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Shames v. Utility Consumers' Action Network (CA4/1 D070141 6/29/17) Wage and Hour/Attorneys’ Fees


Plaintiff Michael Shames appeals from a postjudgment order regarding attorney fees.  Shames filed this lawsuit against Defendant Utility Consumers' Action Network (UCAN) and two individual plaintiffs, alleging multiple causes of action, after UCAN terminated his employment.  The case proceeded to trial, and Shames prevailed on three causes of action, including one in which he sought unpaid wages in the form of bonus payments that were due to him pursuant to an incentive program.  After judgment was entered, Shames sought to recover the attorney fees that he incurred in litigating his claims.  Shames relied on two statutes for his request for attorney fees, but only one of those statutes is at issue in this appeal.  Specifically, Shames sought attorney fees pursuant to Labor Code section 218.5, which provides in full:


"(a) In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney's fees and costs to the prevailing party if any party to the action requests attorney's fees and costs upon the initiation of the action.  However, if the prevailing party in the court action is not an employee, attorney's fees and costs shall be awarded pursuant to this section only if the court finds that the employee brought the court action in bad faith.  This section shall not apply to an action brought by the Labor Commissioner.  This section shall not apply to a surety issuing a bond pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code or to an action to enforce a mechanics lien brought under Chapter 4 (commencing with Section 8400) of Title 2 of Part 6 of Division 4 of the Civil Code.


"(b) This section does not apply to any cause of action for which attorney's fees are recoverable under Section 1194."  (Italics added.)


The trial court denied Shames's request for attorney fees under section 218.5, concluding that he had failed to request attorney fees "upon the initiation of the action" because he did not request attorney fees in his initial complaint.  The court also concluded, in the alternative, that Shames's request for attorney fees in his amended complaint was not sufficient to permit him to recover attorney fees as costs pursuant to section 218.5.


On appeal, Shames challenges both of the trial court's conclusions regarding his failure to meet the requirements of section 218.5.  We conclude that we need not decide whether the trial court correctly determined that a request for attorney fees under section 218.5 must be included in the initial pleading, as opposed to an amended pleading, because even if it would be sufficient under the statute to include a request for attorney fees under section 218.5 in an amended pleading, Shames's amended pleading did not request attorney fees generally, nor did it request attorney fees under section 218.5 with respect to the cause of action in which Shames alleged that UCAN had failed to pay him his full wages.  Rather, the amended pleading included a reference to section 218.5 only as to a cause of action that was not brought on account of the nonpayment of wages, and one on which UCAN, not Shames, prevailed.  We therefore affirm the order of the trial court.


Int’l Bhd. Of Teamsters v. USDOT (9th Cir. 15-70754, 16-71137, 16-71992 6/29/17) Federal Motor Carrier Safety Administration/Mexico-Domiciled Trucking


The panel denied petitions for review challenging the Federal Motor Carrier Safety Administration’s (“FMCSA”) statutory authority to issue permits for U.S. long-haul operations to Mexico-domiciled trucking companies.


The panel held that the International Brotherhood of Teamsters and Intervenor Owner-Operator Independent Drivers Association, Inc. had Article III constitutional standing to challenge the FMSCA’s approval of Mexico-domiciled carriers. The panel further held that the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007 encompassed the Teamsters’ and the Drivers Association’s claims. Finally, the panel held that the Teamsters and the Drivers Association also had third-party organization standing.


The panel held that it could not review the petition for review of the issuance of a Pilot Program Report because it was not a final agency action under the Administrative Procedure Act, and dismissed the petition challenging it.


The panel held that the FMSCA’s grant of a long-haul operating permit to Mexico-domiciled carrier Trajosa SA de CV, and the denial of the Teamster’s challenge to the permit granting Trajosa operating authority, were reviewable final agency actions.


The panel held that it had Hobbs Act jurisdiction for direct appellate review over the petitions for review of the decision to grant Trajosa a permit. The panel held, however, that it could not review the FMSCA’s decision to grant Trajosa an operating permit because the decision whether to grant long-haul authority based on the results of a pilot program is committed to agency discretion by law.


The panel held that it could not consider the Drivers Association’s argument – that the FMSCA exceeded its statutory authority in granting a permit to a Mexico-domiciled carrier without requiring the carrier’s drivers to first obtain a U.S. driver’s license – because it was precluded by Int’l Bhd. Of Teamsters v. U.S. Dep’t of Transp., 724 F.3d 206, 210–11 (D.C. Cir. 2013).


Morgado v. City and County of San Francisco (CA1/4 A141681 6/27/17) Public Safety Officers Procedural Bill of Rights Act


Government Code  section 3304, subdivision (b), which is part of the Public Safety Officers Procedural Bill of Rights Act (PSOPBRA) (§ 3300 et seq.), provides that “[n]o punitive action . . . shall be undertaken by any public agency against any public safety officer . . . without providing the public safety officer with an opportunity for administrative appeal.” 


In this appeal, the City and County of San Francisco (City) seeks review of the trial court’s order granting injunctive relief to Paulo Morgado (Morgado), a non-probationary City police officer whose employment was terminated following misconduct findings.  The City argues the court erred in finding the City’s procedure for disciplining police officers violates section 3304, subdivision (b).


We disagree and will affirm.


Jacobs v. The Regents of the University of California (CA2/2 B268758, filed 5/30/17, pub. ord. 6/27/17) University of California Retirement Plan/Duty Disability Income


The question presented is whether disabled members under the University of California Retirement Plan (UCRP) who receive “Duty Disability Income” (DDI) are considered retired for purposes of entitlement to a retired identification card and concealed weapons endorsement pursuant to the Penal Code.  We conclude the answer is no.  We therefore affirm the trial court’s denial of the petition for writ of mandate by which appellants sought to compel The Regents of the University of California (Regents) to provide them with such identification cards and endorsements.


