Trina Ray v. County of Los Angeles , 935 F.3d 703 ( 2019 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    TRINA RAY, individually, and on           No. 17-56581
    behalf of others similarly situated,
    Plaintiff-Appellee,      D.C. No.
    2:17-cv-04239-
    v.                          PA-SK
    COUNTY OF LOS ANGELES,
    Defendant-Appellant.
    TRINA RAY; SASHA WALKER,                  No. 18-55276
    individually, and on behalf of all
    others similarly situated,                   D.C. No.
    Plaintiffs-Appellants,   2:17-cv-04239-
    PA-SK
    v.
    LOS ANGELES COUNTY DEPARTMENT               OPINION
    OF PUBLIC SOCIAL SERVICES,
    Erroneously Sued As County of Los
    Angeles,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Central District of California
    Percy Anderson, District Judge, Presiding
    2              RAY V. COUNTY OF LOS ANGELES
    Argued and Submitted March 7, 2019
    Pasadena, California
    Filed August 22, 2019
    Before: Kim McLane Wardlaw and Mark J. Bennett,
    Circuit Judges, and Kathleen Cardone, * District Judge.
    Opinion by Judge Bennett
    SUMMARY **
    Labor Law / Eleventh Amendment Immunity
    The panel affirmed the district court’s order denying a
    defendant county’s motion to dismiss, on Eleventh
    Amendment immunity grounds, a putative collective action
    under the Fair Labor Standards Act; reversed the district
    court’s order regarding the putative collective period; and
    remanded.
    Plaintiff homecare providers were employed through
    California’s In-Home Supportive Services program, which
    is implemented and run by the State and its counties. In
    October 2013, the Department of Labor promulgated a new
    rule providing that homecare providers would be entitled to
    overtime pay under the FLSA. The final rule had an
    *
    The Honorable Kathleen Cardone, United States District Judge for
    the Western District of Texas, sitting by designation.
    **
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    RAY V. COUNTY OF LOS ANGELES                   3
    effective date of January 1, 2015. In 2014, the District Court
    for the District of Columbia vacated the rule. On August 21,
    2015, the D.C. Circuit reversed and ordered the district court
    to enter summary judgment for the Department of Labor. On
    September 14, 2015, the Department of Labor announced
    that it would not bring enforcement actions against any
    employer for violations of the new rule for 30 days after
    issuance of the mandate of the D.C. Circuit. On October 27,
    2015, the Department of Labor said it would not begin
    enforcing the new rule until November 12, 2015. The State
    began paying overtime wages on February 1, 2016.
    Affirming in part, the panel held that the County of Los
    Angeles was not entitled to Eleventh Amendment immunity.
    The panel assumed without deciding that a county might be
    entitled to immunity if acting as an arm of the state. The
    panel held that, under the five-part Mitchell test, the County
    was not an arm of the State when it administered the IHSS
    program because the state-treasury factor, which is the most
    important, and all but one of the other Mitchell factors
    weighed against immunity. The panel held that a later
    Supreme Court case, Hess v. Port Auth. Trans-Hudson
    Corp., 
    513 U.S. 30
    (1994), did not undermine Mitchell such
    that it should be overruled.
    Reversing in part, the panel held that the effective date
    of the Department of Labor’s rule was January 1, 2015,
    because the legal effect of the D.C. Circuit’s vacatur was to
    reinstate the original effective date. The panel held that the
    Department of Labor’s choice against enforcing the rule
    until November 12, 2015, did not eliminate the availability
    of private rights of action until that date. Accordingly, the
    beginning of the putative collective period was January 1,
    2015.
    4             RAY V. COUNTY OF LOS ANGELES
    COUNSEL
    Jennifer Mira Hashmall (argued) and Jeffrey B. White,
    Miller Barondess LLP, Los Angeles, California, for
    Defendant-Appellant/Cross-Appellee.
    Matthew C. Helland (argued) and Daniel S. Brome, Nichols
    Kaster LLP, San Francisco, California; Philip Bohrer,
    Bohrer Brady LLC, Baton Rouge, Louisiana; for Plaintiff-
    Appellee/Cross-Appellants.
    OPINION
    BENNETT, Circuit Judge:
    This case concerns whether a county is an arm of the
    state and thus entitled to Eleventh Amendment immunity
    when it shares responsibility with the state for implementing
    a state-wide homecare program. We also consider the
    effective date of regulations that (1) a district court vacated
    before their original effective date; (2) an appellate court
    upheld, reversing the district court; and (3) the agency then
    decided not to enforce until a date after the original effective
    date. We agree with the district court that the County of Los
    Angeles is not entitled to Eleventh Amendment immunity
    but disagree as to the effective date of the regulations, which
    we hold is the original effective date of January 1, 2015. We
    thus affirm in part, reverse in part, and remand.
    FACTS
    California’s In-Home Supportive Services program
    (“IHSS program” or “the program”) provides in-home
    supportive services to eligible low-income elderly, blind, or
    disabled persons. Homecare providers help recipients with
    RAY V. COUNTY OF LOS ANGELES                   5
    daily activities like housework, meal preparation, and
    personal care. The program serves hundreds of thousands of
    recipients. In the County of Los Angeles alone there are
    about 170,000 homecare providers and more than 200,000
    recipients. California implements the program through
    regulations promulgated by the California Department of
    Social Services (CDSS), and the program is administered in
    part by California counties. Plaintiffs are current or former
    Los Angeles IHSS homecare providers.
    The State and its counties share responsibility for
    implementing and running the IHSS program. The CDSS
    ensures that “in-home supportive services [are] provided in
    a uniform manner in every county,” Cal. Welf. & Inst. Code
    § 12301(a), and it must “adopt regulations establishing a
    uniform range of services available to all eligible recipients
    based upon individual needs,” 
    id. § 12301.1(a).
    The State
    also procures and implements a “Case Management
    Information and Payroll System.” 
    Id. § 12317(b).
    But counties have some oversight of the IHSS program
    as well. They, like the State, may terminate homecare
    providers. See 
    id. § 12300.4(b)(5).
    And counties evaluate
    recipients and ensure quality compliance. See 
    id. § 12301.1.
    Counties also “ensure that services are provided to all
    eligible recipients.” 
    Id. § 12302.
    Plaintiffs claim that
    although they receive paychecks from the State, the County
    is responsible for a “share” of their wages. For example, if
    a county imposes “any increase in provider wages or benefits
    [that] is locally negotiated,” then “the county shall use
    county-only funds” to fund that increase. 
    Id. § 12306.1(a).
    Each county also determines whether its providers may
    exceed the maximum number of hours set by the CDSS. See
    
