Political Party Swaps Can Change Course Of Wage Litigation
April 6, 2023

By Max Kutner · 2023-04-06 20:21:50 -0400 · Listen to article
Changes in the White House’s political party or a state attorney general’s office can upend their wage and hour litigation, which can cause complications for remaining parties and result in dismissals that don’t resolve underlying issues, observers said.


Changes in political parties can mean more work for remaining parties and a lack of precedential rulings on wage and hour issues, according to employment law observers. (AP Photo/Manuel Balce Ceneta)
In the Ninth Circuit, when a group of Republican state attorneys general filed in February to appeal the dismissal of their challenge to a U.S. Department of Labor federal contract worker minimum wage rule, they did so without Arizona. The Grand Canyon state had been the lead plaintiff, but a Democrat had become attorney general.

Earlier in the President Joe Biden administration, the DOL dropped a Second Circuit appeal the agency had brought under President Donald Trump of a lower court order invalidating a Trump-era joint employer rule.

And under Trump, the DOL ended a Fifth Circuit appeal the government had launched under former President Barack Obama in a case challenging a rule raising the salary threshold for overtime pay. Earlier in that case, Nevada had dropped out as lead plaintiff when voters there elected a Democrat as attorney general.

Employment law observers said such changes can mean more work for remaining parties and a lack of precedential rulings on wage and hour issues.

“In this kind of litigation, political changes which complicate the normal operation of the appeals process are just part of the package,” said Sachin Pandya, a University of Connecticut School of Law professor who represented an amicus backing the DOL in the Fifth Circuit case.

Here, Law360 explores how political party changes impact wage litigation.

More Work For Remaining States

Data show state attorneys general are increasingly challenging federal rules, and states sometimes withdraw from such cases when voters elect an attorney general from a different political party.

“When there are party changes, not surprisingly, we see a lot of shuffling around of the states involved in the lawsuit,” said Paul Nolette, an associate professor and political science department chair at Marquette University.

“You can almost predict with very high certainty that when there’s a party switch, there’s going to be these mass withdrawals or joining the partisan lawsuits,” said Nolette, who maintains a database of state attorney general litigation and published a book on the subject.

In the 2022 elections, three states had party flips for their attorneys general, including Arizona. In the prior four years, eight state attorney general offices switched party affiliation, including in Nevada.

The departure of the state leading such a case can be challenging for staffers in another state that has to take up the fight, Nolette said.

“The other states that are involved in the case are typically just sign-on states,” he said. “The lead state in the case is doing a lot of work. And so when the lead state leaves, then somebody has to slot in as the new lead, and that can be complicated.”

For staffers in the outgoing state, having to leave the case can be a letdown.

“If you’ve just spent five years working on a case and then someone comes in and drops it, the general reaction is going to be, it’s fairly deflating,” said Peter Brann, a Harvard Law School visiting lecturer who teaches a course on state attorneys general. “‘Someone’s essentially telling me that I just wasted five years of my life.’ That could be the reaction.”

But such state departures are not necessarily surprising, said Jordan Smith of Pisanelli Bice PLLC, who was deputy solicitor general in Nevada and counsel in the overtime salary threshold case.

“You sometimes find it disappointing but not unexpected, when different administrations have different legal views on contested issues and different priorities,” Smith said.

A court is unlikely to bar a state from leaving a case, observers said.

“It’s almost matter of fact, not even a question, if you voluntarily dismiss yourself from the lawsuit,” Nolette said.

An opposing party or an amicus backing the opposing party could view a state’s departure as a sign that the opposing position is correct, said Joe Gaeta, director of oversight and engagement at Democracy Forward, a legal organization that represented pro-worker amici in the case Arizona led.

“In a case like Arizona, where after an election you have a change in political party, there may be something there that says that the people of that state did not like the direction that their attorney general was committing them,” said Gaeta, who served in federal government during the Biden and George W. Bush administrations and previously worked at the Rhode Island attorney general’s office.

“We are encouraged when we see changes in positions like this,” he said. “It is important for people to understand what state AGs are doing, what positions they’re taking in court on behalf of the state, and really reflecting as to whether that’s what they want.”

An Easier Win For States

Just as state attorneys general sometimes leave cases due to political changes, the federal government sometimes drops appeals the prior presidential administration brought in cases challenging federal rules.

“New administrations might have different views on these difficult legal questions,” said Pisanelli Bice’s Smith. “It’s not surprising to me when there’s a change of administration that they might view these complicated questions differently than predecessors.”

For states that wanted to halt a rule and won a favorable ruling in the lower court, the federal government’s decision to drop an appeal is an easy win for them, observers said.

And just as courts typically let a state withdraw from a case, they also usually agree to let the federal government drop its own appeal, observers said. Sometimes amici backing the appeal will still push for an order that vacates the lower court ruling, as happened in the Second Circuit joint employer rule case.

It’s unlikely that a court would make a party stay in the case, especially when the departure would resolve the case, said Harvard’s Brann, who is also a former Maine assistant attorney general and state solicitor and a partner at Brann & Isaacson.

“Courts, as a general matter, are all too happy to hear…the parties got rid of this thing, it’s no longer on your docket,” Brann said. “You don’t hear a lot of judges going, ‘Oh, drat, I really wanted to struggle with that one for another two years.”

A Lack of Resolution

States are likely happy with their easier win in such cases. But when they want a precedential ruling that clarifies underlying legal issues, a dismissal of this kind doesn’t bring such a resolution, University of Connecticut’s Pandya said.

“Part of the motivation for the parties litigating the case, as well for amici, is to settle the law,” Pandya said. If the federal government drops its appeal, “then all the work in getting a circuit court to rule on the legal issue and therefore establish some kind of precedent, that opportunity goes away too,” he said.

When the government seeks to dismiss its own appeal, including when it has done away with the prior administration’s rule, a federal court generally doesn’t issue an opinion anyway, Pandya said.

“If the challenged rule is no longer in operation because it’s been withdrawn, then there’s no stake in the litigation, and courts are typically loath to issue what then would be effectively an advisory opinion,” he said.

Sometimes a federal circuit court dismisses the case but also agrees to vacate the lower court ruling.

In the joint employer rule case, the Second Circuit did that after business group intervenor-appellants argued in a motion that “the rule of law requires a judicial resolution of the important questions presented by the district court’s erroneous decision, which otherwise will continue to have harmful effects.”

As state attorneys general become more political, they could be participating in, and potentially leaving, more of these cases, Nolette said.

Nolette documented 55 cases that state attorneys general brought against the Biden administration so far, which is the same number that states brought during all of Obama’s second term and more than during Obama’s first term.

While Trump was in office, states brought 160 cases, more than during any president going back at least to former President Ronald Reagan, according to Nolette’s data.

But with fewer swing states, party changes aren’t happening as much in the state attorney general offices, he added.

The federal government is perhaps more likely to drop appeals than state attorneys general are to leave cases, as the president’s party tends to change every four or eight years, Nolette said.

“A lot of these cases take more than four years,” he said, “so they tend to cross over into party switches and different administrations.”

–Editing by Nick Petruncio.

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