, 662–63 (D. Del. 2016) (same); Cope v. Let’s Eat Out, Inc., No.
6:16-cv-3050-SRB, 2016 WL 3466140, at *4–*5 (W.D. Mo., June 21, 2016) (same); Flood v.
Carlson Rests., Inc., 94 F. Supp. 3d 572, 583–84 (S.D. N.Y. 2015) (same); Irvine v. Destination
Wild Dunes Mgmt., Inc., 106 F. Supp. 3d 729, 733–34 (D. S.C. 2015) (same); see also Driver v.
AppleIllinois, LLC, 739 F.3d 1073, 1075 (7th Cir. 2014) (noting that the 20% Rule reflects the
DOL’s interpretation of 29 U.S.C. § 203(m) and the Dual Job Regulation).
15See White, 2017 WL 210243, *4 (finding the Fast approach to Tipped Employee
wage claims “persuasive”); see Bowe v. HHJJ, LLC, No. 6:16-cv-1844-Orl-37KRS,
2017 WL 56401, at *1 (M.D. Fla. Jan. 5, 2017) (approving magistrate judge’s recommended
finding that the 20% Rule controls because it “is a reasonable interpretation of [the Dual
Job Regulation]”); Crate, 2014 WL 10556347, at *3 (denying motion to dismiss claim
premised on the 20% Rule); Schamis, 2014 WL 1463494, at *4 (S.D. Fla. Apr. 15, 2014)
(same); Ide v. Neighborhood Rest. Partners, LLC, 32 F. Supp. 3d 1285, 1293 (N.D. Ga. 2014),
aff’d, 667 F. App’x 746 (11th Cir. 2016)); see also Martins v. MRG of S. Fla.,
13

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the issues raised by the parties here that were not addressed by the Fast Court.
The analysis must start with the text of the FLSA itself. 16 See Gonzalez, 546 U.S. at
258–59. Since it was enacted by Congress in 1938, the FLSA has required that employers
pay their employees a set hourly minimum wage (“Minimum Wage Rule”). See 29 U.S.C.
§ 206(a)(1). In 1966, Congress added provisions to the FLSA—§§ 203(m) and (t) (“Tip
Credit Provisions”)—which created an exception to the Minimum Wage Rule (“Tip
Credit”) for employees “engaged in an occupation in which [they] customarily and regularly
receive[] more than $30 a month in tips” (“Tipped Employee”). 17 See id. § 203(t)
(emphasis added); see also 29 C.F.R. § 531.51. For purposes of the Tip Credit, Congress
defined “Wage” as follows:
In determining the wage an employer is required to pay a
[T]ipped [E]mployee, the amount paid such employee by the
employee’s employer shall be an amount equal to—
(1)

the cash wage paid such employee which for
purposes of such determination shall be not less
than the cash wage required to be paid such an
employee on August 20, 1996; and

(2)

an additional amount on account of the tips
received by such employee which amount is
equal to the difference between the wage
specified in paragraph (1) and the [federal

Inc., 112 So. 3d 705, 707–08 (Fla. 4th DCA 2013).
16Although Plaintiff asserts Counts I and II under the FMWA and Article X
respectively, the legal standards applicable to these claims are derived from the FLSA.
See FLA. CONST. Art. X, § 23 (incorporating the FLSA’s tip credit provisions); Fla. Stat.
§ 448.110(3) (incorporating pertinent provisions of the FLSA “as interpreted by applicable
federal regulations and implemented by the Secretary of Labor” (“Secretary”)).
17 By classifying an employee as a Tipped Employee and taking the Tip Credit, “an
employer can save $5.12 per hour per employee in decreased wages.” See Irvine v. Wild
Dunes Mgmt., Inc., 106 F. Supp. 3d 729, 732 (D. S.C. 2015).
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minimum] wage in effect under section
206(a)(1) of this title.
29 U.S.C. § 203(m); see 29 U.S.C. § 531.50(a).
These Tip Credit Provisions were not comprehensive or free of ambiguity. Indeed,
Congress did not define “occupation” or what it means to “engage” in an occupation
from a temporal perspective. Addressing these matters in part, in 1967, the DOL issued
regulations concerning the Tip Credit (“Tip Credit Regulations”), which were published
in Part 531 of Subchapter A, Chapter V, Subtitle B, Title 29 of the Code. In pertinent part,
the Tip Credit Regulations provide that:
(1)

employers may take the Tip Credit “only for hours
worked by the employee in an occupation in which the
employee qualifies” as a Tipped Employee (see
29 U.S.C. § 531.59(b) (“Occupation Regulation”)); and

