Brian NEWTON, an individual, Plaintiff-Appellant, v. PARKER DRILLING MANAGEMENT SERVICES, LTD., Erroneously Sued as Parker Drilling Management Services, Inc., Defendant-Appellee, and Parker Drilling Management Services, Inc., a Nevada Corporation, Defendant.
No. 15-56352
United States Court of Appeals, Ninth Circuit.
February 5, 2018
881 F.3d 1078
Although the precise state definitions vary, the generic form of robbery “may be thought of as aggravated larceny,” containing at least the elements of “misappropriation of property under circumstances involving [immediate] danger to the person.” Wayne R. LaFave, Substantive Criminal Law § 20.3 intro., (d)(2) (2d ed. 2003).
469 F.3d at 380 (emphasis added). The Fifth Circuit‘s quotation from Professor LaFave is an amalgam. The word “immediate” does not appear in the sentence written by Professor LaFave. The Fifth Circuit took that word from § 20.3(d)(2) and inserted it into the sentence that appears in the introduction to § 20.3. In Becerril-Lopez, we then took the phrase “immediate danger to the person,” dropped the brackets around “immediate,” and made it the law of our circuit.
For the majority to be right that the elements of generic robbery are satisfied if property is taken through either “force” or “fear,” both words, as defined by the majority, must necessarily entail “circumstances involving immediate danger to the person.” The majority has defined force and fear so broadly that neither word necessarily entails such circumstances. “Force,” for the majority, includes de minimis force and “jostling.” “Fear,” for the majority, includes the “apprehension” of harm, but only if the victim fails to cooperate. Neither word, so defined, necessarily entails “circumstances involving immediate danger to the person.”
The majority effectively reads “immediate danger to the person” out of the definition of generic robbery. Becerril-Lopez, the source of the immediate danger requirement, may have been wrongly decided (though I do not think so). If so, the proper course for the panel is not to abandon it, but to make a sua sponte call for reconsideration by an en banc panel.
Michael Strauss (argued), Strauss & Strauss APC, Ventura, California, for Plaintiff-Appellant.
Ronald J. Holland (argued), Ellen M. Bronchetti, and Karin Dougan Vogel, Sheppard Mullin Richter & Hampton LLP, San Francisco, California, for Defendant-Appellee.
Before: Richard A. Paez, Marsha S. Berzon, and Morgan Christen, Circuit Judges.
OPINION
CHRISTEN, Circuit Judge:
This case presents the novel question whether claims under state wage and hour laws may be brought by workers employed on drilling platforms fixed on the outer Continental Shelf. Brian Newton worked on such a platform off the coast of Santa Barbara. His shifts lasted fourteen days and he regularly worked twelve hours per day. After Parker Drilling (“Parker“) terminated him, Newton sued in state court for wage and hour violations under California law. Parker removed the case to federal district court and filed a motion for judgment on the pleadings. The district court granted the motion, concluding that the Fair Labor Standards Act is a comprehensive statutory scheme that is exclusive of California wage and hour laws. Newton appeals. We have jurisdiction pursuant to
We hold that the absence of federal law is not, as the district court concluded, a prerequisite to adopting state law as surrogate federal law under the Outer Continental Shelf Lands Act,
I. FACTUAL & PROCEDURAL BACKGROUND
Newton worked as a roustabout and painter for Parker on drilling platforms in the Santa Barbara Channel from approximately January 2013 to January 2015. It is uncontested that the drilling platforms where he worked were located more than three miles offshore and fixed to the seabed of the outer Continental Shelf. His fourteen-day shifts, known in the industry as “hitches,” comprised twelve hours on duty followed by twelve hours on “controlled standby.” Newton was paid for twelve hours of work per day and he was not able to leave the platform during his shifts. Newton alleges that he usually took fifteen to thirty minutes during his shifts to eat without clocking out or ate while not working and remaining on call, and that Parker did not provide thirty-minute meal periods for each five hours worked, as required by California law. Parker paid Newton twice per month. In addition to compensation for twelve hours per day, his pay stubs showed pay for “two hours for the boat ride out, back and debriefing with the next crew.”