    id. § 12300.4(d)(3).
    6            RAY V. COUNTY OF LOS ANGELES
    As employers of the homecare providers, the State and
    County must comply with the Fair Labor Standards Act’s
    (FLSA) overtime wage requirements. See 29 U.S.C.
    § 207(a)(1). But that wasn’t always the case.
    In 1974, Congress created a “companionship exemption”
    to the FLSA for employees “employed in domestic service
    employment to provide companionship services for
    individuals who (because of age or infirmity) are unable to
    care for themselves.” See 
    id. § 213
    (a)(15); Fair Labor
    Standards Amendments of 1974, Pub. L. No. 93-259,
    88 Stat. 55. This exemption applied to homecare providers
    like Plaintiffs.
    In October 2013, however, the Department of Labor
    (DOL) promulgated a new rule that changed the definition
    of “companionship services” so that homecare providers like
    Plaintiffs would be entitled to overtime pay under the FLSA.
    See Application of the Fair Labor Standards Act to Domestic
    Service, 78 Fed. Reg. 60,454, 60,454 (Oct. 1, 2013)
    (codified at 29 C.F.R. pt. 552). The final rule had an
    effective date of January 1, 2015. See 
    id. Before the
    rule’s effective date, a group of “trade
    associations that represent businesses employing workers”
    subject to the FLSA exemption filed a lawsuit in the District
    Court for the District of Columbia. See Home Care Ass’n of
    Am. v. Weil, 
    76 F. Supp. 3d 138
    , 142 (D.D.C. 2014) (Weil I).
    The plaintiffs claimed that the rule was arbitrary and
    capricious and thus sought to enjoin its implementation. 
    Id. at 139.
    At step one of its Chevron analysis, the district court
    found that Congress had “clearly spoken” on the issue. 
    Id. at 146.
    The district court then vacated the rule, 
    id. at 148,
    and the DOL appealed.
    RAY V. COUNTY OF LOS ANGELES                      7
    On August 21, 2015, the D.C. Circuit reversed and
    ordered the district court to enter summary judgment for the
    DOL. Home Care Ass’n of Am. v. Weil, 
    799 F.3d 1084
    , 1087
    (D.C. Cir. 2015) (Weil II). Although the DOL prevailed, on
    September 14, 2015 it announced that it would “not bring
    enforcement actions against any employer for violations of
    FLSA obligations resulting from the amended domestic
    service regulations for 30 days after the date the mandate
    issues.” 1 Application of the Fair Labor Standards Act to
    Domestic Service; Announcement of 30-Day Period of Non-
    Enforcement, 80 Fed. Reg. 55,029, 55,029 (Sept. 14, 2015)
    (codified at 29 C.F.R. pt. 552). The Weil II mandate issued
    on October 13, 2015.
    On October 27, 2015, the DOL said that it would not
    begin enforcing the final rule until November 12, 2015.
    1
    The DOL also stated:
    This 30-day non-enforcement policy does not replace
    or affect the timeline of the Department’s existing
    time-limited non-enforcement policy announced in
    October 2014. 79 FR 60974. Under that policy,
    through December 31, 2015, the Department will
    exercise prosecutorial discretion in determining
    whether to bring enforcement actions, with particular
    consideration given to the extent to which States and
    other entities have made good faith efforts to bring
    their home care programs into compliance with the
    FLSA since the promulgation of the Final Rule. The
    Department will also continue to provide intensive
    technical assistance to the regulated community, as it
    has since promulgation of the Final Rule.
    Application of the Fair Labor Standards Act to Domestic Service;
    Announcement of 30-Day Period of Non-Enforcement, 80 Fed. Reg. at
    55,029.
    8              RAY V. COUNTY OF LOS ANGELES
    And, echoing its September 14, 2015 statement, the DOL
    again said that
    from November 12, 2015 through December
    31, 2015, [it would] exercise prosecutorial
    discretion in determining whether to bring
    enforcement actions, with particular
    consideration given to the extent to which
    States and other entities have made good faith
    efforts to bring their home care programs into
    compliance with the FLSA since the
    promulgation of the Final Rule.
    Application of the Fair Labor Standards Act to Domestic
    Service; Dates of Previously Announced 30-Day Period of
    Non-Enforcement, 80 Fed. Reg. 65,646, 65,646 (Oct. 27,
    2015) (codified at 29 C.F.R. pt. 552).
    Before the Weil I decision, California (through the
    CDSS) began taking steps to “meet the January 1, 2015,
    implementation date,” including modifying its systems to
    “process and calculate overtime compensation.” But after
    the Weil I decision, the CDSS decided that it would not
    implement overtime payments “until further notice.” After
    Weil II, the CDSS again said that it would comply with the
    overtime requirements—but not until February 1, 2016.
    In June 2017, Ray filed a putative collective action, 2
    under Section 216(b) of the FLSA, against the State of
    California and the County of Los Angeles. Ray’s complaint
    sought relief for herself and the putative collective for
    2
    Collective actions are provided for in the FLSA and are different
    from class actions, see Campbell v. City of L.A., 
    903 F.3d 1090
    , 1101
    (9th Cir. 2018), but the differences are not relevant to this appeal.
    RAY V. COUNTY OF LOS ANGELES                         9
    unpaid overtime wages between January 1, 2015—the rule’s
    original effective date—and February 1, 2016, the date on
    which the State began paying overtime wages.
    As relevant here, the County moved to dismiss the
    complaint on Eleventh Amendment immunity grounds. 3 In
    the alternative, the County moved to strike all references in
    the complaint to overtime wages allegedly earned before
    October 13, 2015—the date on which the mandate issued in
    Weil II.
    The district court first held that the County had no
    Eleventh Amendment immunity. The district court noted
    that the Supreme Court has long refused to grant Eleventh
    Amendment immunity to counties and that the Court has
    already held that California counties are not arms of the
    State. The district court then assumed arguendo that a
    county could be an arm of the State under the five-factor test
    that we set out in Mitchell v. Los Angeles Community
    College District, 
    861 F.2d 198
    (9th Cir. 1988) for
    determining whether an entity is an arm of the state for
    purposes of Eleventh Amendment immunity. The district
    court found that only one of the five factors favored the
    County, and thus it held that the County enjoyed no Eleventh
    Amendment immunity.
    The district court then “reject[ed] Plaintiffs’ efforts to
    enforce the FLSA companionship exemption regulations
    retroactively to January 1, 2015.” Instead, it held “that the
    putative collective period extends from November 12, 2015,
    through January 31, 2016,” and not before. The court said
    3
    Early on, Ray voluntarily dismissed the CDSS as a defendant, and
    Plaintiffs did not name the State as a defendant in the now-operative
    complaint.
    10            RAY V. COUNTY OF LOS ANGELES
    that although the Weil II decision applied retroactively, that
    decision was merely that the DOL could amend the FLSA
    and that those amendments were not arbitrary and
    capricious. This, the district court held, differed from “the
    retroactive application of the amended regulations
    themselves.” The district court reasoned:
    The rule of law announced by the D.C.
    Circuit is given retroactive effect by allowing
    DOL to reinstate those regulations without
    having to begin a new rule-making process.
    That is not the same thing as reinstating an
    earlier and judicially vacated effective date
    and retroactively creating liability for
    violations of the reinstated regulations as if
    the District Court’s vacation of the
    regulations had never occurred.
    The district court also found it “compelling” that both the
    D.C. Circuit and the DOL “intended” that the regulation
    become effective “no earlier than November 12, 2015.” As
    evidence of this intent, the district court pointed to the
    DOL’s decision not to enforce the new regulations before
    that date.
    Finally, the district court found that its holding was
    consistent “with the general rule that a private right of action
    should ordinarily not exist when the applicable rule could
    not be enforced by the relevant enforcement agency.”
    The County filed an interlocutory appeal as to the denial
    of Eleventh Amendment immunity. The district court
    granted Plaintiffs’ motion to certify for interlocutory appeal
    the district court’s holding that the putative collective period
    began on November 12, 2015, and we granted Plaintiffs’
    request to appeal that holding.
    RAY V. COUNTY OF LOS ANGELES                         11
    DISCUSSION
    We review de novo the denial of Eleventh Amendment
    immunity. Cal. ex rel. Lockyer v. Dynegy, Inc., 
    375 F.3d 831
    , 843 n.12 (9th Cir. 2004). We construe the motion to
    strike as a motion to dismiss in part, and thus we review the
    effective date holding de novo because it essentially
    dismissed Plaintiffs’ overtime claims for the period between
    January 1, 2015 and November 12, 2015. See Yamaguchi v.
    U.S. Dep’t of the Air Force, 
    109 F.3d 1475
    , 1482 (9th Cir.
    1997).
    The County is not entitled to Eleventh Amendment
    immunity.
    Plaintiffs first argue that Eleventh Amendment
    immunity is never available to counties. The County argues
    that it enjoys Eleventh Amendment immunity when acting
    as an “arm of the State.”
    Federal courts have long declined to extend Eleventh
    Amendment immunity to counties. 4 Indeed, the Supreme
    4
    See, e.g., Lake Country Estates, Inc. v. Tahoe Reg’l Planning
    Agency, 
    440 U.S. 391
    , 401 (1979) (“[T]he Court has consistently refused
    to construe the Amendment to afford protection to political subdivisions
    such as counties and municipalities, even though such entities exercise a
    slice of state power.” (internal quotation marks omitted)); Lincoln Cty.
    v. Luning, 
    133 U.S. 529
    , 530 (1890) (holding that the Eleventh
    Amendment does not bar a suit against a county, though the principle
    advanced has changed over time); Del Campo v. Kennedy, 
    517 F.3d 1070
    , 1075–76 (9th Cir. 2008) (“State sovereign immunity . . . does not
    extend to counties and similar municipal corporations, even though they
    share some portion of state power.” (internal quotation marks omitted)
    (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 
    429 U.S. 274
    ,
    280 (1977))).
    12              RAY V. COUNTY OF LOS ANGELES
    Court once said that Eleventh Amendment immunity does
    not extend to municipal corporations. Mt. 
    Healthy, 429 U.S. at 280
    . But thirty years later, the Supreme Court suggested
    that it was at least possible for a county to receive Eleventh
    Amendment immunity. In Northern Insurance Company of
    New York v. Chatham County, 
    547 U.S. 189
    , 190 (2006),
    which involved a county-operated drawbridge, the Court
    stated that a county might be entitled to Eleventh
    Amendment immunity if it were “acting as an arm of the
    State, as delineated by this Court’s precedents, in operating
    the drawbridge.” 5
    The Court cited several cases for this proposition. First,
    Alden v. Maine: “The second important limit to the principle
    of sovereign immunity is that it bars suits against States but
    not lesser entities. The immunity does not extend to suits
    prosecuted against a municipal corporation or other
    governmental entity which is not an arm of the State.”
    
