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Reverse chronological e-mail alerts prepared pro bono for the California Lawyers Association (formerly State Bar of California) Labor & Employment Law Section, unofficially since 2003 and officially since 2007, covering California, 9th Circuit and US Supreme Court decisions, and new laws signed by Governor. To subscribe, contact LaborLaw@CLA.Legal.

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Kama v. Mayorkas (9th Cir. 23-55106 7/18/24) Title VII Retaliation


The panel affirmed the district court’s summary judgment in favor of the Secretary of Homeland Security in an action brought by a former transportation security officer with the Transportation Security Administration (“TSA”) alleging Title VII retaliation after the TSA terminated plaintiff’s employment.


The TSA terminated plaintiff’s employment based on his failure to cooperate in an investigation into whether he received illegal compensation for serving as a personal representative assisting other employees during internal agency investigations.

Plaintiff contended that the TSA’s stated reason for terminating him was merely a pretext to cover up unlawful retaliation. The panel held that the temporal proximity between the date of plaintiff’s last formal EEO complaint and the date on which his employment was terminated was not sufficient in this case, by itself, to show pretext. First, the length of the gap of time between plaintiff’s final EEO complaint and the termination of his employment was 56 days, which was considerably longer than in nearly all of the cases relied upon by plaintiff. Second, plaintiff’s temporal proximity argument was undermined to some degree by the fact that there was also a temporal link between plaintiff’s noncooperation and the TSA’s adverse action.


The panel rejected plaintiff’s list of circumstantial evidence that he claimed created an inference of pretext.

Behrend v. San Francisco Zen Center, Inc. (9th Cir. 23-15399 7/17/24) Employment Discrimination | Ministerial Exception


Affirming the district court’s grant of summary judgment to San Francisco Zen Center in an employment discrimination action under the Americans with Disabilities Act, the panel held that plaintiff Alexander Behrend’s role as a “Work Practice Apprentice” fell within the First Amendment’s ministerial exception.


The ministerial exception exempts a church’s employment relationship with its ministers from the application of employment statutes such as the Americans with Disabilities Act. The panel held that it was required to take all relevant circumstances into account and to determine whether Behrend’s position implicated the fundamental purpose of the exception, which is to ensure the independence of religious institutions in matters of faith doctrine and church government. The panel concluded that, even though Behrend performed mostly menial work, the work itself was an essential component of Zen training, and he therefore played a role in carrying out the Center’s mission. The panel concluded that precedent foreclosed the view that only teachers and faith leaders qualify for the ministerial exception.

Ramirez v. Charter Communications, Inc. (SC S273802 7/15/24) Arbitration


Defendant was sued by a former employee and unsuccessfully moved to compel arbitration.  The trial court and the Court of Appeal concluded the arbitration agreement contained unconscionable provisions and declined to enforce it.  We too conclude that certain provisions are substantively unconscionable.  The next question revolves around remedy.  Should the courts have refused to enforce the agreement, or could they have severed the unconscionable provisions and enforced the rest?  We conclude the matter must be remanded for further consideration of this question in light of the conclusions and the analysis set out here.  We also conclude the Court of Appeal’s decision did not violate the Federal Arbitration Act (9 U.S.C. § 1 et seq.; FAA).


Bowen v. Burns & McDonnell Engineering Co., Inc. (CA1/2 A166793, filed 6/17/24, pub. 7/15/24) Privette Doctrine


While working inside a jet fuel tank at the San Francisco International Airport, Eugene Bowen fell from a ladder and was injured.  At the time, Bowen was employed by sub-tier independent contractor Team Industrial Services, Inc. (Team).  He sued general contractor Burns & McDonnell Engineering Company Inc. (Burns) and subcontractor HMT, LLC (HMT) (collectively defendants)—who hired Team—alleging a premises liability cause of action based on defendants’ negligence and negligent supervision.

The trial court granted defendants’ respective motions for summary judgment based on the Privette doctrine (Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette)), which limits a hirer’s liability for on-the-job injuries sustained by an independent contractor or its workers unless an exception applies.  Bowen appeals, arguing triable issues of material fact exist as to whether an exception to the Privette doctrine applies.  We disagree and affirm.