Newton filed a putative class action in California state court on February 17, 2015. Although Parker paid an hourly rate well above California and federal minimum wage, Newton maintained that California law required Parker to pay him for the twelve hours he was on controlled standby each day. The First Amended Complaint (FAC) alleged that Newton‘s final paycheck did not include all the wages owed to him, “including the overtime/doubletime and meal period wages.” In all, Newton brought seven causes of action under California law for: (1) minimum wage violations; (2) failure to pay overtime and doubletime; (3) pay stub violations; (4) failure to pay timely final wages; (5) failure to provide lawful meal periods; (6) civil penalties under the Private Attorney General Act of 2004 (PAGA); and (7) unfair competition.
Parker removed the action to federal court and filed a motion for judgment on the pleadings. Parker argued that, under the Outer Continental Shelf Lands Act,
II. STANDARD OF REVIEW
A dismissal on the pleadings pursuant to Rule 12(c) is reviewed de novo. Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 883 (9th Cir. 2011). “Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.” Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004).
III. DISCUSSION
Except for any claims that may have arisen while Newton was transiting to and from the offshore drilling platforms where he worked, Newton‘s grievances relate to his employment on the OCS, and the parties agree that the fate of Newton‘s appeal rests on the OCSLA‘s choice of law provision. See
A. The Outer Continental Shelf Lands Act
1. OCSLA‘s Choice of Law Provision
The outer Continental Shelf generally refers to submerged lands lying more than three miles offshore, outside the territorial jurisdiction of the states. See
To the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations of the Secretary now in effect or hereafter adopted, the civil and criminal laws of each adjacent State, now in effect or hereafter adopted, amended, or repealed are declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area
of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf, and the President shall determine and publish in the Federal Register such projected lines extending seaward and defining each such area.
The Supreme Court has not been called upon to decide a case involving wage and hour laws on the OCS. Both Newton and Parker ask us to look to the Fifth Circuit‘s interpretation of the OCSLA for guidance. Though the parties disagree as to the Fifth Circuit‘s prevailing test for choice of law on the OCS, they both argue that we ought to follow the Fifth Circuit‘s lead and adopt the approach it has taken in cases involving injury, wrongful death, and contract claims arising on the OCS. Newton urges that the Fifth Circuit‘s test is the one set out in Union Texas Petroleum Corp. v. PLT Engineering, Inc., 895 F.2d 1043 (5th Cir. 1990) (PLT). According to Newton, platform workers may bring state wage and hour claims to the extent that state law is not inconsistent with existing federal law, see Breton Energy, L.L.C. v. Mariner Energy Res., Inc., 764 F.3d 394, 398 (5th Cir. 2014), and California‘s wage and hour laws are not inconsistent with the FLSA insofar as they are preserved by the FLSA‘s savings clause. Relying on Continental Oil, 417 F.2d at 1036, Parker argues that the FLSA is a comprehensive statutory and regulatory scheme that leaves no voids or gaps for state law to fill, so state wage and hour laws do not apply on the OCS and Newton‘s grievances may be redressed only by the FLSA.
Having examined the text of the original OCSLA and its 1975 amendment, the legislative history, and the Supreme Court‘s case law addressing the Act, we hold that state wage and hour laws are adopted as surrogate federal law on the OCS as long as they are “applicable and not inconsistent” with existing federal law.
2. Origins of the OCSLA
“The OCSLA grew out of a dispute, which first developed in the 1930‘s, between the adjacent States and the Federal Government over territorial jurisdiction and ownership of the OCS and, particularly, the right to lease the submerged lands for oil and gas exploration.” Shell Oil Co. v. Iowa Dep‘t of Revenue, 488 U.S. 19, 26 (1988). Passed in 1953, “[t]he purpose of the [OCSLA] was to define a body of law applicable to the seabed, the subsoil, and the fixed structures such as [drilling platforms] on the outer Continental Shelf.” Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 355 (1969).
Congress initially considered extending maritime law to the OCS, but it envisioned that 10,000 or more people might eventually be employed on the OCS to develop mineral resources.3 See 99 Cong. Rec.
The “applicable” state law for purposes of
3. Judicial Interpretation of the OCSLA
The Supreme Court first applied the OCSLA‘s choice of law provision in Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352 (1969). The families of two workers who perished on drilling rigs fixed to the outer Continental Shelf off the Louisiana coast brought claims pursuant to Louisiana state law and the Death on the High Seas Act (High Seas Act). 395 U.S. at 352-53; see
In reaching this result, Rodrigue first examined the language of
Notably, Rodrigue did not require the court to address a situation where state law and existing federal law made provisions for the type of claim asserted; no relevant federal cause of action for wrongful death existed. Rodrigue is therefore of faint value for resolving a case like the instant one, where both state and federal law are potentially applicable to Newton‘s wage and hour grievances.
