Trina Ray, individually, and on behalf of others similarly situated, Plaintiff-Appellee,
County of Los Angeles, Defendant-Appellant. Trina Ray; Sasha Walker, individually, and on behalf of all others similarly situated, Plaintiffs-Appellants,
Los Angeles County Department of Public Social Services, Erroneously Sued As County of Los Angeles, Defendant-Appellee.
and Submitted March 7, 2019 Pasadena, California
from the United States District Court, Nos.
2:17-cv-04239-PA-SK, 2:17-cv-04239-PA-SK for the Central
District of California Percy Anderson, District Judge,
Jennifer Mira Hashmall (argued) and Jeffrey B. White, Miller
Barondess LLP, Los Angeles, California, for
Matthew C. Helland (argued) and Daniel S. Brome, Nichols
Kaster LLP, San Francisco, California; Philip Bohrer, Bohrer
Brady LLC, Baton Rouge, Louisiana; for
Before: Kim McLane Wardlaw and Mark J. Bennett, Circuit
Judges, and Kathleen Cardone, [*] District Judge.
Law / Eleventh Amendment Immunity
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;
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 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.
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.
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.
BENNETT, CIRCUIT JUDGE.
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.
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 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
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).
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).
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.
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
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.
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.
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." 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.
October 27, 2015, the DOL said that it would not begin
enforcing the final rule until November 12, 2015.
echoing its September 14, 2015 statement, the DOL again said
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
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).
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.
2017, Ray filed a putative collective action, 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 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.
relevant here, the County moved to dismiss the complaint on
Eleventh Amendment immunity grounds. 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.
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.
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 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
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.
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.
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