Justia › US Law › US Case Law › US Supreme Court › Volume 480 › Cal. Coastal Comm'n v. Granite Rock Co.
"lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers or agents."
Granite Rock filed suit in Federal District Court for declaratory and injunctive relief on the ground that the Commission's permit requirement was preempted by Forest Service Regulations, by the Mining Act of 1872, and by the CZMA. The court denied Granite Rock's motion for summary judgment and dismissed the action. The Court of Appeals reversed, holding that the Commission's permit requirement, which enforced state environmental standards, was preempted by the Mining Act of 1872 and Forest Service regulations.
Granite Rock will submit new plans of operation in the future, and dispute would continue as to enforcement of the conditions of a Commission permit. This Court does not have appellate jurisdiction under 28 U.S.C. § 1264(2), because the Court of Appeals invalidated only the Commission's exercise of authority under the CGA, not any portion of the state statute itself, as is required under §1264(2). However, treating the jurisdictional statement as a petition for certiorari, the petition is granted. Pp. 480 U. S. 577-579.
2. Neither Forest Service regulations, nor federal land use statutes, nor the CZMA preempts the Commission's imposition of a permit requirement on operation of an unpatented mining claim in a national forest. Pp. 480 U. S. 579-594.
(a) The Property Clause of the Constitution -- which gives Congress plenary power to legislate the use of federal lands -- does not itself automatically conflict with all state regulation of federal lands. The question in this case is governed by the usual preemption analysis, whereby state law is preempted if Congress has evidenced an intent to occupy entirely a given field or, where Congress has not entirely displaced state regulation, if state law actually conflict with federal law.
(b) The Forest Service regulations, governing the use of unpatented mining claims on federal forest lands authorized by the Mining Act of 1872 (which expressed no legislative intent on the then rarely contemplated subject of environmental regulation), do not justify a facial challenge to all conditions that might be imposed by the Commission's permit requirement. It is appropriate to expect an administrative regulation to declare any intention to preempt state law with some specificity. The Forest Service regulations here not only are devoid of any expression of intent to preempt state law, but rather appear to assume that those submitting plans of operation will comply with state environmental protection laws. Pp. 480 U. S. 581-584.
of unpatented mining claims in national forests to be per se preempted as an impermissible exercise of state land use planning. In the present posture of this litigation, the Commission's identification of a possible set of permit conditions not preempted by federal law is sufficient to rebuff Granite Rock's facial challenge to the permit requirement. Pp. 480 U. S. 584-589.
(d) The CZMA, by excluding federal lands from its definition of the coastal zone, does not demonstrate a congressional intent to preempt any possible Commission permit requirement as applied to the mining of Granite Rock's unpatented claim. The CZMA's language and legislative history expressly disclaim an intent to automatically preempt all state regulation of activities on federal lands. Congress' statements indicate that it intended the CZMA not to be an independent cause of preemption except in cases of actual conflict between state and federal law. Pp. 480 U. S. 589-593.
768 F.2d 1077, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, and in Parts I and II of which POWELL and STEVENS, JJ., joined. POWELL, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, J., joined, post, p. 480 U. S. 594. SCALIA, J., filed a dissenting opinion, in which WHITE, J., joined, post, p. 480 U. S. 607.
This case presents the question whether Forest Service regulations, federal land use statutes and regulations, or the Coastal Zone Management Act of 1972 (CZMA), 16 U.S.C. §1451 et seq. (1982 ed. and Supp. III), preempt the California Coastal Commission's imposition of a permit requirement on operation of an unpatented mining claim in a national forest.
with the requirements of the Mining Act and regulations promulgated thereunder, see 43 CFR § 3861.1 et seq. (1986), and, upon issuance of the patent, legal title to the land passes to the patent holder. Granite Rock holds unpatented mining claims on federally owned lands on and around Mount Pico Blanco in the Big Sur region of Los Padres National Forest.
From 1959 to 1980, Granite Rock removed small samples of limestone from this area for mineral analysis. In 1980, in accordance with federal regulations, see 36 CFR § 228.1 et seq. (1986), Granite Rock submitted to the Forest Service a 5-year plan of operations for the removal of substantial amounts of limestone. The plan discussed the location and appearance of the mining operation, including the size and shape of excavations, the location of all access roads, and the storage of any overburden. App. 27-34. The Forest Service prepared an Environmental Assessment of the plan. Id. at 38-53. The Assessment recommended modifications of the plan, and the responsible Forest Service Acting District Ranger approved the plan with the recommended modifications in 1981. Id. at 54. Shortly after Forest Service approval of the modified plan of operations, Granite Rock began to mine.
"an independent state permit system to enforce state environmental standards would undermine the Forest Service's own permit authority, and thus is preempted."
The Coastal Commission appealed to this Court under 28 U.S.C. § 1264(2). We postponed consideration of the question of jurisdiction to the hearing of the case on the merits, 476 U.S. 1094 (1986).
"investments and activities regarding its valid and unpatented mining claims require continuing operation beyond the present Plan of Operations,"
and that it intended to conduct mining operations on the claim at issue "as long as [Granite Rock] can mine an economically viable and valuable mining deposit under applicable federal laws." App. 83-84. Therefore it is likely that Granite Rock will submit new plans of operations in the future. Even if future participation by California in the CZMA consistency review process, see infra at 480 U. S. 590-591, or requirements placed on Granite Rock by the Forest Service called for compliance with the conditions of the Coastal Commission's permit, dispute would continue over whether the Coastal Commission itself, rather than the Federal Government, could enforce the conditions placed on the permit. This controversy is one capable of repetition, yet evading review. See Wisconsin Dept. of Industry v. Gould Inc., 475 U. S. 282, 475 U. S. 285, n. 3 (1986); Dunn v. Blumstein, 405 U. S. 330, 405 U. S. 333, n. 2 (1972). Accordingly, this case is not moot.
of appeals by appeal if a state statute is "held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States. . . ." Statutes authorizing appeals are to be strictly construed. Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 464 U. S. 247 (1984); Perry Education Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 460 U. S. 43 (1983). As noted in Silkwood, supra, at 464 U. S. 247, "we have consistently distinguished between those cases in which a state statute is expressly struck down" as repugnant to the Constitution, treaties, or laws of the United States, and those cases in which "an exercise of authority under state law is invalidated without reference to the state statute." This latter group of cases do not fall within this Court's appellate jurisdiction.
In the present case, the Court of Appeals held that the particular exercise of the Coastal Commission permit requirement over Granite Rock's operation in a national forest was preempted by federal law. The Court of Appeals did not invalidate any portion of the CCA. In fact, it did not discuss whether the CCA itself actually authorized the imposition of a permit requirement over Granite Rock. See Cal.Pub. Res. Code Ann. § 30008 (West 1986) (limiting jurisdiction over federal lands to that which is "consistent with applicable federal . . . laws"). Accordingly, this case is one in which "an exercise of authority under state law is invalidated without reference to the state statute," Silkwood, supra, at 464 U. S. 247, and not within our § 1254(2) appellate jurisdiction. We therefore treat the jurisdictional statement as a petition for certiorari, 28 U.S.C. § 2103, and, having done so, grant the petition and reverse the judgment of the Court of Appeals.