The Supreme Court revisited the OCSLA choice of law provision in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). Huson filed a personal injury suit against a non-employer defendant, Chevron, for damages arising from a back injury he suffered while working on Chevron‘s artificial island drilling rig on the outer Continental Shelf. Id. at 98. The parties’ dispute centered on the timeliness of the plaintiff‘s claims. Id. The Fifth Circuit resorted to the federal admiralty doctrine of laches, but the Supreme Court reversed, holding that Louisiana‘s one-year statute of limitations should have controlled.10 Id. at 105. The Huson court explained that in enacting the OCSLA, Congress expressed an intent for courts to fill “gaps” in existing federal law by applying state law, not by creating federal common law. Id. at 104-05. Like Rodrigue, Huson did not resolve a claimed inconsistency between potentially applicable state and federal laws. Nor did Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986), which considered
Surveying the Supreme Court‘s OCSLA jurisprudence, we conclude that there are three questions that must be asked in any case involving choice of law under
The “seemingly innocuous extension of state law raised to the status of surrogate federal law raises extremely complex questions of interpretation[,]” particularly in addressing choice of law. 1 Thomas J. Shoenbaum, Admiralty & Maritime Law § 3-9 (5th ed. 2016). The Fifth Circuit has elaborated two strands of jurisprudence stemming from Rodrigue. According to the Fifth Circuit‘s Continental Oil line of cases, “the recurring theme of Rodrigue ‘requires that “applicable” [state law] be read in terms of necessity—necessity to fill a significant void or gap” in existing federal law. Nations v. Morris, 483 F.2d 577, 585 (5th Cir. 1973) (quoting Cont‘l Oil, 417 F.2d at 1036). The Fifth Circuit last applied the Continental Oil test in 1985 in LeSassier v. Chevron USA, Inc., 776 F.2d 506, 509 (5th Cir. 1985) (per curiam),11 where the court considered whether a drilling platform worker could maintain a Louisiana retaliatory discharge action even though the Longshore and Harbor Workers’ Compensation Act (LHWCA) provides a federal remedy for retaliatory discharge. LeSassier was a platform worker who had been injured on an outer Continental Shelf
Newton advocates for the adoption of the PLT test as applied in the Fifth Circuit‘s more recent lines of cases. The PLT test distills Rodrigue thus: “[F]or state law to apply as surrogate federal law, three conditions must be met: ‘(1) The controversy must arise on a situs covered by OCSLA (i.e. the subsoil seabed, or artificial structures permanently or temporarily attached thereto)[;] (2) Federal maritime law must not apply of its own force[;] (3) [t]he state law must not be inconsistent with Federal law.‘” Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 783 (5th Cir. 2009) (en banc) (quoting PLT, 895 F.2d at 1047). The Fifth Circuit applied the third prong of this test in Hodgen v. Forest Oil Corp., 87 F.3d 1512 (5th Cir. 1996), overruled on other grounds by Grand Isle Shipyard, 589 F.3d at 788 n.8. Hodgen arose from an accident suffered by an operator while executing a swing rope transfer from a OCS platform to a vessel. 87 F.3d at 1516. The operator settled his personal injury claims against the defendants who then litigated questions of comparative fault and indemnity between themselves. Id. at 1517. An agreement between the operator‘s employer and the charterer contained a clause requiring the former to indemnify the latter for costs and damages, but the Louisiana Oilfield Indemnity Act (LOIA) forbade any such transfer of liability. Id. at 1522. The charterer argued that the LOIA should not be adopted as surrogate federal law because it was inconsistent with federal law. Id. at 1528. The Fifth Circuit, relying on its prior decision in Knapp v. Chevron USA, Inc., 781 F.2d 1123 (5th Cir. 1986), summarily rebuffed this contention. Hodgen, 87 F.3d at 1528. Knapp concluded that because the 1984 amendments to the LHWCA were silent as to indemnity agreements addressing injuries caused by the negligence of non-vessels and nothing signaled Congress‘s intent that the amendments should “preempt the field,” Louisiana‘s Oilfield Indemnity Act was not inconsistent with federal law and, therefore, the OCSLA “makes [the LOIA] the applicable surrogate law on fixed platforms offshore Louisiana.” Knapp, 781 F.2d at 1131. Hodgen and Knapp suggest that the Fifth Circuit‘s PLT test looks to congressional intent regarding preemption to determine whether state law is inconsistent with a federal statutory scheme.
