Independent Training and Apprenticeship, et al v. CA Dept. of Industrial Relations, et al
Filing
20
ORDER DENYING 6 Motion for Preliminary Injunction signed by Judge Garland E. Burrell, Jr on 8/15/11. (Manzer, C)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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INDEPENDENT TRAINING AND
APPRENTICESHIP PROGRAM, a
California corporation, BRANDIN
MOYER, and HAROLD E. NUTTER,
INC., a California Corporation,
Plaintiffs,
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v.
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CALIFORNIA DEPARTMENT OF
INDUSTRIAL RELATIONS, an agency
of the State of California, by
and through CHRISTINE BAKER, in
her official capacity as Acting
Director of the CALIFORNIA
DEPARTMENT OF INDUSTRIAL
RELATIONS, DIVISION OF
APPRENTICESHIP STANDARDS, by and
through GLEN FORMAN, in his
official capacity as Acting
Chief, DIVISION OF LABOR
STANDARDS ENFORCEMENT, by and
through JULIE SU, in her
official capacity as Labor
Commissioner,
Defendants.
________________________________
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2:11-cv-01047-GEB-DAD
ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION
Plaintiffs seek a preliminary injunction enjoining Defendants
23
24
from,
inter
alia,
enforcing
California’s
prevailing
wage
and
25
apprenticeship laws on three California public works projects.1 The laws
26
at issue are prescribed in California Labor Code sections 1771, et seq.
27
28
1
The authority on which Plaintiffs’ injunctive relief is based
is discussed infra.
1
1
and section 3070, et seq. Plaintiffs argue enforcement of these laws on
2
the referenced projects violates the Supremacy Clause, Commerce Clause,
3
Equal
4
Immunities Clause in the United States Constitution. Defendants oppose
5
the motion. Argument on the motion was heard on July 18, 2011.
Protection
Clause,
6
Due
Process
Clause
and
Privileges
and
I. LEGAL STANDARD
7
A preliminary injunction is “an extraordinary remedy that may
8
only be awarded upon a clear showing that the plaintiff is entitled to
9
such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22
10
(2008). Plaintiffs seeking a preliminary injunction must establish that
11
“(1) they are likely to succeed on the merits; (2) they are likely to
12
suffer irreparable harm in the absence of preliminary relief; (3) the
13
balance
14
injunction is in the public interest.” Sierra Forest Legacy v. Rey, 577
15
F.3d 1015, 1021 (9th Cir. 2009)(citing Winter, 555 U.S. at 19).
of
equities
tips
in
their
favor;
and
(4)
a
preliminary
16
Further, the Ninth Circuit’s “‘serious questions’ approach
17
survives Winter when applied as part of the four-element Winter test.”
18
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.
19
2011). In other words, “‘serious questions going to the merits’ and a
20
balance of hardships that tips sharply towards the plaintiff can support
21
issuance of a preliminary injunction, so long as the plaintiff also
22
shows that there is a likelihood of irreparable injury and that the
23
injunction is in the public interest.” Id.
24
II. BACKGROUND
25
A.
26
The Fitzgerald Act, the Shelley–Maloney Act, and the Derecognition of California’s State Apprenticeship Council for
Federal Purposes
27
Plaintiffs’ injunctive relief request concerns the following
28
congressional enactment act and California laws. “Congress enacted the
2
1
Fitzgerald Act [, 29 U.S.C. § 50,] in 1937 for the purposes of
2
protecting
3
standards, promoting apprenticeship as a system of training skilled
4
workers and encouraging the federal government to cooperate with state
5
agencies in formulating apprentice standards.” Joint Apprenticeship &
6
Training Council of Local 363, Int’l Bhd. of Teamsters, AFL-CIO v. New
7
York State Dep’t of Labor, 984 F.2d 589, 591 (2d. Cir. 1993). The
8
Fitzgerald Act provides in relevant part:
9
apprentices
through
the
establishment
of
minimum
labor
The Secretary of Labor is authorized and
directed to formulate and promote the furtherance
of labor standards necessary to safeguard the
welfare of apprentices, to extend the application
of such standards by encouraging the inclusion
thereof in contracts of apprenticeship, to bring
together employers and labor for the formulation of
programs of apprenticeship, to cooperate with State
agencies engaged in the formulation and promotion
of standards of apprenticeship....