    527 U.S. 706
    , 756 (1999). This sentence means one of two
    things: either (1) that Eleventh Amendment immunity does
    not extend to municipal corporations because they are not
    arms of the state or (2) that Eleventh Amendment immunity
    does not extend to a municipal corporation unless it is acting,
    in a particular circumstance, as an arm of the state. Alden in
    turn cites Mt. Healthy, in which the Court considered
    whether “the Mt. Healthy Board of Education is to be treated
    as an arm of the State partaking of the State’s Eleventh
    5
    At least one circuit has relied on this language and held that
    counties might be entitled to Eleventh Amendment immunity. See
    Fuesting v. Lafayette Par. Bayou Vermilion Dist., 
    470 F.3d 576
    , 579 (5th
    Cir. 2006) (“[A] municipality can be immune from suit if it was ‘acting
    as an arm of the State, as delineated by [the Supreme] Court’s
    precedent’” (alteration in original) (quoting 
    Chatham, 547 U.S. at 194
    )).
    But, to our knowledge, no court has ever actually extended Eleventh
    Amendment immunity to a county.
    RAY V. COUNTY OF LOS ANGELES                   13
    Amendment immunity, or is instead to be treated as a
    municipal corporation or other political subdivision to which
    the Eleventh Amendment does not extend.” Mt. 
    Healthy, 429 U.S. at 280
    . That citation suggests the former reading.
    The Chatham Court also cited Lake Country Estates, but
    while that case noted that “some agencies exercising state
    power have been permitted to invoke the [Eleventh]
    Amendment in order to protect the state treasury from
    liability that would have had essentially the same practical
    consequences as a judgment against the State itself,” it also
    stated that “the Court has consistently refused to construe the
    Amendment to afford protection to political subdivisions
    such as counties and municipalities, even though such
    entities exercise a ‘slice of state power.’” Lake Country
    