Coastal Commission will place on the issuance of a permit. Rather, Granite Rock argues, as it must, given the posture of the case, that there is no possible set of conditions the Coastal Commission could place on its permit that would not conflict with federal law -- that any state permit requirement is per se preempted. The only issue in this case is this purely facial challenge to the Coastal Commission permit requirement.
"Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."
"[S]tate law can be preempted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is preempted. [Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm'n, 461 U. S. 190,] 461 U. S. 203-204 [(1983)]; Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141, 458 U. S. 153 (1982); Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 230 (1947). If Congress has not entirely displaced state regulation over the matter in question, state law is still preempted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 373 U. S. 142-143 (1963), or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress, Hines v. Davidowitz, 312 U. S. 52, 312 U. S. 67 (1941)."
Silkwood v. Kerr-McGee Corp., supra, at 464 U. S. 248.
forests demonstrates an intent to preempt any state regulation. Second, Granite Rock and the United States assert that indications that state land use planning over unpatented mining claims in national forests is preempted should lead to the conclusion that the Coastal Commission permit requirement is preempted. Finally, Granite Rock and the United States assert that the CZMA, by excluding federal lands from its definition of the coastal zone, declared a legislative intent that federal lands be excluded from all state coastal zone regulation. We conclude that these federal statutes and regulations do not, either independently or in combination, justify a facial challenge to the Coastal Commission permit requirement.
"[B]ecause agencies normally address problems in a detailed manner and can speak through a variety of means, . . . we can expect that they will make their intentions clear if they intend for their regulations to be exclusive. Thus, if an agency does not speak to the question of preemption, we will pause before saying that the mere volume and complexity of its regulations indicate that the agency did in fact intend to preempt."
"will approve such operations as may be necessary for timely compliance with the requirements of Federal and State laws. . . ."
be accepted as compliance with similar or parallel requirements of these regulations."
It is impossible to divine from these regulations, which expressly contemplate coincident compliance with state law as well as with federal law, an intention to preempt all state regulation of unpatented mining claims in national forests. Neither Granite Rock nor the United States contends that these Forest Service regulations are inconsistent with their authorizing statutes.
"The claimant, in exercising his rights granted by the Mining Law of 1872, shall comply with the regulations of the Departments of Agriculture and Interior. The claimant is further responsible for obtaining any necessary permits required by State and/or county laws, regulations and/or ordinance."
The second argument proposed by Granite Rock is that federal land management statutes demonstrate a legislative intent to limit States to a purely advisory role in federal land management decisions, and that the Coastal Commission permit requirement is therefore preempted as an impermissible state land use regulation.
"develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System, coordinated with the land and resource management planning processes of State and local governments and other Federal agencies,"
16 U.S.C. § 1604(a). The FLPMA directs that land use plans developed by the Secretary of the Interior "shall be consistent with State and local plans to the maximum extent the [Secretary] finds consistent with Federal law," and calls for the Secretary, "to the extent he finds practical," to keep apprised of state land use plans, and to "assist in resolving, to the extent practical, inconsistencies between Federal and non-Federal Government plans." 43 U.S.C. § 1712(c)(9).
to impose environmental regulation. See Cal.Pub.Res.Code Ann. § 30233 (West 1986) (quality of coastal waters); § 30253(2) (erosion); § 30263(3) (air pollution); § 30240(b) (impact on environmentally sensitive habitat areas).
and Authorities in Opposition to Plaintiff's Motion for Summary Judgment in No. C-83-5137 (ND Cal.), pp. 41-42. ("Despite Granite Rock's characterization of Coastal Act regulation as a `veto' or ban of mining, Granite Rock has not applied for any coastal permit, and the State . . . has not indicated that it would in fact ban such activity. . . . [T]he question presented is merely whether the state can regulate uses, rather than prohibit them. Put another way, the state is not seeking to determine basic uses of federal land; rather, it is seeking to regulate a given mining use so that it is carried out in a more environmentally sensitive and resource-protective fashion").
"provide for compliance with applicable pollution control laws, including State and Federal air, water, noise, or other pollution standards or implementation plans."
"[i]t is not the purpose of these regulations to provide for the management of mineral resources; the responsibility for managing such resources is in the Secretary of the Interior."
Congress clearly envisioned that, although environmental regulation and land use planning may hypothetically overlap in some instances, these two types of activity would in most cases be capable of differentiation. Considering the legislative understanding of environmental regulation and land use planning as distinct activities, it would be anomalous to maintain that Congress intended any state environmental regulation of unpatented mining claims in national forests to be per se preempted as an impermissible exercise of state land use planning. Congress' treatment of environmental regulation and land use planning as generally distinguishable calls for this Court to treat them as distinct, until an actual overlap between the two is demonstrated in a particular case.
insists that its permit requirement is an exercise of environmental regulation, rather than land use planning. In the present posture of this litigation, the Coastal Commission's identification of a possible set of permit conditions not preempted by federal law is sufficient to rebuff Granite Rock's facial challenge to the permit requirement. This analysis is not altered by the fact that the Coastal Commission chooses to impose its environmental regulation by means of a permit requirement. If the Federal Government occupied the field of environmental regulation of unpatented mining claims in national forests -- concededly not the case -- then state environmental regulation of Granite Rock's mining activity would be preempted, whether or not the regulation was implemented through a permit requirement. Conversely, if reasonable state environmental regulation is not preempted, then the use of a permit requirement to impose the state regulation does not create a conflict with federal law where none previously existed. The permit requirement itself is not talismanic.
The Department of Commerce, which administers the CZMA, has interpreted § 1453(1) to exclude all federally owned land from the CZMA definition of a State's coastal zone. 15 CFR § 923.33(a) (1986).
"lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers or agents"
excludes all federally owned land from the CZMA definition of a State's coastal zone, and demonstrates a congressional intent to preempt any possible Coastal Commission permit requirement as applied to the mining of Granite Rock's unpatented claim in the national forest land.
"any applicant for a required Federal license or permit to conduct an activity affecting land or water uses in the coastal zone of that state shall provide in the application . . . a certification that the proposed activity complies with the state's approved program and that such activity will be conducted in a manner consistent with the [state] program."
16 U.S.C. § 1456(c)(3)(A). At the same time, the applicant must provide the State a copy of the certification. The State, after public notice and appropriate hearings, is to notify the federal agency concerned that the State concurs or objects to the certification. If the State fails to notify the federal agency within six months of receiving notification, it is presumed that the State concurs. If the State neither concurs nor is presumed to concur, the federal agency must reject the application unless the Secretary of Commerce finds that the application is consistent with the objectives of the CZMA or is "otherwise necessary in the interest of national security." Ibid.
inform the federal agency and federal permit applicant that the proposed activity requires CZMA consistency review. § 930.54. If the State does not provide timely notification, it waives the right to review the unlisted activity. In the present case, it appears that Granite Rock's proposed mining operations were not listed pursuant to § 930.63, and that the Coastal Commission did not timely notify the Forest Service or Granite Rock that Granite Rock's plan of operations required consistency review. App. 17. Therefore, the Coastal Commission waived its right to consistency review of the 1981-1986 plan of operations.
