United States v. 2010-07-01 | 08-15223 | HILDA SOLIS V. JASMINE HALL CARE | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 HILDA L. SOLIS, Secretary of
Labor,* United States Department
of Labor, No. 08-15223
Plaintiff-Appellee, D.C. No.
v.  CV-05-01306-GEB
JASMINE HALL CARE HOMES, INC., OPINION
HALL CARE HOMES, INC., GEORGE
K. HALL, ESTELA HALL,
Defendants-Appellants. 
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted
September 3, 2009—San Francisco, California
Filed July 1, 2010
Before: J. Clifford Wallace, Diarmuid F. O’Scannlain, and
Andrew J. Kleinfeld, Circuit Judges.
Per Curiam Opinion
*Hilda L. Solis is substituted for her predecessor, Elaine Chao, as Sec-
retary of Labor. Fed. R. App. P. 43(c)(2).
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COUNSEL
Gregory F. Jacob, Solicitor of Labor, Steven J. Mandel, Paul
L. Frieden, Rachel Goldberg (argued), United States Depart-
ment of Labor, Washington, DC, for the plaintiff-appellee.
Baldwin J. Lee (argued), Amy Wintersheimer-Findley, Jennie
L. Lee, Allen Matkins Leck Gamble Mallory & Natsis LLP,
San Francisco, California, for the defendants-appellants.
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OPINION
PER CURIAM:
This is an appeal from a partial summary judgment. We
dismiss the appeal for lack of jurisdiction under the final deci-
sion rule.
I. Facts
Jasmine Hall Care Homes and the individually named
defendants operate residential care facilities for developmen-
tally disabled adults in California. The Secretary of Labor
sued to enjoin violations of the Fair Labor Standards Act,
alleging that the defendants have willfully violated overtime
compensation requirements.
The Department of Labor investigator reported that Jas-
mine Hall’s timekeeping records were inadequate. Direct
observation showed that employees rotated shifts, sleeping at
the facility when they were supposedly off duty, but not really
being off duty at all. Although only one employee was treated
by the employer as being on duty during any eight-hour
period, “there was usually more than one employee providing
needed care or supervision to clients at almost any time of
day,” and “even in the evenings the clients seemed to require
a great deal of attention and interaction.” And the employees
were not free to leave during their five 24-hour shifts per
week, except on authorized company business.
The investigator wrote that “Jasmine Hall live-in residential
staff members were required to share relatively small rooms
with up to 3 other staff members, often of the opposite sex.”
Staff members had bunk beds in shared rooms, or in one case,
two double beds for two married couples, with a sheet hung
between the two beds, and in another, a double bed for the
married couple and a third bed for another employee.
“[C]lients frequently knocked on the staff room door in the
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middle of the night for all sorts of reasons, such as wanting
a shower,” and staff aides had to interrupt their supposedly
personal time for such tasks as administering medicine and
taking clients to the toilet. Yet they were only paid for eight
hours of the 24 they spent on duty.
A Department of Labor regulation, 29 C.F.R. § 785.23,
addresses the application of the Fair Labor Standards Act to
employees who reside on company premises. The regulation
recognizes the difficulty of determining what hours are
worked, since employees may be on the premises but never-
theless have time to “engage in normal private pursuits and
thus have enough time for eating, sleeping, entertaining, and
other periods of complete freedom from all duties when he
may leave the premises for purposes of his own.” Id. The reg-
ulation therefore allows an employer in this situation to avoid
paying otherwise mandatory wages by making a “reasonable
agreement” with the employee as to which hours will be paid.
The district court held, in response to the parties’ cross-
motions for summary judgment, that Jasmine Hall Care
Homes could not invoke that regulation in order to avoid
wage and hour obligations as to any employee who shares a
bedroom with another employee.
The defendants immediately appealed the partial summary
judgment. The Department of Labor moved to dismiss for
lack of jurisdiction, on the ground that there was no final deci-
sion. The district court did not certify the appeal under 28
U.S.C. § 1292(b). Our motions panel denied the motion to
dismiss without prejudice to its being renewed in appellee’s
brief, and it has been.