    Estates, 440 U.S. at 400
    –01. Although these passages seem
    to support Plaintiffs’ argument that counties never enjoy
    Eleventh Amendment immunity, it is not for us to clarify
    Chatham’s apparently contrary statement.
    The Chatham Court ultimately found it dispositive that
    the County there had conceded below that it had no Eleventh
    Amendment immunity and that the question on which
    certiorari was granted assumed that conclusion. Given that
    the Supreme Court appears to have left open the possibility
    that a county could be entitled to Eleventh Amendment
    immunity in some cases, we decline to hold to the contrary.
    We therefore assume without deciding that, consistent with
    the Court’s language in Chatham, a county might be entitled
    to Eleventh Amendment immunity if acting as an arm of the
    state.
    The County is not an arm of the State here.
    In Mitchell, we set out five factors for determining
    whether a government entity is an arm of its state for
    14              RAY V. COUNTY OF LOS ANGELES
    Eleventh Amendment immunity purposes: (1) “whether a
    money judgment would be satisfied out of state funds”;
    (2) “whether the entity performs central governmental
    functions”; (3) “whether the entity may sue or be sued”;
    (4) “whether the entity has the power to take property in its
    own name or only the name of the state”; and (5) “the
    corporate status of the 
    entity.” 861 F.2d at 201
    . “To
    determine these factors, the court looks to the way state law
    treats the entity.” 
    Id. a. First
    Mitchell factor
    “The first Mitchell factor—whether a money judgment
    . . . would be satisfied out of state funds—is the most
    important.” Sato v. Orange Cty. Dep’t of Educ., 
    861 F.3d 923
    , 929 (9th Cir. 2017); see also Beentjes v. Placer Cty. Air
    Pollution Control Dist., 
    397 F.3d 775
    , 785 (9th Cir. 2005)
    (noting that the first Mitchell factor is “the one given the
    most weight”). The County conceded, both below and on
    appeal, that it cannot show that a money judgment would be
    paid directly with State funds. 6 Thus, this factor weighs
    against Eleventh Amendment immunity.
    b. Second Mitchell factor
    As to the second Mitchell factor—whether the County
    performs central governmental functions—we must
    determine whether the County addresses “a matter of
    statewide rather than local or municipal concern, and the
    extent to which the state exercises centralized governmental
    control over the entity.” 
    Beentjes, 397 F.3d at 782
    (internal
    6
    The parties discuss at length how the County and the State allocate
    the costs of the program, but that is not relevant—what matters is who
    would be responsible for satisfying a money judgment against the
    County, not who pays for the program.
    RAY V. COUNTY OF LOS ANGELES                   15
    quotation marks omitted) (first quoting Belanger v. Madera
    Unified Sch. Dist., 
    963 F.2d 248
    , 253 (9th Cir. 1992); then
    quoting Savage v. Glendale Union High Sch., Dist. No. 205,
    Maricopa Cty., 
    343 F.3d 1036
    , 1044 (9th Cir. 2003)).
    To begin, it is unclear whether the second Mitchell factor
    concerns whether the County performs central government
    functions in general or whether the County performs central
    government functions in carrying out the particular function
    at issue—here implementing the IHSS program.
    As the district court correctly noted, the closest analogue
    in our case law is Streit v. County of Los Angeles, 
    236 F.3d 552
    (9th Cir. 2001). There, the Los Angeles County
    Sheriff’s Department (LASD) would check its systems,
    before releasing a prisoner, to see if the prisoner was wanted
    by another law enforcement agency. 
    Id. at 556.
    This
    extended the period of incarceration one or two days past the
    prisoners’ release dates. 
    Id. The plaintiffs
    alleged that the
    County delayed their release during these checks, in
    violation of their civil rights. 
    Id. The LASD
    argued that
    because it was an arm of the state, it was not a “person” that
    could be liable for damages under § 1983. 
    Id. at 557.
    We looked at the LASD’s performance of the particular
    function at issue—implementing the pre-release policy—not
    the LASD’s general function as a sheriff’s department. See
    
    id. at 567.
    We held that “conducting the AJIS checks is not
    a central government function.” 
    Id. (emphasis added).
    Thus, it appears from Streit that we look to whether the
    County, in performing the particular function at issue,
    performs a central government function. This fits with the
    Court’s statement in Chatham that the county there might
    have been entitled to Eleventh Amendment immunity if it
    were “acting as an arm of the State, as delineated by this
    16            RAY V. COUNTY OF LOS ANGELES
    Court’s precedents, in operating [a] drawbridge.”
    
