563 U.S. 1 | SCOTUS | 2011
Lead Opinion
delivered the opinion of the Court.
The Fair Labor Standards Act of 1938 (Act) sets forth employment rules concerning minimum wages, maximum hours, and overtime pay. 52 Stat. 1060, 29 U. S. C. § 201 et seq. The Act contains an antiretaliation provision that forbids employers
“to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.” § 215(a)(3) (emphasis added).
We must decide whether the statutory term “filed any complaint” includes oral as well as written complaints within its scope. We conclude that it does.
I
The petitioner, Kevin Kasten, brought this antiretaliation lawsuit against his former employer, Saint-Gobain Performance Plastics Corporation. Kasten says that Saint-Gobain located its timeclocks between the area where Kasten and
In particular, Kasten says that he repeatedly called the unlawful timeclock location to Saint-Gobain’s attention — in accordance with Saint-Gobain’s internal grievance-resolution procedure. See Brief for Petitioner 4 (quoting SaintGobain’s Code of Ethics and Business Conduct as imposing upon every employee “the responsibility to report . . . suspected violations of . . . any applicable law of which he or she becomes aware”); id., at 4-5 (quoting Saint-Gobain’s Employee Policy Handbook as instructing employees with “questions, complaints, and problems” to “[c]ontact” their “supervisor^] immediately” and if necessary “take the issue to the next level of management,” then to the “local Human Resources Manager,” then to “Human Resources” personnel at the “Regional” or “Headquarters” level).
Kasten adds that he “raised a concern” with his shift supervisor that “it was illegal for the time clocks to be where they were” because of Saint-Gobain’s exclusion of “the time you come in and start doing stuff”; he told a human resources employee that “if they were to get challenged on” the location in court, “they would lose”; he told his lead operator that the location was illegal and that he “was thinking about starting a lawsuit about the placement of the time clocks”;
Saint-Gobain presents a different version of events. It denies that Kasten made any significant complaint about the timeelock location. And it says that it dismissed Kasten simply because Kasten, after being repeatedly warned, failed to record his comings and goings on the timeelock.
For present purposes we accept Kasten’s version of these contested events as valid. See Scott v. Harris, 550 U. S. 372, 380 (2007). That is because the District Court entered summary judgment in Saint-Gobain’s favor. 619 F. Supp. 2d 608, 610 (WD Wis. 2008). And it did so, not because it doubted Kasten’s ability to prove the facts he alleged, but because it thought the Act did not protect oral complaints. Id., at 611-613. On appeal, the Seventh Circuit agreed with the District Court that the Act’s antiretaliation provision does not cover oral complaints. 570 F. 3d 834, 838-840 (2009).
Kasten sought certiorari. And in light of conflict among the Circuits as to whether an oral complaint is protected, we granted Kasten’s petition. Compare Hagan v. Echostar Satellite, L. L. C., 529 F. 3d 617, 625-626 (CA5 2008) (antiretaliation provision covers oral complaints); Lambert v. Ackerley, 180 F. 3d 997, 1007 (CA9 1999) (en banc) (same), with Lambert v. Genesee Hospital, 10 F. 3d 46, 55-56 (CA2 1993) (antiretaliation provision does not cover informal complaints to supervisors). See also Pacheco v. Whiting Farms, Inc., 365 F. 3d 1199, 1206 (CA10 2004) (antiretaliation provision covers unofficial assertion of rights); EEOC v. White & Son Enterprises, 881 F. 2d 1006, 1011-1012 (CA11 1989) (same); Moore v. Freeman, 355 F. 3d 558, 562-563 (CA6 2004) (assuming without discussion that oral complaints are covered);
II
The sole question presented is whether “an oral complaint of a violation of the Fair Labor Standards Act” is “protected conduct under the [Act’s] anti-retaliation provision.” Pet. for Cert. i. The Act protects employees who have “filed any complaint,” 29 U. S. C. § 215(a)(3), and interpretation of this phrase “depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis,” Dolan v. Postal Service, 546 U. S. 481, 486 (2006). This analysis leads us to conclude that the language of the provision, considered in isolation, may be open to competing interpretations. But considering the provision in conjunction with the purpose and context leads us to conclude that only one interpretation is permissible.