(2)

“an employee is in such an occupation when
performing (a) tip-producing activities (“Tipped
Work”); 18 and (b) occasional “related duties” that
“need not by themselves be directed toward producing
tips (“Related Work”) (see 29 C.F.R. § 531.56(e) (“Dual
Job Regulation”)).

The Dual Job Regulation—which was added to the Tip Credit Regulations after
publication in the Federal Register (see 32 Fed. Reg. 222) and consideration of comments
received from the public (see 32 Fed. Reg. 13575, 135780–81)—further explains that
Related Work occurs “when a server spends part of [his] time cleaning and setting tables,
toasting bread, making coffee, and occasionally washing dishes or glasses.” See id.

18A

“tip” is “a sum presented by a customer as a gift or gratuity in recognition of
some service performed for him.” 29 C.F.R. § 531.52.
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(emphasis added).
Like the Tip Credit Provisions, the Dual Job Regulation was not free of ambiguity
with respect to temporal limitations of the Tip Credit. The DOL addressed the remaining
ambiguity without engaging in formal notice and comment rule making under the APA.
Instead, the DOL clarified the temporal limitation set out in the Dual Job Regulation—
that Related Work must be only “occasional” and constitute only a “part of” a Tipped
Employee’s work—by publishing the 20% Rule in the Handbook in 1988. See
DOL Handbook, § 30d00(e) (1988). In particular, the 20% Rule provides that employers
may not take the Tip Credit when Related Work consumes “a substantial amount of time
(in excess of 20 percent)” of the Tipped Employee’s work time. See id.
Given the ambiguity of the Tip Credit Provisions of the FLSA and the formal steps
taken in promulgating the Tip Credit Regulations, the Court rejects Defendant’s
argument that the Dual Job Regulation is not entitled to Chevron Deference. The Court
also rejects Defendant’s argument that the 20% Rule is not entitled to Auer Deference
because the Dual Job Regulation is unambiguous. The word “occasional” as a temporal
limitation is subject to multiple interpretations, and the 20% Rule provides a reasonable
one; thus, the Court agrees with the Fast Court that the 20% Rule is not “clearly
erroneous” or inconsistent with the pertinent regulations. Finally, given the long and
largely undisturbed history of the Tip Credit Regulations in general and the Dual Job
Regulation in particular—both in the courts and the DOL 19—the Court finds that the 20%

See Generally, Susan N. Eisenberg & Jennifer T. Williams, Evolution of Wage Issues
in the Restaurant Industry, 30 ABA J. OF LAB. & EMP. L. 389 (2015).
19

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Rule would be entitled to Skidmore Deference even if it were not entitled to Auer
Deference. 20 Having determined that the 20% Rule is entitled to deference as a
permissible interpretation of the FLSA, the Court finds that the Motion is due to be
denied.
IV.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Defendant OS Restaurant
Services, LLC’s Motion to Dismiss Counts I and II and Supporting Memorandum of Law
(Doc. 5) is DENIED.
DONE AND ORDERED in Orlando, Florida, this 9th day of May, 2017.

Copies to:
Counsel of Record

Persuasively arguing that Auer Deference should be abandoned, Justice Antonin
Scalia notes in his Perez dissent that “there are weighty reasons to deny a lawgiver the
power to write ambiguous laws and then be the judge of what the ambiguity means.” See
Perez, 135 S. Ct. at 1212–13 (Scalia, J., dissenting). Despite these weighty reasons, Justice
Scalia’s view has not been embraced by a majority of the Supreme Court. Hence this
Court remains obligated to defer to administrative pronouncements under Auer and
Skidmore.
20

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