Service Employees State Counc, et al v. Commonwealth of Massachusett

Filing

OPINION issued by Rogeriee Thompson, Appellate Judge; David J. Barron, Appellate Judge and John J. McConnell , Jr.,* U.S. District Judge. Published. *Of the District of Rhode Island, sitting by designation. [15-1906]

Case: 15-1906

Document: 00117094117

Page: 1

Date Filed: 12/16/2016

Entry ID: 6055719

United States Court of Appeals
For the First Circuit
No. 15-1906
LABOR RELATIONS DIVISION OF CONSTRUCTION INDUSTRIES OF
MASSACHUSETTS, INC.; ASSOCIATED GENERAL CONTRACTORS LABOR
RELATIONS DIVISION; BUILDING TRADES EMPLOYERS' ASSOCIATION OF
BOSTON AND EASTERN MASSACHUSETTS; NEW ENGLAND MECHANICAL
CONTRACTORS' ASSOCIATION; NATIONAL ELECTRICAL CONTRACTORS'
ASSOCIATION; PLUMBING-HEATING-COOLING CONTRACTORS' ASSOCIATION
OF GREATER BOSTON; BARLETTA ENGINEERING CORPORATION; CENTURY
DRYWALL, INC.,
Petitioners, Appellants,
v.
MAURA T. HEALEY, in her capacity as Attorney General for the
Commonwealth of Massachusetts,
Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]

Before
Thompson and Barron, Circuit Judges,
McConnell,* District Judge.

James F. Grosso and Miranda S. Jones, with whom O'Reilly,
Grosso & Gross, P.C. was on brief, for appellant.
Pierce O. Cray, with whom Maura Healey, Douglas S. Martland,
and the Office of the Massachusetts Attorney General were on brief,
for appellee.
*

Of the District of Rhode Island, sitting by designation.

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Lindsey Powell, with whom Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Carmen M. Ortiz, United States
Attorney, Alisa B. Klein, Attorney Appellate Staff, M. Patricia
Smith, Solicitor of Labor, Beverly I. Dankowitz, Acting Associate
Solicitor, Radine Legum, Counsel for Labor-Management Relations,
and Adam R. Pulver, Attorney, Civil Rights and Labor-Management
Division, were on brief for amicus curiae United States of America.
MacKenzie Fillow, Senior Counsel, Zachary W. Carter,
Corporation Counsel, Jill Maxwell, Of Counsel, Margaret O'Hora, Of
Counsel, David Smart, Of Counsel, and Ksenya Hentisz, Of Counsel,
on brief for amicus curiae City of New York; Dennis Herrera, City
Attorney, and Francesca Gessner, Deputy City Attorney, on brief
for amicus curiae City and County of San Francisco; George Jepsen,
Attorney General, on brief for amicus curiae State of Connecticut;
Ian Warner, Legal Counsel to the Mayor of Seattle, on brief for
amicus curiae City of Seattle; Jeremy Farrell, Corporation
Counsel, on brief for amicus curiae City of Jersey City; Khalifah
L. Shabazz, Corporation Counsel, on brief for amicus curiae City
of East Orange; Domenick Stampone, Corporation Counsel, on brief
for amicus curiae City of Paterson; and David L. Minchello,
Corporation Counsel, on brief for amicus curiae City of Plainfield.
Jasper Groner, Donald J. Siegel, James A.W. Shaw, Louis A.
Mandarini, and Segal Roitman, LLP, on brief for amicus curiae
Massachusetts AFL-CIO.
Mark A. Gottlieb, on brief for amici curiae A Better Balance,
Coalition for Social Justice-Education Fund, Inc., Massachusetts
Public Health Association, and the Public Health Advocacy
Institute, Northeastern University School of Law.
Ingrid I. Nava, Katherine D. Shea, David B. Rome, and Pyle
Rome and Ehrenberg, P.C., on brief for amici curiae SEIU Local
32BJ, 1199 SEIU United Healthcare East, SEIU Local 509, UFCW Local
791, UFCW Local 1445, UFCW Local 328, United Steelworkers Local
8751, and UNITE HERE Local 26.

December 16, 2016

Case: 15-1906

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BARRON,

Circuit

construction-industry

Page: 3

Date Filed: 12/16/2016

Judge.

employers'

In

this

case,

associations

Entry ID: 6055719

a

group

and

of

employers

("employers") seek relief from a broad category of enforcement
actions that may be brought under the Massachusetts Earned Sick
Time Law ("ESTL"), Mass. Gen. Laws ch. 149, § 148C.