A
We begin with the text of the statute. The word “filed” has different relevant meanings in different contexts. Some dictionary definitions of the word contemplate a writing. See, e. g., Webster’s New International Dictionary 945 (2d ed. 1934) (def. 4(a)) (to file is to “deliver (a paper or instrument) to the proper officer so that it is received by him to be kept on file, or among the records of his office” (emphasis added)); Webster’s Ninth New Collegiate Dictionary 462 (1983) (def. 2(a)) (one definition of “file” is “to place among official records as prescribed by law”).
But other dictionaries provide different definitions that permit the use of the word “file” in conjunction with oral material. One can, for example, file an oral statement that enters a matter “into the order of business.” 1 Funk & Wagnalls New Standard Dictionary of the English Language 920 (rev. ed. 1938) (def. 2) (to file is to “present in the regular way, as to a judicial or legislative body, so that it shall go
In addition to the dictionary definitions, we have found that legislators, administrators, and judges have all sometimes used the word “file” in conjunction with oral statements. Thus state statutes sometimes contemplate oral filings. See, e. g., Alaska Stat. § 47.32.090(a) (2008) (“file a verbal or written complaint”); Cal. Health & Safety Code Ann. § 17055(a) (West 2006) (“file an administrative complaint orally or in writing”); D. C. Code § 7-1231.12(a)(2)(B) (2001) (“filing his or her grievance, orally or in writing”); Ga. Code Ann. §§31-8-124(a), (c), 31-8-134(b) (2009) (“to file a grievance,” a person may “submit an oral or written complaint”); Ind. Code § 27-8-28-14(a) (2009) (“file a grievance orally or in writing”); Me. Rev. Stat. Ann., Tit. 34-B, §5604(3)(B) (2009) (“filed through an oral request”); Miss. Code Ann. § 69-47-23(4) (2005) (“file a written or oral complaint”); Mo. Rev. Stat. § 198.088.3(3) (2009) (to have a complaint “filed,” a person “shall write or cause to be written his grievance or shall state it orally”); Nev. Rev. Stat. §§618.336(2)(a), 618.341(l)(a) (2009) (“oral or written complaint filed”); N. J. Stat. Ann. § 30:4C-12 (West 2008) (“written or oral complaint may be filed”); N. Y. Ins. Law Ann. §§ 3217-a(a)(7), 4324(a)(7) (West 2006) (“file a grievance orally”); N. Y. Pub. Health Law Ann. § 4408(l)(g) (West Supp. 2010) (“file a grievance orally”); Pa. Stat. Ann., Tit. 40, §§991.2141(a)-(b) (Purdon 1999) (“file a . . . written or oral complaint”); Tex. Ins. Code Ann. §§ 1305.401(a)-(b) (West 2009) (“oral or written complaint” must be “file[d]”); Wash. Rev. Code §§90.64.030(3), (5) (2008)
Regulations promulgated by various federal agencies sometimes permit complaints to be filed orally. See, e. g., 32 CFR §842.20 (2010) (“[fjiling a claim” may proceed “orally or in writing”); 42 CFR § 422.564(d)(1) (2009) (“file a grievance . . . either orally or in writing”); § 423.564(d)(1) (same); §438.402(b)(3)(i) (“file a grievance either orally or in writing”); § 494.180(e) (“file an oral or written grievance”); 49 CFR § 1503.629(c) (2009) (“[f]iling of motions .. . must be in writing or orally on the record” (emphasis deleted)); 42 CFR § 438.402(b)(3)(ii) (2009) (“file an appeal either orally or in writing”).
And a review of contemporaneous judicial usage, cf. Utah v. Evans, 536 U. S. 452, 475 (2002), shows that oral filings were a known phenomenon when the Act was passed. See, e. g., Reed Oil Co. v. Cain, 169 Ark. 309, 312, 275 S. W. 333, 334 (1925) (“appellee filed ... an oral complaint”); Tingler v. Lahti, 87 W. Va. 499, 503, 105 S. E. 810, 812 (1921) (“complaint subsequently filed, either oral or written”); Ex parte Mosgrove, 47 Okla. Crim. 40, 287 P. 795 (1930) (only “complaint ... filed against him” was “oral complaint of the town marshal”); Indian Fred v. State, 36 Ariz. 48, 52-53, 282 P. 930, 932 (1929) (“filed an oral motion to quash”); Dunn v. State, 60 Okla. Crim. 201, 203, 63 P. 2d 772, 773 (1936) (“filed an oral demurrer”); Morrison v. Lewis, 58 Ga. App. 677, 199 S. E. 782 (1938) (“filed an oral motion” demurring); Brock v. Cullum Bros., 263 S. W. 335 (Tex. Civ. App. 1924) (“filed an oral motion to quash”); Fike v. Allen, 269 S. W. 179, 180 (Tex. Civ. App. 1925) (“filed oral pleadings”).