    Chatham, 547 U.S. at 194
    (emphasis added).
    i. A matter of statewide rather than local or
    municipal concern
    The in-home care of the elderly and disabled is a matter
    of both statewide and local concern. Plaintiffs are residents
    of California, and the IHSS program is a statewide program
    implemented through State legislation that provides care to
    hundreds of thousands of California residents. But Plaintiffs
    are also, of course, residents of Los Angeles County, and the
    County has an interest in the program and the care provided
    in Los Angeles.
    ii. The extent to which the state exercises
    centralized governmental control over the
    entity
    Here we consider the extent to which the County, in
    implementing the program, has “discretionary powers” and
    “substantial autonomy in carrying out [its] duties.” 
    Beentjes, 397 F.3d at 783
    .
    The County may negotiate, implement, and pay for pay
    raises. See Cal. Welf. & Inst. Code § 12306.1. The County
    may also allow its providers to exceed the maximum number
    of hours that the CDSS has set. See 
    id. § 12300.4(d)(3).
    Thus, the County has discretion to make some important
    choices on its own.
    But the County contends—and Plaintiffs do not
    dispute—that it has no discretion over the action (or
    inaction) that subjected it to potential liability here: payment
    of overtime wages under the FLSA. In taking the actions
    that have subjected it to potential liability, the County had
    RAY V. COUNTY OF LOS ANGELES                            17
    neither “discretionary powers” nor “substantial autonomy”
    in carrying out its duties.
    We think this clearly tips the scales in the County’s favor
    as to this factor. The County had no choice in the matter of
    the overtime wages, as the State mandated the payment start
    date. We therefore hold that the second Mitchell factor
    favors Eleventh Amendment immunity.
    c. Third, fourth, and fifth Mitchell factors
    The County does not dispute that it can sue and be sued
    (third Mitchell factor), that it has the power to take property
    in its own name (fourth Mitchell factor), or that it has an
    independent corporate status 7 separate from the State (fifth
    Mitchell factor). Thus, these three Mitchell factors weigh
    against Eleventh Amendment immunity.
    *     *    *
    In sum, the first Mitchell factor is the most important,
    and it weighs against Eleventh Amendment immunity. So
    do the third, fourth, and fifth Mitchell factors. Only the
    second factor favors immunity. We therefore hold that,
    under Mitchell, the County is not an arm of the State when it
    7
    The fifth Mitchell factor asks whether the entity has “independent
    corporate status,” Holz v. Nenana City Pub. Sch. Dist., 
    347 F.3d 1176
    ,
    1188 (9th Cir. 2003), or is, instead, merely an agency of the state without
    an identity that is separate from the state, 
    Beentjes, 397 F.3d at 785
    . Here
    the County does not dispute its independent corporate status, as the
    Supreme Court has already held that California counties have
    independent corporate status and are not agents of the State of California.
    See Moor v. Alameda Cty., 
    411 U.S. 693
    , 719 (1973).
    18           RAY V. COUNTY OF LOS ANGELES
    administers the IHSS program, and thus it has no Eleventh
    Amendment immunity barring this action.
    The Supreme Court has not overruled or
    undermined Mitchell.
    The County argues that we should overrule Mitchell
    because a later Supreme Court case, Hess v. Port Authority
    Trans-Hudson Corporation, 
    513 U.S. 30
    (1994),
    undermined it. As a three-judge panel, if we find that
    intervening Supreme Court authority is clearly
    irreconcilable with our own precedent, we must consider
    ourselves bound by the intervening higher authority and
    consider our precedent effectively overruled. See Miller v.
    Gammie, 
    335 F.3d 889
    , 900 (9th Cir. 2003). Because Hess
    is not clearly irreconcilable with Mitchell, we reject the
    County’s argument.
    In Hess, the Court held that a Congressionally approved
    bistate entity—the Port Authority Trans-Hudson
    Corporation (PATH), created to improve coordination of the
    “terminal, transportation and other facilities of commerce in,
    about and through the port of New York”—did not have
    Eleventh Amendment immunity. 513 U.S at 35, 52–53
    (citation omitted). The County argues that Hess established
    “indicators of immunity” that undermine the Mitchell test.
    We disagree.
    The Hess Court noted that “current Eleventh
    Amendment jurisprudence emphasizes the integrity retained
    by each State in our federal system.” 
    Id. at 39.
    The Court
    then emphasized the difference between PATH and the
    States of the Union: “The States, as separate sovereigns, are
    the constituent elements of the Union. Bistate entities, in
    contrast, typically are creations of three discrete sovereigns:
    two States and the Federal Government.” 
    Id. at 40.
                    RAY V. COUNTY OF LOS ANGELES                        19
    The Court stated that “[p]ointing away from Eleventh
    Amendment immunity, the States lack financial
    responsibility” for the bistate entity. 
    Id. at 45.
    Here,
    California similarly lacks financial responsibility for the
    County generally, but Plaintiffs allege that although
    California writes their checks, the County pays a share of
    their wages and sets their hours of work.
    In Hess, “indicators of immunity point[ed] in different
    directions.” 
    Id. at 47.
    Perhaps they do here as well. Los
    Angeles is not a constituent member of the Union, but it
    acted at the direction of the State and had no authority over
    the payments at issue. But when faced with a different
    dichotomy in Hess, the Court emphasized that the most
    important factor was whether judgments against PATH
    would be paid by the State: “the vulnerability of the State’s
    purse [is] the most salient factor in Eleventh Amendment
    determinations.” 
    Id. at 48;
    see also 
    id. at 48–49
    (citing cases
    for the “prevailing view” that the state-treasury factor is
    “generally accorded . . . dispositive weight”); 
    id. at 51
    (stating that “the Eleventh Amendment’s core concern is not
    implicated” if the State is not “in fact obligated to bear and
    pay the . . . indebtedness of the enterprise”). 8
    8
    The dissent read the holding even more broadly:
    In place of the various factors recognized in Lake
    Country Estates, Inc. v. Tahoe Regional Planning
    Agency, 
    440 U.S. 391
    , 
    99 S. Ct. 1171
    , 
    59 L. Ed. 2d 401
             (1979), for determining arm-of-the-state status, we
    may now substitute a single overriding criterion,
    vulnerability of the state treasury. If a State does not
    fund judgments against an entity, that entity is not
    20              RAY V. COUNTY OF LOS ANGELES
    After noting that the bistate entity “was financially self-
    sufficient,” generated “its own revenues,” and paid “its own
    debts,” the Court held that “[r]equiring the [bistate entity] to
    answer in federal court to injured railroad workers who
    assert a federal statutory right, under the FELA, to recover
    damages does not touch the concerns—the States’ solvency
    and dignity—that underpin the Eleventh Amendment.” 
    Id. at 52.
    The same is true here. Mitchell and Hess both
    emphasize the state-treasury factor. Hess thus fully supports
    and does not undermine Mitchell. 9
    The County argues that Hess emphasized the amount of
    control that a state maintains over an entity, a factor
    supposedly not mentioned in Mitchell and one that,
    according to the County, favors Eleventh Amendment
    immunity here. First, as we mentioned above, the second
    Mitchell factor does include a “control” inquiry—it just
    doesn’t make that factor dispositive. In addition, Hess
    pointed out that “[g]auging actual control . . . can be a
    ‘perilous inquiry,’ [and] ‘an uncertain and unreliable
    