Absent any other expression of congressional intent regarding the preemptive effect of the CZMA, we would be required to decide, first, whether unpatented mining claims in national forests were meant to be excluded from the § 1453(1) definition of a State's coastal zone, and, second, whether this exclusion from the coastal zone definition was intended to preempt state regulations that were not preempted by any other federal statutes or regulations. Congress has provided several clear statements of its intent regarding the preemptive effect of the CZMA; those statements, which indicate that Congress clearly intended the CZMA not to be an independent cause of preemption except in cases of actual conflict, end our inquiry.
"Nothing in this chapter shall be construed -- "
"(1) to diminish either Federal or state jurisdiction, responsibility, or rights in the field of planning, development, or control of water resources, submerged lands, or navigable waters; nor to displace, supersede, limit, or modify any interstate compact or the jurisdiction or responsibility of any legally established joint or common agency of two or more states or of two or more states and the Federal Government; nor to limit the authority of Congress to authorize and fund projects. . . .
The Senate Report describes the above section as 'a standard clause disclaiming intent to diminish Federal or State authority in the fields affected by the Act,' or 'to change interstate agreements.' S.Rep. No. 92-753, p. 20 (1972). The Conference Report stated,"
"[t]he Conferees also adopted language which would make certain that there is no intent in this legislation to change Federal or state jurisdiction or rights in specified fields, including submerged lands."
H.R.Conf.Rep. No. 92-1544, p. 14 (1972). While the land at issue here does not appear to fall under the categories listed in 16 U.S.C. § 1466(e)(1), the section and its legislative history demonstrate Congress' refusal to use the CZMA to alter the balance between state and federal jurisdiction.
"[The CZMA] has as its main purpose the encouragement and assistance of States in preparing and implementing management programs to preserve, protect, develop and whenever possible restore the resources of the coastal zone of the United States. The bill authorizes Federal grants-in-aid to coastal states to develop coastal zone management programs. Additionally, it authorizes grants to help coastal states implement these management programs once approved, and States would be aided in the acquisition and operation of estuarine sanctuaries. Through the system of providing grants-in-aid, the States are provided financial incentives to undertake the responsibility for setting up management programs in the coastal zone. There is no attempt to diminish state authority through federal preemption. The intent of this legislation is to enhance state authority by encouraging and assisting the states to assume planning and regulatory powers over their coastal zones."
S.Rep. No. 92-753, supra, at 1 (emphasis supplied).
Because Congress specifically disclaimed any intention to preempt preexisting state authority in the CZMA, we conclude that, even if all federal lands are excluded from the CZMA definition of "coastal zone," the CZMA does not automatically preempt all state regulation of activities on federal lands.
Granite Rock's challenge to the California Coastal Commission's permit requirement was broad and absolute; our rejection of that challenge is correspondingly narrow. Granite Rock argued that any state permit requirement, whatever its conditions, was per se preempted by federal law. To defeat Granite Rock's facial challenge, the Coastal Commission needed merely to identify a possible set of permit conditions not in conflict with federal law. The Coastal Commission alleges that it will use its permit requirement to impose reasonable environmental regulation. Rather than evidencing an intent to preempt such state regulation, the Forest Service regulations appear to assume compliance with state laws. Federal land use statutes and regulations, while arguably expressing an intent to preempt state land use planning, distinguish environmental regulation from land use planning. Finally, the language and legislative history of the CZMA expressly disclaim an intent to preempt state regulation.
justified, if at all, only by the assertion that the state regulation in this case would be "duplicative." The description of the regulation as duplicative, of course, is based on JUSTICE POWELL'S conclusions that land use regulation and environmental regulation are indistinguishable, post at 480 U. S. 600-601, and that any state permit requirement, by virtue of being a permit requirement rather than some other form of regulation, would duplicate federal permit requirements, post at 480 U. S. 604-605. Because we disagree with these assertions, see supra, at 480 U. S. 587-588, 480 U. S. 589 we apply the traditional preemption analysis which requires an actual conflict between state and federal law, or a congressional expression of intent to preempt, before we will conclude that state regulation is preempted.
Contrary to the assertion of JUSTICE POWELL that the Court today gives States power to impose regulations that "conflict with the views of the Forest Service," post at 480 U. S. 606, we hold only that the barren record of this facial challenge has not demonstrated any conflict. We do not, of course, approve any future application of the Coastal Commission permit requirement that in fact conflicts with federal law. Neither do we take the course of condemning the permit requirement on the basis of as yet unidentifiable conflicts with the federal scheme.
The Coastal Commission also instructed Granite Rock to submit a certification of consistency pursuant to the consistency review process of the CZMA, 16 U.S.C. §1466(c)(3)(A), described infra at 480 U. S. 590-591. The Commission subsequently admitted that it had waived its right to review the 1981-1986 plan of operation under the CZMA consistency provision by failing to raise its right to review in a timely manner. App. 17.
Although the California Coastal Act requires local governments to adopt Local Coastal Programs, which include a land use plan and zoning ordinance, see Cal.Pub. Rea Code Ann. §§ 30600, 30612, 30513 (West 1986), no Local Coastal Program permit requirement is involved in this case. The permit at issue in this litigation is issued by the Coastal Commission directly. §§ 30600(a), (c); Tr. of Oral Arg. 62 ("We're dealing with the second type of permitting, which is by the Coastal Commission itself, not a local government. . . . [T]he Coastal Commission issues permits based upon compliance with the environmental criteria in the Coastal Act itself").
Because I agree that this case is properly before us, I join Parts I and II of the Court's opinion. In Part III, the Court considers the Forest Service's approval of Granite Rock's plan to operate its mine in a national forest. Because I cannot agree with the Court's conclusion that Congress intended to allow California to require a state permit, I dissent from Part III.
"[T]he Secretary shall . . . coordinate [his plans] with the land use planning and management programs of . . . the States and local governments within which the lands are located. . . . Land use plans of the Secretary . . . shall be consistent with State and local plans to the maximum extent he finds consistent with Federal law and the purposes of this Act."
"[T]he ultimate decision as to determining the extent of feasible consistency between [the Secretary's] plans and [state or local] plans rests with the Secretary of the Interior."
H.R.Conf.Rep. No. 94-1724, p. 68 (1976).
Service determines that the plans comply with the regulations, it approves them and authorizes the mining operation. The Court, by focusing on the Forest Service's concern for preservation of the national forests, characterizes these regulations as "environmental" regulations, in its view something entirely different from "land use" regulations. Ante at 480 U. S. 587-589.
"adequate notice and an opportunity to comment upon the formulation of standards, criteria, and guidelines applicable to Forest Service programs."