Filings may more often be made in writing. See, e.g., Ritter v. United States, 28 F. 2d 265, 267 (CA3 1928) (finding words “file a claim'for refund” to require a written request in context of Tax Code). But we are interested in the filing of “any complaint.” So even if the word “filéd,” considered alone, might suggest a narrow interpretation limited to writ
We can look further to other appearances of the word “filed” in the Act. See MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 226 (1994) (examining “contextual indications” of the meaning of a term). That word (or a variant) appears in numerous other provisions. But its appearance elsewhere in the Act does not resolve the linguistic question before us. Some of those other provisions (1) involve filed material that, unlike a complaint, is of a kind that is virtually always in writing. See, e. g., 29 U. S. C. §203(Z) (employers must “have on file an unexpired certificate” (emphasis added)); § 210(a) (Secretary must “file in the court the record of the industry committee” (emphasis added)); ibid, (industry committee must “file” its findings and recommendations). Others (2) specifically require a writing, see, e. g., § 214(c)(5)(A) (requiring employee's “consent in writing” to join collective action to be “filed” (emphasis added)); § 216(b) (same). And the remainder (3) leave the oral/written question unresolved — just as does the provision before us. See, e. g., § 210(b) (prohibiting a stay unless movant “file[s] in court an undertaking” (emphasis added)); § 214(c)(5)(A) (employee “may file ... a petition” for review of a special wage rate (emphasis added)).
Looking beyond the Act, we find other statutes that contain antiretaliation provisions. Those statutes, however, use somewhat different language. See, e. g., § 158(a)(4) (protecting an employee who has “filed charges or given testimony”); § 623(d) (protecting those who “opposed any [unlawful] practice” (emphasis added)); 42 U. S. C. §§2000e-3(a), 12203(a) (same); 29 U. S. C. § 2615(a)(2) (similar). See also, e.g., 15 U.S.C. § 2087(a)(1) (2006 ed., Supp. Ill) (“provided ... to the employer . . . information relating to any viola
The bottom line is that the text, taken alone, cannot provide a conclusive answer to our interpretive question. The phrase “filed any complaint” might, or might not, encompass oral complaints. We must look further.
B
1
Several functional considerations indicate that Congress intended the antiretaliation provision to eover oral, as well as written, “complaint[s].” First, an interpretation that limited the provision’s coverage to written complaints would undermine the Act’s basic objectives. The Act seeks to prohibit “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” 29 U. S. C. § 202(a). It does so in part by setting forth substantive wage, hour, and overtime standards. It relies for enforcement of these standards, not upon “continuing detailed federal supervision or inspection of payrolls,” but upon “information and complaints received from employees seeking to vindicate rights claimed to have been denied.” Mitchell v. Robert DeMario
Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it 'difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers? President Franklin Roosevelt pointed out at the time that these were the workers most in need of the Act’s help. See Message to Congress, May 24,1937, H. R. Doc. No. 255, 75th Cong, 1st Sess., 4 (seeking a bill to help the poorest of “those who toil in factory”).
In the years prior to the passage of the Act, illiteracy rates were particularly high among the poor. See E. Gordon & E. Gordon, Literacy in America 273 (2003) (one-quarter of World War I conscripts were illiterate); Dept, of Commerce, Bureau of Census, Sixteenth Census of the United States, 1940, Population: The Labor Force (Sample Statistics): Occupational Characteristics 60 (1943) (20.8% of manufacturing laborers in 1940 had less than five years of schooling). Those rates remained high in certain industries for many years after the Act’s passage. In 1948, for example, the National War Labor Board wrote:
“In many plants where there is a high degree of illiteracy, the writing of grievances by employees works a substantial hardship. In other plants where there is considerable dirt and special clothes must be worn, it is often not practicable to write up grievances during work hours.” 1 The Termination Report of the National War Labor Board, p. 122.