It remains unclear whether the PLT test has superseded the Continental Oil test in the Fifth Circuit, or whether the Fifth Circuit views the Continental Oil test as a precursor to the PLT test, such that the PLT conditions come into play only if there is a significant gap or void in federal law. See Tetra Techs., Inc. v. Cont‘l Ins. Co., 814 F.3d 733, 738 (5th Cir. 2016). Despite questions about the PLT test, in
B. The Instant Case
1. Newton‘s Claims under California Minimum Wage and Overtime Law
Parker paid Newton an hourly rate well above the state and federal minimum wage, and also paid him premium rates for overtime hours. Newton‘s principal wage and hour objection is that he was not properly compensated for standby hours on the drilling platform. We know of no appellate case law examining whether, for the purposes of the OCSLA, state wage and hour laws are inconsistent with the federal Fair Labor Standards Act.13
a. Text and Legislative History of the OCSLA
To resolve the issue of first impression presented by Newton‘s appeal, “[w]e start, as we must, with the language of the statute[,]” Bailey v. United States, 516 U.S. 137, 144 (1995). “[W]hen the statute‘s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it accord- ing to its terms.” Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (internal quotation marks omitted).
The OCSLA makes the laws of the adjacent state, “[t]o the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws ... the law of the United States.”
Moreover, we generally “presume [that] Congress says what it means and means what it says.” Simmons v. Himmelreich, 578 U.S. 621, 136 S. Ct. 1843, 1848 (2016). Congress could have said “necessary,” or employed words to that effect, in
Legislative history, however pellucid, cannot rewrite the language of a statute, Am. Rivers v. FERC, 201 F.3d 1186, 1204 (9th Cir. 1999), but “clear evidence of congressional intent may illuminate ambiguous text.” Milner v. Dep‘t of Navy, 562 U.S. 562, 572 (2011).
The Fifth Circuit in Continental Oil navigated OCSLA‘s choppy waters by taking legislative history as its lodestar. 417 F.2d at 1034-36. Continental Oil noted the “deep political and emotional currents centered around the clash between national sovereignty and states’ rights” during the passage of the OCSLA and Congress‘s “express reject[ion]” of the “notion of supremacy of state law administered by state agencies.” Id. at 1036. The Fifth Circuit concluded that “the deliberate choice of federal law, federally administered, requires that ‘applicable’ be read in terms of necessity—necessity to fill a significant void or gap.” Id. (footnote omitted).
The legislative history indicates that Congress was solicitous to retain and indeed, assert, the federal government‘s civil and political jurisdiction over the OCS, but we are not persuaded that this consideration justifies judicial substitution of “necessary” for the actual statutory term, “applicable.” These two terms are manifestly different, and the latter does not connote the former. The OCSLA commands us to give force to “applicable and not inconsistent” state laws as surrogate federal law.
Nor do we find in the legislative history a clear intent on the part of Congress to require a “significant void or gap” in federal legislation or regulation, meaning the complete absence of any federal law, as a prerequisite to the application of state law. Indeed, Senator Cordon, the floor manager of the bill, noted that the contemplated extension of admiralty law to the OCS was unsatisfactory because:
The so-called social laws necessary for protection of the workers and their families would not apply. I refer to such things as unemployment laws, industrial-accident laws, fair-labor-standard laws, and so forth. It was necessary that the protection afforded by such laws be ex-
tended to the outer Shelf area because of the fact that ultimately some 10,000 or more men might be employed in mineral-resource development there.
99 Cong. Rec. 6963 (1953); see Rodrigue, 395 U.S. at 362. Read in context, Senator Cordon‘s statements emphasized the importance of having state law apply to the OCS, and do not indicate that state laws had to be necessary to fill gaps or voids in federal law before they would be adopted as surrogate federal law. See Rodrigue, 395 U.S. at 363. As Senator Cordon went on to explain:
[T]he legal situation [of the OCS] is comparable to that in areas owned by the Federal Government under the exclusive jurisdiction of the Federal Government and lying within the boundaries of a State in the uplands.
As a part of the same amendment, the [Senate Committee on Interior and Insular Affairs] provided, first, that the laws of abutting States should become a part of the Federal law within such areas opposite the States as would have been included in the States were their boundaries extended to the edge of the Continental Shelf.