§ 1612(a). Thus, it is clear that the Secretary of Agriculture has the final authority to determine the best use for federal lands, and that he must consider the views of state regulators before making a decision. There is no suggestion in the statute or the legislative history that state regulators should have the final authority in determining how particular federal lands should be used.
importance of this obligation, noting that "the responsibility for managing [mineral] resources is in the Secretary of the Interior.'" Ante at 480 U. S. 588 (quoting 36 CFR § 228.1 (1986)). This statement erroneously equates mineral resources management with land use management. Title 43 of the Code of Federal Regulations details the activities of the Bureau of Land Management (BLM) in this context. Generally, BLM manages the process by which rights to minerals are obtained from the United States and protected against others, the payment of royalties to the Federal Government, and the conservation of the minerals themselves. In some cases -- like those of oil, gas, and coal -- BLM supervises leasing of the right to extract the materials. But this case involves "hardrock" minerals governed by the Mining Act of 1872. With respect to those minerals, BLM's actions are limited to determining whether the land is subject to location under the mining laws; whether a mining claim is properly located and recorded; whether assessment work is properly performed; and whether the requirements for patenting a claim have been complied with. See 43 CFR pts. 3800-3870 (1986). None of these determinations is a "land use" determination in the sense of balancing mineral development against environmental hazard to surface resources. The Forest Service makes these determinations through its review of a mining plan of operation.
"prohibit any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof."
"[t]he demand for mineral development . . . against the demand for renewable resources and the land management agency's responsibility to reasonably protect the environment."
United States Dept. of Agriculture, Forest Service Minerals Program Handbook preface (1983). See also Forest Service Manual § 2802 (Dec. 1986) (stating that the Forest Service's policy is to "ensure that exploration, development, and production of mineral and energy resources are conducted in an environmentally sound manner, and that these activities are integrated with planning and management of other national forest resources"); 30 U.S.C. § 1602. In sum, although the Secretary of the Interior has a substantial responsibility for managing mineral resources, Congress has entrusted the task of balancing mineral development and environmental protection in the national forests to the Department of Agriculture, and its delegate the Forest Service.
The second part of the Court's analysis considers both the NFMA and the FLPMA. The Court assumes, ante at 480 U. S. 585, that these statutes "preemp[t] the extension of state land use plans onto unpatented mining claims in national forest lands." But the Court nevertheless holds that the Coastal Commission can require Granite Rock to secure a state permit before conducting mining operations in a national forest. This conclusion rests on a distinction between "land use planning"
and "environmental regulation." In the Court's view, the NFMA and the FLPMA indicate a congressional intent to preempt state land use regulations, but not state environmental regulations. I find this analysis unsupportable, either as an interpretation of the governing statutes or as a matter of logic.
But this statute provides little support for the majority's analysis. A section mandating consideration of environmental standards in the formulation of land use plans does not demonstrate a general separation between "land use planning" and "environmental regulation." Rather, § 202(c)(8) recognizes that the Secretary's land use planning will affect the environment, and thus directs the Secretary to comply with certain pollution standards.
FLPMA requires compliance only with "applicable" standards, it is difficult to treat this one section as an independent and controlling command that the Secretary comply with all state environmental standards. Rather, viewing the complex of statutes and regulations as a whole, it is reasonable to view § 202(c)(8) simply as a recognition that the Secretary's plans must comply with standards made applicable to federal activities by other federal laws.
development. [Footnote 2/5] The Coastal Commission has no interest in the matters within the jurisdiction of the BLM; the regulations that it seeks to impose concern matters wholly within the control of the Forest Service. Thus, this regulation does not support the Court's distinction between environmental regulation and land use planning.
Apart from my disagreement with the Court's characterization of the governing statutes, its preemption analysis accords little or no weight to both the location of the mine in a national forest, and the comprehensive nature of the federal statutes that authorized Granite Rock's federal permit.
"Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."
U.S.Const., Art. IV, § 3, cl. 2. See Utah Power & Light Co. v. United States, 243 U. S. 389, 243 U. S. 404 (1917). This provision may not of its own force preempt the authority of a State to regulate activities on federal land, but it clearly empowers Congress to limit the extent to which a State may regulate in this area. In light of this clear constitutional allocation of power, the location of the mine in a national forest should make us less reluctant to find preemption than we are in other contexts.
The state regulation in this case is particularly intrusive because it takes the form of a separate, and duplicative, permit system. As the Court has recognized, state permit requirements are especially likely to intrude on parallel federal authority, because they effectively give the State the power to veto the federal project. See International Paper Co. v.
Ouellette, 479 U. S. 481, 479 U. S. 495 (1987); First Iowa Hydro-Electric Cooperative v. FPC, 328 U. S. 152, 328 U. S. 164 (1946). Although the intrusive effect of duplicative state permit systems may not lead to a finding of preemption in all cases, it certainly is relevant to a careful preemption analysis.
The dangers of duplicative permit requirements are evident in this case. The federal permit system reflects a careful balance between two important federal interests: the interest in developing mineral resources on federal land and the interest in protecting our national forests from environmental harm. The Forest Service's issuance of a permit to Granite Rock reflects its conclusion that environmental concerns associated with Granite Rock's mine do not justify restricting mineral development on this portion of a federal forest. Allowing the Coastal Commission to strike a different balance necessarily conflicts with the federal system.
will reflect the environmental concerns of affected States, a duplicative system of permits would serve no purpose. Indeed, the potential for conflict between state and federal decisions has obvious disadvantages.
In summary, it is fair to say that, commencing in 1872, Congress has created an almost impenetrable maze of arguably relevant legislation in no less than a half-dozen statutes, augmented by the regulations of two Departments of the Executive. There is little cause for wonder that the language of these statutes and regulations has generated considerable confusion. There is an evident need for Congress to enact a single, comprehensive statute for the regulation of federal lands.
Having said this, it is at least clear that duplicative federal and state permit requirements create an intolerable conflict in decisionmaking. [Footnote 2/8] In view of the Property Clause of the Constitution, as well as common sense, federal authority must control with respect to land "belonging to the United States." Yet the Court's opinion today approves a system of two-fold authority with respect to environmental matters. The result of this holding is that state regulators, whose views on environmental and mineral policy may conflict with the views of the Forest Service, have the power, with respect to federal lands, to forbid activity expressly authorized by the Forest Service. I dissent.
See also National Materials and Minerals Policy, Research and Development Act of 1980, § 2(a)(1), 30 U.S.C. § 1601(a)(1) (congressional finding that the availability of minerals "is essential for national security, economic wellbeing, and industrial production"); § 2(a)(3), 30 U.S.C. § 1601(a)(3) (congressional finding that the extraction of minerals is "closely linked with national concerns for energy and the environment"); § 3, 30 U.S.C. §1602 ("[I]t is the continuing policy of the United States to promote an adequate and stable supply of materials necessary to maintain national security, economic wellbeing and industrial production with appropriate attention to a long-term balance between resource production, energy use, a healthy environment, natural resources conservation, and social needs").
"coordinate the responsible departments and agencies to, among other measures . . . encourage Federal agencies to facilitate availability and development of domestic resources to meet critical materials needs."
"[W]e will pause before saying that the mere volume and complexity of [an agency's] regulations indicate that the agency did in fact intend to preempt."
Id. at 471 U. S. 718. Hillsborough, however, is quite different from this case. First, the state regulations were designed to ensure the health of plasma donors, an aim entirely separate from the aim of the federal regulations, to ensure the purity of the donated plasma. In this case, by contrast, federal authorities already have considered the environmental effects of Granite Rock's mine. The California Coastal Commission seeks only to reconsider the decision of the federal authorities. In any event, the argument for preemption in this case does not rest on the Forest Service regulations alone, but also on the comprehensive regulatory system enacted by Congress. The Court cannot make Hillsborough controlling simply by considering the regulations separately from their statutory source. As I explain, infra at 480 U. S. 604-606, the complex of applicable statutes and regulations, considered as a whole, preempts the Coastal Commission's permit requirement.
