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Date: 02-10-2018

Case Style:

Brian Newton v. Parker Drilling Management Services, Ltd.

Central District of California Federal Courthouse - Los Angeles, California

Case Number: 15-563-52

Judge: Morgan Christen

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Central District of California (Los Angeles County)

Plaintiff's Attorney: Mike Strauss

Defendant's Attorney: Ronald J. Holland, Ellen M. Bronchetti and Karin Dougan Vogel

Description: This case presents the novel question whether claims
under state wage and hour laws may be brought by workers
employed on drilling platforms fixed on the outer Continental
Shelf. Brian Newton worked on such a platform off the coast
of Santa Barbara. His shifts lasted fourteen days and he
regularly worked twelve hours per day. After Parker Drilling
(“Parker”) terminated him, Newton sued in state court for
wage and hour violations under California law. Parker
removed the case to federal district court and filed a motion
for judgment on the pleadings. The district court granted the
motion, concluding that the Fair Labor Standards Act is a
comprehensive statutory scheme that is exclusive of
California wage and hour laws. Newton appeals. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
We hold that the absence of federal law is not, as the
district court concluded, a prerequisite to adopting state law
as surrogate federal law under the Outer Continental Shelf
Lands Act, 43 U.S.C. § 1333(a)(2)(A). We thus reject the
proposition that “necessity to fill a significant void or gap,”
Cont’l Oil Co. v. London S.S. Owners’ Mut. Ins. Ass’n, 417 F.
2d 1030, 1036 (5th Cir. 1969), is required in order to
assimilate “applicable and not inconsistent,” 43 U.S.C.
§ 1333(a)(2)(A), state law into federal law governing drilling
platforms affixed to the outer Continental Shelf. We
therefore vacate the district court’s dismissal of Newton’s
claims and remand for further proceedings consistent with
this opinion.
Newton worked as a roustabout and painter for Parker on
drilling platforms in the Santa Barbara Channel from
approximately January 2013 to January 2015. It is
uncontested that the drilling platforms where he worked were
located more than three miles offshore and fixed to the seabed
of the outer Continental Shelf. His fourteen-day shifts,
known in the industry as “hitches,” comprised twelve hours
on duty followed by twelve hours on “controlled standby.”
Newton was paid for twelve hours of work per day and he
was not able to leave the platform during his shifts. Newton
alleges that he usually took fifteen to thirty minutes during
his shifts to eat without clocking out or ate while not working
and remaining on call, and that Parker did not provide thirtyminute
meal periods for each five hours worked, as required
by California law. Parker paid Newton twice per month. In
addition to compensation for twelve hours per day, his pay
stubs showed pay for “two hours for the boat ride out, back
and debriefing with the next crew.”
Newton filed a putative class action in California state
court on February 17, 2015. Although Parker paid an hourly
rate well above California and federal minimum wage,
Newton maintained that California law required Parker to pay
him for the twelve hours he was on controlled standby each
day. The First Amended Complaint (FAC) alleged that
Newton’s final paycheck did not include all the wages owed
to him, “including the overtime/doubletime and meal period
wages.” In all, Newton brought seven causes of action under
California law for: (1) minimum wage violations; (2) failure
to pay overtime and doubletime; (3) pay stub violations;
(4) failure to pay timely final wages; (5) failure to provide
lawful meal periods; (6) civil penalties under the Private
Attorney General Act of 2004 (PAGA); and (7) unfair
Parker removed the action to federal court and filed a
motion for judgment on the pleadings. Parker argued that,
under the Outer Continental Shelf Lands Act, 43 U.S.C.
§§ 1331–1356b (OCSLA), the Fair Labor Standards Act
(FLSA) is a comprehensive statutory scheme that leaves no
room for state law to address wage and hour grievances
arising on the OCS.1 For his part, Newton contended that
California’s more protective wage and hour laws may be
applied concurrently with the minimum guarantees of their
federal counterpart. See 29 U.S.C. § 201, et seq. Newton’s
opposition did not explain the complaint’s allegation that
some of Parker’s allegedly unlawful conduct occurred in
California rather than on the OCS, but did request that if the
1 We collectively refer to the outer Continental Shelf and the devices
attached to it for the purposes enumerated in the statute as “the OCS.”
district court were to grant Parker’s motion, it do so “without
prejudice to allow Plaintiff to correct any deficiencies.”2
The district court granted Parker’s motion for judgment
on the pleadings, reasoning that “under [the] OCSLA, federal
law governs and state law only applies to the extent it is
necessary ‘to fill a significant void or gap’ in federal law.”