10
11
12
13
14
15
29
16
regulations, 29 C.F.R. part 29, under the Fitzgerald Act “to establish,
17
for certain Federal purposes, labor standards, policies and procedures
18
for the registration, cancellation and deregistration of apprenticeship
19
programs, and apprenticeship agreements.” Apprenticeship Programs, Labor
20
Standards for Regulation, Amendment of Regulations, 72 Fed. Reg. 71020
21
(Dec. 13, 2007)(summary).
U.S.C.
§
50.
In
1977,
the
Department
of
Labor
promulgated
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23
24
25
26
27
28
The[se] regulations establish the [Office of
Apprenticeship Training, Employment and Labor
Services
(“OATELS”)],
for
the
purpose
of
administering the registration and approval of
apprenticeship programs and other provisions of the
regulations. [OATELS] is authorized to certify
apprenticeship standards and to register and
approve
local
apprenticeship
programs
and
apprenticeship agreements for federal purposes. The
regulations also authorize [OATELS] to approve
appropriate state bodies for registration and/or
approval of local apprenticeship programs and
agreements for federal purposes.
3
1
Elec. Joint Apprenticeship Comm. v. MacDonald, 949 F.2d 270, 273 (9th
2
Cir. 1991)(internal quotation marks and citations omitted). Thus, 29
3
C.F.R. part 29 “provides for a dual system of approval and recognition
4
so that either [OATELS] or the State Apprenticeship Council can approve
5
an apprenticeship program for federal purposes[; h]owever, either agency
6
is constrained in its approval to apply the requirements and standards
7
of the federal regulations.” Id.
8
“To be approved as a [State Apprenticeship Council (“SAC”)],
9
a state must submit proof of[, inter alia,] acceptable apprenticeship
10
laws and regulations; . . . a description of the standards, criteria,
11
and
requirements
for
program
registration
and/or
approval;
and
a
12
description of the policies and operating procedures which depart from
13
or impose requirements in addition to those in the federal regulations.”
14
S.
Cal.
Chapter
of
Assoc.
Builders
&
Contractors,
Inc.,
Joint
15
Apprenticeship Comm. v. Cal. Apprenticeship Council, 4 Cal. 4th 422, 433
16
(1992)(internal citations omitted). “If a state does not continue to
17
meet the federal requirements, it may be ‘derecognized.’” Id. (citing 29
18
C.F.R. § 29.13 (1992).)
19
“In California, apprenticeship training is governed by the
20
Shelley–Maloney
Apprenticeship
Labor
Standards
Act
of
1939
21
[(“Shelley–Maloney Act”)], which is codified as California Labor Code
22
section 3070 et seq.” S. Cal. Chapter of Assoc. Builders & Contractors,
23
Inc., Joint Apprenticeship Comm., 4 Cal. 4th at 433. “Pursuant to the
24
Shelley–Maloney Act, apprenticeship training is administered by the
25
Division [of Apprenticeship Standards (“DAS”)], which is under the
26
auspices of the Department of Industrial Relations [(“DIR”)](hereafter
27
Department).” Id. (citation omitted). “The Chief of the [DAS] . . .
28
administers the apprenticeship law . . . and is empowered to investigate
4
1
and either approve or disapprove written standards for apprenticeship
2
programs.” Id. (citations omitted).
3
California was “authorized under 29 C.F.R. § 29.12 to approve
4
apprenticeship programs for federal purposes as a SAC state [in] 1978.”