The Forest Service regulations discussed above mention a slightly different set of environmental standards than does the FLPMA. Both provisions specifically preserve air and water standards. The Forest Service regulations also mention solid waste disposal standards; the Land Management Act also mentions noise control standards. Cf. 42 U.S.C. § 4901(a)(3) (Noise Control Act provision stating that the "primary responsibility for control of noise rests with State and local governments"). The slight difference between the two lists of pollution standards, however, is insignificant. The feature that all the listed standards have in common is that other federal statutes specifically preserve a place for state regulation. See supra at 480 U. S. 599-600.
"Land use planning in essence chooses particular uses for the land; environmental regulation, at its core, does not mandate particular uses of the land but requires only that, however the land is used, damage to the environment is kept within prescribed limits."
Ante at 480 U. S. 587. This explanation separates one of the reasons for Forest Service decisions from the decisions themselves. In considering a proposed use of a parcel of land in the national forest, the Forest Service regulations consider the damage the use will cause to the environment, as well as the federal interest in making resources on public lands accessible to development. The Forest Service may decide that the proposed use is appropriate, that it is inappropriate, or that it would be appropriate only if further steps are taken to protect the environment. The Court divides this decision into two distinct types of regulation, and holds that Congress intended to preempt duplicative state regulation of one part, but not the other. Common sense suggests that it would be best for one expert federal agency, the Forest Service, to consider all these factors and decide what use best furthers the relevant federal policies.
I express no view as to the Court's conclusion that the Coastal Zone Management Act of 1972 (CZMA), 16 U.S.C. § 1451 et seq. (1982 ed. and Supp. III), does not preempt the state regulation in this case. See ante at 480 U. S. 589-593.
The discussion in Part I deals primarily with the FLPMA and the NFMA. In this case, the Coastal Commission actually had yet another statutory basis for influencing the federal decisionmaking process. Because Granite Rock's mine is near the California Coast, the Coastal Commission has a right to consistency review under the CZMA. Thus, if the Coastal Commission had voiced its concerns, the Secretary could not have approved this permit unless he determined, after a hearing, that "the activity is consistent with the objectives of [the CZMA] or is otherwise necessary in the interest of national security." 16 U.S.C. § 1456(c)(3)(A). Although the Coastal Commission had notice of Granite Rock's application to the Forest Service, it did not object to Granite Rock's activities until two years after the application was approved and Granite Rock began mining pursuant to the federal permit. Because the Coastal Commission failed to make a timely complaint to the Forest Service, it forfeited its right to consistency review under the CZMA.
By noting the provision for consistency review, I do not imply that the CZMA itself preempts the Coastal Commission's permit requirement. See n. 6, supra. I believe, however, that the provision for consistency review, considered with the other specific provisions for state participation in the federal regulatory process, indicates that Congress did not believe the States could have imposed separate permit requirements, even before passage of the CZMA.
The Court concludes that Granite Rock has failed to demonstrate a conflict because it rejects my conclusion that land use regulation and environmental regulation are indistinguishable and because it sees no harm in allowing state permit requirements to supersede the decisions of federal officials. Ante at 480 U. S. 593-594.
JUSTICE SCALIA, with whom JUSTICE WHITE joins, dissenting.
as such is not altered by the fact that the State may now be agreeable to issuing it so long as environmental concerns are satisfied. Since, as the Court's opinion quite correctly assumes, ante at 480 U. S. 585, state exercise of land use authority over federal lands is preempted by federal law, California's permit requirement must be invalid.
"is in conformity with the provisions of Chapter 3 . . . and . . . will not prejudice the ability of the local government to prepare a local coastal program that is in conformity with Chapter 3."
It could hardly be clearer that the California Coastal Act is land use regulation. To compound the certainty, California has designated its Coastal Act as the State's coastal management program for purposes of the Coastal Zone Management Act (CZMA), 16 U.S.C. § 1451 et seq. Cal.Pub.Res.Code Ann. § 30008 (West 1986). The requirements for such a program include "[a] definition of what shall constitute permissible land uses and water uses within the coastal zone," 16 U.S.C. § 1454(b)(2), and "[a]n identification of the means by which the state proposes to exert control over [those] land uses and water uses." § 1454(b)(4).
"[b]y choosing to seek . . . relief against the . . . requirement before discovering what conditions the [State] would have placed on the [certification], [the union] has lost the possibility"
"The issue is whether [the State] has the power of ultimate control over the Government's lessee, and this issue persists whether or not a use permit would eventually be granted."
Ventura County v. Gulf Oil Corp., 601 F.2d 1080, 1085 (1979), summarily aff'd, 445 U.S. 947 (1980). Even on the assumption, therefore, that California was only using its land use permit requirement as a means of enforcing its environmental laws, Granite Rock was within its rights to ignore that requirement -- unless California has land use authority over the federal lands in question.
effective January 1, 1977, it is subject to the permit requirements of the California Coastal Act."
"This letter will serve to notify Granite Rock of its obligation to apply to the Coastal Commission for a coastal development permit for any development, as defined in Section 30106 of the Coastal Act, at the site undertaken after the date of this letter."
App. 22. This letter contains no hint that only environmental constraints are at issue, as opposed to compliance with all of the requirements of the State's coastal management program. Even in the litigation stage -- both in the District Court and in the Court of Appeals -- the argument that California was (or might be) seeking to enforce only environmental controls was merely an alternative position. The Commission's more sweeping contention was that the land in question is not excluded from the CZMA, and that the CZMA permits designated state coastal management programs to override the Mining Act. See App. to Juris. Statement A-4, A-12, A-24. That argument has not been pressed here, having been rejected by both lower courts. 768 F.2d 1077, 1080-1081 (CA9 1985); 590 F.Supp. 1361, 1370-1371 (ND Cal.1984). It is perfectly clear, however, that the assertion that the State is only enforcing its environmental laws is purely a litigating position -- and a late-asserted one at that.
lands in order to assure consistency with state land use plans to the maximum extent compatible with federal law and objectives. 16 U.S.C. §§ 1456(c)(3)(A), 1604(a); 43 U.S.C. § 1712(c). Those requirements would be superfluous, and the limitation upon federal accommodation meaningless, if the States were meant to have independent land use authority over federal lands. The Court is quite correct that the CZMA did not purport to change the status quo with regard to state authority over the use of federal lands. Ante at 480 U. S. 589-593. But as the CZMA's federal lands exclusion, 16 U.S.C. § 1453(1), and consistency review provisions, 16 U.S.C. § 1456(c)(3)(A), clearly demonstrate, that status quo was assumed to be exclusive federal regulation.