Finding no significant voids or gaps in the FLSA, the district
court held that Newton could not invoke California wage and
hour laws as surrogate federal law. The district court reached
this decision after considering the Department of Labor
(DOL) regulations elaborating the FLSA. While recognizing
that the FLSA has a savings clause that expressly allows for
more protective state minimum wage and overtime laws, the
district court nevertheless concluded that California wage and
hour claims were unavailable to Newton. The district court
did not address Newton’s request for leave to amend.
Newton timely appealed.
A dismissal on the pleadings pursuant to Rule 12(c) is
reviewed de novo. Lyon v. Chase Bank USA, N.A., 656 F.3d
877, 883 (9th Cir. 2011). “Dismissal without leave to amend
is improper unless it is clear, upon de novo review, that the
complaint could not be saved by any amendment.” Thinket
2 The FAC alleged, without elaboration, that “the unlawful
employment practices complained of herein occurred in the City of
Goleta, California, County of Santa Barbara.” On appeal, Newton argues
that “at least some of the alleged California wage-and-hour violations took
place on vessels to and from California’s coast and on the coast of
Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053,
1061 (9th Cir. 2004).
Except for any claims that may have arisen while Newton
was transiting to and from the offshore drilling platforms
where he worked, Newton’s grievances relate to his
employment on the OCS, and the parties agree that the fate of
Newton’s appeal rests on the OCSLA’s choice of law
provision. See 43 U.S.C. § 1333(a)(2)(A).
A. The Outer Continental Shelf Lands Act
1. OCSLA’s Choice of Law Provision
The outer Continental Shelf generally refers to submerged
lands lying more than three miles offshore, outside the
territorial jurisdiction of the states. See 43 U.S.C. §§ 1331(a),
1301(a)(2); Valladolid v. Pac. Operations Offshore, LLP,
604 F.3d 1126, 1130 (9th Cir. 2010). Subject to certain
exceptions and conditions, the OCSLA declares that the
Constitution and laws of the United States extend to the outer
Continental Shelf, as well as “all artificial islands, and all
installations and other devices permanently or temporarily
attached to the seabed . . . for the purpose of exploring for,
developing, or producing resources therefrom . . . to the same
extent as if the outer Continental Shelf were an area of
exclusive Federal jurisdiction located within a State.”
43 U.S.C. § 1333(a)(1) (emphasis added). OCSLA’s
assertion of jurisdiction is unique because it comprises the
ocean floor but not the waters above it. “[T]he jurisdiction
asserted is a ‘horizontal jurisdiction’ and does not affect the
status of superjacent waters.” Warren M. Christopher, The
Outer Continental Shelf Lands Act: Key to a New Frontier,
6 Stan. L. Rev. 23, 34 (1953) (citing S. Rep. No. 83-411, at 2
(1953)). The OCSLA’s choice of law provision declares:
To the extent that they are applicable and not
inconsistent with this subchapter or with other
Federal laws and regulations of the Secretary
now in effect or hereafter adopted, the civil
and criminal laws of each adjacent State, now
in effect or hereafter adopted, amended, or
repealed are declared to be the law of the
United States for that portion of the subsoil
and seabed of the outer Continental Shelf, and
artificial islands and fixed structures erected
thereon, which would be within the area of the
State if its boundaries were extended seaward
to the outer margin of the outer Continental
Shelf, and the President shall determine and
publish in the Federal Register such projected
lines extending seaward and defining each
such area.
43 U.S.C. § 1333(a)(2)(A) (emphasis added). Because the
OCSLA makes plain that the laws of the adjacent state are to
apply to drilling platforms fixed to the seabed of the outer
Continental Shelf as long as state law is “applicable and not
inconsistent with . . . Federal laws,” the parties’ dispute turns
on the interpretation of the terms “applicable” and “not
inconsistent.” Id.