Sato v. Orange Cty. Dep’t of Educ. (9th Cir. 15-56402 6/27/17) Wrongful Termination/11th Amendment Immunity


The panel affirmed the district court’s dismissal of a lawsuit brought pursuant to 42 U.S.C. § 1983 and state law by a former employee of the Orange County Department of Education who alleged that his termination violated his Fourteenth Amendment substantive and procedural due process rights and constituted a breach of contract.


The district court found that the Orange County Department of Education, as an arm of the state, was immune from suit under the Eleventh Amendment. In affirming the district court, the panel rejected plaintiff’s contention that California Assembly Bill 97, which streamlined public education financing and decentralized education governance, abrogated the holding in Belanger v. Madera Unified School District, 963 F.2d 248 (9th Cir. 1992), that California school districts are entitled to sovereign immunity.


Applying the factors set forth in Mitchell v. Los Angeles Community College District, 861 F.2d 198 (9th Cir. 1988), the panel held that California school districts and County Offices of Education remain arms of the state and continue to enjoy Eleventh Amendment immunity. The panel held that AB 97 reformed the financing and governance of California public schools in important ways, but it did not so fundamentally alter the relationship between Offices of Education and the state as to abrogate this court’s decision in Belanger.


Hardie v. NCAA (9th Cir. 15-55576 6/27/17) Title II Civil Rights Act/Disparate Impact/Public Accommodations/Race Discrimination in Coaching


The panel affirmed the district court’s summary judgment in favor of the National Collegiate Athletic Association (“NCAA”) in an action brought by Dominic Hardie, who is African-American, alleging that the NCAA’s policy of excluding anyone with a felony conviction from coaching at NCAA-certified youth athletic tournaments violated Title II of the Civil Rights Act of 1964.


Title II of the Civil Rights Act of 1964 prohibits racial discrimination in places of public accommodation. The district court granted summary judgment for the NCAA on the ground that disparate-impact claims were not cognizable under Title II.


The panel did not decide whether Title II encompassed disparate-impact claims.


The panel held that even if disparate-impact claims were recognizable under Title II, Hardie had not shown that an equally effective, less discriminatory alternative theory to the NCAA’s felon-exclusion policy existed, as was required under the three-step analysis for disparate-impact claims set The panel affirmed the district court’s summary judgment in favor of the National Collegiate Athletic Association (“NCAA”) in an action brought by Dominic Hardie, who is African-American, alleging that the NCAA’s policy of excluding anyone with a felony conviction from coaching at NCAA-certified youth athletic tournaments violated Title II of the Civil Rights Act of 1964. Title II of the Civil Rights Act of 1964 prohibits racial discrimination in places of public accommodation. The district court granted summary judgment for the NCAA on the ground that disparate-impact claims were not cognizable under Title II.


The panel did not decide whether Title II encompassed disparate-impact claims.


The panel held that even if disparate-impact claims were recognizable under Title II, Hardie had not shown that an equally effective, less discriminatory alternative theory to the NCAA’s felon-exclusion policy existed, as was required under the three-step analysis for disparate-impact claims set forth in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).


Concurring in part and concurring in the judgment, District Judge Faber agreed with the court that under Title II, Hardie had not stated a cognizable claim. In his view, Title II’s text did not recognize disparate-impact liability, and the panel should have said so. Judge Faber also wrote that even if Title II had authorized disparate-impact liability, the business-necessity defense would immunize the NCAA’s policy; and the majority’s application of extraneous evidence was misplaced.

Bill signed by Governor (6/26/17)


  • SB 90 by the Committee on Budget and Fiscal Review - Public social services: 1991 Realignment Legislation and IHSS Maintenance of Effort and collective bargaining.


People v. Super. Ct. (SC S232639 6/26/17) Public Contracting


Government Code section 1090 prohibits public officers and employees from making contracts in which they have a financial interest when they act in their official capacities.  Knowing and willful self-dealing can result in criminal liability.  In this case, the District Attorney of Riverside County seeks to prosecute Dr. Hossain Sahlolbei under section 1090 for allegedly influencing the public hospital where he worked to hire another doctor and then profiting from that doctor’s contract.  The Court of Appeal held that because Sahlolbei was an independent contractor and not an employee of the hospital, section 1090 does not apply to Sahlolbei.  We conclude that independent contractors are not categorically excluded from section 1090.  Liability under the statute can extend to independent contractors who have duties to engage in or advise on public contracting.  Because Sahlolbei’s duties brought him within the scope of the statute, we reverse.


Bayer v. Neiman Marcus Group (9th Cir. 15-15287 6/26/17) ADA Disability Discrimination/Arbitration/Remedies


The panel reversed the district court’s order granting summary judgment on mootness grounds to the defendant [former employer] in a suit alleging interference with the plaintiff’s exercise of his rights under the Americans with Disabilities Act in violation of 42 U.S.C. § 12203(b).


The panel concluded that the district court had the power to award the plaintiff only equitable remedies under § 12203(b).


The plaintiff sought an injunction prohibiting the defendant, his former employer, from attempting to coerce, intimidate, or threaten employees into waiving their rights under the Americans with Disabilities Act by consenting to be bound to an arbitration agreement. In another case, the court had held that the arbitration agreement was not binding on the plaintiff. The panel held that the claim for injunctive relief was moot because the plaintiff had neither shown that he was reasonably likely to be subjected once again to the conduct alleged as the basis for his claim nor shown that he could reasonably be expected to benefit from the injunctive relief he sought.


The panel held that the plaintiff’s claims for equitable monetary relief and for a declaration that the arbitration agreement was unlawful, invalid, and unenforceable also were moot.


The panel reversed the district court’s ruling that nominal damages were not available to the plaintiff because they were only a legal remedy. The panel held that nominal damages may be awarded as an equitable remedy under § 12203. The panel therefore reversed the district court order finding the case moot and granting summary judgment to the defendant, and remanded for further proceedings.