Bills Signed by Governor (7/15/24)


AB 375 by Assemblymember Laurie Davies (R-Laguna Niguel) – Food delivery platforms: disclosure of delivery drivers’ identity

AB 1790 by Assemblymember Damon Connolly (D-San Rafael) – California State University: sexual harassment: implementing California State Auditor recommendations

AB 1870 by Assemblymember Liz Ortega (D-San Leandro) – Notice to employees: legal services

AB 1903 by Assemblymember Brian Maienschein (D-San Diego) – International commercial arbitration: procedure

AB 1955 by Assemblymember Christopher Ward (D-San Diego) – Support Academic Futures and Educators for Today’s Youth Act (LGBTQ)

AB 2049 by Assemblymember Blanca Pacheco (D-Downey) – Motions for summary judgment: filing deadlines

AB 2227 by Assemblymember Josh Hoover (R-Folsom) – Unemployment insurance: violations

AB 2299 by Assemblymember Heath Flora (R-Modesto) – Labor Commissioner: whistleblower protections: model list of rights and responsibilities

AB 2474 by Assemblymember Tom Lackey (R-Palmdale) – Retirement: County Employees Retirement Law of 1937: benefit payments and overpayments

AB 2608 by Assemblymember Jesse Gabriel (D-Encino) – Postsecondary education: sexual violence and sexual harassment: training

AB 2755 by Assemblymember Buffy Wicks (D-Oakland) – Claims against the state: appropriation

AB 2770 by the Committee on Public Employment and Retirement – Public employees’ retirement

SB 962 by Senator Steve Padilla (D-San Diego) – San Diego Unified Port District: public employee pension benefits

SB 1097 by Senator John Laird (D-Santa Cruz) – Veterans: military and veterans: gender-neutral terms

SB 1189 by Senator Monique Limόn (D-Santa Barbara) – County Employees Retirement Law of 1937: county board of retirement

Morell v. Board of Ret. of the Orange County Employees' Ret. etc. (CA2/1 B331080 7/10/24) Public Sector Retirement Compensation


When respondent James Morell retired from his position as a research attorney for the Orange County Superior Court, he was entitled to a pension under the County Employees Retirement Law of 1937 (CERL).  To determine the amount of his pension, the appellant board of retirement of the Orange County Employees’ Retirement System (OCERS) needed to first calculate Morell’s “compensation,” a legal term codified in Government Code section 31460.  At issue in this appeal is whether the board correctly excluded certain amounts from the calculation of “compensation.”


In the years relevant to this appeal, research attorneys working for the Orange County Superior Court could participate in an “Optional Benefit Program” (OBP).  The OBP provided a $3,500 benefit that an attorney could allocate in a variety of ways, such as taxable cash (paid to the attorney in their first paycheck of the year) or a healthcare reimbursement account from which the attorney could be reimbursed on a pre-tax basis for certain medical expenses not covered by insurance.  If no election were made, the entire $3,500 would be paid to the attorney as taxable cash.  In each year relevant to this appeal, Morell allocated a portion of the $3,500 OBP benefit to a healthcare reimbursement account and the remainder to cash.  When the board of retirement calculated Morell’s “compensation” in 2014, it omitted the $3,500 OBP payments.  In the decade since, the parties have been litigating whether the board was right to do so.


In 2022, the board denied Morell’s latest appeal, citing Orange County Resolution 90-1551, which the board contended required exclusion of the OBP payment from the calculation of “compensation.”  During a brief window in which the Legislature enacted the now-repealed section 31460.1—which expressly excluded payments made by an employer to an employee who elected to participate in a flexible benefits program—the Orange County board of supervisors passed Resolution 90-1551, adopting the statute’s provisions.  When the Legislature later repealed section 31460.1 in 1992, it also provided that “Nothing in this act is intended to, or shall be construed to, affect the validity of any action taken by a county pursuant to Section 31460.1 of the Government Code, prior to the effective date of this act.”  In granting Morell’s latest petition for writ of mandate, the trial court ordered the board to set aside and reconsider its decision without relying on Resolution 90-1551, because the court found the resolution had been invalidated.


In this appeal, the board of retirement advances three separate arguments on why it believes the trial court erred: (1) including the OBP payments in the pension calculation would constitute “pension-spiking,” which the Legislature sought to eliminate with the Public Employees’ Pension Reform Act of 2013; (2) Resolution 90-1551 is still valid even though section 31460.1 has since been repealed; and (3) in 2002, as part of a settlement agreement between OCERS and a settlement class of which Morell was a member, the parties agreed that OBP payments would not be included in pension calculations.


Because we conclude that Resolution 90-1551 is still valid despite the repeal of section 31460.1, we need not consider the board’s other arguments.  We reverse the trial court’s judgment and remand with directions to deny Morell’s petition.


Cadena v. Customer Connexx LLC (9th Cir. 23-15820 7/10/24) FLSA Overtime Wages


The panel reversed the district court’s summary judgment in favor of Customer Connexx LLC, the defendant in an action brought by a certified collective of call-center workers under the Fair Labor Standards Act for failing to pay overtime wages, and remanded for further proceedings.