The Supreme Court has not been called upon to decide a
case involving wage and hour laws on the OCS. Both
Newton and Parker ask us to look to the Fifth Circuit’s
interpretation of the OCSLA for guidance. Though the
parties disagree as to the Fifth Circuit’s prevailing test for
choice of law on the OCS, they both argue that we ought to
follow the Fifth Circuit’s lead and adopt the approach it has
taken in cases involving injury, wrongful death, and contract
claims arising on the OCS. Newton urges that the Fifth
Circuit’s test is the one set out in Union Texas Petroleum
Corp. v. PLT Engineering, Inc., 895 F.2d 1043 (5th Cir.
1990) (PLT). According to Newton, platform workers may
bring state wage and hour claims to the extent that state law
is not inconsistent with existing federal law, see Breton
Energy, L.L.C. v. Mariner Energy Res., Inc., 764 F.3d 394,
398 (5th Cir. 2014), and California’s wage and hour laws are
not inconsistent with the FLSA insofar as they are preserved
by the FLSA’s savings clause. Relying on Continental Oil,
417 F.2d at 1036, Parker argues that the FLSA is a
comprehensive statutory and regulatory scheme that leaves no
voids or gaps for state law to fill, so state wage and hour laws
do not apply on the OCS and Newton’s grievances may be
redressed only by the FLSA.
Having examined the text of the original OCSLA and its
1975 amendment, the legislative history, and the Supreme
Court’s case law addressing the Act, we hold that state wage
and hour laws are adopted as surrogate federal law on the
OCS as long as they are “applicable and not inconsistent”
with existing federal law.
2. Origins of the OCSLA
“The OCSLA grew out of a dispute, which first developed
in the 1930’s, between the adjacent States and the Federal
Government over territorial jurisdiction and ownership of the
OCS and, particularly, the right to lease the submerged lands
for oil and gas exploration.” Shell Oil Co. v. Iowa Dep’t of
Revenue, 488 U.S. 19, 26 (1988). Passed in 1953,“[t]he
purpose of the [OCSLA] was to define a body of law
applicable to the seabed, the subsoil, and the fixed structures
such as [drilling platforms] on the outer Continental Shelf.”
Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 355 (1969).
Congress initially considered extending maritime law to
the OCS, but it envisioned that 10,000 or more people might
eventually be employed on the OCS to develop mineral
resources.3 See 99 Cong. Rec. 6963–64 (1953); Shell Oil,
488 U.S. at 27 n.8. Anticipating a broad range of activity
associated with this mineral resource development, Congress
feared that federal law, standing alone, would be inadequate
because it “was never designed to be a complete body of law
in and of itself.” 99 Cong. Rec. 6963 (1953). Congress also
rejected the incorporation of the OCS into the boundaries of
the several states, see S. Rep. No. 83-411, at 6 (1953),
deciding instead that existing federal law and the law of the
abutting state (except for state taxation laws)4 were to
comprise the body of law governing the OCS. Because the
Department of Justice and several members of Congress
voiced concerns that the prospective incorporation of state
laws on the OCS might be an unconstitutional delegation of
Congress’s legislative authority, S. Rep. No. 83-411, at 33
3 “[L]arge crews of men will work on the miraculous structures which
will rise from the sea bed of the outer Continental Shelf. These men will
die, leave wills, and pay taxes. They will fight, gamble, borrow money,
and perhaps even kill. They will bargain over their working conditions
and sometimes they will be injured on the job. . . . the whole circle of
legal problems familiar to the upland could occur on these structures.”
Christopher, supra, at 37.
4 43 U.S.C. § 1333(a)(2)(A) provides: “State taxation laws shall not
apply to the outer Continental Shelf.”
(1953); see 99 Cong. Rec. 6963–64 (1953), the OCSLA only
borrowed state law then in existence.5 Thus, as originally
adopted in 1953, “applicable” state law for purposes of
§ 1333(a)(2)(A) referred to state non-tax law, in existence on
the effective date of the Act, that bore on the relevant subject
The “applicable” state law for purposes of
§ 1333(a)(2)(A) changed in 1975 when Congress enacted the
Deepwater Port Act, 33 U.S.C. §§ 1501, et seq., and
simultaneously amended the OCSLA, see Pub. L. No. 93-627,
§ 19(f), 88 Stat. 2176 (1975). By then, United States v.