1976 Cal.Stats., ch. 1331, § 1, as amended by 1978 Cal.Stats., ch. 1075, § 2, codified at Cal.Pub.Res.Code Ann. § 30008 (West 1986).
by designating its Coastal Act as a coastal management program under the CZMA, that it would use the permitting requirement to achieve, not land use management, but only environmental controls. We should particularly not give ear to that claim since it was not the representation made to Granite Rock when application for the permit was demanded. If environmental control is, as California now assures us, its limited objective in this case, then it must simply achieve that objective by means other than a land use control scheme. If and when it does so, we may have occasion to decide (as we need not today) whether state environmental controls are also preempted. More likely, however, the question will not arise in the future, as it has not arisen in the past, because of the Federal Government's voluntary accommodation of state environmental concerns -- an accommodation that could not occur here only because California neglected to participate in the proceedings. Ante at 480 U. S. 576-577, n. 1, 591.
I would affirm the court below on the ground that the California Coastal Act permit requirement constitutes a regulation of the use of federal land, and is therefore preempted by federal law.
I would not rely upon the alternative ground that the dispute between these parties is "capable of repetition, yet evading review." Ante at 480 U. S. 578. Assuming that Granite Rock submits a new 5-year plan to the Forest Service and that California again seeks to require it to comply with the coastal permitting requirements, I see no reason why that action would evade our review. See Weinstein v. Bradford, 423 U. S. 147, 423 U. S. 149 (1975). Moreover, for a dispute to be "capable of repetition," there must be a "reasonable expectation that the same complaining party [will] be subjected to the same action again." Ibid. The Court may be correct that it is possible that California will seek to enforce its permit requirement directly again, ante at 480 U. S. 578; but since California may well be able to accomplish what it wants through the Coastal Zone Management Act's consistency review procedures, 16 U.S.C. § 1456(c)(3)(A), I do not think it likely that it will do so.
The State Coastal Commission is responsible for issuing coastal development permits until the Commission has certified a local land use plan, Cal.Pub.Res.Code Ann. § 30600.5(b) (West 1986), at which time the responsibility devolves upon the local government, ibid. Regardless of which governmental entity has the authority to issue the permit, the requirements for its issuance are those set forth in Chapter 3 of the California Coastal Act, discussed supra. These apply directly if a local coastal program has not been certified, § 30604(a), or by enforcement of the requirements of the local coastal program, § 30604(b), whose land use plan must conform with that Chapter in order to be certified, §§ 30512(c), 30512.1(c), 30512.2. Because local coastal programs consist of such classic land use regulation tools as a land use plan, zoning maps, zoning ordinances, and other implementing devices, §§ 30511(b), 30512, permits issued upon a showing of consistency with a local coastal program may be even more obviously land use control devices than permits issued upon a showing of consistency with the provisions of Chapter 3. But under the plain terms of the statute, the latter no less than the former are permits for land use. To establish the contrary proposition, which is essential to its holding, the majority relies upon nothing more substantial than the statement of counsel for the Commission, in oral argument before us, that "[T]he Coastal Commission issues permits based upon compliance with the environmental criteria in the Coastal Act itself." Tr. of Oral Arg. 52, quoted ante at 480 U. S. 586, n. 2. Read literally (i.e., without inferring the adverb "exclusively"), the statement is true (the Act does contain some environmental criteria), but unhelpful to the majority's case. If, however, counsel meant to imply that the Commission's permits could not be conditioned upon compliance with the land use criteria, the statement would not only contradict the plain language of the Act, but would also be inconsistent with the litigating position taken by the Commission in the previous stages of this lawsuit, see infra at 480 U. S. 611-612.


text:
and for the State of California et al. by Daniel E. Lungren, Attorney ..... In Abel v. United States, 362. U. S. 217 (1960), the petitioner had been arrested by the Im-.
WHREN ET AL. v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 95- 5841.
Green v. Brennan (14-613). Decision Date: May 23, 2016. In a suit brought by a former U.S. Postal ...... In plaintiff's suit against the Department of the Army and others, claiming that sexual harassment by her ...... Montgomery County (No. ...... Abel v. S. Shuttle Servs., Inc. (No. 10-10659). Decision Date: September 21, 2010 .
Email: abel@fas.harvard.edu. ... access to informal referral networks (Beaman et al., 2013; Montgomery, ...... Schoer, V., N. Rankin, and G. Roberts (2014).
Sep 3, 2009 ... Montgomery County; 13th district .... 06-0911 EDWARDS AQUIFER AUTHORITY, ET AL. v. ...... 09-0879 ABEL LUCIO, JR., ET AL. v. JOHN G.

matches: v. v. v. v. v. v.


text:
n. the act of raising something; "he responded with a lift of his eyebrow"; "fireman learn several different raises for getting ladders up"
n. a closure at the rear of a vehicle that can be mechanically raised during loading and unloading of cargo; "He loaded the heavy lumber onto the truck with the liftgate."
n. a ride in a car; "he gave me a lift home"
n. the event of something being raised upward; "an elevation of the temperature in the afternoon"; "a raising of the land resulting from volcanic activity"
v. to train physically using weights; "He began to weight-train to improve his athletic performance."
v. remove from a surface; "the detective carefully lifted some fingerprints from the table"
v. take off or away by decreasing; "lift the pressure"
v. remove from a seedbed or from a nursery; "lift the tulip bulbs"
v. put an end to; "lift a ban"; "raise a siege"
v. rise upward, as from pressure or moisture; "The floor is lifting slowly"
v. make audible; "He lifted a war whoop"
v. take (root crops) out of the ground; "lift potatoes"
v. fly people or goods to or from places not accessible by other means; "Food is airlifted into Bosnia"
v. raise or haul up with or as if with mechanical help; "hoist the bicycle onto the roof of the car"
v. take hold of something and move it to a different location; "lift the box onto the table"
v. move upwards; "lift one's eyes"
v. take illegally; "rustle cattle"
v. rise up; "The building rose before them"
n. the act of shoving (giving a push to someone or something); "he gave the door a shove"
n. a journey or passage; "they are on the way"
v. exercise in order to prepare for an event or competition; "She is training for the Olympics"
v. pass abruptly from one state or topic to another; "leap into fame"; "jump to a conclusion"; "jump from one thing to another"
v. raise the level or amount of something; "raise my salary"; "raise the price of bread"
v. bring (a surface or a design) into relief and cause to project; "raised edges"
v. push roughly; "the people pushed and shoved to get in line"
v. come into rough contact with while moving; "The passengers jostled each other in the overcrowded train"
v. move or jump suddenly, as if in surprise or alarm; "She startled when I walked into the room"
v. lift up from the earth, as by geologic forces; "the earth's movement uplifted this part of town"
v. seize and take control without authority and possibly with force; take as one's right or possession; "He assumed to himself the right to fill all positions in the town"; "he usurped my rights"; "She seized control of the throne after her husband died"
v. lift weights; "This guy can press 300 pounds"
v. take something or somebody with oneself somewhere; "Bring me the box from the other room"; "Take these letters to the boss"; "This brings me to the main point"
v. establish radio communications with; "They managed to raise Hanoi last night"

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


We collect, process and use personal data (in accordance with the definitions of the German Federal Data Processing Law) in order to provide our Jimdo Creator App services.