Perry v. Merit Systems Protection Bd. (US 16–399 6/23/17) Federal Employee Personnel Actions/Judicial Review


Under the Civil Service Reform Act of 1978 (CSRA), the Merit Systems Protection Board (MSPB or Board) has the power to review certain serious personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions are subject to judicial review exclusively in the Federal Circuit. 5 U. S. C. §7703(b)(1). If the employee invokes only federal antidiscrimination law, the proper forum for judicial review is federal district court. See Kloeckner v. Solis, 568 U. S. 41, 46.


An employee who complains of a serious adverse employment action and attributes the action, in whole or in part, to bias based on race, gender, age, or disability brings a “mixed case.” When the MSPB dismisses a mixed case on the merits or on procedural grounds, review authority lies in district court, not the Federal Circuit. Id., at 50, 56. This case concerns the proper forum for judicial review when the MSPB dismisses such a case for lack of jurisdiction.


Anthony Perry received notice that he would be terminated from his employment at the U. S. Census Bureau for spotty attendance. Perry and the Bureau reached a settlement in which Perry agreed to a 30-day suspension and early retirement. The settlement also required Perry to dismiss discrimination claims he had filed separately with the Equal Employment Opportunity Commission (EEOC). After retiring, Perry appealed his suspension and retirement to the MSPB, alleging discrimination based on race, age, and disability, as well as retaliation by the Bureau for his prior discrimination complaints. The settlement, he maintained, did not stand in the way, because the Bureau had coerced him into signing it. But an MSPB administrative law judge (ALJ) determined that Perry had failed to prove that the settlement was coerced. Presuming Perry’s retirement to be voluntary, the ALJ dismissed his case. Because voluntary actions are not appealable to the MSPB, the ALJ observed, the Board lacked jurisdiction to entertain Perry’s claims. The MSPB affirmed, deeming Perry’s separation voluntary and therefore not subject to the Board’s jurisdiction. If dissatisfied with the MSPB’s ruling, the Board stated, Perry could seek judicial review in the Federal Circuit. Perry instead sought review in the D. C. Circuit, which, the parties later agreed, lacked jurisdiction. The D. C. Circuit held that the proper forum was the Federal Circuit and transferred the case there. Kloeckner did not control, the court concluded, because it addressed dismissals on procedural grounds, not jurisdictional grounds.


Held: The proper review forum when the MSPB dismisses a mixed case on jurisdictional grounds is district court. Pp. 9–17.


(a) The Government argues that employees must split their mixed claims, appealing MSPB nonappealability rulings to the Federal Circuit while repairing to the district court to adjudicate their discrimination claims. Perry counters that the district court alone can resolve his entire complaint. Perry advances the more sensible reading of the statutory prescriptions.


Kloeckner announced a clear rule: “[M]ixed cases shall be filed in district court.” 568 U. S., at 50; see id., at 56. The key to district court review is the employee’s “clai[m] that an agency action appealable to the MSPB violates an antidiscrimination statute listed in §7702(a)(1).” Id., at 56 (emphasis added). Such a nonfrivolous allegation of jurisdiction suffices to establish district court jurisdiction. EEOC regulations are in accord, and several Courts of Appeals have similarly described mixed-case appeals as those alleging an adverse action subject to MSPB jurisdiction taken, in whole or in part, because of unlawful discrimination. Perry, who “complain[ed] of a personnel action serious enough to appeal to the MSPB” and “allege[d] that the [personnel] action was based on discrimination,” brought a mixed case, and district court jurisdiction was therefore proper. Pp. 9–12.


(b) The Government’s proposed distinction—between MSPB merits and procedural decisions, on the one hand, and the Board’s jurisdictional rulings, on the other—has multiple infirmities. Had Congress wanted to bifurcate judicial review, sending merits and procedural decisions to district court and jurisdictional dismissals to the Federal Circuit, it could have said so. See Kloeckner, 568 U. S., at 52. The Government’s newly devised attempt to distinguish jurisdictional dismissals from procedural dismissals is a departure from its position in Kloeckner. Such a distinction, as both parties recognized in Kloeckner, would be perplexing and elusive. The distinction between jurisdiction and the merits is also not inevitably sharp, for the two inquiries may overlap. And because the MSPB may issue rulings on alternate or multiple grounds, some “jurisdictional,” others procedural or substantive, allocating judicial review authority based on a separate rule for jurisdictional rulings may prove unworkable in practice. Perry’s comprehension of the complex statutory text, in contrast, serves “[t]he CSRA’s objective of creating an integrated scheme of review[, which] would be seriously undermined” by “parallel litigation regarding the same agency action.” Elgin v. Department of Treasury, 567 U. S. 1, 14. Pp. 12–17.


829 F. 3d 760, reversed and remanded.


GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS, J., joined.


Arias v. Raimondo (9th Cir. 15-16120 6/22/17) FLSA Retaliation by Employer’s Attorney


The panel reversed the district court’s dismissal of a retaliation claim under the Fair Labor Standards Act. The plaintiff alleged that after he filed suit against his employers in state court, the employers’ attorney, acting as their agent, retaliated against him by planning for U.S. Immigration and Customs Enforcement to take him into custody at a scheduled deposition and then to remove him from the United States. The panel held that unlike the Fair Labor Standards Act’s wage and hour provisions, its retaliation provisions apply to “any person” and do not require that a defendant be the plaintiff’s employer. The panel remanded the case to the district court for further proceedings.