II. Analysis
[1] Congress, with some explicit exceptions, has limited
our appellate jurisdiction to “final decisions” of the district
courts. 28 U.S.C. § 1291. Interlocutory decisions generally
cannot be appealed until the cases are completed.
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Finality as a condition of review is an historic char-
acteristic of federal appellate procedure. It was writ-
ten into the first Judiciary Act and has been departed
from only when observance of it would practically
defeat the right to any review at all. Since the right
to a judgment from more than one court is a matter
of grace and not a necessary ingredient of justice,
Congress from the very beginning has, by forbidding
piecemeal disposition on appeal of what for practical
purposes is a single controversy, set itself against
enfeebling judicial administration. Thereby is
avoided the obstruction to just claims that would
come from permitting the harassment and cost of a
succession of separate appeals from the various rul-
ings to which a litigation may give rise, from its ini-
tiation to entry of judgment.
Cobbledick v. United States, 309 U.S. 323, 324-25 (1940)
(footnotes omitted). Congress has carved out several carefully
delimited classes of interlocutory orders excepted from the
final judgment rule, see 28 U.S.C. § 1292, but none of them
are invoked and none are applicable to this case. Similarly,
the limited exception for appealability of certain collateral
orders, as discussed in Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541 (1949), has not been urged in this appeal,
and does not apply, given that the partial summary judgment
order at issue here is not collateral, but central to the merits
of the case.
[2] Appellants argue that this court has appellate jurisdic-
tion under the 1964 Supreme Court decision of Gillespie v.
United States Steel Corp., 379 U.S. 148 (1964), which
departed from the final judgment rule by weighing “the incon-
venience and costs of piecemeal review on the one hand and
the danger of denying justice by delay on the other,” and
holding that it had jurisdiction to reach the merits of the case
where the questions on appeal were “fundamental to the fur-
ther conduct of the case” and appellate jurisdiction “properly
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implemented the same policy Congress sought to promote in
[28 U.S.C.] § 1292(b) by treating this obviously marginal case
as final and appealable under 28 U.S.C. § 1291.” 379 U.S. at
152-54 (internal quotation marks omitted).
The Supreme Court in Coopers & Lybrand v. Livesay, 437
U.S. 463 (1978), closed the Gillespie door all but a crack. The
Court limited Gillespie in a footnote:
Respondents also suggest that the Court’s decision in
[Gillespie] supports appealability of a class-
designation order as a matter of right. We disagree.
In Gillespie, the Court upheld an exercise of appel-
late jurisdiction of what it considered a marginally
final order that disposed of an unsettled issue of
national significance because review of that issue
unquestionably “implemented the same policy Con-
gress sought to promote in § 1292(b),” and the argu-
able finality issue had not been presented to this
Court until argument on the merits, thereby ensuring
that none of the policies of judicial economy served
by the finality requirement would be achieved were
the case sent back with the important issue unde-
cided. In this case, in contrast, respondents sought
review of an inherently nonfinal order that tenta-
tively resolved a question that turns on the facts of
the individual case; and, as noted above, the indis-
criminate allowance of appeals from such discretion-
ary orders is plainly inconsistent with the policies
promoted by § 1292(b). If Gillespie were extended
beyond the unique facts of that case, § 1291 would
be stripped of all significance.
Id. at 477 n.30 (citations omitted) (emphasis added).
[3] Despite this near-abrogation of Gillespie, however, the
Ninth Circuit has interpreted the Coopers & Lybrand footnote
as a list of questions to determine whether the Gillespie
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exception to finality applies. Serv. Employees Int’l Union,
Local 102 v. County of San Diego (SEIU), 60 F.3d 1346 (9th
Cir. 1995), held that we did indeed have jurisdiction to review
a partial summary judgment addressing applicability of the
private sector “salary test” in the Fair Labor Standards Act to
the public sector. We paraphrased footnote 30 of Coopers &
Lybrand, and concluded that appellate jurisdiction would lie
if all of the four factors Coopers & Lybrand used to limit Gil-
lespie were satisfied:
(1) the decision appealed was a marginally final
order, (2) which disposed of an unsettled issue of
national significance, (3) review implemented the
same policy Congress sought to promote in
§ 1292(b), and (4) the finality issue was not pre-
sented to the appellate court until argument on the
merits, thereby ensuring that policies of judicial
economy would not be served by remanding the case
with an important unresolved issue.