The workers alleged that they were entitled to overtime wages for time spent booting up and shutting down their computers each day. The district court held that the time was not compensable under longstanding precedents establishing that the Fair Labor Standards Act does not require an employer to pay wages for work performed before or after scheduled work hours where the amount of time in question is “de minimis.”

The panel disagreed with the workers’ argument that the de minimis doctrine is no longer good law after Sandifer v. U.S. Steel Corp., 571 U.S. 220 (2014), which held that the doctrine was not applicable to 29 U.S.C. §203(o), a provision of the Fair Labor Standards Act concerning time spent changing clothes or washing. The panel concluded that Sandifer did not disturb this court’s applicable case law on the de minimis doctrine in the context of a Fair Labor Standards Act claim under 29 U.S.C. § 207. Accordingly, the doctrine remains applicable to workers’ claims for overtime wages under § 207.


The panel held, however, that triable issues of material fact remained as to whether the time here was de minimis. The panel concluded that summary judgment also was improper on the alternative ground that there was no dispute of material fact as to whether, under Connexx’s policies, it was possible for workers to be compensated for boot up and shut down work outside the shift hours, even though such work was necessary to boot up and shut down the computers at the required times.

Musquiz v. U.S. Railroad Retirement Board (9th Cir. 23-8 7/3/24) Railroad Retirement Board


The panel granted Domingo Musquiz’s petition for review of a decision of the U.S. Railroad Retirement Board (“RRB”) that adopted an RRB hearing officer’s finding that Musquiz was not without fault in causing an overpayment of his reduced-age annuity under the Railroad Retirement Act (“RRA”), and denied his request for a waiver or reduction of repayment of the overpayment and penalty; vacated the RRB’s decision; and remanded to the RRB for further proceedings.


For overpayments under the RRA, the RRB shall not recover from an individual who is without fault and when recovery would be contrary to the purpose of the RRA or would be against equity or good conscience. 20 C.F.R. § 255.10.


The panel agreed with the RRB that Musquiz was not without fault for the overpayment that occurred starting in August 2012 and up until June 2, 2013. However, it concluded that Musquiz was without fault for the RRB’s overpayment of his annuity from June 3, 2013, onward, because by then the agency had told Musquiz that they had taken his outside earnings into account and adjusted his annuity payments.


Because the RRB concluded that Musquiz was not without fault for the entire overpayment, the RRB never considered the second waiver element. The panel held that there may be good reason to believe that recovery of the overpayment from June 3, 2013, onward would be contrary to the purpose of the RRA, against equity, or against good conscience. On remand, the RRB should develop a factual record and make this determination in the first instance.


Bills Signed by Governor (7/2/24)


AB 171 by the Committee on Budget – Employment

AB 628 by Assemblymember Lori Wilson (D-Suisun City) – Prisons: employment of inmates.

AB 1941 by Assemblymember Sharon Quirk-Silva (D-Fullerton) – Local public employee organizations

AB 2345 by Assemblymember Jim Patterson (R-Fresno) – Short-term staff permits: provisional intern permits: teaching permits for statutory leave: designated subjects career technical education teaching credentials: cardiopulmonary resuscitation (CPR) certification

AB 2370 by Assemblymember Sabrina Cervantes (D-Riverside) – Community colleges: faculty: instructor of record: qualifications

SB 155 by the Committee on Budget and Fiscal Review – Higher education budget trailer bill

Bills Signed by Governor (7/1/24)


AB 2288 by Assemblymember Ash Kalra (D-San Jose) – Labor Code Private Attorneys General Act of 2004

SB 92 by Senator Tom Umberg (D-Santa Ana) – Labor Code Private Attorneys General Act of 2004

Loper Bright Enterprises v. Raimondo (US  22–451 6/28/24) Chevron Deference Overruled


The Court granted certiorari in these cases limited to the question whether Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, should be overruled or clarified. Under the Chevron doctrine, courts have sometimes been required to defer to “permissible” agency interpretations of the statutes those agencies administer—even when a reviewing court reads the statute differently. Id., at 843. In each case below, the reviewing courts applied Chevron’s framework to resolve in favor of the Government challenges by petitioners to a rule promulgated by the National Marine Fisheries Service pursuant to the Magnuson-Stevens Act, 16 U. S. C. §1801 et seq., which incorporates the Administrative Procedure Act (APA), 5 U. S. C. §551 et seq.


Held: The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled. Pp. 7–35.