Husman v. Toyota (CA2/7 B268300 6/21/17) FEHA Sexual Orientation Discrimination/Retaliation


Joseph Husman, a 14-year employee of various Toyota divisions at its Torrance campus in southern California, ran the diversity and inclusion program for Toyota Financial Services U.S.A., the brand name for Toyota Motor Credit Corporation (TFS or Toyota).  Following his termination in 2011, Husman sued Toyota for discrimination and retaliation in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), as well as for wrongful discharge, alleging he had been fired from his executive-level management position because of his sexual orientation and criticisms he made concerning Toyota’s commitment to diversity.  The trial granted Toyota’s motion for summary judgment and entered judgment in its favor.  Because Husman presented sufficient evidence a substantial motivating factor for his termination was invidious sex or gender stereotyping related to his sexual orientation—the perception he was “too gay”—we reverse the judgment.  However, Husman failed to raise a triable issue of material fact to support his FEHA retaliation and related common law tort claim.  Accordingly, on remand the trial court is to enter an order granting Toyota’s alternative motion for summary adjudication as to those two causes of action.


Tucker Ellis v. Super. Ct. (CA1/3 A148956 6/21/17) Law Firm Employer/Attorney Work Product


In this writ proceeding, we are presented with a narrow question of law concerning the attorney work product privilege as codified in Code of Civil Procedure Section 2018.030.   Specifically, we are asked to determine, as between an employer law firm and a former attorney employee, who is the holder of the attorney work product privilege that attaches to documents created by the attorney employee during and in the scope of his employment?  We conclude that under the circumstances of this case, the holder of the attorney work product privilege is the employer law firm, petitioner Tucker Ellis LLP (Tucker Ellis), and not the former attorney employee, real party in interest Evan C. Nelson (Nelson).  As a corollary to our holding, we necessarily conclude that because Tucker Ellis is the holder of the attorney work product privilege, it had no legal duty to secure Nelson’s permission before it disclosed to others documents he created during and in the scope of his employment.  Because respondent court held to the contrary, finding that Tucker Ellis had a legal duty to take appropriate steps to ensure that the documents were not disclosed without Nelson’s permission, we shall issue a peremptory writ of mandate directing respondent court to vacate its July 19, 2016, summary adjudication order, and enter a new order consistent with this decision.

Melamed v. Cedars-Sinai Medical Center (2017) 216 Cal.Rptr.3d 328 (SC S241146/B263095 rev. granted 6/21/17) Peer Review


The petition for review is granted. The matter is transferred to the Court of Appeal, Second District, Division One, for reconsideration in light of Park v. Board of Trustees of the California State University (2017) 2 Cal.5th 1057. Votes: Cantil-Sakauye, C.J., Werdegar, Chin, Corrigan, Liu, Cuéllar and Kruger, JJ.



Court of Appeal Decision


Guido v, Mount Lemmon Fire Dist. (9th Cir. 15-15030 6/19/17) ADEA/Local Government


The panel reversed the district court’s summary judgment in favor of the defendant fire district, a political subdivision of Arizona, in an action brought by two firefighter captains under the Age Discrimination in Employment Act.


Disagreeing with other circuits, the panel held that a political subdivision of a State need not have twenty or more employees in order to qualify as an employer subject to the requirements of the ADEA. The panel remanded the case for further proceedings.

Matal v. Tam (US  15–1293 6/19/17) First Amendment/Trademark Disparagement


Simon Tam, lead singer of the rock group “The Slants,” chose this moniker in order to “reclaim” the term and drain its denigrating force as a derogatory term for Asian persons. Tam sought federal registration of the mark “THE SLANTS.” The Patent and Trademark Office (PTO) denied the application under a Lanham Act provision prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). Tam contested the denial of registration through the administrative appeals process, to no avail. He then took the case to federal court, where the en banc Federal Circuit ultimately found the disparagement clause facially unconstitutional under the First Amendment’s Free Speech Clause.


Held: The judgment is affirmed.


808 F. 3d 1321, affirmed.


JUSTICE ALITO delivered the opinion of the Court with respect to Parts I, II, and III–A, concluding:


1. The disparagement clause applies to marks that disparage the members of a racial or ethnic group. Tam’s view, that the clause applies only to natural or juristic persons, is refuted by the plain terms of the clause, which uses the word “persons.” A mark that disparages a “substantial” percentage of the members of a racial or ethnic group necessarily disparages many “persons,” namely, members of that group. Tam’s narrow reading also clashes with the breadth of the disparagement clause, which by its terms applies not just to “persons,” but also to “institutions” and “beliefs.” §1052(a). Had Congress wanted to confine the reach of the clause, it could have used the phrase “particular living individual,” which it used in neighboring §1052(c). Tam contends that his interpretation is supported by legislative history and by the PTO’s practice for many years of registering marks that plainly denigrated certain groups. But an inquiry into the meaning of the statute’s text ceases when, as here, “the statutory language is unambiguous and the statutory scheme is coherent and consistent.” Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450 (internal quotation marks omitted). Even if resort to legislative history and early enforcement practice were appropriate, Tam has presented nothing showing a congressional intent to adopt his interpretation, and the PTO’s practice in the years following the disparagement clause’s enactment is unenlightening. Pp. 8–12.


2. The disparagement clause violates the First Amendment’s Free Speech Clause. Contrary to the Government’s contention, trademarks are private, not government speech. Because the “Free Speech Clause . . . does not regulate government speech,” Pleasant Grove City v. Summum, 555 U. S. 460, 467, the government is not required to maintain viewpoint neutrality on its own speech. This Court exercises great caution in extending its government-speech precedents, for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.The Federal Government does not dream up the trademarks registered by the PTO. Except as required by §1052(a), an examiner may not reject a mark based on the viewpoint that it appears to express. If the mark meets the Lanham Act’s viewpoint-neutral requirements, registration is mandatory. And once a mark is registered, the PTO is not authorized to remove it from the register unless a party moves for cancellation, the registration expires, or the Federal Trade Commission initiates proceedings based on certain grounds. It is thus farfetched to suggest that the content of a registered mark is government speech, especially given the fact that if trademarks become government speech when they are registered, the Federal Government is babbling prodigiously and incoherently. And none of this Court’s government-speech cases supports the idea that registered trademarks are government speech. Johanns v. Livestock Marketing Assn., 544 U. S. 550; Pleasant Grove City v. Summum, 555 U. S. 460; and Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ___, distinguished. Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine, for other systems of government registration (such as copyright) could easily be characterized in the same way. Pp. 12–18.