Specifically,

the employers contend that the ESTL "is preempted" by Section 301
of the Labor-Management Relations Act, 29 U.S.C. § 185(a), "with
respect" to those employers in the state who are parties to
collective bargaining agreements ("CBAs") with unions.
basis,

the

employers

seek

a

judgment

On that

"prohibiting"

the

Massachusetts Attorney General from "[g]ranting private rights of
action to employees who are members of collective bargaining units"
and "[e]nforcing civil sanctions pursuant to [the ESTL] against
employers

who

are

signatory

[sic]

to

collective

bargaining

agreements."
The District Court dismissed the suit for failure to
state a claim insofar as it constituted a facial, preemption-based
challenge to the ESTL, and for want of jurisdiction on ripeness
grounds insofar as it represented an as-applied preemption-based
challenge
measure.

to

particularized,

future

actions

to

enforce

the

Due to the claim-specific inquiry that we must undertake

in order to determine Section 301's preemptive effect, however, we
conclude that the employers' unusual request for sweeping preenforcement relief is not ripe for adjudication no matter how it

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is best characterized along the facial/as-applied spectrum.

For

that reason, we dismiss the suit for want of jurisdiction.
I.
We

start

by

describing

the

contours

of

both

Massachusetts ESTL and federal preemption under Section 301.

the
We

then will be better able to describe the basis for this suit and
the District Court's reasons for dismissing it.
A.
In 2014, voters in Massachusetts overwhelmingly approved
the ESTL through the initiative process. The ESTL broke new ground
in Massachusetts by providing that employers of a certain size
must compensate their employees for the sick time that they use
for specified purposes.

Mass. Gen. Laws ch. 149, §§ 148C(a)-(d).

To ensure compliance with the ESTL, the law provides
that the Attorney General "shall enforce [the law] and may obtain
injunctive

or

declaratory

relief

for

this

purpose."

Id.

at

§ 148C(l).

That same subsection of the ESTL further provides that

"[v]iolation of [the ESTL] shall be subject to" various provisions
of

Massachusetts

law

that,

imposition of civil penalties.

among

other

things,

permit

the

Id.; see also id. at §§ 27C & 150.

In addition to providing for enforcement by the Attorney
General, the ESTL also authorizes an "aggrieved" employee to bring
actions under the ESTL, provided that such an employee first files
the complaint with the Attorney General to notify her of the

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impending suit.

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Id. at §§ 148C(l) & 150.

Entry ID: 6055719

After filing the

complaint with the Attorney General, the aggrieved employee must
wait ninety days to bring the suit unless the Attorney General
permits the employee to file the suit before the ninety-day period
has run.

Id.
Finally, the ESTL authorizes the Attorney General to

promulgate regulations "to carry out the purpose and provisions"
of the law.

Id. at § 148C(n).

The Attorney General exercised

that authority on July 3, 2015 by promulgating regulations that
defined certain terms in the ESTL, some of which the employers
point to in pressing their preemption-based challenge.
§§ 33.01-33.11.

940 C.M.R.

Specifically, the ESTL provides that covered

employers must compensate their employees for such paid sick time
"at the same hourly rate as the employee" would have been paid had
the employee not taken leave.

Mass. Gen. Laws ch. 149, § 148C(a).

The regulations promulgated by the Attorney General define the
"same hourly rate" to mean "the employee's regular hourly rate"
for employees paid a uniform hourly rate.

940 C.M.R. § 33.02.

For "employees who receive different pay rates for hourly work
from the same employer," the regulations permit an employer to use
a "blended rate, determined by taking the weighted average of all
regular rates of pay over the previous pay period."

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Id.

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B.
Section 301 of the National Labor Relations Act long
pre-dates the ESTL.

It was enacted in 1947, and it provides:

"Suits for violation of contracts between an employer and a labor
organization representing employees . . . may be brought in any
district court of the United States having jurisdiction of the
parties, without respect to the amount in controversy or without
regard to the citizenship of the parties."

29 U.S.C. § 185(a).

Notwithstanding its phrasing, Section 301 is "more than
jurisdictional -- [] it authorizes federal courts to fashion a
body of federal law for the enforcement of [CBAs]."

Textile

Workers Union v. Lincoln Mills of Ala., 353 U.S. 448, 450-51
(1957).

Moreover, soon after Lincoln Mills, the Supreme Court in

Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 103 (1962),
explained that, in light of the congressional command in Section
301 to "fashion . . . a body of federal law for the enforcement of
[CBAs]," state courts were not "free to apply individualized local
rules when called upon to enforce such agreements."