(a)Article III of the Constitution assigns to the Federal Judiciary the responsibility and power to adjudicate “Cases” and “Controversies”—concrete disputes with consequences for the parties involved. The Framers appreciated that the laws judges would necessarily apply in resolving those disputes would not always be clear, but envisioned that the final “interpretation of the laws” would be “the proper and peculiar province of the courts.” The Federalist No. 78, p. 525 (A. Hamilton). As Chief Justice Marshall declared in the foundational decision of Marbury v. Madison, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” 1 Cranch 137, 177. In the decades following Marbury, when the meaning of a statute was at issue, the judicial role was to “interpret the act of Congress, in order to ascertain the rights of the parties.” Decatur v. Paulding, 14 Pet. 497, 515.


The Court recognized from the outset, though, that exercising independent judgment often included according due respect to Executive Branch interpretations of federal statutes. Such respect was thought especially warranted when an Executive Branch interpretation was issued roughly contemporaneously with enactment of the statute and remained consistent over time. The Court also gave “the most respectful consideration” to Executive Branch interpretations simply because “[t]he officers concerned [were] usually able men, and masters of the subject,” who may well have drafted the laws at issue. United States v. Moore, 95 U. S. 760, 763. “Respect,” though, was just that. The views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it. “[I]n cases where [a court’s] own judgment . . . differ[ed] from that of other high functionaries,” the court was “not at liberty to surrender, or to waive it.” United States v. Dickson, 15 Pet. 141, 162.


During the “rapid expansion of the administrative process” that took place during the New Deal era, United States v. Morton Salt Co., 338 U. S. 632, 644, the Court often treated agency determinations of fact as binding on the courts, provided that there was “evidence to support the findings,” St. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 51. But the Court did not extend similar deference to agency resolutions of questions of law. “The interpretation of the meaning of statutes, as applied to justiciable controversies,” remained “exclusively a judicial function.” United States v. American Trucking Assns., Inc., 310 U. S. 534, 544. The Court also continued to note that the informed judgment of the Executive Branch could be entitled to “great weight.” Id., at 549. “The weight of such a judgment in a particular case,” the Court observed, would “depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U. S. 134, 140. Occasionally during this period, the Court applied deferential review after concluding that a particular statute empowered an agency to decide how a broad statutory term applied to specific facts found by the agency. See Gray v. Powell, 314 U. S. 402; NLRB v. Hearst Publications, Inc., 322 U. S. 111. But such deferential review, which the Court was far from consistent in applying, was cabined to factbound determinations. And the Court did not purport to refashion the longstanding judicial approach to questions of law. It instead proclaimed that “[u]ndoubtedly questions of statutory interpretation . . . are for the courts to resolve, giving appropriate weight to the judgment of those whose special duty is to administer the questioned statute.” Id., at 130–131. Nothing in the New Deal era or before it thus resembled the deference rule the Court would begin applying decades later to all varieties of agency interpretations of statutes under Chevron. Pp. 7–13.


(b)Congress in 1946 enacted the APA “as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” Morton Salt, 338 U. S., at 644. The APA prescribes procedures for agency action and delineates the basic contours of judicial review of such action. And it codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment. As relevant here, the APA specifies that courts, not agencies, will decide “all relevant questions of law” arising on review of agency action, 5 U. S. C. §706 (emphasis added)—even those involving ambiguous laws. It prescribes no deferential standard for courts to employ in answering those legal questions, despite mandating deferential judicial review of agency policymaking and factfinding. See §§706(2)(A), (E). And by directing courts to “interpret constitutional and statutory provisions” without differentiating between the two, §706, it makes clear that agency interpretations of statutes—like agency interpretations of the Constitution—are not entitled to deference. The APA’s history and the contemporaneous views of various respected commentators underscore the plain meaning of its text.


Courts exercising independent judgment in determining the meaning of statutory provisions, consistent with the APA, may—as they have from the start—seek aid from the interpretations of those responsible for implementing particular statutes. , 522 U. S. 359, 374). By doing so, a court upholds the traditional conception of the judicial function that the APA adopts. Pp. 13–18.


(c)The deference that Chevron requires of courts reviewing agency action cannot be squared with the APA. Pp. 18–29.


(1)Chevron, decided in 1984 by a bare quorum of six Justices, triggered a marked departure from the traditional judicial approach of independently examining each statute to determine its meaning. The question in the case was whether an Environmental Protection Agency (EPA) regulation was consistent with the term “stationary source” as used in the Clean Air Act. 467 U. S., at 840. To answer that question, the Court articulated and employed a now familiar two-step approach broadly applicable to review of agency action. The first step was to discern “whether Congress ha[d] directly spoken to the precise question at issue.” Id., at 842. The Court explained that “[i]f the intent of Congress is clear, that is the end of the matter,” ibid., and courts were therefore to “reject administrative constructions which are contrary to clear congressional intent,” id., at 843, n. 9. But in a case in which “the statute [was] silent or ambiguous with respect to the specific issue” at hand, a reviewing court could not “simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.” Id., at 843 (footnote omitted). Instead, at Chevron’s second step, a court had to defer to the agency if it had offered “a permissible construction of the statute,” ibid., even if not “the reading the court would have reached if the question initially had arisen in a judicial proceeding,” ibid., n. 11. Employing this new test, the Court concluded that Congress had not addressed the question at issue with the necessary “level of specificity” and that EPA’s interpretation was “entitled to deference.” Id., at 865.