(a) The Government’s argument that this case is governed by the Court’s subsidized-speech cases is unpersuasive. Those cases all involved cash subsidies or their equivalent, e.g., funds to private parties for family planning services in Rust v. Sullivan, 500 U. S. 173, and cash grants to artists in National Endowment for Arts v. Finley, 524 U. S. 569. The federal registration of a trademark is nothing like these programs. The PTO does not pay money to parties seeking registration of a mark; it requires the payment of fees to file an application and to maintain the registration once it is granted. The Government responds that registration provides valuable non-monetary benefits traceable to the Government’s resources devoted to registering the marks, but nearly every government service requires the expenditure of government funds. This is true of services that benefit everyone, like police and fire protection, as well as services that are utilized by only some, e.g., the adjudication of private lawsuits and the use of public parks and highways. Pp. 18–20.


(b) Also unpersuasive is the Government’s claim that the disparagement clause is constitutional under a “government-program” doctrine, an argument which is based on a merger of this Court’s government-speech cases and subsidy cases. It points to two cases involving a public employer’s collection of union dues from its employees, Davenport v. Washington Ed. Assn., 551 U. S. 177, and Ysursa v. Pocatello Ed. Assn., 555 U. S. 353, but these cases occupy a special area of First Amendment case law that is far removed from the registration of trademarks. Cases in which government creates a limited public forum for private speech, thus allowing for some content-and speaker-based restrictions, see, e.g., Good News Club v. Milford Central School, 533 U. S. 98, 106–107; Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 831, are potentially more analogous. But even in those cases, viewpoint discrimination is forbidden. The disparagement clause denies registration to any mark that is offensive to a substantial percentage of the members of any group. That is viewpoint discrimination in the sense relevant here: Giving offense is a viewpoint. The “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v. New York, 394 U. S. 576, 592. Pp. 20–23.


(c) The dispute between the parties over whether trademarks are commercial speech subject to the relaxed scrutiny outlined in Central Hudson Gas & Elect. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, need not be resolved here because the disparagement clause cannot withstand even Central Hudson review. Under Central Hudson, a restriction of speech must serve “a substantial interest” and be “narrowly drawn.” Id., at 564–565 (internal quotation marks omitted).


One purported interest is in preventing speech expressing ideas that offend, but that idea strikes at the heart of the First Amendment. The second interest asserted is protecting the orderly flow of commerce from disruption caused by trademarks that support invidious discrimination; but the clause, which reaches any trademark that disparages any person, group, or institution, is not narrowly drawn. Pp. 23–26.


JUSTICE KENNEDY, joined by JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN, agreed that 15 U. S. C. §1052(a) constitutes viewpoint discrimination, concluding:


(a) With few narrow exceptions, a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828–829. The test for viewpoint discrimination is whether—within the relevant subject category—the government has singled out a subset of messages for disfavor based on the views expressed. Here, the disparagement clause identifies the relevant subject as “persons, living or dead, institutions, beliefs, or national symbols,” §1052(a); and within that category, an applicant may register a positive or benign mark but not a derogatory one. The law thus reflects the Government’s disapproval of a subset of messages it finds offensive, the essence of viewpoint discrimination. The Government’s arguments in defense of the statute are unpersuasive. Pp. 2–5.


(b) Regardless of whether trademarks are commercial speech, the viewpoint based discrimination here necessarily invokes heightened scrutiny. See Sorrell v. IMS Health Inc., 564 U. S. 552, 566. To the extent trademarks qualify as commercial speech, they are an example of why that category does not serve as a blanket exemption from the First Amendment’s requirement of viewpoint neutrality. In the realm of trademarks, the metaphorical marketplace of ideas becomes a tangible, powerful reality. To permit viewpoint discrimination in this context is to permit Government censorship. Pp. 5–7.


ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–A, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined, and in which THOMAS, J., joined except for Part II, and an opinion with respect to Parts III–B, III–C, and IV, in which ROBERTS, C. J., and THOMAS and BREYER, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. GORSUCH, J., took no part in the consideration or decision of the case.


Kao v. Joy Holiday (CA1/3 A147540 6/15/17) Overtime/Quantum Meruit


Plaintiff Ming-Hsiang Kao was employed by defendant Joy Holiday, a travel tour company. He brought an action alleging, among other things, breach of contract and violation of federal and state statutes regulating wages and overtime pay. After a bench trial, the court ruled against Kao on his breach of contract and statutory claims but awarded damages for unpaid labor under the equitable doctrine of quantum meruit. Defendants appeal the quantum meruit finding and Kao cross-appeals the denial of his statutory claims. We conclude that Kao is entitled to compensation under the wage statutes, making an equitable remedy unnecessary. We shall reverse the judgment and remand for a calculation of statutory damages.


Microsoft Corp. v. Baker (US 15–457 6/12/17) Death-Knell Doctrine/Review of Class Certification Denial following Voluntary Dismissal with Prejudice


Orders granting or denying class certification are inherently interlocutory, hence not immediately reviewable under 28 U. S. C. §1291, which empowers federal courts of appeals to review only “final decisions of the district courts.” In Coopers & Lybrand v. Livesay, 437 U. S. 463, a 1978 decision, this Court held that the death-knell doctrine—which rested on courts’ recognition that a denial of class certification would sometimes end a lawsuit for all practical purposes—did not warrant mandatory appellate jurisdiction of certification orders. Id., at 470, 477. Although the death-knell theory likely “enhanced the quality of justice afforded a few litigants,” it did so at a heavy cost to §1291’s finality requirement. Id., at 473. First, the potential for multiple interlocutory appeals inhered in the doctrine. See id., at 474. Second, the death-knell theory forced appellate courts indiscriminately into the trial process, circumventing the two-tiered “screening procedure” Congress established for interlocutory appeals in 28 U. S. C. §1292(b). Id., at 474, 476. Finally, the doctrine “operat[ed] only in favor of plaintiffs,” even though the class-certification question may be critically important to defendants as well. Id., at 476.