    exercise.’” 513 U.S. at 47
    (quoting Note, 92 Colum. L. Rev.
    1243, 1284 (1992)). The Court therefore doubted not only
    the efficacy but also the utility of a “control” analysis, and it
    within the ambit of the Eleventh Amendment, and
    suits in federal court may proceed unimpeded.
    
    Id. at 55
    (O’Connor, J., dissenting).
    9
    Los Angeles makes a legitimate point about the unfairness of the
    result here. But that unfairness springs from the State and its
    implementing legislation, not the Eleventh Amendment. Los Angeles
    must air its grievance, if at all, in Sacramento.
    RAY V. COUNTY OF LOS ANGELES                             21
    did not suggest that control was a favored, much less
    dispositive, factor in the Eleventh Amendment analysis. 10
    Hess clearly stated that “rendering control dispositive
    does not home in on the impetus for the Eleventh
    Amendment: the prevention of federal-court judgments that
    must be paid out of a State’s treasury.” 
    Id. at 48.
    And, in
    specifically discussing the control factor, the Court noted
    that even though “‘political subdivisions exist solely at the
    whim and behest of their State,’ . . . cities and counties do
    not enjoy Eleventh Amendment immunity.” 
    Id. at 47
    (quoting Port Auth. Trans-Hudson Corp. v. Feeney, 
    495 U.S. 299
    , 313 (1990)).
    Finally, the County insists that Hess compels us to
    consider the State’s dignity, a factor not mentioned in
    Mitchell. Hess noted that the State’s “solvency and dignity
    . . . underpin the Eleventh 
    Amendment.” 513 U.S. at 52
    .
    That is undoubtedly true. But the State is no longer a party
    to this action, and it will not be responsible for an adverse
    judgment against the County. Allowing this action against
    Los Angeles does not injure California’s dignity. 11
    10
    The control discussed in Hess seems to have gone to overall
    control over the entity, not just control within the context of the particular
    function at issue: “PATH urges that we find good reason to classify the
    Port Authority as a state agency for Eleventh Amendment purposes
    based on the control New York and New Jersey wield over the
    Authority. . . . But ultimate control of every state-created entity resides
    with the State, for the State may destroy or reshape any unit it creates.”
    
    Id. at 47.
    Thus, looking at the State’s overall control over the County as
    a county would not help the County’s position here.
    11
    And, although it would not have altered our analysis, we note that
    California has not sought to file an amicus brief (below or on appeal)
    22            RAY V. COUNTY OF LOS ANGELES
    The Supreme Court decided Hess about five years after
    we decided Mitchell. And although Hess arose in a different
    context than Mitchell-Hess addressed a bistate entity, not a
    county—nothing in Hess so undermines Mitchell that we
    have the power to overrule it. More importantly, even if we
    used Hess rather than Mitchell to guide our analysis, we
    would reach the same result.
    When a non-state entity invokes Eleventh Amendment
    immunity, the most important factor for determining
    whether the entity is an arm of the state remains the state-
    treasury factor—that is, whether the state will be liable for a
    money judgment against the non-state entity. That factor,
    and all but one of the other Mitchell factors, dictates the
    result here. The Eleventh Amendment does not bar
    Plaintiffs’ suit against Los Angeles.
    The effective date of the rule is January 1, 2015.
    We next consider whether the effective date of the rule
    is the original effective date of January 1, 2015 or some date
    after the D.C. Circuit reversed the district court’s vacatur.
    The County argues that the rule cannot have an effective date
    that is earlier than the date on which the D.C. Circuit
    reversed the district court’s vacatur. Plaintiffs argue that the
    legal effect of the vacatur is to reinstate the original January
    1, 2015 effective date. We agree with Plaintiffs and hold
    that the effective date of the rule is January 1, 2015.
    arguing either that the County is entitled to Eleventh Amendment
    immunity or that this case threatens California’s dignity.
    RAY V. COUNTY OF LOS ANGELES                   23
    A January 1, 2015 effective date is not
    impermissibly retroactive.
    The County argues that a January 1, 2015 effective date
    is impermissibly retroactive. Plaintiffs argue that the D.C.
    Circuit’s decision, not the rule, applies retroactively, because
    the D.C. Circuit was “explaining what the law always was,”
    and thus reinstating the original effective date is merely a
    return to the status quo ante.
    When an appellate court applies “a rule of federal law to
    the parties before it,” that interpretation “must be given full
    retroactive effect in all cases still open on direct review and
    as to all events, regardless of whether such events predate or
    postdate [the] announcement of the rule.” Harper v. Va.
    Dep’t of Taxation, 
    509 U.S. 86
    , 97 (1993). That is because
    “when a court delivers a ruling, even if it is unforeseen, the
    law has not changed. Rather, the court is explaining what
    the law always was.” Jones Stevedoring Co. v. Dir., Office
    of Workers’ Comp. Programs, 
    133 F.3d 683
    , 688 (9th Cir.
    1997).
    When the D.C. Circuit held that the DOL had the
    rulemaking authority to promulgate the new rule and that its
    new rule was a reasonable exercise of that authority, see Weil
    