Rather, "in

enacting § 301[,] Congress intended doctrines of federal labor law
uniformly to prevail over inconsistent state rules."

Id. at 104.

The result is that Section 301 preempts state-law "suits
alleging [CBA] violations."
U.S. 202, 213 (1985).
concerning

precisely

Allis-Chalmers Corp. v. Lueck, 471

There is no shortage of complexities

what

consequences

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flow

from

Section

301

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preemption, but we need not delve into all of them here.

For

present purposes, it suffices to say that, by virtue of Section
301's preemptive effect, a state-law claim for breach of a CBA
often must be dismissed so that the claim may be arbitrated in
accord with an agreement to arbitrate such a breach that the
governing CBA contains.
Flour,

369

U.S.

at

105

See, e.g., id. at 220-21; see also Lucas
(holding

that

the

CBA

in

that

case

"expressly imposed upon both parties the duty of submitting the
dispute in question to final and binding arbitration").

As the

Court has explained, "[t]he need to preserve the effectiveness of
arbitration was one of the central reasons that underlay the
Court's [preemption] holding in Lucas Flour."

Lueck, 471 U.S. at

219.
The Court has also made clear, however, that "[t]he
requirements of § 301 as understood in Lucas Flour cannot vary
with the name appended to a particular cause of action."
220.

Id. at

Thus, in Lueck, a claim styled as a "tort claim for breach

of a good-faith obligation under a contract" was held preempted
under Section 301 -- and thus dismissed -- because the "right[]"
the plaintiff asserted was fundamentally "rooted" in the CBA, which
had provided that a dispute over the employer's compliance with
the predicate right under the CBA was subject to arbitration.

Id.

at 219-20 (noting that a "rule that permitted an individual to
sidestep available grievance procedures would . . . eviscerate a

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central tenet of federal labor contract law" -- the primacy of the
arbitrator in CBA interpretation).

In this way, too, Section 301

preemption ensures that "interpretation of [CBAs] remains firmly
in the arbitral realm."

Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399, 411 (1988).
There are limits, though, to Section 301's preemptive
reach. The Court has explained that "it would be inconsistent with
congressional intent under [Section 301] to preempt state rules
that . . . establish rights and obligations, independent of a labor
contract."

Lueck, 471 U.S. at 212.

That is because Section 301

"says nothing about the substantive rights a State may provide to
workers when adjudication of those rights does not depend upon the
interpretation of such agreements."

Lingle, 486 U.S. at 409.

Accordingly, "the bare fact that a [CBA] will be consulted in the
course of state-law litigation" pursuant to a state-law cause of
action that confers a right independently of the CBA is not
sufficient, in consequence of Section 301 preemption, to require
the dismissal of the state-law cause of action.

Livadas v.

Bradshaw, 512 U.S. 107, 124 (1994); see also Lueck, 471 U.S. at
211 ("[N]ot every dispute . . . tangentially involving a provision
of a [CBA] is preempted by § 301.").

For example, when "liability

is governed by independent state law, the mere need to 'look to'
the [CBA] for damages computation is no reason to hold the state-

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law claim defeated by § 301."

Date Filed: 12/16/2016

Entry ID: 6055719

Livadas, 512 U.S. at 125 (internal

citation omitted).1
C.
It is against this legal background that the employers
filed this suit in the U.S. District Court for the District of
Massachusetts in 2015.

The employers did so before any action to

enforce the ESTL had been filed against any employer who is a party
to a CBA by either the Attorney General or by any aggrieved
employee.

But the employers contend in the currently operative

complaint, which is styled as "Amended Petition for Declaratory

1

Even when Section 301 preempts a state-law claim, there may
be different ways of disposing of the claim. Cavallaro v. UMass
Mem'l Healthcare, Inc., 678 F.3d 1, 6 (1st Cir. 2012). "In most
cases, a claim that requires interpretation of the applicable CBA
is covered by 'a broadly-phrased grievance and arbitration
provision in the CBA'" and thus must be sent to arbitration. Rueli
v. Baystate Health, Inc., 835 F.3d 53, 59 (1st Cir. 2016) (quoting
Cavallaro, 678 F.3d at 6).
But, as the Court has emphasized,
"[h]olding the plaintiff's cause of action substantively
extinguished may not . . . always be the only means of vindicating
the
arbitrator's
primacy
as
the
bargained-for
contract
interpreter."
Livadas, 512 U.S. at 124 n.18.
Thus, we have
previously noted some "uncertaint[y]" as to "when a state law claim
implicating Section 301 should proceed as a federal claim, or
simply be dismissed." Pruell v. Caritas Christi, 645 F.3d 81, 85
n.4 (1st Cir. 2011); see also Lingle, 486 U.S. at 403 n.2
(emphasizing that "state courts have concurrent jurisdiction over
§ 301 claims" (citing Charles Dowd Box Co. v. Courtney, 368 U.S.
502 (1962)))