To limit the scope of the antiretaliation provision to the filing of written complaints would also take needed flexibility from those charged with the Act’s enforcement. It could
Given the need for effective enforcement of the National Labor Relations Act (NLRA), this Court has broadly interpreted the language of the NLRA’s antiretaliation provision — “filed charges or given testimony,” 29 U. S. C. § 158(a)(4) — as protecting workers who neither filed charges nor were “called formally to testify” but simply “participate[d] in a [National Labor Relations] Board investigation.” NLRB v. Scrivener, 405 U. S. 117, 123 (1972) (emphasis added). The similar enforcement needs of this related statute argue for an interpretation of the word “complaint” that would provide “broad rather than narrow protection to the employee,” id., at 122 (and would do so here without pressing statutory language to its limit). See also Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U. S. 590, 597 (1944) (the Act’s “remedial and humanitarian . . . purpose” cautions against “narrow, grudging” interpretations of its language).
Saint-Gobain replies that worker protection is not the only relevant statutory objective. The Act also seeks to establish an enforcement system that is fair to employers. To do so, the employer must have fair notice that an employee is making a complaint that could subject the employer to a later claim of retaliation. If oral complaints suffice, Saint-Gobain adds, employers too often will be left in a state of uncer
We agree with Saint-Gobain that the statute requires fair notice. Although the dictionary definitions, statutes, regulations, and judicial opinions we considered, see supra, at 7-10, do not distinguish between writings and oral statements, they do suggest that a “filing” is a serious occasion, rather than a triviality. As such, the phrase “filed any complaint” contemplates some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns.
Moreover, the statute prohibits employers from discriminating against an employee “because such employee has filed any complaint.” §215(a)(3) (emphasis added). And it is difficult to see how an employer who does not (or should not) know an employee has made a complaint could discriminate because of that complaint. But we also believe that a fair notice requirement does not necessarily mean that notice must be in writing.
At oral argument, the Government said that a complaint is “filed” when “a reasonable, objective person would have understood the employee” to have “put the employer on notice that [the] employee is asserting statutory rights under the [Act].” Tr. of Oral Arg. 23, 26. We agree. To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for théir protection. This standard can be met, however, by oral complaints, as well as by written ones.
2
Second, given Congress’ delegation of enforcement powers to federal administrative agencies, we also give a degree of
The Secretary of Labor has consistently held the view that the words “filed any complaint” cover oral,, as well as written, complaints. The Department of Labor articulated that view in an enforcement action filed many years ago, Goldberg v. Zenger, 43 CCH LC ¶ 31,155, pp. 40,985, 40,986 (D Utah 1961). It has subsequently reaffirmed that view in briefs. See, e. g., Brief for Secretary of Labor as Amicus Curiae Supporting Petition for Rehearing With Suggestion for Rehearing En Banc in Lambert v. Ackerley, No. 96-36017 etc. (CA9), pp. 6-7. And more recently it has acted in accordance with that view by creating a hotline to receive oral complaints, see Dept, of Labor, Compliance Assistance by Law— The Fair Labor Standards Act (FLSA), http://www.dol.gov/ compliance/laws/comp-flsa.htm (as visited Mar. 18, 2011, and available in Clerk of Court’s case file) (directing participants who wish to “file a complaint” to contact a local office “or call the Department’s Toll-Free Wage and Hour Help Line at 1-866-4-U S-WAGE ”).
The EEOC has set forth a similar view in its Compliance Manual, Vol. 2, § 8-II(B)(l), p. 8-3, and n. 12 (1998), and in multiple briefs, see, e. g., Brief for EEOC as Amicus Curiae in Support of Petition for Rehearing With Suggestion for Rehearing En Banc in Lambert v. Ackerley, No. 96-36017 etc. (CA9), pp. 8-13; Brief for Appellee in EEOC v. White & Son Enterprises, Inc., No. 88-7658 (CA11), pp. 29-30.
These agency views are reasonable. They are consistent with the Act. The length of time the agencies have held
3
Finally, we note that Saint-Gobain invokes the “rule of lenity” in support of its “written complaint” interpretation. That rule applies primarily to the interpretation of criminal statutes. It leads us to favor a more lenient interpretation of a criminal statute “when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.” United States v. Shabani, 513 U. S. 10, 17 (1994). We agree with Saint-Gobain that those who violate the anti-retaliation provision before us are subject to criminal sanction, 29 U. S. C. § 216(a). And we have said that the rule of lenity can apply when a statute with criminal sanctions is applied in a noncriminal context. See Leocal v. Ashcroft, 543 U. S. 1, 11, n. 8 (2004). But after engaging in traditional methods of statutory interpretation, we cannot find that the statute remains sufficiently ambiguous to warrant application of the rule of lenity here.