5
Cal. Div. Of Labor Standards Enforcement v. Dillingham Constr., N.A.,
6
Inc., 519 U.S. 316, 320 (1997). However, after California amended its
7
apprenticeship law – California Labor Code § 3075 – in 1999, OATELS
8
“began proceedings to derecognize” California as a SAC state “contending
9
that the amended apprenticeship statute did not conform to federal
10
standards.” Cal. Dept. of Indus. Relations, Adm. Rev. Bd. Case No. 05-
11
093, 2007 WL 352459 (Dep’t of Labor Jan. 31, 2007) (final decision and
12
order). The United States Department of Labor’s Administrative Review
13
Board ultimately withdrew California’s recognition as a SAC state on
14
January 31, 2007. Cal. Dept. of Indus. Relations, 72 Fed. Reg. 9590-01
15
(Dep’t of Labor Mar. 2, 2007) (notice). Therefore, California “no longer
16
has the authority to register or oversee apprenticeship programs for
17
‘Federal purposes.’” Id.
18
B.
The Three Public Works Projects at Issue
19
Plaintiffs’ motion concerns the enforcement of California
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apprenticeship and prevailing wage laws on the following three public
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works projects (referenced collectively as “state projects”): (1) the
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Chicago Park Elementary School Multi-purpose/Gymnasium Expansion & Four
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New Relocatable Classroom Buildings Project in Nevada County, (“Chicago
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Park Project”); (2) the Marysville High School Alternative Education
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Center Project in Yuba County, (“Marysville High Project”); and (3)
26
Williams-Brotherhood Joint Use Gym in Stockton, California (“Stockton
27
Project”). The "Chicago Park Project" is a multi-purpose gymnasium and
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classroom expansion project. (Pls.’ Compendium of Evidence in Supp. of
5
1
Mot. for Prelim. Inj., Decl. of Michael Genest ¶ 3, ECF No. 6-2 (“Genest
2
Decl.”).)
3
The Treasurer of the State of California used a portion of the
4
proceeds from the sale of “Build America Bonds,” which occurred in April
5
2009 and May 2010, to fund a portion of the Stockton Project and the
6
Chicago Park Project. (Genest Decl. ¶¶ 10a, 10c.) “Build America Bonds”
7
are a new form of municipal bond which are subject to federal taxes. Id.
8
¶ 8. However, the U.S. Treasury pays a subsidy to the municipal lender
9
to cover the differential costs associated with the taxable nature of
10
the bond. Id.
11
Marysville High Project with funds received from the sell of municipal
12
bonds, which are usually exempt from federal taxation. Id. ¶¶ 5, 10b.
13
Plaintiffs argue that the referenced financing for the state projects
14
causes the projects to be projects for a “federal purpose” under the
15
Fitzgerald
Act
16
referenced
federal tax incentives involved with funding the projects.
17
(Pls. Mot. for Prelim. Inj. at 21-24.)
The Treasurer of the State of California funded the
and
18
19
20
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its
implementing
regulations,
because
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27
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the
III. DISCUSSION
A.
Standing / Ripeness of Specific Injunctive Relief Sought
Plaintiffs request the following specific relief in their
preliminary injunction motion:
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of
[An order]
. . . :
enjoining
and
prohibiting Defendants
(a) From refusing to recognize and comply
with the United State Department of Labor
Administrative Review Board’s “Final Decision and
Order” of January 31, 2007 and the U.S. Department
of Labor’s March 2, 2007 public notice, pursuant to
29 C.F.R. 29.13(d), that “the CDIR and the CAC no
longer have authority to register or oversee
apprenticeship programs for ‘Federal purposes’ ”
(72 F.R. 9590).
