*1 Secretary’s interpreta- the Secretary’s interpretation We conclude The c. provision is of the ra- purpose of reimbursement with the consistent is with the statute’s provisions. and consistent secondary payer tional' the text, therefore it is history, purpose, and from of Medicare “The transformation and the court’s second district reasonable secondary payer to thе payer primary the summary on injunction judg- and its order reflects the reimbursement right with must be ment reversed. reducing statutory purpose of overarching Zinman, F.3d at 845. costs.” Medicare CONCLUSION IV. attorneys that Secretary’s demand The re- proceeds lacked have received settlement The district court who disbursing those the beneficiaries’ Medicare before over claims. imburse certainly increas- of 42 Secretary’s interpretation to their clients U.S.C. proceeds The (iii) will is proceeds 1395y(b)(2)(B)(ii) likelihood that reasonable. §§ es the Therefore, injunctions en- for reimbursement. the therefore VACATE available We of the reim- Secretary’s interpretation by the district court and REVERSE the tered summary judgment with the court’s or- provision consistent district bursement the secondary payer the of the REMAND this casе to dis- purpose We general der. appel- of the court for consideration provisions. trict process due claim. lees’ Secretary can recover the d. Whether already attorney has an who
from proceeds does settlement
disbursed in- of the on the merits bear
not
junction. individually, BAUMANN, and on Joseph secondary that the maintains Balentine gener other behalf of members a lien do create provisions not payer situated, similarly Plaintiff- рublic al There- proceeds. the settlement against Appellant, Secretary may not fore, argues, he already has attorney who from an recover dis- proceeds. settlement disbursed INVESTMENT SERVICES CHASE that Sec- agreed ruled trict court corporation; CORP., a Delaware action right of not have a retary does NA; JPMorgan Bank JPMor Chase already dis- attorneys who against have Co., corpora Delaware gan Chase & But that is- proceeds. settlement bursed tion, Defendants-Appellees. on the facts of presented sue is No. 12-55644. fully reimbursed Secretary The. was case. after disburs- was not sued and Balentine Appeals, States United Court com- proceeds. settlement
ing Haro’s Ninth Circuit. Secretary’s de- only that the plaint alleges 5, 2013. March Argued and Submitted funds from attorneys withhold mand аuthority under exceeds her their clients Aug. 2013. Vacated Submission The Sec- secondary payer provisions. March 2014. Resubmitted an action authority bring retary’s 13, 2014. Filed March disbursed attorney who has our controversy ripe for not a proceeds is
review.
OPINION HURWITZ, Judge: Circuit This is a civil action filed California *3 state court under California Labor Attorneys Code Private General Act of (“PAGA”), §§ Cal. Lab.Code 2698- 2699.5, and then removed to the United District for the Dis States Court Central ag trict California. PAGA authorizes grieved employees, acting private as attor neys general, penalties to recover civil employers from their for violations of the Ct., Labor v. Super. Code. See Arias Cal.4th 209 P.3d (2009). question pre 929-30 The sole Ryan and H. (argued), A. Danas Glenn appeal sented on is whether the district CA, APC, Wu, Angeles, Los Capstone Law jurisdiction court had over APC, Primo, Legal Group Marc Initiative this removed action. CA, Plaintiff-Appellant. Angeles,
Los for Services, Urbino Orkin (9th Cir.2013), potential we held that and John A. (argued) A. Gonell Carrie employer may penalties PAGA LLP, Hayashi, Morgan, Lewis & Bockius minimum aggregated not be meet the Shaulson, Irvine, CA; S. New Samuel controversy in amount NY; Willard, York, and Alison B. San 1332(a). remaining § The U.S.C. issue Francisco, CA, Defendants-Appelleеs. for appeal may a district court (argued) and Elizabeth Allen Graves jurisdiction original instead exercise over a Sullivan, Firm, Pasadena, CA, The Graves Action Fair- PAGA action under Class Stacy Thompson. for Amicus Curiae (“CAFA”), of 2005 28 U.S.C. ness Act A. George W. Abele and Melinda Gor- 1332(d), 1453, §§ 1711-15. hold that We CA; don, LLP, Hastings Angeles, Paul Los juris- provides no basis for federal CAFA Conrad, Todd, Robin S. Kate Comerford diction. Kawka, B. National Chamber
and Shane Center, D.C., Washington, for
Litigаtion I. Employment Amicus Curiae California Background Factual and Procedural and of Commerce Law Council Chamber Joseph employer, Baumann sued his of the United States of America. Corporation Services Chase Investment