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Relief II," that Section 301 preemption nonetheless entitles them
to sweeping relief from the ESTL's eventual enforcement.
Specifically, in that complaint, the employers seek "a
judgment declaring that [the ESTL] is preempted with respect to
employers

who

agreements."

are

signatory

[sic]

to

collective

bargaining

Second, the employers seek "a judgment prohibiting

the Attorney General from: [(1)] Granting private rights of action
to employees who are members of collective bargaining units; and
[(2)] Enforcing civil sanctions pursuant to [the ESTL] against
employers

who

are

signatory

[sic]

to

collective

bargaining

agreements."
In support of the contention that Section 301 preemption
entitles the employers to the relief they seek, the complaint
alleges the following facts.
the

construction-industry

construction-industry

First, the complaint asserts that

employers

employers'

action are parties to CBAs.

and

the

associations

members
that

of

bring

the
this

Next, the complaint alleges that

"[a]ny and all state law claims brought under the [ESTL] would
require a determination of the 'hourly rate' of a worker covered
by a [CBA,] which would necessitate an analysis and interpretation
of the terms of the [CBAs] made between the parties in a labor
contract." And, finally, quoting subsection (j) of the ESTL, Mass.
Gen. Laws ch. 149, § 148C(j), the complaint asserts that the ESTL
"further necessitates an analysis and interpretation of the terms

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of the [CBAs] made between the parties in a labor contract to
determine

whether

the

[ESTL]

'diminishes

or

impairs

the

obligations of an employer to comply with any contract, [CBA], or
any employment benefit program or plan . . . that provides to
employees greater earned sick time rights'" than the ESTL.
The Attorney General responded to the employers' suit in
the District Court by moving to dismiss under both Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). The District Court ruled
as follows.
Construing

the

complaint

as

a

"facial

preemption

challenge" against the ESTL, the District Court first concluded
that the employers would not be able to show that "all claims to
benefits under the" ESTL for all unionized workers in the state
would depend on CBA interpretation.

Labor Relations Div. v.

Healey, Civil Action No. 15-10116-RWZ, 2015 WL 4508646, at *7 (D.
Mass. July 9, 2015) (emphasis omitted).
reasoned

that

many

conceivable

ESTL

The District Court

claims

brought

against

employers who are parties to a CBA would not so depend on CBA
interpretation -- claims, for instance, involving workers earning
a "uniform hourly wage," or claims not involving a wage dispute at
all, such as retaliation.

Id.

Thus, the District Court held, the

employers' challenge failed the familiar test laid out in United
States v. Salerno, 481 U.S. 739, 745 (1987), which requires
plaintiffs bringing a facial challenge to a statute to show that

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there are no set of circumstances under which that statute would
be valid.

Id.

As a result, the District Court dismissed what it

characterized

as

the

employers'

facial

challenge

under

Rule

12(b)(6).
The

District

Court

then

considered

the

employers'

challenge to the ESTL "as an as-applied challenge" to only those
enforcement actions (whether brought by the Attorney General or by
employees) that would involve CBA interpretation.
The

District

Court

held,

however,

that,

so

Id. at *8-*9.

understood,

the

complaint was not ripe for adjudication because, at the time the
complaint was filed, "the purported application of the [ESTL] to
[the employers] ha[d] been -- at best -- hypothetical."
*9.

Id. at

The District Court emphasized that no employee had, to that

point, brought a claim for paid sick time under the ESTL.
"Neither,"

the

General."
the

Id.

District

observed,

"ha[d]

the

Attorney

On this basis, the District Court concluded that

employers'

justiciable

Court

Id.

case

as-applied
or

challenge

controversy

under

"[did]
the

not

present"

Article

III,

a
and

therefore the District Court dismissed the case under Rule 12(b)(1)
for lack of subject matter jurisdiction.

Id.

The employers now appeal.
II.
Although the Attorney General does not dispute that the
suit, if understood to be a facial challenge to the ESTL, is ripe

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adjudication,

ourselves.

we

are

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obliged

to

determine

Entry ID: 6055719

ripeness

for

See City of Fall River v. FERC, 507 F.3d 1, 6 (1st

Cir. 2007) (noting that "the question of ripeness may be considered
on a court's own motion" (internal quotation marks and citation
omitted)).