C
Alternatively, Saint-Gobain claims that it should prevail because Kasten complained to a private employer, not to the Government; and, in Saint-Gobain’s view, the antiretaliation provision applies only to complaints filed with the Government. Saint-Gobain advanced this claim in the lower courts,
We do not normally consider a separate legal question not raised in the certiorari briefs. See this Court’s Rule 15.2; Caterpillar Inc. v. Lewis, 519 U. S. 61, 75, n. 13 (1996). We see no reason to make an exception here. Resolution of the Government/private employer question is not a “ ‘ “predicate to an intelligent resolution”’” of the oral/written question that we granted certiorari to decide. See ibid, (quoting Ohio v. Robinette, 519 U. S. 33, 38 (1996)). That is to say, we can decide the oral/written question separately — on its own. And we have done so. Thus, we state no view on the merits of Saint-Gobain’s alternative claim. Cf. post, at 18-21 (Scalia, J., dissenting).
* * *
We conclude that the Seventh Circuit erred in determining that oral complaints cannot fall within the scope of the phrase “filed any complaint” in the Act’s antiretaliation provision. We leave it to the lower courts to decide whether Kasten will be able to satisfy the Act’s notice requirement. We vacate the Circuit’s judgment and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Dissenting Opinion
with whom Justice Thomas joins as to all but footnote 6, dissenting.
The Seventh Circuit found for the employer because it held that the Fair Labor Standards Act of 1938 (FLSA), 29 U. S. C. § 215(a)(3), covers only written complaints to the em
I
The FLSA’s retaliation provision states that it shall be unlawful
“to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” Ibid.
The phrase central to the outcome here is “filed any complaint.” In the courts below, Kasten asserted a claim for retaliation based solely on allegations that he “filed” oral “complaints” with his employer; Saint-Gobain argued that the retaliation provision protects only complaints that are (1) in writing, and (2) made to judicial or administrative bodies. I agree with at least the second part of Saint-Gobain’s contention. The plain meaning of the critical phrase and the context in which it appears make clear that the retaliation provision contemplates an official grievance filed with a court or an agency, not oral complaints — or even formal, written complaints — from an employee to an employer.
A
In isolation, the word “complaint” could cover Kasten’s objection: It often has an expansive meaning, connoting any “Expression of grief, regret, pain ... or resentment.” Webster’s New International Dictionary 546 (2d ed. 1934) (hereinafter Webster’s). But at the time the FLSA was passed (and still today) the word when used in a legal context has borne a specialized meaning: “[a] formal allegation or charge against a party, made or presented to the appropriate court
There are several reasons to think that the word bears its specialized meaning here. First, every other use of the word “complaint” in the FLSA refers to an official filing with a governmental body. Sections 216(b) and (c) both state that the right to bring particular types of actions “shall terminate upon the filing of a complaint” by the Secretary of Labor, and § 216(c) clarifies that the statute of limitations begins running in actions to recover unpaid wages “on the date when the complaint is filed.” These provisions unquestionably use “complaint” in the narrow legal sense. Identical words used in different parts of a statute are presumed to have the same meaning absent contrary indication, IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005); Sullivan v. Stroop, 496 U. S. 478, 484 (1990). It is one thing to expand the meaning of “complaint” in § 215(a)(3) to include complaints filed with an agency instead of a court; it is quite something else to wrench it from the legal context entirely, to include an employee’s objection to an employer.
Second, the word “complaint” appears as part of the phrase “filed any complaint” and thus draws meaning from the verb with which it is connected. The choice of the word “filed” rather than a broader alternative like “made,” if it does not connote (as the Seventh Circuit believed, and as I need not consider) something in writing, at least suggests a degree of formality consistent with legal action and inconsistent (at least in the less regulated work environment of 1938) with employee-to-employer complaints. It is noteworthy that every definition of the verb “filed” that the Court’s opinion provides, whether it supports the inclusion of oral
Moreover, “[t]he law uses familiar legal expressions in their familiar legal sense,” Henry v. United States, 251 U. S. 393, 395 (1920). It is, I suppose, possible to speak of “filing a complaint” with an employer, but that is assuredly not common usage. Thus, when the antiretaliation provision of the Mine Health and Safety Act used that phrase in a context that includes both complaints to an agency and complaints to the employer, it did not use “filed” alone, but supplemented that with “or made” — and to boot specified “including a complaint notifying the [mine] operator ... of an alleged danger or safety or health violation . . . .” 30 U. S. C. § 815(c)(1).