(“Chase”), supe- in California under PAGA court, alleging that Chase had failed rior “Aggrieved Parties” pay him and other advisors) (Chase overtime, financial breaks, peri- allow rest provide for meal ods, timely expenses. reimburse and HAWKINS, statutory civil complaint sought DALY Before: MICHAEL violation, THOMAS, alleged and penalties D. for each R. and ANDREW SIDNEY HURWITZ, potential Baumann’s share asserted that Judges. Circuit $5,000,000, attorneys’ recovered and the sum or value of exclusive of any penalties $75,000. costs, than interest and and is a class action in fees would be less any plain- member of thе class of which— removal, invoking a notice of Chase filed tiffs is citizen of a State different from 1332(a) § diversity jurisdiction under 1332(d)(2)- § defendant.” 28 U.S.C. controversy amount in alleging that (A). The claims of class members $75,000 statutory if all potential exceeded aggregated to determine whether attorneys fee awards were controversy requirement amount has The notice of removal also aggregated. 1332(d)(6). been satisfied. Id. invoked CAFA class also must have at least 100 members. 1332(d)(2), diversity, minimal alleging *4 1332(d)(5)(B). § question Id. There is no members, of more than 100 and an class that statutory this PAGA action involves controversy in exceeding amount allegedly by violations than $5,000,000. suffered more court Bau- The district denied remand, employees, citizenship 100 Chase that the aggregating the mann’s motion to potential finding employees of one of those is different than claims Chase and Chase’s, jurisdiction aggregated statutory matter or that the 1332(a). § accordingly The court penalties $5,000,000. declined sought exceed jurisdiction. Therefore, address CAFA only issue for decision is whether this is a “class action.”
The district court certified its order A action” by “class is defined CAFA as remand, denying Baumann’s motion to “any civil action filed under rule 23 of the permitted appeal we an to be taken from 1292(b). Federal Rules of Civil Procedure or simi- § that order. See 28 U.S.C. Sec 1292(b) judicial proce- lar State statute or rule of appeals authorizes from or ders, questions, authorizing brought not so “our review of dure an action to be present controversy automatically is not 1 or representative persons more as a solely question 1332(d)(1)(B). limited to the deemed con § class action.” Id. Be- trolling by court.” the district In re Cine cause this action was in commenced Cali- (9th matronics, Inc., 1444, court, clearly fornia state it was not filed Cir.1990). And, question because the sole pursuant to Federal Rule of Civil Proce- remaining appeal in this a question dure 23. The —whether before us thus boils PAGA suit is a “class action” as defined in down to “whether the suit was ‘filed under’ 1332(d)(1)(B) CAFA, 28 U.S.C. a—is judicial a state statute or procedure rule of issue, purely legal which we review de ‘similar’ to Rule 23 that authorizes a class novo, Washington v. Chimei Innolux action.” Purdue L.P. Pharma v. Ken- 842, Cir.2011), Corp., 659 F.3d 846-47 (2d Cir.2013). 208, tucky, 704 F.3d we judicial economy choose as a matter of begin We therefore with an overview of to address it in the first instance.1 PAGA, the state statute under which this suit was filed.
II.
1. PAGA
CAFA Jurisdiction
The
legislature
CAFA
California
enacted
original
confers
the district
inadequate
courts “of
civil action in PAGA because of
financing and
controversy
which the
in
staffing
exceeds
to enforce state labor laws. 2003
undisputed
explained
1. Because it is
that Baumann’s
in Urbino that
the district court
fees)
portion
any recovery (including
finding
controversy
would
erred in
the amount in
$75,000,
1332(a)
less than
we hold for the reasons
satisfied.
(2)
fact;
representatives
or
сlass
906,
legislature
§§ 1-2. The
law
Stat. Ch.
Cal.
allow
interest to
public
typical
it “in the
with claims or defenses
declared
acting
private
(3)
as
at
employees,
aggrieved
class;
representatives
class
who
penalties
to recover civil
torneys general,
adequately represent
can
the class.
violations, with the under
for Labor Code
Co.,
429,
Thrifty
Linder v.
Oil
23 Cal.4th
agen
labor law enforcement
standing that
(2000)
Cal.Rptr.2d
2 P.3d
private
over
primacy
to .retain
cies were
(internal quotation marks and citations
Arias, 95 Cal.
enforcement
efforts.”
omitted).
If
at 929-30.
209 P.3d
Rptr.3d
Develop
Labor and Workforce
California
case
complaint
did
(“LWDA”) declines to inves
Agency
ment
invoke the California class action statute.
alleged labor law violation
tigate an
Labor Code is silent as to
state
сitation,
aggrieved employee
issue
action,”
action is a “class
against an
a PAGA action
commence
Supreme
has au
but the California
Court
and on behalf of oth
employer “personally
issue,
thoritatively
holding
addressed
to recover
employees
current or former
er
that PAGA actions are not class actions
for Labor Code violations.”
civil
Arias,
under state law.