Sharpnack, 355 U.S. 286 (1958), had allayed the concern that
the prospective adoption of state law might amount to an
unconstitutional delegation of congressional legislative
authority.6 The 1975 amendment redefined state law in
5 As explained by Senator Cordon while introducing the bill to the
Senate: “The enactment as Federal law by reference of the laws of the
several abutting States meets the major constitutional objection, in that the
laws so adopted are the laws as they exist at the time of the enactment of
S. 1901. Only already existing State laws will become the law of the
United States, and the amendatory legislation by the States thereafter will
not be applicable, unless made so by later Federal legislation.” 99 Cong.
Rec. 6963–64 (1953); see also Christopher, supra, at 42.
6 In Sharpnack, the Supreme Court sustained the Assimilative Crimes
Act of 1948 (Crimes Act) against the challenge that Congress, in enacting
the Crimes Act, impermissibly delegated its legislative authority to the
states. 18 U.S.C. § 13; 355 U.S. at 286. The Crimes Act makes the
version of state law enforceable at the time of allegedly unlawful conduct
applicable, in conjunction with federal criminal law, on federal enclaves.
Sharpnack explained that Congress’s “deliberate continuing adoption” of
state criminal law for federal enclaves does not rise to an unconstitutional
delegation of legislative authority to the states because Congress always
has the power to exclude a state law from the scope of the Crimes Act.
355 U.S. at 294.
§ 1333(a)(2)(A) as “the civil and criminal laws of each
adjacent State, now in effect or hereafter adopted, amended,
or repealed.” § 1333(a)(2)(A) (emphasis added). This
amendment ensured that the same law governed resource
development structures on the OCS and deep water ports.7
The OCSLA’s choice of law provision has not undergone
significant statutory amendments since 1975.
3. Judicial Interpretation of the OCSLA
The Supreme Court first applied the OCSLA’s choice of
law provision in Rodrigue v. Aetna Casualty & Surety Co.,
395 U.S. 352, 355 (1969). The families of two workers who
perished on drilling rigs fixed to the outer Continental Shelf
off the Louisiana coast brought claims pursuant to Louisiana
state law and the Death on the High Seas Act (High Seas
Act). 395 U.S. at 352–53 (1969); see 46 U.S.C.
§§ 30301–08. The High Seas Act provides an admiralty
remedy for deaths resulting from traditional maritime activity
on the high seas, i.e., in waters three or more nautical miles
from shore. See Rodrigue, 395 U.S. at 359. The trial courts
in the two cases that were consolidated in the Rodrigue
appeal dismissed the state wrongful death claims, ruling that
the federal statutory remedy was exclusive. Id. at 353–54.
The Fifth Circuit affirmed that ruling, but the Supreme Court
reversed. Id. at 355. The Supreme Court explained that the
7 As explained in the Joint Report of the Committees on Commerce,
Interior and Insular Affairs, and Public Works to the Senate, the
Department of Justice sought the 1975 amendment to the OCSLA
because, “from an enforcement point of view,” it wanted the same law
applied to all deepwater ports and structures erected on the OCS, see S.
Rep. No. 93-1217, at 76 (1974), and “no provision was made in the Outer
Continental Shelf Lands Act to apply State laws as adopted, amended or
repealed, after the date of enactment of that Act.” Id. at 60.
OCSLA requires fixed drilling platforms to be treated as
artificial islands or federal enclaves within a landlocked state,
not as vessels. Id. As such, “the [federal] admiralty action
under the [High] Seas Act no more applies to these accidents
actually occurring on the islands than it would to accidents
occurring in an upland federal enclave.”8 Id. at 366.
Moreover, since the accidents befalling the workers “involved
no collision with a vessel, and the structures were not
navigational aids,” their deaths were not attributable to
traditional maritime activity. Id. at 360. Hence, the High
Seas Act’s maritime remedy was unavailable, and “any
obstacle to the application of state law by incorporation as
federal law through [§ 1333(a)(2)]” was “remove[d].” Id. at
In reaching this result, Rodrigue first examined the
language of § 1333(a)(2), which, as originally enacted,
expressly incorporated then-existing state laws “[t]o the
extent that they are applicable and not inconsistent” with
federal law. See id. at 356 n.3 (quoting 43 U.S.C.