Although the Court did not at first treat as the watershed decision it was fated to become, the Court and the courts of appeals were soon routinely invoking its framework as the governing standard in cases involving statutory questions of agency authority. The Court eventually decided that rested on “a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” ., 517 U. S. 735, 740–741. Pp. 18–20.


(2)Neither nor any subsequent decision of the Court attempted to reconcile its framework with the APA. defies the command of the APA that “the reviewing court”—not the agency whose , 323 U. S., at 140. And when the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the action it reviews—is to “decide all relevant questions of law” and “interpret . . . statutory provisions.” §706 (emphasis added). It requires a court to ignore, not follow, “the reading the court would have reached” had it exercised its independent judgment as required by the APA. , 467 U. S., at 843, n. 11. insists on more than the “respect” historically given to Executive Branch interpretations; it demands that courts mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time, see , at 863, and even when a pre-existing judicial precedent holds that an ambiguous statute means something else, , 545 U. S. 967, 982. That regime is the antithesis of the time honored approach the APA prescribes.


Chevron cannot be reconciled with the APA by presuming that statutory ambiguities are implicit delegations to agencies. That presumption does not approximate reality. A statutory ambiguity does not necessarily reflect a congressional intent that an agency, as opposed to a court, resolve the resulting interpretive question. Many or perhaps most statutory ambiguities may be unintentional. And when courts confront statutory ambiguities in cases that do not involve agency interpretations or delegations of authority, they are not somehow relieved of their obligation to independently interpret the statutes. Instead of declaring a particular party’s reading “permissible” in such a case, courts use every tool at their disposal to determine the best reading of the statute and resolve the ambiguity. But in an agency case as in any other, there is a best reading all the same—“the reading the court would have reached” if no agency were involved. Chevron, 467 U. S., at 843, n. 11. It therefore makes no sense to speak of a “permissible” interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best.


Perhaps most fundamentally, ’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. The Framers anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment. gravely erred in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play. The very point of the traditional tools of statutory construction is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power—perhaps the occasion on which abdication in favor of the agency is least appropriate. Pp. 21–23.


(3)The Government responds that Congress must generally intend for agencies to resolve statutory ambiguities because agencies have subject matter expertise regarding the statutes they administer; will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations, fixing the boundaries of the delegated authority, and ensuring the agency has engaged in “ ‘reasoned decisionmaking’ ” within those boundaries. Michigan v. EPA, 576 U. S. 743, 750 (quoting Allentown Mack Sales & because deferring to agencies purportedly promotes the uniform construction of federal law; and because resolving statutory ambiguities can involve policymaking best left to political actors, rather than courts. See Brief for Respondents in No. 22–1219, pp. 16–19. But none of these considerations justifies Chevron’s sweeping presumption of congressional intent.


As the Court recently noted, interpretive issues arising in connection with a regulatory scheme “may fall more naturally into a judge’s bailiwick” than an agency’s. Kisor v. Wilkie, 588 U. S. 558, 578. Under Chevron’s broad rule of deference, though, ambiguities of all stripes trigger deference, even in cases having little to do with an agency’s technical subject matter expertise. And even when an ambiguity happens to implicate a technical matter, it does not follow that Congress has taken the power to authoritatively interpret the statute from the courts and given it to the agency. Congress expects courts to handle technical statutory questions, and courts did so without issue in agency cases before Chevron. After all, in an agency case in particular, the reviewing court will go about its task with the agency’s “body of experience and informed judgment,” among other information, at its disposal. Skidmore, 323 U. S., at 140. An agency’s interpretation of a statute “cannot bind a court,” but may be especially informative “to the extent it rests on factual premises within [the agency’s] expertise.” Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S. 89, 98, n. 8. Delegating ultimate interpretive authority to agencies is simply not necessary to ensure that the resolution of statutory ambiguities is well informed by subject matter expertise.


Nor does a desire for the uniform construction of federal law justify Chevron. It is unclear how much the Chevron doctrine as a whole actually promotes such uniformity, and in any event, we see no reason to presume that Congress prefers uniformity for uniformity’s sake over the correct interpretation of the laws it enacts.