Third, the phrase “filed any complaint” appears alongside three other protected activities: “instituting] or causing] to be instituted any proceeding under or related to this chapter,” “testifying] in any such proceeding,” and “serving] on an industry committee.”
And finally, the 1938 version of the FLSA, while creating private rights of action for other employer violations, see § 16(b), 52 Stat. 1069, did not create a private right of action for retaliation. That was added in 1977, see § 10, 91 Stat. 1252. Until then, only the Administrator of the Wage and Hour Division of the Department of Labor could enforce the retaliation provision. See § 11(a), 52 Stat. 1066. It would seem more strange to require the employee to go to the Administrator to establish, and punish retaliation for, his intracompany complaint, than to require the Administrator-protected complaint to be filed with the Administrator in the first place.
B
1
The meaning of the phrase “filed any complaint” is clear in light of its context, and there is accordingly no need to rely on abstractions of congressional purpose. Nevertheless, Hasten argues that protecting intracompany complaints best accords with the purpose of the FLSA — “to assure fair compensation to covered employees” — because such purposes are “advanced when internal complaints lead to voluntary compliance.” Reply Brief for Petitioner 18. But no legislation pursues its ends at all costs. Rodriguez v. United States, 480 U. S. 522, 525-526 (1987) (per curiam). Congress may not have protected intracompany complaints for the same reason it did not provide a private cause of action for retaliation against complaints: because it was unwilling
2
In deciding whether an oral complaint may be “filed,” the Court’s opinion examines modern state and federal statutes, which presumably cover complaints filed with an employer. The only relevance of these provisions to whether the FLSA covers such complaints is that none of them achieves that result by use of the term “filed any complaint,” and all of them use language that unmistakably includes complaints to employers. See, e. g., 42 U. S. C. § 2000e-3(a) (prohibiting retaliation against employees who “oppos[e] any [unlawful] practice”). Any suggestion that because more recent statutes cover intracompany complaints, a provision adopted in the 1938 Act should be deemed to do so is unacceptable. While the jurisprudence of this Court has sometimes sanctioned a “living Constitution,” it has never approved a living United States Code. What Congress enacted in 1938 must be applied according to its terms, and not according to what a modern Congress (or this Court) would deem desirable.
3
Kasten argues that this Court should defer to the Department of Labor and Equal Employment Opportunity Commis
Even were § 215(a)(3) ambiguous, deference would still be unwarranted. If we are to apply our new jurisprudence that deference is appropriate only when Congress has given the agency authority to make rules carrying the force of law, see Gonzales v. Oregon, 546 U. S. 243, 255-256 (2006), deference is improper here. The EEOC has no such authority. Although the Secretary of Labor and his subordinates have authority to issue regulations under various provisions of the FLSA, see, e.g., § 203(Z); § 206(a)(2), they have no general authority to issue regulations interpreting the Act, and no specific authority to issue regulations interpreting § 215(a)(3).
Presumably for this reason, the Court’s opinion seems to suggest that only so-called Skidmore deference is appropriate, see Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944).
II
The Court’s opinion claims that whether § 215(a)(3) covers intracompany complaints is not fairly included in the question presented because the argument, although raised below, was not made in Saint-Gobain’s response to Kasten’s petition for certiorari. Citing this Court’s Rule 15.2 and Caterpillar Inc. v. Lewis, 519 U. S. 61, 75, n. 13 (1996), the opinion says that this Court does “not normally consider a separate legal question not raised in the certiorari briefs.” Ante, at 17.