And, after doing so, we hold, as the United States

contends as amicus, that this case, even if characterized as a
facial challenge, is not ripe and thus must be dismissed for lack
of jurisdiction.2
A.
The "'basic rationale' of the ripeness inquiry is 'to
prevent the courts, through avoidance of premature adjudication,
from

entangling

themselves

in

abstract

disagreements'"

violation of Article III's case or controversy requirement.

in

Roman

Catholic Bishop of Springfield v. City of Springfield, 724 F.3d
78, 89 (1st Cir. 2013) (quoting Abbott Labs. v. Gardner, 387 U.S.
136, 148 (1967)).
in

each

case

circumstances,

is

As the Supreme Court has put it, "the question
whether

show

that

the
there

facts

alleged,

is

substantial

a

under

all

the

controversy,

between parties having adverse legal interests, of sufficient
immediacy and reality to warrant the issuance of a declaratory
judgment."

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127

2

We also acknowledge the helpful amicus briefs filed by the
City of New York, et al., the Massachusetts AFL-CIO, the Public
Health Advocacy Institute et al., and SEIU Local 32BJ, et al.

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(2007) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270,
273 (1941)).
In line with these principles, a claim is ripe only if
the party bringing suit can show both that the issues raised are
fit for judicial decision at the time the suit is filed and that
the

party

bringing

suit

consideration" is withheld.

will

suffer

hardship

if

"court

McInnis-Misenor v. Me. Med. Ctr., 319

F.3d 63, 70 (1st Cir. 2003) (quoting Abbott Labs., 387 U.S. at
149).

In considering the fitness prong of the ripeness inquiry,

we have emphasized that a "claim is not ripe for adjudication if
it rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all."

City of Fall River,

507 F.3d at 6 (quoting Texas v. United States, 523 U.S. 296, 300
(1998)).

In

a

similar

vein,

we

have

explained

that

"[t]he

conditional nature of the claims" strongly counsels against a
finding of hardship.

McInnis-Misenor, 319 F.3d at 73.

The burden to prove ripeness is on the party seeking
jurisdiction.

See Nulankeyutmonen Nkihtaqmikon v. Impson, 503

F.3d 18, 25 (1st Cir. 2007).

The pleading standard for satisfying

the factual predicates for proving jurisdiction is the same as
applies under Rule 12(b)(6) -- that is, the plaintiffs must "state
a claim to relief that is plausible on its face."

See Román-

Oliveras v. P.R. Elec. Power Auth., 655 F.3d 43, 45 n.3, 49 (1st
Cir. 2011); Silha v. ACT, Inc., 807 F.3d 169, 174 (7th Cir. 2015)

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(collecting cases from other circuits). In evaluating such claims,
we must separate out factual assertions from legal conclusions.
As the Court instructed in Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009), "the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.

Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice."
Our review for ripeness is de novo.

Riva v. Massachusetts, 61

F.3d 1003, 1007 (1st Cir. 1995) ("[A] trial court's determination
on a paper record that the case before it lacks ripeness presents
a question of law subject to plenary review.").
B.
We start by considering whether the employers' preenforcement request for relief against the Attorney General is fit
for judicial resolution.

In contending that it is, the employers

acknowledge that they seek relief from ESTL actions that have not
yet been brought.

But, they contend, Section 301 preemption would

block any such suit.3

Therefore, the employers contend that there

3

The complaint seeks generally a declaration that the ESTL
"is preempted by Section 301." But, as we have suggested above,
preemption in this context is a complex concept with varying
consequences. See Livadas, 512 U.S. at 124 n.18. The complaint
goes on, however, to seek preemption-based relief -- namely, that
the Attorney General is "precluded from enforcing" the ESTL or
authorizing suit to enforce the ESTL by aggrieved employees. That
request for relief assumes that the consequences of preemption
here would be to prevent any such ESTL suit from going to court.
All the employers' briefing proceeds on a similar understanding of
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is no reason to wait to provide them the relief they seek because,
even at this early stage, the case is sufficiently developed to be
adjudicated.

We do not agree.4

Unlike a typical claim of field preemption, a claim of
preemption under Section 301 that is lodged against a suit to
enforce a state-law cause of action, such as one granted by a
measure like the ESTL, does not involve "purely legal questions,
where the matter can be resolved solely on the basis of the state
and federal statutes at issue."
F.3d 751, 759 (7th Cir. 2008).