Finally, the view that interpretation of ambiguous statutory provisions amounts to policymaking suited for political actors rather than courts is especially mistaken because it rests on a profound misconception of the judicial role. Resolution of statutory ambiguities involves legal interpretation, and that task does not suddenly become policymaking just because a court has an “agency to fall back on.” Kisor, 588 U. S., at 575. Courts interpret statutes, no matter the context, based on the traditional tools of statutory construction, not individual policy preferences. To stay out of discretionary policymaking left to the political branches, judges need only fulfill their obligations under the APA to independently identify and respect such delegations of authority, police the outer statutory boundaries of those delegations, and ensure that agencies exercise their discretion consistent with the APA By forcing courts to instead pretend that ambiguities are necessarily delegations, Chevron prevents judges from judging. Pp. 23–26.


(4)Because Chevron’s justifying presumption is, as Members of the Court have often recognized, a fiction, the Court has spent the better part of four decades imposing one limitation on Chevron after another. Confronted with the byzantine set of preconditions and exceptions that has resulted, some courts have simply bypassed Chevron or failed to heed its various steps and nuances. The Court, for its part, has not deferred to an agency interpretation under Chevron since 2016. But because Chevron remains on the books, litigants must continue to wrestle with it, and lower courts—bound by even the Court’s crumbling precedents—understandably continue to apply it. At best, Chevron has been a distraction from the question that matters: Does the statute authorize the challenged agency action? And at worst, it has required courts to violate the APA by yielding to an agency the express responsibility, vested in “the reviewing court,” to “decide all relevant questions of law” and “interpret . . . statutory provisions.” §706 (emphasis added). Pp. 26–29.


(d)Stare decisis, the doctrine governing judicial adherence to precedent, does not require the Court to persist in the Chevron project. The stare decisis considerations most relevant here—“the quality of [the precedent’s] reasoning, the workability of the rule it established, . . . and reliance on the decision,” Knick v. Township of Scott, 588 U. S. 180, 203 (quoting Janus v. State, County, and Municipal Employees, 585 U. S. 878, 917)—all weigh in favor of letting Chevron go.


Chevron has proved to be fundamentally misguided. It reshaped judicial review of agency action without grappling with the APA, the statute that lays out how such review works. And its flaws were apparent from the start, prompting the Court to revise its foundations and continually limit its application.


Experience has also shown that Chevron is unworkable. The defining feature of its framework is the identification of statutory ambiguity, but the concept of ambiguity has always evaded meaningful definition. Such an impressionistic and malleable concept “cannot stand as an everyday test for allocating” interpretive authority between courts and agencies. Swift & Co. v. Wickham, 382 U. S. 111, 125. The Court has also been forced to clarify the doctrine again and again, only adding to Chevron’s unworkability, and the doctrine continues to spawn difficult threshold questions that promise to further complicate the inquiry should Chevron be retained. And its continuing import is far from clear, as courts have often declined to engage with the doctrine, saying it makes no difference.


Nor has Chevron fostered meaningful reliance. Given the Court’s constant tinkering with and eventual turn away from Chevron, it is hard to see how anyone could reasonably expect a court to rely on Chevron in any particular case or expect it to produce readily foreseeable outcomes. And rather than safeguarding reliance interests, Chevron affirmatively destroys them by allowing agencies to change course even when Congress has given them no power to do so.


The only way to “ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion,” Vasquez v. Hillery, 474 U. S. 254, 265, is for the Court to leave Chevron behind. By overruling Chevron, though, the Court does not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite the Court’s change in interpretive methodology. See CBOCS West, Inc. v. Humphries, 553 U. S. 442, 457. Mere reliance on Chevron cannot constitute a “ ‘special justification’ ” for overruling such a holding. Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. 258, 266 (quoting Dickerson v. United States, 530 U. S. 428, 443). Pp. 29–35.


No. 22–451, 45 F. 4th 359 & No. 22–1219, 62 F. 4th 621, vacated and remanded.


ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., and GORSUCH, J., filed concurring opinions. KAGAN, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined, and in which JACKSON, J., joined as it applies to No. 22–1219. JACKSON, J., took no part in the consideration or decision of the case in No. 22–451.


George v. Susanville Elementary School Dist. (CA3 C098772 6/28/24) Salary Restoration


Plaintiff Susan George taught for the Susanville Elementary School District (District) for several years before resigning to teach at another school district. She later returned to the District. When deciding George’s placement on the salary schedule upon her return, the District did not credit her for the years of experience she gained at the other school district following her resignation. George filed a petition for writ of mandate arguing the District violated the uniformity requirement of Education Code1 section 45028 (uniformity requirement) and independently violated the restoration requirement of section 44931 (restoration requirement) when placing her on the salary schedule without accounting for the years of experience she gained while outside the District after her resignation. The trial court disagreed, finding the District complied with the Education Code. We reverse.