....
The outer Continental Shelf will have the protection of the Constitution itself, and will have the protection and provision for conduct of affairs as given by the laws of each of the abutting States within the area immediately opposite that State.
99 Cong. Rec. 6963-64 (1953) (emphasis added); see S. Rep. No. 83-411, at 11 (1953).
Read in isolation, some remarks by Senators Anderson and Long seem to endorse the idea that state law was to speak as federal law only where existing federal law was “silent” or otherwise left a “void.” 99 Cong. Rec. 7257, 7164 (1953). But “scattered floor statements by individual lawmakers ... [are] ‘among the least illuminating forms of legislative history.’ ” Advocate Health Care Network v. Stapleton, 581 U.S. 468, 137 S. Ct. 1652, 1661 (2017) (quoting N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 137 S. Ct. 929, 943 (2017)); see Shell Oil, 488 U.S. at 29 n.8 (“We find that Shell‘s reliance on an isolated statement by Senator Long,” who was a “vocal opponent of the OCSLA,” “is misplaced.“); see also Hertzberg v. Dignity Partners, Inc., 191 F.3d 1076, 1082 (9th Cir. 1999) (“This circuit relies on official committee reports when considering legislative history, not stray comments by individuals....“). Here, the legislative history is at best muddled, as illustrated by the following exchange between Senator Cordon, the floor manager of the bill, and Senator Daniel:
Mr. DANIEL: ... Since we have applied State laws in the fields which are not covered by Federal laws or by regulations of the Secretary of the Interior, I should like to ask the Senator from Oregon whether he understands that State laws relating to conservation will apply in this area until and unless the Secretary of the Interior writes some rule or regulation to the contrary.
Mr. CORDON: There can be no question about that; the Senator‘s statement is correct. The language clearly adopts State law as Federal law where it is not inconsistent with existing Federal law or with the rules and regulations of the Secretary of the Interior; and, of necessity, the inconsistency with respect to rules and regulations of the Secretary of the Interior must be in the case of those rules and regulations which it is within the power of the Secretary of the Interior to adopt.
When he has adopted them, those rules and regulations must be inconsistent with or in conflict with the conservation laws of the States, which are then the conservation laws of the United States with respect to that particular area, or else the laws of the States, having been adopted by the United States, apply to that area. There can be no question about it.
99 Cong. Rec. 7264 (1953) (emphasis added). We cannot allow “ambiguous legislative history ... to control the ordinary meaning of [the] statutory language.” League to Save Lake Tahoe, Inc. v. Trounday, 598 F.2d 1164, 1172 (9th Cir. 1979) (citing N.L.R.B. v. Plasterers’ Local Union No. 79, 404 U.S. 116, 129-30 (1971)); see Milner, 562 U.S. at 572. Reading the plain text of the OCSLA against the background of its inconclusive legislative history, we are not convinced that state law applies as surrogate federal law on the OCS only if “necess[ary],” Continental Oil, 417 F.2d at 1036, in the sense that there is no existing federal law on the subject.
We do not understand the Supreme Court to have instructed otherwise. Although the Fifth Circuit has sometimes described “necessity to fill a significant void or gap” as the “recurring theme of Rodrigue,” Nations, 483 F.2d at 585 (internal quotation marks omitted); Continental Oil, 417 F.2d at 1036, the issue actually decided by Rodrigue was whether federal admiralty law applied on OCS platforms, 395 U.S. at 360, 366. Rodrigue established that, absent a maritime nexus, federal admiralty law does not extend to the OCS. Id. at 359-60. State law was deemed the law governing the two wrongful death actions in Rodrigue, but there was no competing applicable federal law, id. at 366, and the Supreme Court has not yet squarely confronted a situation where, as here, a state statutory scheme and an existing federal statutory scheme are both “potentially applicable” to a civil suit arising on the OCS. Cf. Gulf Offshore, 453 U.S. at 486-87.
b. The Meaning of “Not Inconsistent”
As we see it, because there are California and federal statutory schemes that are “applicable,” in the ordinary sense of that term, to the parties’ conflict, the determinative question in Newton‘s case is not which law is “applicable,” but whether California wage and hour laws are “inconsistent with” existing federal law.