Wis. Cent., Ltd. v. Shannon, 539
Rather, Section 301 preemption can

"defeat[]" a claim brought under the ESTL -- and thus support the
employers' request for relief in this case -- only if the specific
claim that is brought is determined to depend upon the provisions
of the CBA.

Livadas, 512 U.S. at 125.

what preemption would entail.
that basis.

But, as this case comes to

Accordingly, we decide the case on

4

We recognize, as the Court has recently explained, that
"[t]he doctrines of standing and ripeness 'originate' from the
same Article III limitation," and therefore that the ripeness
analysis we undertake has commonalities with the injury-in-fact
analysis we undertake when considering issues of standing. Susan
B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 n.5 (2014)
(quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006)).
But, in this case, the parties have reasonably cast the
jurisdictional issue as one that implicates ripeness, and, we note,
the Seventh Circuit has applied the ripeness inquiry to evaluate
Article III jurisdiction in the very similar case of Wisconsin
Central, Ltd. v. Shannon, 539 F.3d 751, 759 (7th Cir. 2008). We
follow that same course.

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us, it is not sufficiently developed to be fit for such a claimspecific preemption inquiry.
The Seventh Circuit's analysis of ripeness in the quite
similar

preemption-based

challenge

instructive. 539 F.3d at 759-61.
employer's

challenge

to

a

presented

in

Shannon

is

There, the court considered an

state

agency

official's

possible

enforcement of a state overtime law under the Railway Labor Act,
which has a preemption provision that operates in the same claimspecific manner as does preemption under Section 301. See Shannon,
539 F.3d at 754-56; see also Hawaiian Airlines, Inc. v. Norris,
512 U.S. 246, 260 (1994).

Even in the somewhat more developed

state of that case, however, the Seventh Circuit held that the
claim was not fit for adjudication because the state agency's
investigation had not "progressed to a point where it [could] be
determined what dispute, if any, the parties [would] have over the
CBAs'

terms,"

Shannon,

539

F.3d

at

760,

as

there

are

"many

scenarios where CBAs may be implicated as part of a state or
federal cause of action, but preemption/preclusion of the claim
[would be] unnecessary," including situations "where reference to
the CBA is only necessary for computing damages," id. at 758.
If anything, the ripeness problem is even more acute
here.

At this pre-enforcement stage, there is no particular claim

that has been identified at all.

We thus cannot perform the

requisite claim-specific preemption analysis as to any claim that

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may be brought, as we have before us only hypothetical ESTL claims,
the details of which are not known.
To the extent that the employers contend that no details
about a particular ESTL claim need be known because all ESTL claims
are necessarily CBA-dependent, that contention is not supported by
facts alleged in the complaint.

In so concluding, we may take as

true the questionable statement in the employers' complaint that
"[a]ny and all state law claims brought under the [ESTL] would
require a determination of the 'hourly rate' of a worker covered
by a [CBA]."

But, even if we accept that contention, we do

not accept the further assertion in the employers' complaint that
all claims brought under the ESTL that require a determination of
an employee's hourly rate thereby trigger Section 301 preemption.
That contention is one of law, not fact, see Iqbal, 556 U.S. at
679, and it is plainly not sustainable.
For example, as the District Court rightly explained,
ESTL enforcement actions may turn on issues concerning "liability"
under the ESTL that are entirely independent of any CBA terms that
may govern the hourly rate of pay for an employee, Livadas, 512
U.S. at 125, such as whether an employer retaliated against an
employee for bringing an ESTL claim or whether an employee took
leave for a permissible purpose under the law.
WL 4508646, at *7.

See Healey, 2015

Because the "liability" portion of the claim

in such actions would be "governed by independent state law," there

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would be "no reason to hold the state-law claim defeated by § 301"
in such cases, even if the need arose to "'look to' the [CBA]" to
calculate an employee's hourly rate under the ESTL for the purpose
of calculating his "damages."

Livadas, 512 U.S. at 125; see also

Lingle, 486 U.S. at 413 n.12 (even where "federal law would govern
the interpretation of [a CBA] to determine the proper damages, the
underlying

state-law

claim,

not

otherwise

pre-empted,

would

stand").
Similarly,

we

may

accept

as

true

the

questionable

allegation in the employers' complaint that all claims to enforce
the ESTL on behalf of unionized employees will require a court to
"determine

whether

the

[ESTL]

'diminishes

or

impairs

the

obligations of an employer to comply with any . . . [CBA] . . .
that provides to employees greater earned sick time rights'" than
the ESTL.

But, even if we do so, it does not follow that ESTL

claims brought against the employers will depend upon the CBA.
Often, the Attorney General or an aggrieved employee will be
seeking relief under the ESTL that is plainly greater than the
relief afforded by the CBA.