§ 1333(a)(2)(A)). The Supreme Court concluded from its
analysis of the text that “federal law is ‘exclusive’ in its
regulation of [the OCS], and that state law is adopted only as
surrogate federal law.” Id. at 357. From the Senate
Committee Report, the Conference Report, and the debate on
the floor of the Senate, the Court found support for “[t]he
principles that federal law should prevail, and that state law
8 “[A] state may not legislate with respect to a federal enclave unless
it reserved the right to do so when the state gave its consent to the
purchase by the United States[;] only state laws existing at the time of the
acquisition remain enforceable. Subsequent state laws are only
enforceable if Congress provides for assimilation of later-enacted state
controls.” 3 William J. Rich, Modern Constitutional Law § 34:49 (3d ed.
should be applied only as federal law and then only when no
inconsistent federal law applie[s]”. Id. at 357–59 (citing S.
Rep. No. 83-411, at 11 (1953); H.R. Conf. Rep. No. 1031,
83d Cong., 1st Sess., 12 (1953); 99 Cong. Rec. 6962–63,
7164, 7232–36 (1953)). “This legislative history buttresse[d]
the Court of Appeals’[s] finding that in view of the
inconsistencies between the state law and the [High] Seas
Act, the [High] Seas Act remedy would be exclusive if it
applied.” Id. at 359.
But the High Seas Act remedy did not apply. The
Supreme Court recounted that while introducing the OCSLA
bill to the Senate, Senator Cordon explained that the
Committee on Interior and Insular Affairs initially attempted
to “provide housekeeping law” for the OCS by treating
drilling platforms as vessels subject to maritime law.
Rodrigue, 395 U.S. at 361 (quoting 99 Cong. Rec. 6963
(1953)). The Committee, however, eschewed this approach
because “[t]he so-called social laws necessary for protection
of the workers and their families would not apply[, including]
such things as unemployment laws, industrial-accident laws,
fair-labor-standard laws, and so forth. Ultimately, instead,
the whole body of Federal law was made applicable to the
area as well as state law where necessary.” Id. at 362
(original alterations and quotation marks omitted). The
Rodrigue court concluded from its “[c]areful scrutiny of the
hearings which were the basis for eliminating from the
[OCSLA] the treatment of artificial islands as vessels . . . that
the motivation for this change, together with the adoption of
state law as surrogate federal law, was the view that maritime
law was inapposite to these fixed structures.” Id. at 363. In
sum, Rodrigue dispelled the misconception that maritime law
applied perforce to drilling platforms on the outer Continental
Shelf. Since federal law made no provision for wrongful
death claims on the OCS,9 the Supreme Court held that the
OCSLA adopted state law as the applicable surrogate federal
law. Id. at 365–66.
Notably, Rodrigue did not require the court to address a
situation where state law and existing federal law made
provisions for the type of claim asserted; no relevant federal
cause of action for wrongful death existed. Rodrigue is
therefore of faint value for resolving a case like the instant
one, where both state and federal law are potentially
applicable to Newton’s wage and hour grievances.
The Supreme Court revisited the OCSLA choice of law
provision in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971).
Huson filed a personal injury suit against a non-employer
defendant, Chevron, for damages arising from a back injury
he suffered while working on Chevron’s artificial island
drilling rig on the outer Continental Shelf. Id. at 98. The
parties’ dispute centered on the timeliness of the plaintiff’s
claims. Id. The Fifth Circuit resorted to the federal admiralty
doctrine of laches, but the Supreme Court reversed, holding
that Louisiana’s one-year statute of limitations should have
controlled.10 Id. at 105. The Huson court explained that in
9 The Longshore and Harbor Workers’ Compensation Act (LHWCA),
33 U.S.C. § 901, et seq., provides a federal remedy for a non-seaman
maritime employee to recover against an employer for personal injuries.