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2
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(b) From
enforcing
California
Code of
Regulations Section 16001 with respect to projects
involving
“any
Federal
financial
or
other
assistance,
benefit,
privilege,
contribution,
allowance,
exemption,
preference
or
right
pertaining to apprenticeship;”
4
5
6
(c) From enforcing California Labor Code
Section 1777.5 with respect to apprentices from
federally approved apprenticeship training programs
working on public works projects with a Federal
purpose;
7
8
(d) From refusing to enforce 29 C.F.R. Part
29 with respect to what constitutes a “Federal
purpose;”
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10
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12
13
14
15
16
17
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19
20
21
22
23
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(e) From
refusing
to
acknowledge
that
Plaintiff I-TAP is an approved apprenticeship
program for all public works projects with a
“Federal purpose” in California;
(f) From refusing to allow contractors to pay
Plaintiff
I-TAP’s
apprentices
at
apprentice
prevailing wage rates rather than journeyman
prevailing wage rates on public works projects in
California with any Federal purpose;
(g) From refusing to allow Plaintiff I-TAP to
receive fringe training contributions as an
approved program on such projects;
(h) Directing Defendants to recognize Brandin
Moyer and all other similarly situated electrical
tradesmen
enrolled
in
federally
certified
apprenticeship programs as “apprentices” entitled
to all of the “assistance, benefits, privileges,
contributions, allowances, exemptions, preferences
and/or rights pertaining to apprenticeship” (29
C.F.R. § 29.2) on public works project in
California that are accorded to “apprentices” in
apprenticeship programs certified by DAS pursuant
to the provisions of the California Labor Code;
(i) Directing Defendants to rescind the Civil
Wage and Penalty Assessment issued in Case No.
40-26553/254 as against Plaintiff Harold E. Nutter,
Inc.; and
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26
27
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(j) Directing Defendants to refrain from
purporting to enforce any penalties, assessments or
sanctions against Plaintiff Harold E. Nutter, Inc.
or any other contractor on the grounds that
apprentices participating in I-TAP’s apprenticeship
training program, or any other federally certified
program, do not qualify for payment of apprentice
7
1
prevailing wage rates pursuant to California Labor
Code §1777.5.
2
3
(Pls.’ Mem. of P.&A. in Supp. of Mot. for Prelim. Inj. (“Mot.”) 30:22-
4
32:4.) However, Plaintiffs have not shown that they have standing to
5
request much of the specific injunctive relief sought and/or that it is
6
ripe for judicial decision.
7
Article III of the Constitution “restricts federal court[]
8
[jurisdiction] to the resolution of cases and controversies.” Davis v.
9
Fed. Election Commm’n, 554 U.S. 724, 732 (2008). “Two components of the
10
Article III case or controversy requirement are [the closely related
11
concepts of] standing and ripeness.” Bova v. City of Medford, 564 F.3d
12
1093, 1095-96 (2009). “To allege a justiciable [request for injunctive
13
relief], [Plaintiffs] must plead facts that are sufficient to confer
14
standing and demonstrate that the [request] is ripe for determination.”
15
Dermer v. Miami-Dade Cnty., 599 F.3d 1217, 1220 (11th Cir. 2010).
16
Further, “[P]laintiff[s] must demonstrate standing separately for each
17
form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl.
18
Servs., Inc., 528 U.S., 167, 185 (2000)(citations omitted). “[S]tanding
19
is not dispensed in gross.”
20
(1996).
Lewis v. Casey, 518 U.S. 343, 358 n.6
21
Specifically, Plaintiffs “must demonstrate three elements
22
which constitute the ‘irreducible constitutional minimum’ of Article III
23
standing.” San Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126
24
(9th Cir. 1996)(quoting Lujan, 504 U.S. at 560).
25
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27
28
First,
[they]
must
have
suffered
an
“injury-in-fact” to a legally protected interest
that is both “concrete and particularized” and
“actual or imminent,” as opposed to “‘conjectural'
or ‘hypothetical.’” Second, there must be a causal
connection between [their] injury and the conduct
complained of. Third, it must be “likely” - not
8
1
merely “speculative” - that [their] injury will be
“redressed by a favorable decision.”
2
Id. (quoting Lujan, at 560-61).
3
In
comparison,
“[r]ipeness
is
peculiarly
a
question
of
4
timing.” Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 580
5
(1985). “For a suit to be ripe within the meaning of Article III, it
6
must present concrete legal issues, presented in actual cases, not
7
abstractions.” Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112,
8
1123 (9th Cir. 2009). “A claim is not ripe for adjudication if it rests
9
upon contingent future events that may not occur as anticipated, or
10
indeed may not occur at all.” Texas v. U.S., 523 U.S. 296, 300
11
(1998)(internal quotation marks and citation omitted).