CBRE v. Super. Ct. (CA4/1 D083130M 6/28/24) Privette Doctrine


Jake Johnson was injured while working as an electrician on a construction project in a building owned by Property Reserve, Inc. (PRI) and 2 managed by CBRE (collectively, Petitioners). When injured, Johnson was employed by PCF Electric (PCF), a subcontractor hired by Crew Builders (Crew), the general contractor for the project. Johnson filed a complaint against Petitioners, Crew, and PCF for damages. Petitioners moved for summary judgment based on the Privette doctrine, which generally protects entities that hire independent contractors from liability for injuries sustained by employees of the independent contractor while working on a project. (See (1993) 5 Cal.4th 689 ().) The trial court denied Petitioners’ motion, finding a triable issue of fact as to when they hired Crew for the project. In the instant petition for writ of mandate, Petitioners assert the trial court erred by focusing on the execution date of the written contract, and they ask this court to issue a writ compelling the trial court to grant their motion for summary judgment. We agree the trial court erred in denying Petitioners’ motion for summary judgment. A written contract is not required to invoke the doctrine, and the undisputed facts establish that Petitioners delegated control over the tenant improvements to Crew prior to Johnson’s injury. The undisputed facts also establish that no exception to the doctrine applies. Prior to Johnson’s injury, Petitioners and Crew mutually agreed to proceed with the project without obtaining permits such that the permitting process was never within the scope of the contracted work. Because the evidence conclusively shows PCF was able to discover any noncode-compliant wiring itself, even in the absence of permits, the “concealed hazardous condition” exception to the doctrine is inapplicable as a matter of law. Further, because the decision to forego the permitting process did not affect the means by which PCF and its employees performed the 3 electrical work for which they were hired or the manner in which they ensured their own safety, the “retained control” exception to the doctrine is equally inapplicable. Because no triable issues of material fact preclude summary judgment, we grant Petitioners’ requested relief.


Perez v. Barrick Goldstrike Mines, Inc. (9th Cir. 23-15043 6/28/24) FMLA


The panel affirmed the district court’s judgment after a jury trial in favor of the defendant in an action under the Family and Medical Leave Act.


Tomas Perez claimed that his former employer, Barrick Goldstrike Mines, Inc., wrongfully interfered with his rights under the Act when it terminated his employment as an underground haul truck driver. The jury found that Perez failed to show by a preponderance of the evidence either that he suffered a serious health condition preventing him from performing his job or that Barrick terminated his employment because he sought protected leave.


Agreeing with other circuits, the panel held that the Family and Medical Leave Act does not require an employer to present contrary medical evidence before contesting a doctor’s certification of a serious health condition. The district court therefore did not err by failing to instruct the jury that only contrary medical evidence could defeat Perez’s doctor’s certification. The jury properly considered the non-medical evidence that Barrick offered at trial in support of its argument that Perez did not have a serious health condition within the meaning of the Act.


The panel addressed additional issues in an accompanying memorandum disposition.

Paleny v. Fireplace Products U.S., Inc. (CA3 C097584 6/27/24) FEHA Pregnancy Disability Law | Egg Retrieval and Freezing


Appellant Erika Paleny sued respondents Fireplace Products U.S., Inc. (Fireplace Products), and Sabah Salah (collectively, respondents), arguing that she experienced harassment, discrimination, and retaliation after she informed her manager, Salah, that she would be undergoing oocyte (egg) retrieval procedures to both donate and freeze eggs for herself for potential use at some unknown time in the future.  The superior court granted respondents’ motion for summary judgment based on its finding that the egg retrieval and freezing procedures did not qualify as a pregnancy-related medical condition or disability and were, therefore, not protected by the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).  Paleny appeals, arguing the superior court’s ruling erroneously construed the relevant statutes to deny her protection under the FEHA.  We affirm.


Rajaram v. Meta Platforms, Inc. (9th Cir. 6/27/24) Employment Discrimination against U.S. Citizens


Reversing the district court’s dismissal of an employment discrimination action, and remanding, the panel held that 42 U.S.C. § 1981 prohibits discrimination in hiring against United States citizens on the basis of their citizenship.


Purushothaman Rajaram, a naturalized United States citizen, alleged that Meta Platforms, Inc., refused to hire him because it prefers to hire noncitizens holding H1B visas to whom it can pay lower wages.


Section 1981(a) provides:


All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

Disagreeing with the Fifth Circuit, the panel held that, according to the statutory text, section 1981 prohibits employers from discriminating against United States citizens because an employer that does so gives one class of people—noncitizens, or perhaps some subset of noncitizens—a greater right to make contracts than “white citizens.” If some noncitizens have a greater right to make contracts than “white citizens,” then it is not true that “[a]ll persons” have the “same right” to make contracts as “white citizens.”