See Figueroa v. Campbell Indus., 45 F.3d 311, 315 (9th Cir. 1995). The
OCSLA extends the LHWCA to the OCS, 43 U.S.C. § 1333(b), but
defendants in Rodrigue were not the workers’ employers. See Rodrigue,
395 U.S. at 354.
10 Because Huson initiated his action before the Supreme Court
announced its decision in Rodrigue, the Court declined to apply this
holding to his claims. Huson, 404 U.S. at 99–100.
enacting the OCSLA, Congress expressed an intent for courts
to fill “gaps” in existing federal law by applying state law, not
by creating federal common law. Id. at 104–05 (internal
quotation marks omitted). Like Rodrigue, Huson did not
resolve a claimed inconsistency between potentially
applicable state and federal laws. Nor did Offshore Logistics
Inc. v. Tallentire, 477 U.S. 207 (1986), which considered
whether the High Seas Act or state law governed wrongful
death actions brought after a helicopter transporting two OCS
platform workers crashed into the sea. Id. at 209. Starting
from the observation that the text of the OCSLA precludes its
application to the high seas over the outer Continental Shelf,
the Supreme Court rejected “the proposition that it is the
decedent’s status or his special relationship with the shore”
that triggers OCSLA’s choice of law provision in
§ 1333(a)(2)(A), “regardless of the location of the accident.”
Id. at 219. Locale is key, and because “the fatalities
underlying [the] suit . . . occurred on the high seas” rather
than on the OCS, the High Seas Act—not the
OCSLA—controlled. Id. at 220.
Surveying the Supreme Court’s OCSLA jurisprudence,
we conclude that there are three questions that must be asked
in any case involving choice of law under § 1333(a)(2)(A) of
the OCSLA. First, the threshold question is whether the situs
of the controversy is the OCS. See Tallentire, 477 U.S. at
218–19; cf. Pac. Operators Offshore, LLP v. Valladolid,
565 U.S. 207, 222 (2012) (holding that in contrast to
§ 1333(a)(2)(A), the OCSLA’s provision for workers’
compensation, § 1333(b), covers employees who can
establish a “substantial-nexus” between their injury and
extractive operations on the OCS). If the situs is not the
OCS, the OCSLA’s choice of law provision cannot apply.
See Tallentire, 477 U.S. at 220. Second, if the situs is the
OCS, we then ask whether there is any federal law applicable
to the dispute. See Rodrigue, 395 U.S. at 366. If there is not,
then state law generally applies. See id.; Huson, 404 U.S. at
101. Third, if there is federal law applicable to the dispute,
then we “must consider the content of both potentially
applicable federal and state law” and ask whether any
applicable state law is inconsistent with federal law. Gulf
Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 486 (1981).
As a contemporary commentator on the OCSLA presciently
warned, “[w]hich state laws ‘are applicable and not
inconsistent’ with federal laws and regulations will be open
to constant interpretation and controversy.” Christopher,
supra, at 42.
The “seemingly innocuous extension of state law raised
to the status of surrogate federal law raises extremely
complex questions of interpretation[,]” particularly in
addressing choice of law. 1 Thomas J. Shoenbaum,
Admiralty & Maritime Law § 3-9 (5th ed. 2016). The Fifth
Circuit has elaborated two strands of jurisprudence stemming
from Rodrigue. According to the Fifth Circuit’s Continental
Oil line of cases, “the recurring theme of Rodrigue ‘requires
that “applicable” [state law] be read in terms of
necessity—necessity to fill a significant void or gap’” in
existing federal law. Nations v. Morris, 483 F.2d 577, 585
(5th Cir. 1973) (quoting Cont’l Oil, 417 F.2d at 1036). The
Fifth Circuit last applied the Continental Oil test in 1985 in
LeSassier v. Chevron USA, Inc., 776 F.2d 506, 509 (5th Cir.
1985) (per curiam),11 where the court considered whether a
11 The Continental Oil test was also briefly alluded to in the footnotes
of two later cases: Oceanic Butler, Inc. v. Nordahl, 842 F.2d 773, 777 n.4
(5th Cir. 1988) and Mesa Operating Ltd. v. U.S. Dep’t of Interior,
931 F.2d 318, 325 n.48 (5th Cir. 1991).
drilling platform worker could maintain a Louisiana
retaliatory discharge action even though the Longshore and
Harbor Workers’ Compensation Act (LHWCA) provides a
federal remedy for retaliatory discharge. LeSassier was a
platform worker who had been injured on an outer
Continental Shelf platform. LeSassier, 776 F.2d at 507.