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text:
In the months following Judge Chamblin’s August 2009 ruling in Spear v. Metropolitan Washington Airports Authority, defense counsel across the Commonwealth jumped on the Spear bandwagon, arguing as the Court ruled in Spear that changes in suits re-filed by a plaintiff after taking a voluntary nonsuit, such as to the ad damnum, create a different action and the plaintiff accordingly loses the benefit of the tolling of the statute of limitations provided by Va. Code § 8.01-229(E)(3). But so far, no other court has followed Spear. Now, the Supreme Court of Virginia is poised on February 9 to review the petition for appeal in Spear. The question on every defense counsel’s mind is can this decision possibly hold up?
In Spear, plaintiff claimed she was injured in April 2005 at Washington Dulles International Airport while being transported by wheelchair. Plaintiff filed suit in April 2007, within days of the applicable two year statute of limitations, but took a voluntary nonsuit in October 2008. When plaintiff re-filed her action in March 2009, with an increased ad damnum from $350,000 to $500,000, defense counsel argued the claim was time-barred because the change in the ad damnum created a different action. Judge Chamblin agreed.
Adopting a strict reading of Dalloul v. Agbey, 255 Va. 511 (1998), Judge Chamblin held that the “action” that was nonsuited for purposes of § 8.01-229(E)(3) is the action that was pending at the time the nonsuit order was entered and it is that “action that must be recommenced within the six-month period in order for the tolling provision to apply.” According to the court, because a plaintiff’s recovery is limited by its ad damnum (but see post above on legislation considered by the General Assembly that would have dramatically changed this rule) and because Va. Code § 8.01-379.1 requires disclosure of plaintiff’s damages to the jury, “the amount sued for is just as much a component of an action as the operative facts alleged and the claims made by a plaintiff.” For these reasons, Judge Chamblin ruled that plaintiff’s March 2009 complaint was not the same action as the April 2007 complaint and the claims were therefore not tolled by Va. Code § 8.01-229. The new complaint was dismissed as time-barred.
While the Spear court ostensibly considered the meaning of “action” for purposes of Va. Code § 8.01-380, it overlooked a substantial body of Virginia Supreme Court precedent defining and discussing the term “cause of action” in other related contexts. Virtually every other court reviewing similar nonsuit tolling issues under § 8.01-229(E)(3) has done just this. (See, e.g., Vaughan v. The First Liberty Ins. Corp., Civil Action No. 3:09cv364 (E.D. Va. Nov. 13, 2009); O’Hearn v. Mawyer, Case No. CL09-00442 (Rockingham Cty. Jan. 7, 2010) (collecting cases)). Had the Spear court also done so, the result may have been far different.
The term “cause of action” has been considered repeatedly by the Supreme Court of Virginia in the closely analogous context of relation back of amendments (that is, whether an amended pleading relates back to the original filing date for purposes of statute of limitations), as subsequently codified at Va. Code § 8.01-6.1. In this setting, it is clear the Court views a “cause of action” broadly to encompass “a set of operative facts which, under the substantive law, may give rise to a right of action.” (See, e.g., Roller v. Basic Constr. Co., 238 Va. 321 (1989)). It is not any one single legal theory or basis of recovery. Where an amended pleading “only varie[s] the mode of demanding the same thing – that is, damages done the same property by the same causes”, then it does not set forth a new cause of action. (Vines v. Branch, 244 Va. 185 (1992), quoting, New River Min. Co. v. Painter, 100 Va. 507 (1902)).
Likewise, while the goal of res judicata is to preclude, rather than preserve all claims that could or should have been litigated, the definition of “cause of action” still remains the same. Rule 1:6 of the Rules of the Supreme Court of Virginia again defines “cause of action” broadly to be a “claim for relief arising from identified conduct, a transaction, or an occurrence”, regardless of the legal theory asserted or the legal elements or evidence necessary. A “cause of action” is clearly intended by the Supreme Court to be an all-encompassing concept.
This expansive definition of “cause of action”, particularly when coupled with the additional rule that “tolling statute[s] . . . ‘are highly remedial and should be liberally construed in furtherance of their purposes, and are not to be frittered away by any narrow construction,’” (Vaughan v. The First Liberty Ins. Corp., quoting, Baker v. Zirkle, 226 Va. 7 (1983)), leaves only one possible conclusion. Spear should have been decided the other way. It is difficult to conceive how the mere demand for $150,000 in additional compensatory damages would not satisfy the test for the same “cause of action” within the meaning of §§ 8.01-229(E)(3) and 380.
To be sure, there is authority for the proposition that the recovery sought is material to the analysis of “cause of action”, just as Judge Chamblin noted. For example, in Vines, the Court held that “[w]here an amendment . . . makes a new or different demand not introduced in the original [complaint] . . .. the amended action becomes the equivalent of a different suit and the statute continues to run until the amendment is filed.” Under this caselaw, to the extent the increase in damages sought by plaintiff in Spear in the amended pleading actually arose out of some additional category of damages not previously requested, then perhaps the result in Spear is correct. However, there is nothing in the Spear opinion which would support this conclusion.
The ultimate irony is that had plaintiff’s counsel in Spear anticipated this novel nonsuit challenge, it could have easily re-filed a complaint that was identical to the April 2007 version, and then simply moved to increase the ad damnum thereafter. As Judge Chamblin expressly acknowledged, such motions are routinely made “as they must be”, and granted by the court, where plaintiff believes and demonstrates damages may exceed the amount originally pled.
From the defense perspective, the Spear rule is almost too good to be true since nearly every case re-filed after a nonsuit contains some change in allegations or claims. Pre-Spear, it could be argued that it was a breach of the standard of care for plaintiff’s counsel to not tweak some aspect of the complaint to reflect information acquired during or subsequent to the litigation of the first complaint. But, by all indications, plaintiff’s counsel should not be hasty in adjusting nonsuit re-filing practices since Spear may be short-lived.
Of course, if the Supreme Court of Virginia declines review of Spear, the state of the law of nonsuits will be left in doubt and the circuit courts of this Commonwealth can be absolutely assured of one thing: they will routinely see Spear-based pleas in bar. Indeed, defense counsel may now well be required to file a Spear like challenge in order to satisfy its standard of care.
Certainty is needed for both sides of the bar on this issue.

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The Fair Labor Standards Act mandates compensation for all hours worked and requires payment of a minimum wage and overtime compensation. The FLSA also provides several mechanisms for employees to enforce their rights.
Under the FLSA hourly workers may bring lawsuits not only on their own behalf but also on behalf of others who are “similarly situated.” This is called a “collective action.” The collective action is an important FLSA enforcement mechanism. It permits parties who may not individually have substantial damages at issue to combine their resources and prosecute their employer for violations of the act.
A collective action under FLSA differs from the more familiar “class action” in that its participants must opt in to the case, while participants in a class-action lawsuit typically must opt out if they do not wish to be bound by the decisions made in the case.
Many states set wage-related requirements similar to those of the FLSA in their own statutes. Employees may pursue their rights under most of these statutes through class actions, while in the same case pursuing their rights in a collective action under the FLSA.
To subvert these procedural and substantive federal and state protections, employers frequently make offers of judgment to the plaintiffs before the plaintiffs have an opportunity fully to assess the strengths and weaknesses of their claims after having had the benefit of discovery.