In such a case, liability under the

law is still determined by the ESTL and not the CBA, insofar as
Section 301 "cannot be read broadly to preempt nonnegotiable rights
conferred on individual employees as a matter of state law."
Livadas, 512 U.S. at 123.

In other words, the "legal character of

[such] a claim" is still "'independent' of rights under the [CBA]"

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because the question confronting a court concerns whether the
employer, notwithstanding the CBA, has violated the ESTL.

Id.5

As a result, the employers seek to have us adjudicate a necessarily
fact-dependent dispute about how an ESTL suit would relate to an
underlying CBA in advance of us having any actual claims that
present the facts that would be relevant to our assessment of that
relationship.
To be sure, at some point, some action may be brought
under the ESTL against an employer who is a party to a CBA.

And

such an action may even be brought by an aggrieved employee, who
is also a party to that labor agreement.6

In the event such a suit

5

It would seem likely that the employers would be the ones
who would assert that some CBA-created obligation to provide
greater benefits than those provided under the ESTL trumps the
requirements of the ESTL. But the Court has made clear that a
defense based on preemption under Section 301 may not be used to
bring the underlying state-law claim into federal court.
See
Caterpillar Inc. v. Williams, 482 U.S. 386, 398 (1987). For that
reason, we question whether a federal court would even have
jurisdiction to decide a case arising in this speculative posture.
6

Of course, the employers do also seek, in substantial part,
advance relief from actions that would be brought by the Attorney
General rather than by an aggrieved employee. But the Attorney
General is not alleged in the employers' complaint to be a party
to any CBA and thus would not appear herself to be bound by any
CBA terms, including those mandating arbitration of disputes over
its meaning. Cf. Waffle House v. EEOC, 534 U.S. 279, 293 (2002)
(holding that a private arbitration agreement between an employee
and an employer could not bind a nonparty governmental agency, the
EEOC, and thus that the agreement -- which was enforceable against
the employee under the Federal Arbitration Act -- did not limit
the types of remedies the agency could seek in an enforcement
action it initiated under Title VII); see also Pruell, 645 F.3d at
83 ("[R]emoval and dismissal based on complete preemption under
[Section 301] must start with a plaintiff covered by a CBA . . . ."
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is brought, we would know at that time the details of the actual
ESTL claim presented.

We therefore would be well positioned to

assess whether that particular claim -- though predicated on the
ESTL -- nevertheless depended on a provision of the governing CBA.
And

we

would

then

also

be

able

to

determine

whether,

in

consequence, the actual claim brought should be dismissed in accord
with provisions in that CBA requiring that a dispute over its terms
be arbitrated or whether preemption requires instead that the claim
be addressed in some other manner.

See Roman Catholic Bishop, 724

F.3d at 92 (withholding consideration on ripeness grounds of the
plaintiff's

challenge

to

future

applications

of

a

city

preservation ordinance until the plaintiff "settled upon any plan
for future use of the property that would necessarily entail
changes

to

the

[c]hurch's

exterior"

and

thus

trigger

the

(emphases in original)).
And the employers provide us with no
insight into how Section 301 preemption would apply when a statelaw claim arguably dependent on CBA interpretation is brought by
a CBA nonparty to enforce rights of CBA parties. But, given the
other problems that we have identified with finding this case to
be fit for resolution at this time and that are present no matter
which party brings an ESTL action, we need not decide how or
whether Section 301 preemption might apply to an ESTL action
brought by the Attorney General herself. We do note, though, that
it would surely be better to make any such decision in the context
of a real and concrete dispute rather than as to a hypothetical
one. See id. at 85 (holding that it would be "unwise, even perhaps
inappropriate" to consider whether state-law claims asserted on
behalf of a putative class were preempted by Section 301 before
learning whether the named plaintiffs were covered by CBAs and
thus "whether any CBA [would be] implicated in claims asserted by
the named plaintiffs").

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application of the ordinance).

Date Filed: 12/16/2016

Entry ID: 6055719

But no such suit has been brought,

and thus no such claim-specific inquiry can be made.

We are

therefore asked to resolve a hypothetical and abstract dispute
rather than a real and concrete one.

See McInnis-Misenor, 319

F.3d at 72 (holding that the plaintiff's claim was unripe because
it "depends on future events that may never come to pass, or that
may not occur in the form forecasted" and thus was "largely
hypothetical" (quoting Ernst & Young v. Depositors Econ. Prot.
Corp., 45 F.3d 530, 537 (1st Cir. 1995))).