We recently examined the usual meaning of “inconsistent” in Ecological Rights Foundation v. Pacific Gas & Electric Co., 874 F.3d 1083 (9th Cir. 2017), where we concluded that laws are inconsistent if they are mutually “incompatible, incongruous, [or] inharmonious.” Id. at 1095 (quoting Webster‘s Third New International Dictionary (1971)).14
To further articulate a framework for deciding whether a state law is inconsistent with federal law under the OCSLA, we draw on cases that have arisen in the context of two statutes involving the incorporation of state law into federal law: (1) the Assimilative Crimes Act (“Crimes Act“),
In Rodrigue, the Supreme Court emphasized that drilling platforms on the OCS are “to be treated as island[s] or as federal enclaves within a landlocked State, not as vessels.” 395 U.S. at 361. “The central principle of federal enclave doctrine is that Congress has exclusive legislative authority over ... enclaves. But in the absence of applicable federal legislation displacing state law, those state laws that existed at the time that the enclave was ceded to the federal government remain in force.” Allison v. Boeing Laser Tech. Servs., 689 F.3d 1234, 1237 (10th Cir. 2012). State law post-dating the creation of the enclave, however, is federal law on the enclave only if Congress so directs. Id.
The Assimilative Crimes Act is one such directive.15 “The [Crimes Act] applies state criminal law to a defendant‘s acts or omissions [in federal enclaves] that are not made punishable by any enactment of Congress.” Lewis v. United States, 523 U.S. 155, 159 (1998) (emphasis and internal quotation marks omitted). Its “basic purpose is one of borrowing state law to fill gaps in the federal criminal law that applies on federal enclaves.” Id. at 160. But as we have recognized, the Supreme Court has held that a void or gap—in the sense of a total absence of applicable federal law—is not a prerequisite to the application of state law under the Crimes Act. See, e.g., United States v. Reed, 734 F.3d 881, 888 (9th Cir. 2013) (citing Lewis, 523 U.S. at 166).
In Lewis, the Supreme Court formulated a two-step test for whether state law applies to a defendant accused of committing an offense on an enclave. 523 U.S. at 164-65. The first question is the statutory one: whether the defendant‘s act or omission has been made punishable by any enactment of Congress. Id. at 164. If the act is not punishable by federal law, then the Crimes Act presumptively assimilates state law. Id. If Congress has legislated to make the defendant‘s conduct punishable, then “the court must ask the further question whether the federal statutes that apply to the ‘act or omission’ preclude application of the state law in question,” that is, whether “applicable federal law indicate[s] an intent to punish conduct such as the defendant‘s to the exclusion of the particular state statute at issue?” Id. at 164, 166 (emphasis added). There is no “touchstone to provide an automatic general answer to this second question,” and the “primary question ... is one of legislative intent....” Id. at 165-66.
Reed employed Lewis‘s two-step test to hold that a federal DUI regulation did not bar assimilation of a Nevada drugged driving statute. 734 F.3d at 893. Reed was
Reed moved to dismiss the state charge, arguing that Nevada‘s per se drugged driving law did not apply on the federal enclave where he was stopped because a federal regulation,
Applying the first step of the Lewis test, we agreed with the trial court that the federal enactment punished Reed‘s conduct. Id. at 887. But at step two, we concluded that federal law did not preclude application of the Nevada statute. Id. at 888. We noted that there is no “automatic general answer” to Lewis‘s second question and that the primary inquiry is one of legislative intent. Id. Although “a state statute will not be assimilated if, for example, (1) its application would conflict with federal policy; (2) it would effectively rewrite an offense definition that Congress carefully considered; or (3) the federal statutes reveal an intent to occupy so much of a field as to exclude use of the particular state statute,” we concluded that “the mere presence of the federal DUI regulation [did] not manifest a federal policy against assimilating Nevada‘s per se drugged driving law....” Id. at 888, 892. Reed observed that federal law only included a per se provision for alcohol; it did not punish those who operated a vehicle under the influence of marijuana absent actual impairment. Id. at 886 (citing
Although Congress has never provided for the wholesale assimilation of state civil law into federal law on all federal enclaves, it has the authority to do so, and it has done so for the OCS, “an area of exclusive Federal jurisdiction.”