Two decades later, in 1998, after Congress amended the Rules Enabling Act, 28 U. S. C. §2071 et seq., to empower this Court to promulgate rules providing for interlocutory appeal of orders “not otherwise provided for [in §1292],” §1292(e), this Court approved Federal Rule of Civil Procedure 23(f). Rule 23(f) authorizes “permissive interlocutory appeal” from adverse class-certification orders in “the sole discretion of the court of appeals.” 28 U. S. C. App., p. 815. This discretionary arrangement was the product of careful calibration on the part of the rulemakers.


Respondents, owners of Microsoft’s videogame console, the Xbox 360, filed this putative class action alleging a design defect in the device. The District Court struck respondents’ class allegations from the complaint, and the Court of Appeals denied respondents permission to appeal that order under Rule 23(f). Instead of pursuing their individual claims to final judgment on the merits, respondents stipulated to a voluntary dismissal of their claims with prejudice, but reserved the right to revive their claims should the Court of Appeals reverse the District Court’s certification denial. Respondents then appealed, challenging only the interlocutory order striking their class allegations. The Ninth Circuit held it had jurisdiction to entertain the appeal under §1291. It then held that the District Court’s rationale for striking respondents’ class allegations was an impermissible one, but refused to opine on whether class certification was inappropriate for a different reason, leaving that question for the District Court on remand.


Held: Federal courts of appeals lack jurisdiction under §1291 to review an order denying class certification (or, as here, an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice. Pp. 11–17.


(a) Section 1291’s final-judgment rule preserves the proper balance between trial and appellate courts, minimizes the harassment and delay that would result from repeated interlocutory appeals, and promotes the efficient administration of justice. This Court has resisted efforts to stretch §1291 to permit appeals of right that would erode the finality principle and disserve its objectives. See, e.g., Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100, 112. Attempts to secure appeal as of right from adverse class certification orders fit that bill. Pp. 11–12.


(b) Respondents’ voluntary-dismissal tactic, even more than the death-knell theory, invites protracted litigation and piecemeal appeals. Under the death-knell doctrine, a court of appeals could decline to hear an appeal if it determined that the plaintiff “ha[d] adequate incentive to continue” despite the denial of class certification. Coopers & Lybrand, 437 U. S., at 471. Under respondents’ theory, however, the decision whether an immediate appeal will lie resides exclusively with the plaintiff, who need only dismiss her claims with prejudice in order to appeal the district court’s order denying class certification. And she may exercise that option more than once, interrupting district court proceedings with an interlocutory appeal again, should the court deny class certification on a different ground.


Respondents contend that their position promotes efficiency, observing that after dismissal with prejudice the case is over if the plaintiff loses on appeal. But plaintiffs with weak merits claims may readily assume that risk, mindful that class certification often leads to a hefty settlement. And the same argument was evident in the death-knell context, yet this Court determined that the potential for piecemeal litigation was “apparent and serious.” Id., at 474. That potential is greater still under respondents’ theory, where plaintiffs alone determine whether and when to appeal an adverse certification ruling. Pp. 12–14.


(c) Also like the death-knell doctrine, respondents’ theory allows indiscriminate appellate review of interlocutory orders. Beyond disturbing the “ ‘appropriate relationship between the respective courts,’ ”Coopers & Lybrand, 437 U. S., at 476, respondents’ dismissal tactic undercuts Rule 23(f)’s discretionary regime. This consideration is “[o]f prime significance to the jurisdictional issue” in this case, Swint v. Chambers County Comm’n, 514 U. S. 35, 46, because Congress has established rulemaking as the means for determining when a decision is final for purposes of §1291 and for providing for appellate review of interlocutory orders not covered by statute, see §§2072(c) and 1292(e).


Respondents maintain that Rule 23(f) is irrelevant, for it concerns interlocutory orders, whereas this case involves an actual final judgment. Yet permitting respondents’ voluntary-dismissal tactic to yield an appeal of right would seriously undermine Rule 23(f)’s careful calibration, as well as Congress’ designation of rulemaking “as the preferred means for determining whether and when prejudgment orders should be immediately appealable,” Mohawk Industries, 558 U. S., at 113. Plaintiffs in putative class actions cannot transform a tentative interlocutory order into a final judgment within the meaning of §1291 simply by dismissing their claims with prejudice. Finality “is not a technical concept of temporal or physical termination.” Cobbledick v. United States, 309 U. S. 323, 326. It is one “means [geared to] achieving a healthy legal system,” ibid., and its contours are determined accordingly. Pp. 14–16.


(d) The one-sidedness of respondents’ voluntary-dismissal device reinforces the conclusion that it does not support mandatory appellate jurisdiction of refusals to grant class certification. The tactic permits only plaintiffs, never defendants, to force an immediate appeal of an adverse certification ruling. Yet the “class issue” may be just as important to defendants, Coopers & Lybrand, 437 U. S., at 476, for class certification may force a defendant to settle rather than run the risk of ruinous liability. P. 17.


797 F. 3d 607, reversed and remanded.


GINSBURG, J., delivered the opinion of the Court, in which KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment, in which ROBERTS, C. J., and ALITO, J., joined. GORSUCH, J., took no part in the consideration or decision of the case.


Augustus v. ABM Security Services (SC S224853M, mod., rhrg. den., filed 3/15/17, posted 6/8/17 due to court’s inadvertent omission) Off–Duty and On Call Rest Periods


The opinion in this matter filed on December 22, 2016, and appearing at 2 Cal.5th 257, is modified as follows: 


1.  Add the following sentence to the end of the Conclusion on page 273:  “The matter is remanded to the Court of Appeal for further proceedings consistent with this opinion.”