12
In many cases, “the constitutional component of the ripeness
13
inquiry” “coincides squarely with standing’s injury in fact prong.”
14
Sacks v. Office of Foreign Assets Control, 466 F.3d 764, 773 (9th Cir.
15
2006).
16
For example, a claim is not ripe for
adjudication if it rests upon contingent future
events . . . . That is so because, if the
contingent events do not occur, the plaintiff
likely will not have suffered an injury that is
concrete and particularized enough to establish the
first element of standing. In this way, ripeness
and standing are intertwined.
17
18
19
20
21
Id.
22
Part of the injunctive relief Plaintiffs seek essentially asks
23
the Court to address their conjectural concern that Defendants could
24
enforce California’s apprenticeship and prevailing wage laws on any
25
public works project that has a “federal purpose.” However, this
26
concern “is contingent upon events [that may not occur,]” and has not
27
been shown to be “concrete and particularized enough to survive the
28
standing/ripeness inquiry.” Bova, 564 F.3d at 1096-97. Therefore, this
9
1
concern has not been shown ripe for adjudication, and the issue is
2
whether Plaintiffs have a basis for enjoining the state projects.
3
generally, Lewis, 518 U.S. at 343 n.6 (stating “[i]f the right to
4
complain of one administrative deficiency automatically conferred the
5
right to complain of all administrative deficiencies, any citizen
6
aggrieved in one respect could bring the whole structure of state
7
administration before the courts for review. That is of course not the
8
law”).
9
B.
See
Likelihood of Success on the Merits
10
1.
11
Plaintiffs
Supremacy Clause Claim
argue
Defendants’
enforcement
of
California’s
12
apprenticeship and prevailing wage laws on the state projects violates
13
the Supremacy Clause of the United States Constitution because the
14
subject California law “violate[s] [the] national standard” created by
15
the Fitzgerald Act and its implementing regulations. (Mot. 15:15, 17:20-
16
18:1, 20:15-18, 24:13-25:20.)
17
Congress intended the Fitzgerald Act to preempt the subject California
18
law.
19
“[T]he
Supremacy
This argument concerns the issue whether
Clause,
U.S.
Const.,
Art.
VI,
cl.
2,
20
invalidates state laws that interfere with, or are contrary to federal
21
law.” Hillsborough Cnty., Fla. v. Automated Med. Labs., Inc., 471 U.S.
22
707, 712 (1985)(internal quotation marks and citations omitted).
23
24
25
26
27
28
Congressional intent to preempt state law can
either be expressed in statutory language or
implied from the scheme of federal regulation.
Implied pre-emption comes in two forms: field and
conflict preemption. Field preemption occurs when
the
federal
regulation
is
sufficiently
comprehensive to leave no room for supplementary
state regulation. Conflict preemption, in turn,
arises when: (1) compliance with both federal and
state regulations is a physical impossibility, or
(2) state law stands as an obstacle to the
10
1
accomplishment and execution of the full purposes
and objectives of Congress.
2
Gaeta
v.
Perrigo
Pharm.
Co.,
630
F.3d
1225,
1230-31
(9th
Cir.
3
2011)(internal
quotation
marks
and
citations
omitted).
However,
4
Plaintiffs concede in their Reply that Defendants “[are] free to
5
regulate apprenticeship for solely state purposes (i.e., where there is
6
no Federal purpose by the D.O.L regulatory definition)[.]” (Reply 13:187
21.) Therefore, Plaintiffs’ Supremacy Clause claim is based on the
8
contention that the state projects have a “federal purpose” prescribed
9
in 29 C.F.R. § 29.2, since the projects are funded, at least in part, by
10
municipal bonds that receive a benefit from a “Federal income tax
11
exemption for interest paid” on the bonds, or a Federal “subsidy to the
12
municipal
lender
[that]
cover[s]
the
differential
interest
costs
13
associated with the . . . bonds.” (Mot. 21:12-18, 22:7-16.)