Rule 68 of the Federal Rules of Civil Procedure permits a defendant to “serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.” If the plaintiff rejects the offer and later prevails, but recovers less than the amount offered, the plaintiff must pay the defendant’s costs incurred after the offer was made.
Now, as a result of the U.S. Supreme Court’s decision in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), plaintiffs may lose their ability to proceed with a collective action as a result of early offers of judgment under Rule 68.
Laura Symczyk worked for Genesis Healthcare Corp. as a registered nurse. Symczyk filed a complaint against the company alleging that for certain employees it automatically deducted 30 minutes of time worked each shift for meal breaks, even if the employees performed work during the breaks.
When Genesis responded to Symczyk’s complaint, it offered her $7,500 for her unpaid wages, plus attorney fees, costs and expenses as the court might award under Rule 68. Symczyk did not respond to the offer, and Genesis withdrew it. Genesis then argued that Symczyk could no longer pursue claims on behalf of the other similarly situated employees because it had offered her the complete relief she requested.
Symczyk objected to Genesis’ argument, saying the company was trying to stop her from litigating her case before she could initiate the collective action process. More specifically, Symczyk argued that her claim was not moot because Genesis’ offer lapsed without judgment being entered.
Symczyk’s case went to the Supreme Court, which decided 5-4 that, because Symczyk’s claim was moot as a result of the Rule 68 offer, she could not move forward with the collective action process. The court said it could not consider whether Symczyk’s claim was mooted correctly because it was not properly before the justices on appeal.
The only issue the Supreme Court considered was whether Symczyk’s collective action allegations were justiciable in light of the fact that her claim was moot. The court concluded that Symczyk lacked any personal interest in representing others in the action and so could not proceed. The court implied that if Symczyk’s claims had been granted conditional certification as a collective action and if other parties had joined the case by opting in, she would have had grounds to proceed.
The court also rejected Symczyk’s argument that claims such as hers were transitory and would allow defendants to “pick off” named plaintiffs before the litigation process was complete, continuously preventing any litigation with Rule 68 offers. The court held that Symczyk’s claims were not transitory, so she had no interest in pursuing them, because the defendant’s offer did not affect the rights of others who had similar claims.
Since the Genesis Healthcare decision, nearly 50 opinions from district courts and 10 opinions from courts of appeals have cited or discussed the ruling. Of the decisions from the appeals courts, only two substantively discuss the application of the Supreme Court’s holdings to the facts in each.
In Camesi v. University of Pittsburgh Medical Center; Kuznyetsov v. West Penn Allegheny Health System Inc., 729 F.3d 239 (3d Cir. 2013), the 3rd U.S. Circuit Court of Appeals considered two consolidated appeals determining whether the named plaintiffs could appeal a federal judge’s order denying the final certification of their collective action.
The plaintiffs in the Camesi action argued that the University of Pittsburgh Medical Center failed to pay them for time worked during their meal breaks. More than 3,000 people opted in to the case after the District Court judge granted the conditional certification. However, UPMC moved to decertify the class, and the court granted the motion and dismissed the opt-ins’ claims without prejudice. The plaintiffs asked the judge to dismiss their claims under Federal Rule of Civil Procedure 41(a) so they could secure a final judgment, which they could appeal.
Similarly, the plaintiffs in the Kuznyetsov action argued that their employer, the West Penn Allegheny Health System, failed to pay them for time work edduring meal breaks, and the District Court decertified the collective action after more than 800 employees opted in. The Kuznyetsov plaintiffs also asked the court to dismiss their claims under Rule 41(a) to obtain an appealable final judgment.
Although the 3rd Circuit decided that neither set of plaintiffs had a judgment they could appeal, the court also considered whether the plaintiffs had rendered their cases moot by voluntarily dismissing them. The court found the plaintiffs did not have individual claims because they had dismissed their claims before the District Court with prejudice.
The appeals court noted that the Camesi and Kuznyetsov plaintiffs already had hundreds of opt-ins, whereas Symczyk did not. Regardless, the court concluded the plaintiffs could not have an interest in the outcome of their opt-ins’ claims.
Their voluntary dismissal of their claims with prejudice “has not only extinguished appellants’ individual claims, but also any residual representational interest that they may have once had.” Id. at 247.
On Oct. 4, 2013, the 9th Circuit issued its decision in Diaz v. First American Home Buyers Protection Corp., 732 F.3d 948 (9th Cir. 2013). Emily Diaz sued First American on behalf of all people who had made a claim under any of the company’s home warranty plans issued after March 2003.
After the District Court denied Diaz’s motion for class certification, First American made Diaz a Rule 68 offer of judgment on her state law claims. Diaz let the offer expire and First American moved to dismiss her case. The District Court held that First American’s Rule 68 offer would have given Diaz full relief and dismissed her claims as moot.
In analyzing Diaz’s claims, the 9th Circuit noted that the Supreme Court did not reach that issue in Genesis Healthcare, but concluded that, in light of Justice Elena Kagan’s dissent, the Rule 68 judgment did not moot her claims. The 9th Circuit highlighted Justice Kagan’s conclusion that an unaccepted or rejected offer of judg- ment does not moot a case because the plaintiff’s “interest in the lawsuit remains just what it was before. … An unaccepted settlement offer … is a legal nullity, with no operative effect. As every first-year law student learns, the recipient’s rejection of an offer ‘leaves the matter as if no offer had ever been made.’” Id. at 954, citing Genesis Healthcare, 133 S. Ct. at 1528-29, Minneapolis & St. Louis Ry. Co. v. Columbus Rolling Mill Co., 119 U.S. 149, 151 (1886).
The 9th Circuit also credited Justice Kagan’s analysis of Rule 68, which noted that nothing in the rule authorized the court to enter judgment if the plaintiff refused to accept the offer and acknowledged that a court may have “discretion to halt a lawsuit by entering judgment for the plaintiff when the defendant unconditionally surrenders and only the plaintiff’s obstinacy or madness prevents her from accepting total victory.” Genesis Healthcare, 133 S. Ct. at 1536.
Of the post-Genesis Healthcare district court decisions, several in particular stand out.
The court rejected their argument, saying it was the defendants’ own fault that their assets had been frozen and that ultimately, the plaintiffs’ claims were not moot because they were entitled to additional damages under the state wage law that the FLSA did not afford.
(Other types of damages, including attorney fees and actual damages, salvage claims from being moot. “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Id. at *6.).
Moreover, in Will v. Panjwani, 2013 WL 5503331 (S.D. Ind. Oct. 1, 2013), the court rejected the automatic application of the Genesis Healthcare holding to cases in which the plaintiffs had already moved for conditional certification. Unlike in Genesis Healthcare, in this case the plaintiffs moved for conditional certification weeks before the defendants made their offer. Therefore, Genesis Healthcare is not directly on point.
The lessons for plaintiffs’ counsel in the wake of the Genesis Healthcare decision are clear: Caution a plaintiff to consider carefully any Rule 68 offers of judgment, select more than one lead plaintiff, and file for conditional certification as soon as practical in the litigation, preferably as soon as the defendant has answered or otherwise filed a responsive pleading.