This sentence should be placed so that it is the final sentence in the Conclusion and so that the complete Conclusion reads as follows:


California law requires employers to relieve their employees of all work-related duties and employer control during 10-minute rest periods.  The trial court’s summary adjudication and summary judgment orders were premised on this understanding of the law.  Rightly so: Wage Order 4, subdivision 12(A) and section 226.7 prohibit on-duty rest periods. What they require instead is that employers relinquish any control over how employees spend their break time, and relieve their employees of all duties—including the obligation that an employee remain on call.  A rest period, in short, must be a period of rest.  We accordingly reverse the Court of Appeal’s judgment on this issue.  The matter is remanded to the Court of Appeal for further proceedings consistent with this opinion.


This modification does not affect the judgment.


The petition for rehearing, filed on January 5, 2017, is denied.


Advocate Health Care Network v. Stapleton (US 16–74 6/5/17) ERISA


The Employee Retirement Income Security Act of 1974 (ERISA) generally obligates private employers offering pension plans to adhere to an array of rules designed to ensure plan solvency and protect plan participants. “[C]hurch plan[s],” however, are exempt from those regulations. 29 U. S. C. §1003(b)(2). From the beginning, ERISA has defined a “church plan” as “a plan established and maintained . . . for its employees . . . by a church.” §1002(33)(A). Congress then amended the statute to expand that definition, adding the provision whose effect is at issue here: “A plan established and maintained for its employees . . . by a church . . . includes a plan maintained by an organization . . . the principal purpose . . . of which is the administration or funding of [such] plan . . . for the employees of a church . . . , if such organization is controlled by or associated with a church.” §1002(33)(C)(i). (This opinion refers to the organizations described in that provision as “principal-purpose organizations.”)


Petitioners, who identify themselves as three church-affiliated nonprofits that run hospitals and other healthcare facilities (collectively, hospitals), offer their employees defined-benefit pension plans. Those plans were established by the hospitals themselves, and are managed by internal employee-benefits committees. Respondents, current and former hospital employees, filed class actions alleging that the hospitals’ pension plans do not fall within ERISA’s church-plan exemption because they were not established by a church. The District Courts, agreeing with the employees, held that a plan must be established by a church to qualify as a church plan. The Courts of Appeals affirmed.


Held: A plan maintained by a principal-purpose organization qualifies as a “church plan,” regardless of who established it. Pp. 5–15.


(a) The term “church plan” initially “mean[t]” only “a plan established and maintained . . . by a church.” But subparagraph (C)(i) provides that the original definitional phrase will now “include” another—“a plan maintained by [a principal-purpose] organization.” That use of the word “include” is not literal, but tells readers that a different type of plan should receive the same treatment (i.e., an exemption) as the type described in the old definition. In other words, because Congress deemed the category of plans “established and maintained by a church” to “include” plans “maintained by” principal purpose organizations, those plans—and all those plans—are exempt from ERISA’s requirements.


Had Congress wanted, as the employees contend, to alter only the maintenance requirement, it could have provided in subparagraph (C)(i) that “a plan maintained by a church includes a plan maintained by” a principal-purpose organization—removing “established and” from the first part of the sentence. But Congress did not adopt that ready alternative. Instead, it added language whose most natural reading is to enable a plan “maintained” by a principal-purpose organization to substitute for a plan both “established” and “maintained” by a church. And as a corollary to that point, the employees’ construction runs aground on the so-called surplusage canon—the presumption that each word Congress uses is there for a reason. The employees read subparagraph (C)(i) as if it were missing the two words “established and.” This Court, however, “give[s] effect, if possible, to every clause and word of a statute.” Williams v. Taylor, 529 U. S. 362, 404. Pp. 5–12.


(b) Both parties’ accounts of Congress’s purpose in enacting subparagraph (C)(i) tend to confirm this Court’s reading that plans maintained by principal-purpose organizations are eligible for the church-plan exemption, whatever their origins. According to the hospitals, Congress wanted to ensure that churches and church affiliated organizations received comparable treatment under ERISA. If that is so, this Court’s construction of the text fits Congress’s objective to a T, as a church-establishment requirement would necessarily disfavor plans created by church affiliates. The employees, by contrast, claim that subparagraph (C)(i)’s main goal was to bring within the church-plan exemption plans managed by local pension boards—organizations often used by congregational denominations—so as to ensure parity between congregational and hierarchical churches. But that account cuts against, not in favor of, their position. Keeping the church-establishment requirement would have prevented some plans run by pension boards—the very entities the employees say Congress most wanted to benefit—from qualifying as “church plans” under ERISA. Pp. 12–14.


No. 16–74, 817 F. 3d 517; No. 16–86, 810 F. 3d 175; and No. 16–258, 830 F. 3d 900, reversed.


KAGAN, J., delivered the opinion of the Court, in which all other Members joined, except GORSUCH, J., who took no part in the consideration or decision of the cases. SOTOMAYOR, J., filed a concurring opinion.


DiCarlo v. Co. of Monterey (CA6 H041400, filed 5/24/17, ord. pub. 6/5/17) Longevity Pay/CalPERS Retirement


Defendant County of Monterey entered into a memorandum of understanding (MOU) with the Monterey County Deputy Sheriffs Association (Sheriffs Association).  The terms of the MOU included a longevity performance stipend that provided that a member of the Sheriffs Association who achieved 20 years of service with the County of Monterey and a satisfactory or outstanding performance evaluation could receive an additional stipend of up to eight percent.  Plaintiffs are members of the Sheriffs Association who either received the longevity performance stipend prior to their retirement, are currently receiving the longevity performance stipend, or anticipate receiving it in the future.