After filing a successful claim for benefits under the
LHWCA, LeSassier was fired. Id. He brought a state law
action against his former employer alleging retaliatory
discharge, but the district court concluded LeSassier could
not rely on state retaliatory discharge law. Id. The Fifth
Circuit affirmed, holding that “no gap” in federal law existed
because “Congress provided a specific statutory provision [in
the LHWCA] (33 U.S.C. § 948a) to address retaliatory
discharges.” Id. at 509. The court of appeals declined to
“selectively apply[] only those parts of the overall LHWCA
statutory structure which [LeSassier] happen[ed] to favor and
ignore less favorable provisions.” Id. at 508. In Parker’s
view, Continental Oil and its progeny establishes that, at least
in the Fifth Circuit, state law is only applicable on the OCS
if it is necessary to resort to state law to fill a gap or void in
federal law. Parker urges us to adopt such a rule.
Newton advocates for the adoption of the PLT test as
applied in the Fifth Circuit’s more recent lines of cases. The
PLT test distills Rodrigue thus: “[F]or state law to apply as
surrogate federal law, three conditions must be met: ‘(1) The
controversy must arise on a situs covered by OCSLA (i.e. the
subsoil seabed, or artificial structures permanently or
temporarily attached thereto)[;] (2) Federal maritime law
must not apply of its own force[;] (3) [t]he state law must not
be inconsistent with Federal law.’” Grand Isle Shipyard, Inc.
v. Seacor Marine, LLC, 589 F.3d 778, 783 (5th Cir. 2009) (en
banc) (quoting PLT, 895 F.2d at 1047). The Fifth Circuit
applied the third prong of this test in Hodgen v. Forest Oil
Corp., 87 F.3d 1512 (5th Cir. 1996), overruled on other
grounds by Grand Isle Shipyard, 589 F.3d at 788 n.8.
Hodgen arose from an accident suffered by an operator while
executing a swing rope transfer from a OCS platform to a
vessel. 87 F.3d at 1516. The operator settled his personal
injury claims against the defendants who then litigated
questions of comparative fault and indemnity between
themselves. Id. at 1517. An agreement between the
operator’s employer and the charterer contained a clause
requiring the former to indemnify the latter for costs and
damages, but the Louisiana Oilfield Indemnity Act (LOIA)
forbade any such transfer of liability. Id. at 1522. The
charterer argued that the LOIA should not be adopted as
surrogate federal law because it was inconsistent with federal
law. Id. at 1528. The Fifth Circuit, relying on its prior
decision in Knapp v. Chevron USA, Inc., 781 F.2d 1123 (5th
Cir. 1986), summarily rebuffed this contention. Hodgen,
87 F.3d at 1528. Knapp concluded that because the 1984
amendments to the LHWCA were silent as to indemnity
agreements addressing injuries caused by the negligence of
non-vessels and nothing signaled Congress’s intent that the
amendments should “preempt the field,” Louisiana’s Oilfield
Indemnity Act was not inconsistent with federal law and,
therefore, the OCSLA “makes [the LOIA] the applicable
surrogate law on fixed platforms offshore Louisiana.”
Knapp, 781 F.2d at 1131. Hodgen and Knapp suggest that
the Fifth Circuit’s PLT test looks to congressional intent
regarding preemption to determine whether state law is
inconsistent with a federal statutory scheme.
It remains unclear whether the PLT test has superseded
the Continental Oil test in the Fifth Circuit, or whether the
Fifth Circuit views the Continental Oil test as a precursor to
the PLT test, such that the PLT conditions come into play
only if there is a significant gap or void in federal law. See
Tetra Techs., Inc. v. Cont’l Ins. Co., 814 F.3d 733, 738 (5th
Cir. 2016). Despite questions about the PLT test, in respects
not here pertinent,12 Newton argues that the PLT test should
be adopted as the law of the Ninth Circuit.
