Federal Judiciary

SG Invitation Brief: Progress Energy v. Taylor

By Akin Gump Supreme Court Practice Group

On Friday the Solicitor General’s office filed this invitation brief in No. 07-539, Progress Energy v. Taylor. At issue in the case (in which Akin Gump represents the petitioner) is whether 29 C.F.R. 825.220(d), a Department of Labor regulation providing that employees cannot waive (nor may employers induce them to waive) rights under the Family and Medical Leave Act, prohibits the private settlement of FMLA claims based on past employer actions.

In its brief, the United States acknowledges that the Fourth Circuit’s decision in the case rested on an erroneous interpretation of Section 825.220(d) and that the decision conflicts with a decision of the Fifth Circuit. Moreover, the United States notes, the Fourth Circuit’s interpretation may have a variety of adverse effects, such as “prevent[ing] employers from settling claims with finality and employees from obtaining payments through such settlements without the inevitable delay of seeking court or DOL approval.” The United States nonetheless contends that certiorari is not warranted because the Department of Labor is currently considering a revision to Section 825.220(d) that would “eliminate any ambiguity in § 825.220(d), resolve the question presented in this case, and effectively abrogate the Fourth Circuit’s decision - at least on a going forward basis.”

For those of you keeping score at home, this is the third case this spring in which the SG’s office has recommended a denial, joining Nos. 07-81, Exxon Mobil v. Doe (see here or blog post here; also filed on Friday), and 06-1398, AT&T Pension Benefit Plan v. Call (see here; filed on May 8).

Full post as published by SCOTUSBLOG on May 20, 2008 (boomark / email).