Plaintiffs brought the instant action against the County of Monterey and its Board of Supervisors (hereafter collectively the County), the County of Monterey Sheriff’s Office (Sheriff’s Department) and individual defendants, and also against defendants California Public Employees Retirement System (CalPERS) and CalPERS’s Board of Administration.  Plaintiffs sought peremptory writs of mandamus to compel the County to report the longevity performance stipend to CalPERS as an item of special compensation and to compel CalPERS to include the longevity performance stipend in calculating their retirement benefits.  The trial court ruled as a matter of law that the longevity performance stipend was not reportable to CalPERS as an item of special compensation under California Code of Regulations, title 2, section 571, subdivision (a), and granted the County’s motion for summary adjudication of issues and CalPERS’s motion for judgment on the pleadings.


On appeal, plaintiffs contend that the trial court erred because California Code of Regulations, title 2, section 571, subdivision (a) is properly interpreted to include the longevity performance stipend as a reportable item of special compensation.  We recognize the importance of this CalPERS retirement benefit issue to the plaintiffs.  However, as we will further explain, under the rules governing the interpretation of statutes and regulations we determine that the longevity performance stipend does not qualify as an item of special compensation that must be reported to CalPERS and included in the calculation of plaintiffs’ retirement benefits.  Therefore, we will affirm the judgments in favor of the County and CalPERS.


BNSF R. Co. v. Tyrrell (US 16–405 5/30/17) Federal Employers’ Liability Act/Jurisdiction


The Federal Employers’ Liability Act (FELA), 45 U. S. C. §51 et seq., makes railroads liable in money damages to their employees for on-the-job injuries. Respondent Robert Nelson, a North Dakota resident, brought a FELA suit against petitioner BNSF Railway Company (BNSF) in a Montana state court, alleging that he had sustained injuries while working for BNSF. Respondent Kelli Tyrrell, appointed in South Dakota as the administrator of her husband Brent Tyrrell’s estate, also sued BNSF under FELA in a Montana state court, alleging that Brent had developed a fatal cancer from his exposure to carcinogenic chemicals while working for BNSF. Neither worker was injured in Montana. Neither incorporated nor headquartered there, BNSF maintains less than 5% of its work force and about 6% of its total track mileage in the State. Contending that it is not “at home” in Montana, as required for the exercise of general personal jurisdiction under Daimler AG v. Bauman, 571 U. S. ___, ___, BNSF moved to dismiss both suits. Its motion was granted in Nelson’s case and denied in Tyrrell’s. After consolidating the two cases, the Montana Supreme Court held that Montana courts could exercise general personal jurisdiction over BNSF because the railroad both “d[id] business” in the State within the meaning of 45 U. S. C. §56 and was “found within” the State within the compass of Mont. Rule Civ. Proc. 4(b)(1). The due process limits articulated in Daimler, the court added, did not control because Daimler did not involve a FELA claim or a railroad defendant.




1. Section 56 does not address personal jurisdiction over railroads. Pp. 4–9.


(a) Section 56’s first relevant sentence provides that “an action may be brought in a district court of the United States,” in, among other places, the district “in which the defendant shall be doing business at the time of commencing such action.” This Court has comprehended that sentence as a venue prescription, not as one governing personal jurisdiction. Baltimore & Ohio R. Co. v. Kepner, 314 U. S. 44, 52. Congress generally uses the expression, where suit“may be brought,” to indicate the federal districts in which venue is proper, see, e.g., 28 U. S. C. §1391(b), while it typically provides for the exercise of personal jurisdiction by authorizing service of process, see, e.g., 15 U. S. C. §22. Nelson and Tyrrell contend that the 1888 Judiciary Act provision that prompted §56’s enactment concerned both personal jurisdiction and venue, but this Court has long read that Judiciary Act provision to concern venue only, see, e.g., Green v. Chicago, B. & Q. R. Co., 205 U. S. 530, 532–533. Pp. 5–7.


(b) The second relevant sentence of §56—that “[t]he jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States”—refers to concurrent subject-matter jurisdiction of state and federal courts over FELA actions. See Second Employers’ Liability Cases, 223 U. S. 1, 55–56. Congress added this clarification after the Connecticut Supreme Court held that Congress intended to confine FELA litigation to federal courts, and that state courts had no obligation to entertain FELA claims. Pp. 7–8.


(c) None of the cases featured by the Montana Supreme Court in reaching its contrary conclusion resolved a question of personal jurisdiction. Pope v. Atlantic Coast Line R. Co., 345 U. S. 379; Miles v. Illinois Central R. Co., 315 U. S. 698; Kepner, 314 U. S. 44; and Denver & Rio Grande Western R. Co. v. Terte, 284 U. S. 284, distinguished. Moreover, all these cases, save Pope, were decided before this Court’s transformative decision on personal jurisdiction in International Shoe Co. v. Washington, 326 U. S. 310. Pp. 8–9.


2. The Montana courts’ exercise of personal jurisdiction under Montana law does not comport with the Fourteenth Amendment’s Due Process Clause. Only the propriety of general personal jurisdiction is at issue here because neither Nelson nor Tyrrell alleges injury from work in or related to Montana.


A state court may exercise general jurisdiction over out-of-state corporations when their “affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Daimler, 571 U. S., at ___. The “paradigm” forums in which a corporate defendant is “at home” are the corporation’s place of incorporation and its principal place of business, e.g., id., at ___, but in an “exceptional case,” a corporate defendant’s operations in another forum “may be so substantial and of such a nature as to render the corporation at home in that State,” id., at ___, n. 19. Daimler involved no FELA claim or railroad defendant, but the due process constraint described there applies to all state-court assertions of general jurisdiction over nonresident defendants; that constraint does not vary with the type of claim asserted or business enterprise sued.


Here, BNSF is not incorporated or headquartered in Montana and its activity there is not “so substantial and of such a nature as to render the corporation at home in that State.” Ibid. Pp. 9–12.


383 Mont. 417, 373 P. 3d 1, reversed and remanded.


GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, BREYER, ALITO, KAGAN, and GORSUCH, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part.


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