14
Defendants counter that enforcement of the subject California
15
apprenticeship and prevailing wage laws on these projects is not
16
preempted by the Fitzgerald Act because the referenced public works
17
projects involve “state contract[s] for public construction[,]” which
18
are not within the “federal purpose” definition in 29 C.F.R. § 29.2.
19
(Opp’n
10:4-7,
10:23-26.)
Defendants
also
argue
that
Plaintiffs’
20
Supremacy Clause claim “reach[es] too far,” “by stretching the meaning
21
of the phrase ‘federal purposes pertaining to apprenticeship’ beyond any
22
reasonable interpretation.” Id. at 10:15-18, 27. Defendants further
23
argue that the projects do not involve “federal financial or other
24
assistance pertaining to apprenticeship[; i]nstead, there is federal tax
25
exemption . . . that pertains to investors, not apprentices.” Id. 10:2426
26.
27
29 C.F.R. § 29.2 prescribes “federal purposes” to include:
28
“any Federal contract, grant, agreement or arrangement dealing with
11
1
apprenticeship; and any Federal financial or other assistance, benefit,
2
privilege, contribution, allowance, exemption, preference or right
3
pertaining to apprenticeship.” (emphasis added). Plaintiffs have not
4
shown that what they characterize as federal tax benefits constitute a
5
“federal purpose” prescribed in § 29.2. Plaintiffs’ construction of
6
“federal purpose” in § 29.2 “reads the words [‘Federal’ and ‘pertaining
7
to apprenticeship’] into thin air[,]” contrary to the court’s duty in
8
interpreting a regulation “to give effect, if possible, to every clause
9
and word” of the regulation. Ramadan v. Keisler, 504 F.3d 973, 976 (9th
10
Cir. 2007) (citation omitted). “It is a fundamental cannon of statutory
11
construction that a statute should not be construed so as to render any
12
of its provisions mere surplusage.”
13
969, 975 (2003).
United States v. Wenner, 351 F.3d
14
Plaintiffs rely upon two opinion letters written by the
15
Administrator of OATELS as support for their argument that § 29.2's
16
definition of
17
federal benefits which are sufficient to make the “state projects”
18
projects that are with § 29.2's definition of “federal purpose.” (Mot.
19
15:2-7; Reply 7:20-8:1.) The referenced opinion letters were written in
20
response to inquiries concerning the status of apprenticeship programs
21
registered by OATELS in California and predate OATELS’ de-recognition of
22
the California Department of Industrial Relations and the California
23
Apprenticeship
24
Fitzgerald Act. The first opinion letter is dated July 16, 2004, and
25
states in pertinent part:
26
27
28
“federal purpose” encompasses what they characterize as
Council
as
an
SAC
for
federal
purposes
DOL’s position is that all SAC’s, including
California’s,
are
to
accept
programs
and
apprentices registered by OATELS, for Federal
purposes, on all federally funded or supported
public works projects, regardless of how much
Federal
funding
or
support
is
provided.
12
under
the
1
Accordingly, the Department expects the SACs to
accept OATELS registration for an entire public
works project, even if the project is funded in
part by the state or local government.
2
3
(Pls.’ Compendium of Evidence in Supp. of Mot. for Prelim. Inj., Decl.
4
of Juli Nutter, Ex. B, ECF No. 6-2, at 89.)
The second opinion letter,
5
dated October 4, 2004, states in relevant part: “OATELS’ registered
6
apprentices
must
be
recognized
as
registered
apprentices
for
the
7
purposes of all public works projects funded in whole or part with
8
Federal funds.” Id., at 91.
9
Assuming
arguendo
that
these
opinion
letters
support
10
Plaintiffs’ argument that “federal purpose” is defined broadly enough to
11
include a federal financial benefit as tangential as a tax exemption or
12
tax subsidy provided to a municipal lender, this interpretation would
13
not
be
entitled
to
deference.
“Interpretations
.
.