*5
Id.,
588,
2. PAGA and Class
closely
23 if it
Rule of Civil Procedure
382 of the California Code
Section
Rule 23 in
Rule 23 or is like
resembles
a class action
of
Procedure authorizes
Civil
Virginia
substance or
essentials.” West
of a common or
question
if “the
is one
Inc.,
Pharmacy,
ex rel. McGraw
CVS
interest, many persons, or when
general
of
Cir.2011).
169, 174
numerous,
imprac
and it is
parties
are
bring
them all before the court.”
ticable
essentials of Rule 23
The substance and
addition,
may
be certified
In
before
class
ac-
allows for class
are familiar. Rule 23
the existence of
party
must establish
“only if’:
tions
class and a well-
both an ascertainable
(1)
joinder
numerous that
the class is so
among
community of interest
defined
impracticable;
of all members is
community
of
the class members.
(2)
or fact
questions of law
there are
three fac-
interest
involves
class;
(1)
common to the
questions
common
predominant
tors:
(8)
repre-
commonality, typicality,
adequacy
defenses of the
the claims or
typical
representation
are
of the
that would make them
parties
sentative
suf-
class;
ficiently
brought
and
‘similar’ to
or defenses
actions
claims
...
(4)
Rule
and
do not contain certifica-
fairly
representative parties
will
Chimei,
procedures.”
at
F.3d
adequately рrotect the interests of
Accordingly,
par-
850.
we concluded that
the class.
patriae
defining
ens
suits “lack the
attrib-
28(a).
addition,
In
a class
Fed.R.Civ.P.
such, they
utes of true class actions. As
maintained
one
action cannot be
unless
only ‘resemble’
actions in
class
the sense
23(b)
of Rule
requirements
the three
Id.;
they
representative
are
suits.”
A
also met.
class certification order is
Pharma,
accord Purdue
In Rule 23 and PAGA are more of federal court under A at than alike. PAGA action is CAFA. dissimilar action filed on
heart a civil enforcement state, the benefit of the
behalf of and for
III.
not a claim for class relief.
Conclusion
differences,
Despite these fundamental
argues that
actions are “class
Chase
above,
For the reasons
hold that the
we
actions” under
PAGA is a
CAFA because
jurisdic-
district court could not exercise
procedural
state
law that
be dis-
tion over this removed PAGA action under
would
Urbino,
placed by
because,
Rule 23
federal court under
light
CAFA. And
of
Shady
Orthopedic
the rationale of
Grove
there was also no federal
Associates,
Co.,
jurisdiction
1332(a),
supra
P.A. v. Allstate Insurance
see
n.
393,
1431,
1, Baumann’s motion
559 U.S.
130 S.Ct.
176 L.Ed.2d
to remand should
(2010).
granted.
have been
We reverse with in-
Shady
help
But
Grove is of no
Grove,
grant
structions to
Shady
motion.
Suрreme
to Chase.
Court considered whether a New York
REVERSED
AND
REMANDED
law,
precluded
seeking
which
suits
recov-
WITH INSTRUCTIONS.
ery
proceeding
of
from
as class
actions, deprived a federal district court of
THOMAS,
Judge, concurring:
Circuit
diversity
over a
proposed
suit
397,
as a Rule 23 class action. Id. at
I
majority opinion.
concur in the
I
S.Ct. 1431. The issues were
Rule
whether
separately only
my
write
prior
note
law,
23 conflicted with the New York
and if disagreement on
question
of whether
so, whether the Rule exceeded the authori-
claims under the Labor Code Private At
Enabling
zation of the Rules
Act or Con-
torney
2004,
General Act of
Cal. Lab.Code
398,
gress’s rulemaking power. Id. at
130 §
seq,
et
can
aggregated
in deter
Supreme
S.Ct. 1431. The
Court held that mining
diversity jurisdiction
ex
23,
the New York law conflicted with Rule
ists. Urbino v. Orkin Services of Califor
analysis
and after applying the
mandated
nia,
Inc.,
Cir.
Plumer,
by Hanna v.
380 U.S.
85 2013) (Thomas, J., dissenting). Urbino is
(1965),
S.Ct.
23. We do not decide whether a
federal court allow a PAGA action original jurisdiction
otherwise within its
proceed under Rule 23 aas class action. only
We hold sufficiently that PAGA is not
similar to Rule 23 to original establish the