    II, 799 F.3d at 1090
    , it did not change the law but merely
    explained what the law always was—the district court’s
    erroneous contrary holding notwithstanding.
    Two cases support our holding. In GTE South, Inc. v.
    Morrison, 
    199 F.3d 733
    , 738, 740 (4th Cir. 1999), the Fourth
    Circuit addressed an issue much like the one we face:
    determining the effective date of certain pricing rules,
    promulgated by the FCC, that the Eighth Circuit stayed and
    then vacated before their effective date. The Supreme Court
    later reversed the Eighth Circuit. See AT & T Corp. v. Iowa
    24           RAY V. COUNTY OF LOS ANGELES
    Utilities Bd., 
    525 U.S. 366
    , 385 (1999). The Morrison panel
    held that “the Supreme Court’s determination that the FCC
    has jurisdiction to issue pricing rules would appear to
    compel the conclusion that the FCC always had such
    jurisdiction and that the rules apply as of the effective date
    originally 
    scheduled.” 199 F.3d at 740
    (emphasis added).
    The Fourth Circuit emphasized that its holding was not
    unfair to the parties who argued for a later effective date
    because they had “ample notice” of the original effective
    date and “surely knew that the FCC’s authority to issue
    pricing rules might ultimately be upheld by the Supreme
    Court.” 
    Id. at 741.
    In US West Communication, Inc. v. Jennings, 
    304 F.3d 950
    , 955 (9th Cir. 2002), we considered a similar question:
    whether the regulations that the Fourth Circuit considered in
    Morrison applied to conduct that occurred during the period
    of vacatur. Finding the Fourth Circuit’s reasoning in
    Morrison persuasive and applicable, we noted that the
    Supreme Court’s determination that the regulations were
    valid meant that we should apply them “to all . . . agreements
    arbitrated under the Act, including agreements arbitrated
    before the rules were reinstated.” 
    Id. at 957
    (emphasis
    added). Relying on Morrison, we held that applying the
    reinstated regulations to conduct that occurred during the
    period of vacatur would not give the regulations an
    impermissible retroactive effect. 
    Id. at 958.
    Morrison and Jennings are analogous to this case
    because both involved determining how to apply rules or
    regulations that were vacated but ultimately reinstated on
    appeal. Indeed, Morrison commented not only on the
    retroactivity of the Supreme Court’s reversal but also on the
    effective date of the regulations, holding that the intervening
    RAY V. COUNTY OF LOS ANGELES                   25
    vacatur did not alter the original effective date of the pricing
    