.
in
opinion
14
letters-like interpretations contained in policy statements, agency
15
manuals, and enforcement guidelines, all of which lack the force of
16
law-do not warrant Chevron-style deference.” Christensen v. Harris Cty.,
17
529 U.S. 576, 587 (2000) (citations omitted). “Instead, interpretations
18
contained in formats such as opinion letters are ‘entitled to respect’
19
under [the Supreme Court’s] decision in Skidmore v. Swift & Co., 323
20
U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), but only to the extent
21
that
those
interpretations
have
the
‘power
to
persuade[.]’”
Id.
22
(citation omitted). Like Plaintiffs’ construction of “federal purpose,”
23
these two opinion letters render the terms “Federal” and “pertaining to
24
apprenticeship” in § 29.2 mere surplusage. Therefore, even assuming
25
arguendo that the opinion letters could be interpreted as broadly as
26
Plaintiffs argue, that interpretation would be unpersuasive and would
27
not
be “entitled to respect.”
28
13
1
For the stated reasons, Plaintiffs have not shown that the
2
challenged California law and projects conflict with federal law.
3
Therefore, they have not shown a likelihood of success, nor raised
4
serious questions, on the merits of their Supremacy Clause claim.
5
2.
6
Plaintiffs also argue Defendants’ enforcement of California’s
7
apprenticeship and prevailing wage laws on the three referenced public
8
works
9
interstate commerce in violation of the [Commerce Clause of the United
Commerce Clause Claim
projects
“constitutes
an
unjustifiable
interference
with
10
States
11
apprentices from programs approved by the U.S. DOL in the other forty-
12
nine states from pursuing public work employment opportunities within
13
California.” (Mot. 26:12-19.)
Constitution,]
because
it
prevents
thoroughly
qualified
14
The Commerce Clause of the United States Constitution provides
15
“[t]he Congress shall have Power . . . [t]o regulate Commerce . . .
16
among the several States.”
17
been understood to have a ‘negative’ [or dormant] aspect that denies the
18
States the power unjustifiably to discriminate against or burden the
19
interstate flow of articles of commerce.” Or. Waste Sys., Inc. v. Dep’t
20
of Environmental Quality, 511 U.S. 93, 99 (1994); see also Brown v.
21
Hovatter, 561 F.3d 357, 364 (4th Cir. 2009) (stating “[t]he dormant
22
Commerce
23
interstate commerce commerce–the flow of goods, materials, and other
24
articles of commerce across state lines” (emphasis in original)).
25
Clause
is
Art. I, § 8, cl. 2. “[T]he Clause has long
implicated
by
burdens
placed
on
the
flow
of
Plaintiffs make no showing that California’s regulation of
26
its
27
apprenticeship laws has any relationship to the flow of articles of
28
inter-state commerce.
apprenticeship
programs
through
14
its
prevailing
wage
and
1
Therefore, Plaintiffs have not shown a likelihood of success,
2
nor raised serious questions, on the merits of their Commerce Clause
3
claim.
4
3.
5
Plaintiffs
Equal Protection Clause Claim
also
argue
that
Defendants
are
enforcing
a
6
classification in violation their Equal Protection rights that favors
7
apprenticeship programs already certified under state law while programs
8
certified under federal law are “economically disfavored and burdened
9
with rules so restrictive they effectively prevent individuals and
10
businesses
11
apprenticeship programs operating in the state.” (Mot. 27:25-28:4.)
from
participating
in
California’s
economy
through
12
“The first step in equal protection analysis is to identify
13
the state’s classification of groups.” Country Classic Dairies v.
14
Montana, Dep’t of Commerce Milk Control Bureau, 847 F.2d 593, 596 (9th
15
Cir. 1988). “Once the plaintiff establishes governmental classification,
16
it is necessary to identify a ‘similarly situated’ class against which
17
the plaintiff’s class can be compared.” Freeman v. City of Santa Ana, 68
18
F.3d
19
Protection Clause ‘is essentially a direction that all persons similarly
20
situated should be treated alike.’” Christian Legal Soc’y Chapter of
21
Univ. Of Cal. v. Wu, 626 F.3d 483, 487 (9th Cir. 2010) (citing City of
22
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). An equal
23
protection claim will not lie by conflating all persons not injured into
24
a
25
Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005).