It regularly does so, however, under the circumstances that obtain here. (Curiously enough, Caterpillar, the case cited by the Court, was one instance.) Rule 15.2 is permissive rather than mandatory: “Any objection to consideration of a question presented based on what occurred in the proceedings below . . . may be deemed waived unless called to the Court’s attention in the brief in opposition.” (Emphasis added.) Accordingly, the Court has often permitted parties to defend a judgment on grounds not raised in the brief in opposition when doing so is “predicate to an intelligent resolution of the question presented, and therefore fairly in-
Kasten’s petition for certiorari phrases the question presented as follows: “Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U. S. C. § 215(a)(3)?” Pet. for Cert. i. Surely the word “complaint” in this question must be assigned an implied addressee. It presumably does not include a complaint to Judge Judy. And the only plausible addressee, given the facts of this case, is the employer. Saint-Gobain’s rewording of the question presented in its brief, in opposition is even more specific: “Has an employee alleging solely that he orally asserted objections to his employer . . . 'filed any complaint’ within the meaning of [§ 215(a)(3)].” Brief in Opposition i (emphasis added). Moreover, under this Court’s Rule 14.1(a), the question presented is “deemed to comprise every subsidiary question fairly included therein.” Whether intracompany complaints are protected is at least subsidiary to Kasten’s formulation (and explicitly included in Saint-Gobain’s). The question was also decided by the courts below and was briefed before this Court. It is not clear what benefit additional briefing would provide.
Moreover, whether § 215(a)(3) covers intracompany complaints is “predicate to an intelligent resolution of the question presented” in this case. The Court’s own opinion demonstrates the point. While claiming that it remains an open question whether intracompany complaints are covered, the opinion adopts a test for “filed any complaint” that assumes a “yes” answer — and that makes no sense otherwise. An employee, the Court says, is deemed to have “filed [a] complaint” only when '"a reasonable, objective person would have understood the employee’ to have 'put the employer on notice that [the] employee is asserting statutory rights under the [Act].’” Ante, at 14 (quoting Tr. of Oral Arg. 23, 26).
The test the Court adopts amply disproves its contention that “we can decide the oral/written question separately,” ante, at 17. And it makes little sense to consider that question at all in the present case if neither oral nor written complaints to employers are protected, cf. United States v. Grubbs, 547 U. S. 90, 94, n. 1 (2006). This Court should not issue an advisory opinion as to what would have been the scope of a retaliation provision covering complaints to employers if Congress had enacted such a provision.
Fasten and this Court’s opinion, ante, at 9-10, argue that the use of the modifier “any” in the phrase “filed any complaint” suggests that Congress meant to define the word “complaint” expansively. Not so. The modifier “any” does not cause a word that is in context narrow to become broad. The phrase “to cash a check at any bank” does not refer to a river bank, or even a blood bank.
Section 5 of the original FLSA, which has since been repealed, charged industry committees with recommending minimum wages for certain industries to the Department of Labor. 52 Stat. 1062. In order to perform this function, industry committees were empowered, among other things, to “hear ... witnesses” and “receive .. . evidence.” § 8(b), id., at 1064.
Fasten argues that excluding intraeompany complaints would make the phrases “filed any complaint” and “instituted or caused to be instituted any proceeding” redundant. That is not so. An employee may file a complaint with the Administrator that does not result in a proceeding, or has not yet done so when the employer takes its retaliatory action.
Moreover, if the substance of the retaliation provision of any other Act could shed light upon what Congress sought to achieve in the FLSA, it would be the relatively contemporaneous provision of the National Labor Relations Act, §8(4), 49 Stat. 453, codified at 29 U. S. C. § 158(a)(4), which did not cover retaliation for employee-employer complaints. See NLRB v. Scrivener, 405 U. S. 117 (1972).
Or perhaps not. The actual quantum of deference measured out by the Court’s opinion is unclear — seemingly intentionally so. The Court says that it is giving “a degree of weight” to the Secretary and EEOC’s views “given Congress’ delegation of enforcement powers to federal administrative agencies.” Ante, at 14-15. But it never explicitly states the level of deference applied, and includes a mysterious citation of United States v. Mead Corp., 533 U. S. 218 (2001), along with a parenthetical saying that “sometimes . . . judicial deference [is] intended even in [the] absence of rulemaking authority.” Ante, at 16. I say this is mysterious because Mead clearly held that rulemaking authority was necessary for full Chevron deference, see Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). I have chosen to interpret
In my view this doctrine (if it can be called that) is incoherent, both linguistically and practically. To defer is to subordinate one’s own judgment to another’s. If one has been persuaded by another, so that one’s judgment accords with the other’s, there is no room for deferral — only for agreement. Speaking of “Skidmore deference” to a persuasive agency position does nothing but confuse.