    rules. 199 F.3d at 740
    .
    Thus, Morrison and Jennings guide our analysis here.
    The D.C. Circuit’s holding that the DOL had the authority to
    promulgate the new rule and that the rule was reasonable
    applies retroactively. As in Jennings, the regulations apply
    as of the original effective date. To hold otherwise could
    encourage dilatory appellate litigation. If an erroneously
    vacated rule or regulation were not effective until sometime
    after the mandate issued in a later appeal, then a party might
    drag out the appellate process to avoid compliance for as
    long as possible. Put differently, an erroneous vacatur
    cannot postpone a rule’s effective date until an appellate
    court corrects the error sometime in the future. And, as the
    Fourth Circuit noted in Morrison, in a case like this everyone
    knows that the lower court decision might be reversed on
    appeal.
    The State and its counties knew from October 13, 2013,
    when the DOL first announced its final rule, that January 1,
    2015 was the rule’s effective date. See Application of the
    Fair Labor Standards Act to Domestic Service, 78 Fed. Reg.
    at 60,454. The State and its counties had a full fifteen
    months to comply with the final rule—indeed the State
    initially said that it would comply with the original effective
    date, but it changed course after the Weil I court vacated the
    rule. That decision may have been reasonable, but it created
    a monetary risk, as the State and its counties were well aware
    that an appellate court might uphold the regulations on
    appeal.
    The district court held that to apply the Weil II decision
    retroactively would be to “reinstate[] an earlier and judicially
    vacated effective date and retroactively creat[e] liability for
    violations of the reinstated regulations as if the District
    26            RAY V. COUNTY OF LOS ANGELES
    Court’s vacation of the regulations had never occurred.”
    That is exactly correct. And although the district court found
    that to be unfair, it would be equally unfair to hold that a
    putative collective of homecare providers is not entitled to
    nearly a year’s worth of overtime wages just because a single
    district court issued an erroneous decision that another court
    reversed on appeal. The State gambled that Weil I would be
    affirmed. The effect of that gamble might be unfair to the
    County, but the County must seek any recourse from the
    State. It is not fair for the homecare providers to bear the
    financial consequences of the State’s calculated risk.
    The DOL’s decision not to enforce a new rule does
    not obviate private rights of action.
    According to the County, the DOL’s choice against
    enforcing the rule until November 12, 2015 eliminated the
    availability of private rights of action until that date because
    a private right of action cannot precede an agency’s
    enforcement of a rule or regulation. We disagree.
    “An agency’s informal assurance that it will not pursue
    enforcement cannot preclude a citizen’s suit to do so.” Ohio
    Valley Envtl. Coal. v. Fola Coal Co., LLC, 
    845 F.3d 133
    ,
    145 (4th Cir. 2017) (emphasis added). Congress created a
    private right of action under the FLSA for unpaid overtime:
    “Any employer who violates the provisions of section 206
    or section 207 of this title shall be liable to the employee or
    employees affected in the amount of their . . . unpaid
    overtime compensation . . . .” 29 U.S.C. § 216(b). An
    agency’s discretionary decision to hold off enforcement does
    not and cannot strip private parties of their rights to do so.
    See Ohio 
    Valley, 845 F.3d at 145
    (“Congress enacted the
    citizen suit provision of the Clean Water Act to address
    situations, like the one at hand, in which the traditional
    enforcement agency declines to act.”).
    RAY V. COUNTY OF LOS ANGELES                           27
    The district court’s hypothesis that the D.C. Circuit and
    DOL “intended” that the regulation become effective “no
    earlier than November 12, 2015” is tenuous and, in any
    event, irrelevant. First, the D.C. Circuit said nothing at all
    on the issue. Second, there is nothing in the several
    statements of the DOL, which the district court relied on, that
    suggest that it intended its discretionary enforcement choices
    to preclude private enforcement. Indeed, other than by
    amending the rule, the DOL could not have precluded
    private enforcement even if it wanted to.
    The rule’s original effective date remains January 1,
    2015. If the DOL “intended” for the effective date be
    something other than January 1, 2015, the DOL could have
    sought to change that effective date through the procedures
    set out in the Administrative Procedure Act. Were we to
    hold to the contrary and impose our view that the DOL’s
    exercise of discretion amended the effective date sub
    silentio, we would in fact be usurping the rulemaking
    authority of the DOL. See Nat. Res. Def. Council, Inc. v.
    U.S. E.P.A., 
    683 F.2d 752
    , 762 (3d Cir. 1982) (holding that
    a final rule’s effective date is an “essential part” of that rule
    and is thus subject to the rulemaking procedures of the
    APA).
    The effective date of the rule is January 1, 2015. 12
    12
    Although some district courts have reached a different
    conclusion—see, e.g., Bangoy v. Total Homecare Solutions, LLC, No.
    1:15-CV-573, 
    2015 WL 12672727
    , at *3 (S.D. Ohio Dec. 21, 2015)
    (holding that the plaintiffs failed to state a claim for a violation of the
    FLSA between January 1, 2015 and “late August 2015”)—nearly all of
    them have reached the same result we reach here, see, e.g., Kinkead v.
    Humana, Inc., 
    206 F. Supp. 3d 751
    , 752 (D. Conn. 2016) (holding that
    the effective date of the rule is January 1, 2015, “the effective date set
    28            RAY V. COUNTY OF LOS ANGELES
    CONCLUSION
    We AFFIRM the district court’s holding that the County
    is not entitled to Eleventh Amendment immunity and
    REVERSE the district court’s holding that the putative
    collective period began on November 12, 2015, holding
    instead that the rule’s effective date—and thus the beginning
    of the putative collective period—is January 1, 2015. We
    REMAND for proceedings consistent with this opinion.
    Costs shall be awarded to Plaintiffs-Appellants.
    forth by the agency”); Collins v. DKL Ventures, LLC, 
    215 F. Supp. 3d 1059
    (D. Colo. 2016) (same); Lewis-Ramsey v. Evangelical Lutheran
    Good Samaritan Soc’y, 
    215 F. Supp. 3d 805
    (S.D. Iowa 2016) (same).
    

Document Info

Docket Number: 17-56581

Citation Numbers: 935 F.3d 703

Filed Date: 8/22/2019

Precedential Status: Precedential

Modified Date: 8/22/2019

Authorities (21)

valerie-streit-individually-and-as-class-representative-diego-santillana , 236 F.3d 552 ( 2001 )

Port Authority Trans-Hudson Corp. v. Feeney , 110 S. Ct. 1868 ( 1990 )

At&T Corp. v. Iowa Utilities Board , 119 S. Ct. 721 ( 1999 )

Shirley A. Yamaguchi v. United States Department of the Air ... , 109 F.3d 1475 ( 1997 )

Jacob W. Beentjes v. Placer County Air Pollution Control ... , 397 F.3d 775 ( 2005 )

Fuesting v. Lafayette Parish Bayou Vermilion District , 470 F.3d 576 ( 2006 )

people-of-the-state-of-california-ex-rel-bill-lockyer-attorney-general , 375 F.3d 831 ( 2004 )

gte-south-incorporated-and-united-states-of-america-intervenor-plaintiff , 199 F.3d 733 ( 1999 )

natural-resources-defense-council-inc-1725-i-street-nw-suite-600 , 683 F.2d 752 ( 1982 )

Del Campo v. Kennedy , 517 F.3d 1070 ( 2008 )

Susan Holz v. Nenana City Public School District Terry ... , 347 F.3d 1176 ( 2003 )

Jean Belanger v. Madera Unified School District Board of ... , 963 F.2d 248 ( 1992 )

Lake Country Estates, Inc. v. Tahoe Regional Planning Agency , 99 S. Ct. 1171 ( 1979 )

christine-l-miller-guardian-ad-litem-tonnie-savage-guardian-ad-litem-v , 335 F.3d 889 ( 2003 )

Lincoln County v. Luning , 10 S. Ct. 363 ( 1890 )

Northern Ins. Co. of NY v. Chatham County , 126 S. Ct. 1689 ( 2006 )

Moor v. County of Alameda , 93 S. Ct. 1785 ( 1973 )

Hess v. Port Authority Trans-Hudson Corporation , 115 S. Ct. 394 ( 1994 )

Mt. Healthy City School District Board of Education v. Doyle , 97 S. Ct. 568 ( 1977 )

Shelley Savage v. Glendale Union High School, District No. ... , 343 F.3d 1036 ( 2003 )

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