Dissenting, Judge VanDyke, applying what he thought was the better reading of an admittedly ambiguous text, and informed by the statutory development of section 1981, concluded that the statute does not protect citizens from discrimination on the basis of citizenship.

Keeton v. Tesla (CA1/1 A166690 6/26/24) Arbitration Fees


Plaintiff Dominique Keeton sued her employer, Tesla, Inc. (Tesla), for discrimination, harassment, and retaliation.  The parties agreed to submit the dispute to arbitration as provided in their arbitration agreement.  After Tesla failed to pay its arbitration fees within the 30-day window established by Code of Civil Procedure section 1281.98, subdivision (a)(1), Keeton moved to vacate the order submitting the dispute to arbitration.  The trial court granted the motion, finding that under section 1281.98, Tesla materially breached the parties’ arbitration agreement, and thus Keeton was entitled to proceed with her claims in court.


On appeal, Tesla argues the trial court erred in granting Keeton’s motion to vacate because (1) the arbitration agreement delegated issues of arbitrability to the arbitrator; (2) the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) preempts section 1281.98; and (3) section 1281.98 constitutes an unconstitutional impairment of the arbitration agreement.  We disagree and affirm.

Lusardi Construction Co. v. Dept. of Industrial Rel. (CA4/1 D081704, filed 5/28/24, pub. 6/25/24) DLSE Citation


Plaintiff and appellant Lusardi Construction Company’s (Lusardi) subcontractor, Pro Works Contracting Inc. (Pro Works), violated certain Labor Code provisions by failing to hire apprentices for construction of the San Marcos K-8 School Project (the Project).  Defendants and respondents Department of Industrial Relations, its director Katrina S. Hagen (the Director), and real party in interest and respondent, Division of Labor Standards Enforcement (DLSE) cited Pro Works for those violations.  Following an investigation, DLSE ordered Lusardi to pay penalties for the violations.  Lusardi’s administrative appeal was unsuccessful, and it thereafter filed a petition for writ of administrative mandamus under Code of Civil Procedure section 1094.5, which the superior court denied.


Lusardi contends the superior court erroneously concluded that:  (1) the Director’s interpretation of former section 1777.7 subdivision (d) was proper; (2) substantial evidence supported a finding Lusardi knew of Pro Works’s violations; (3) section 1743, subdivision (a)’s joint and several liability provision applied; (4) substantial evidence supported the amount of the penalty assessed against Pro Works; and (5) Lusardi was not denied due process.  We affirm.

L.A. County Employees Retirement Assn. v. County of L.A. (CA2/7 B326977 6/24/24) Public Employee Retirement System


This appeal presents two questions:  First, does the fiduciary board of a county public employee retirement system established under the County Employees Retirement Law of 1937 (Gov. Code, § 31450 et seq. (CERL)) have authority under the California Constitution and relevant statutes to create employment classifications and set salaries for employees of the retirement system?  Second, does section 31522.1 impose a ministerial duty on a county board of supervisors to include in the county’s employment classifications and salary ordinance the classifications and salaries adopted by the board of a county public employee retirement system for employees of that system?  It will take some time and space to explain our answers to these questions.  In the meantime, here’s the short version:  Yes and yes.


Drammeh v. Uber Techs. Inc. (9th Cir. 22-36038 6/24/24) Uber-Driver Special Relationship


The panel certified the following questions to the Washington Supreme Court:

1. Under Washington law, does a rideshare company have a special relationship with its drivers giving rise to a duty to use reasonable care in matching drivers with riders to protect against riders’ foreseeable criminal conduct?

2. Under Washington law, was an attempted carjacking and murder of a rideshare driver by a rider legally foreseeable?

3. If such a duty exists, what is the measure and scope of that duty?

Frayo v. Martin et al. (CA6 H050689, filed 5/29/24, pub. 6/21/24) Confidentiality of Medical Information Act


Appellant Ryan Owen Frayo appeals the judgment entered after the trial court sustained a demurrer to his first amended complaint without leave to amend.  After being terminated for refusing to take a COVID-19 test, Frayo sued his employer, A&A Organic Farms Corporation (A&A) and its owners, Andrew D. Martin and Aimee M. Raphael‑Martin (collectively with A&A, respondents), alleging they violated the Confidentiality of Medical Information Act (CMIA) (Civ. Code, § 56 et seq.).  After providing Frayo an opportunity to cure the defects in his initial complaint, the trial court sustained A&A’s demurrer to Frayo’s first amended complaint, finding Frayo failed to state a claim under the CMIA.  For the reasons we explain below, we affirm.

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