1180,
preferred
1187
class
(9th
Cir.
receiving
1995)
better
(citation
treatment
omitted).
than
the
“The
Equal
plaintiff.
26
Plaintiffs have not shown that federal apprenticeship programs
27
and California apprenticeship program are “similarly situated” for
28
purposes of an Equal Protection claim. Further, Plaintiffs’ purported
15
1
class has not been shown to be similarly situated to any individual
2
approved to participate in California’s apprenticeship program.
3
Therefore, Plaintiffs have not shown a likelihood of success,
4
nor raised serious questions, on the merits of their Equal Protection
5
claim.
6
4.
7
Plaintiffs
Due Process Clause claims
also
argue
that
Defendants
actions,
which
8
“require[] contractors to use only California-certified apprentices” and
9
“preclude[]
federally
certified
apprenticeship
programs
and
their
10
enrollees from participating in public works projects in California”,
11
“deprive
12
occupation” in violation of their substantive due process rights. (Mot.
13
26:25-28:13.)
[P]laintiffs
of
liberty
–
the
right
to
pursue
a
lawful
14
“Substantive due process forbids the government from depriving
15
a person of life, liberty, or property in such a way that shocks the
16
conscience or interferes with the rights implicit in the concept of
17
ordered liberty.” Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009).
18
“To establish a violation of substantive due process, a plaintiff must
19
first show a deprivation of some fundamental right or liberty interest
20
that
21
Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1061 (9th Cir.
22
2006) (internal quotation and citation omitted). “The protections of
23
substantive due process have for the most part been accorded to matters
24
relating to marriage, family, procreation, and the right to bodily
25
integrity[,]” and “the [Supreme] Court has always been reluctant to
26
expand the concept of substantive due process because the guideposts for
27
responsible
28
open-ended.” Albright v. Oliver, 510 U.S. 266, 271-72 (1994).
is
deeply
rooted
in
decisionmaking
this
in
Nation's
this
16
history
uncharted
area
and
are
tradition.”
scarce
and
1
2
Plaintiffs have not shown that any fundamental right or liberty
interest is implicated in this case.
3
At the hearing on their motion Plaintiffs also indicated they
4
have also allege a procedural due process claim but made only a
5
conclusory unpersuasive oral argument in support of this claim.
6
For the stated reasons, Plaintiffs have not shown that they
7
have not shown a likelihood of success, nor raised serious questions, on
8
the merits of their Due Process claims.
9
5.
Privileges & Immunities Clause Claim
10
Lastly, when the court was sua sponte considering whether
11
subject matter jurisdiction exist in this action, it became aware that
12
Plaintiffs also allege that the California subject laws violate the
13
Privileges and Immunities Clause of the United States Constitution. (See
14
Compl. ¶ 9.)
15
“Discrimination on the basis of out-of-state residency is a
16
necessary element for a claim under the Privileges and Immunities
17
Clause.” Russell v. Hug, 275 F.3d 812, 821 (9th Cir. 2002).
18
Plaintiffs’ allegations are woefully insufficient to allege a claim
19
under the Privileges and Immunities Clause a claim under the Privileges
20
and Immunities Clause.
21
However,
B. Irreparable Harm / Balance of the Equities / Public Interest
22
Since Plaintiffs have failed to show a likelihood of success,
23
or raise a serious question, on the merits of any claim, the three
24
remaining injunction factors need not be addressed. See Doe v. Reed, 586
25
F.3d 671, 681 n.14 (9th Cir. 2009)(stating: “Because we conclude that
26
Plaintiffs have failed to satisfy the first Winter factor-likelihood of
27
success on the merits-we need not examine the three remaining Winter
28
factors . . . ”).
17
1
IV. CONCLUSION
2
For the stated reasons, Plaintiffs’ motion for a preliminary
3
injunction is DENIED.
4
Dated:
August 15, 2011
5
6
7
GARLAND E. BURRELL, JR.
United States District Judge
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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