We draw a similar lesson from the jurisprudence pertaining to
An example of inconsistency between state and federal law is illustrated by Burnett, 468 U.S. at 55. Plaintiffs in Burnett were white employees of a predominantly black college who sued their employer for racial and gender discrimination after it refused to renew their contracts. Id. at 43-44. The district court borrowed the six-month statute of limitations for filing an employment discrimination complaint with the relevant Maryland administrative body, and dismissed the action. Id. at 45. The Fourth Circuit reversed, holding that Maryland‘s generic three-year statute of limitations applied, id. at 45-46, and the Supreme Court affirmed the Fourth Circuit‘s decision. Id. at 46. The Supreme Court observed that “[a] legislative definition of a statute of limitations also reflects a policy assessment of the state causes of action to which it applies.” Id. at 52. Hence, insofar as state policies are “inconsistent with, or of marginal relevance to,
While
c. Whether California Minimum Wage and Overtime Laws are Inconsistent with Federal Law
We thus turn to the remaining question and the crux of Newton‘s appeal: whether California‘s minimum wage and overtime laws are inconsistent with the FLSA.
The FLSA was enacted to “protect all covered workers from substandard wages and oppressive working hours.” Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 136 S. Ct. 2117, 2121 (2016) (internal quotation marks omitted). It “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.” Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 11 (2011) (quoting
No provision of this chapter or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter or a maximum work week lower than the maximum workweek established under this chapter.
Parker cites numerous cases for its contention that the FLSA is inconsistent with California‘s minimum wage and overtime laws. In particular, Parker relies on Mendiola v. CPS Security Solutions, Inc., 60 Cal. 4th 833 (2015). Mendiola involved California wage and hour claims brought by security guards who regularly patrolled construction sites for eight hours on weekdays and sixteen hours on weekends, and who were required to reside, uncompensated, in an employer-provided trailer for eight hours after each shift and remain on-call. 60 Cal. 4th at 837. The Mendiola court held that these on-call hours were “hours worked” for the purposes of California‘s Wage Order 4, and that the employer “could not exclude ‘sleep time’ ” from the compensable hours in the security guards’ 24-hour shifts. Id. at 838. In reaching this result, the California Supreme Court rejected the employer‘s argument that federal DOL regulations furnished the appropriate definition for hours worked under California‘s wage order. Id. at 842-44. Emphasizing that it had previously “cautioned against confounding federal and state labor law,” the California Supreme Court ruled that the language of Wage Order 4 did not evidence the state Industrial Welfare Commission‘s intent to incorporate, by reference, federal law and regulations. Id. at 843, 847.
We conclude the district court erred by dismissing the claims Newton brought pursuant to California‘s minimum wage and overtime laws, and that California‘s minimum wage and maximum hours worked provisions are “applicable and not inconsistent,”
2. Newton‘s Claims under California Meal Period, Final Pay, and Pay Stub Laws
The district court dismissed the claims Newton brought pursuant to California‘s meal period, final pay, and pay stub laws because it concluded that state law does not apply on the OCS unless there is a “significant void or gap” in federal law, and it found that there were no such voids or gaps. In reaching this ruling, the district court relied on its conclusion that the FLSA is a comprehensive scheme, rather than considering whether California‘s wage and hour laws are inconsistent with the FLSA. Because we hold that the absence of federal law is not a prerequisite for applicable and not inconsistent state law to become surrogate federal law on the OCS, we vacate the order dismissing these claims. The district court shall determine on remand whether California‘s meal period, final pay, and pay stub laws are “not inconsistent” with existing federal law. If they are, the OCSLA adopts them as federal law on the OCS.
3. Newton‘s Civil Penalties and Unfair Competition Claims
Newton‘s claims under California‘s Private Attorney General Act (PAGA) and Unfair Competition Law (UCL) were dismissed by the district court on the grounds that he had not demonstrated a violation of California‘s labor and employment laws. Because we vacate the dismissal of Newton‘s other claims under California law, we also vacate the dismissal of his PAGA and UCL claims.
4. Leave to Amend
Newton‘s operative complaint suggests that some of Parker‘s allegedly unlawful conduct occurred in California. We cannot determine on the record before us whether Newton has any claim arising from the time he spent onshore or within California‘s territorial waters. This portion of the complaint is cryptic and it has not been addressed by the district court. Under our precedent, Newton is entitled to an opportunity to clarify these claims. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (observing that the rule that leave to amend shall be “freely given” is “to be applied with extreme liberality“) (citing Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)).
We vacate the order dismissing Newton‘s claims and remand to the district court for further proceedings consistent with this opinion.
VACATED and REMANDED.