Accordingly, we

conclude that this case does not satisfy the first prong of the
ripeness

inquiry,

as

it

is

too

contingent

on

as-yet-unknown

features of as-yet-unspecified claims to be fit for adjudication
at this time.

See id. at 73; see also Shannon, 539 F.3d at 760.

Our analysis under the first prong of the ripeness
inquiry also dictates the outcome as to the second prong, which
concerns the harm to the parties seeking relief that would come to
those parties from our "withholding of a decision" at this time.
McInnis-Misenor, 319 F.3d at 73.
on 'direct and immediate' harm.
contingent harm."

Here, too, the analysis "focuses
It is unconcerned with wholly

Id. (quoting W.R. Grace & Co. v. United States

EPA, 959 F.2d 360, 367 (1st Cir. 1992)). As we have just explained,
this case fails to satisfy the first prong because it is contingent
on the details of future ESTL claims that are not now known.

For

the same reason, the harm to the employers from any delay in having

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also

Entry ID: 6055719

contingent.

See

Shannon, 539 F.3d at 761 (noting that the case did not present a
"circumstance
subsequent

where

the

enforcement

of

[state
the

agency's]

[s]tate's

investigation

overtime

laws

and
would

invariably lead to a finding of preemption," and thus that the
hardship the plaintiff alleged -- the "need to defend itself in an
enforcement action ultimately [held to be] preempted due to the
need for an arbitrator, rather than a court, to interpret [] CBAs"
-- would not necessarily come to pass because any enforcement
action actually brought by the state agency might not necessarily
be preempted).7
III.
Our focus on the claim-specific nature of Section 301
preemption also points the way to our resolution of the final issue

7

The hardship showing is especially uncertain as to any
future ESTL claim brought by the Attorney General, even if any
such claim were determined to depend upon the interpretation of a
provision of the CBA.
After all, because the employers do not
allege that the Attorney General is a party to any such CBA, the
actual preemptive effect of Section 301 on any such ESTL action is
far from clear.
See Waffle House, 534 U.S. at 293; see also
Pruell, 645 F.3d at 83. Nor is the employers' hardship showing
appreciably stronger as regards the request for relief against the
Attorney General as to her role under the ESTL with respect to
actions brought by aggrieved employees. The Attorney General does
not appear to have any role in authorizing such actions beyond
permitting them to be filed in court somewhat sooner than otherwise
would be allowed by operation of the ESTL itself. See Mass. Gen.
Laws ch. 149, §§ 148C(l) & 150. Withholding adjudication of this
challenge, therefore, at most would appear to permit some as-yetunfiled lawsuit by an employee -- which may or may not be preempted
-- to be brought a few months earlier than it otherwise could be.

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that the employers raise.

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They contend that the District Court

erred in refusing to consider certain CBAs to which some of them
are parties and that had been attached to the employers' opposition
to the Attorney General's motion to dismiss.
"[u]nder

certain

'narrow

exceptions,'"

It is true that,

district

courts

may

consider "some extrinsic documents . . . without converting a
motion to dismiss into a motion for summary judgment."

Freeman v.

Town of Hudson, 714 F.3d 29, 36 (1st Cir. 2013) (quoting Watterson
v. Page, 987 F.3d 1, 3 (1st Cir. 1993)).

But the only exception

that is arguably applicable here -- for documents "central to
plaintiffs' claim" -- does not apply.

Id. (quoting Watterson, 987

F.2d at 3).
The employers offer no persuasive explanation for how
the terms of the CBAs that the employers contend the District Court
wrongly failed to consider could, on their own, meaningfully
advance the preemption-based request for relief.

The employers

therefore offer no account of how those CBAs are central to their
claim.

The terms of those CBAs do not on their own suffice to

show that those CBAs can determine the outcome of the Section 301
inquiry without regard to the actual ESTL claim brought, nor do
the employers explain how the CBAs might do so.

For that reason,

the preemption analysis in any actual enforcement action will
necessarily depend on the specifics of the actual ESTL claim that
is brought, even in a case in which one of the CBAs in question is

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It is thus only once the specifics of an actual claim

are known that it will be possible to determine both how that claim
relates to the governing CBA and how that claim may implicate
Section 301 preemption.

We therefore see no basis for reversing

the District Court's ruling regarding the CBAs in question, even
if we were to assume, favorably to the employers, that our review
of the District Court's ruling in this regard is de novo.

See id.

at 36 n.5.
IV.
For these reasons, the suit is dismissed for lack of
jurisdiction.

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