Id. at 1350 (internal quotation marks and brackets omitted).
The case before fails to meet the fourth requirement, so we
need not decide whether it meets the other three.
[4] The fourth element of the SEIU test is that “the finality
issue was not presented to the appellate court until argument
on the merits.” That test, which is meant to encourage parties
to alert us to a jurisdictional issue before the parties and the
court waste time analyzing merits, has no application here.
The Secretary of Labor raised the jurisdictional defect by a
motion to dismiss shortly after this appeal was docketed and
before the briefs were filed. Where a well-taken motion to
dismiss for lack of jurisdiction is filed before the briefs are
filed, we are unable to imagine how the fourth SEIU require-
ment could be satisfied.
Jasmine Hall Care Homes argues that our decision in Smith
v. Eggar, 655 F.2d 181 (9th Cir. 1981), expanded the scope
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of jurisdiction available under Gillespie. But Smith held that
the order appealed from, while not a final order, was “suffi-
ciently injunctive in nature to justify our taking jurisdiction
under [28 U.S.C. § ] 1292(a)(1),” because it commanded
compliance with the terms of an agreement negotiated by the
parties during the litigation. 655 F.2d at 184. Section
1292(a)(1) provides appellate jurisdiction over district court
orders granting, continuing, modifying, refusing, or dissolving
injunctions. Jasmine Hall does not argue that the partial sum-
mary judgment was in any way injunctive.
Smith did state in the alternative that “[e]ven if this were
not so, on the facts of this particular case we would be
inclined to view the order as so fundamental to the litigation
that both policy and common sense would dictate that we
assume jurisdiction under the rule of Gillespie,” 655 F.2d at
184-85, but that pronouncement was dicta. Ninth Circuit cases
relying on Smith focus on the “sufficiently injunctive” lan-
guage. See, e.g., United States v. Gila Valley Irrigation Dist.,
31 F.3d 1428, 1441-42 (9th Cir. 1994); Thompson v. Eno-
moto, 815 F.2d 1323, 1326 (9th Cir. 1987). And we are not
free to interpret Gillespie broadly.
In addition to the four factors we quoted in SEIU, we are
bound by Coopers & Lybrand’s use of the word “unique.”
437 U.S. at 477 n.30. The word the Court chose to use,
“unique,” means “being the only one of its kind.” American
Heritage Dictionary 1322 (2d College ed. 1985) (defining
“unique” as “1. Being the only one of its kind; sole. 2. Being
without an equal or equivalent; unparalleled.”). In light of
SEIU, we have to read “unique” as overstatement, meaning
something like “exceedingly rare” rather than literally
“unique.” But that is as far as we can go in stretching the
word that the Supreme Court used. The language SEIU used
is not simply a “four-part test” where if the court can articu-
late some good reason under each part, then the Congressional
restriction of appeals to “final decisions” can be avoided. As
we held in In re Subpoena, Gillespie “must be sparingly
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used,” because “[t]o extend the doctrine beyond the facts of
Gillespie would render the section 1291 finality requirement
useless.” In re Subpoena Served on the Cal. Pub. Utils.
Comm’n, 813 F.2d 1473, 1479-80 (9th Cir. 1987). Footnote
30 of Coopers & Lybrand compels that restrictive interpreta-
tion. Even where all four factors are satisfied, ordinarily inter-
locutory appeal is barred.
[5] Where there really is very strong reason for interlocu-
tory correction of a district court error, even though the case
falls within no exception from the final judgment rule, we can
use mandamus. Beyond that, it is a rare district court case
indeed that can be interrupted by an appeal if it does not fall
within a statutory exception to the statutory final decision
rule. The interlocutory appeal in this case is not the albino
black bear that Gillespie excepts from the “final decision”
requirement, so this interlocutory appeal must be dismissed
for lack of jurisdiction.
APPEAL DISMISSED.
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