B. The Instant Case
1. Newton’s Claims under California Minimum
Wage and Overtime Law
Parker paid Newton an hourly rate well above the state
and federal minimum wage, and also paid him premium rates
for overtime hours. Newton’s principal wage and hour
objection is that he was not properly compensated for standby
hours on the drilling platform. We know of no appellate case
law examining whether, for the purposes of the OCSLA, state
wage and hour laws are inconsistent with the federal Fair
Labor Standards Act.13
12 See Barker v. Hercules Offshore, Inc., 713 F.3d 208, 214 (5th Cir.
2013) (Clement, J., writing for herself) (“Although the application of
maritime law under OCSLA may be contrary to the intention of Congress,
we are bound by our precedent to apply maritime law as the substantive
rule of decision where it otherwise applies ‘of its own force.’”); Demette
v. Falcon Drilling Co., 280 F.3d 492, 505 n.2 (5th Cir. 2002) (DeMoss,
J., dissenting) (noting that “there is no statutory basis” for examining
whether maritime law applies of its own force under the second prong of
the PLT test), overruled on other grounds by Grand Isle Shipyard,
589 F.3d at 788 n.8.
13 District courts within the Ninth Circuit have considered whether
California wage and hour laws apply as surrogate federal law on the OCS.
See, e.g., Williams v. Brinderson Constructors Inc., No. CV 15-2474-
MWF(AGRx), 2015 WL 4747892 (C.D. Cal. Aug. 11, 2015); Reyna v.
a. Text and Legislative History of the OCSLA
To resolve the issue of first impression presented by
Newton’s appeal, “[w]e start, as we must, with the language
of the statute[,]” Bailey v. United States, 516 U.S. 137, 144
(1995). “[W]hen the statute’s language is plain, the sole
function of the courts—at least where the disposition required
by the text is not absurd—is to enforce it according to its
terms.” Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (internal
quotation marks omitted).
The OCSLA makes the laws of the adjacent state, “[t]o
the extent that they are applicable and not inconsistent with
this subchapter or with other Federal laws . . . the law of the
United States.” 43 U.S.C. § 1333(a)(2)(A). “[W]ords used
in a statute are to be given their ordinary meaning in the
absence of persuasive reasons to the contrary.” Burns v.
Alcala, 420 U.S. 575, 580 (1975). In its ordinary sense,
“applicable” state law, as that term was employed in the 1953
version of the statute, meant the non-tax law of the abutting
state—frozen in time—that pertained to the subject matter at
hand. See, e.g., Applicable, Funk & Wagnalls Standard
Dictionary of the English Language (1958) (“Capable of or
suitable for application; relevant; fitting”). The 1975
amendment to the OCSLA did not change the significance of
the word “applicable,” except that the state laws to be
Venoco, Inc., No. CV 15-4525 PA (RAOx) (C.D. Cal. October 23, 2015);
Espinoza v. Beta Operating Co., No. CV 15-04659-RGK (ASx) (C.D. Cal.
Oct. 29, 2015); Jefferson v. Beta Operating Co., No. CV 15-04966 SJO
(PLAx) (C.D. Cal. Nov. 3, 2015); Garcia v. Freeport-McMoran Oil &
Gas LLC, No. CV 16-4320-R (C.D. Cal. Sept. 16, 2016). Except where
parties contractually agreed for state law to control, these district courts
concluded that California’s wage and hour laws do not extend to OCS
platform workers because the FLSA leaves no gap for state law to fill.
adopted became “the civil and criminal laws of each adjacent
State, now in effect or hereafter adopted, amended, or
repealed.” 43 U.S.C. § 1333(a)(2)(A); see, e.g., Applicable,
Webster’s New World Dictionary of the American Language
(1972) (“that can be applied; appropriate”). Thus, we first
observe that the “ordinary, contemporary, common meaning,”
Williams v. Taylor, 529 U.S. 420, 431 (2000), of “applicable”
does not lend itself to the notion that state laws have to fill a
gap in federal law to qualify as surrogate federal law.
Moreover, we generally “presume [that] Congress says
what it means and means what it says.” Simmons v.
Himmelreich, 136 S. Ct. 1843, 1848 (2016). Congress could
have said “necessary,” or employed words to that effect, in
§ 1333(a)(2)(A). In another statute, Congress authorized the
courts to borrow state common law where “the laws of the
United States . . . are not adapted to the object [of the
applicable federal statutes], or are deficient in the provisions
necessary to furnish suitable remedies and punish offenses
against law[.]” 42 U.S.C. § 1988(a). Congress did not make
any such qualification here.
Legislative history, however pellucid, cannot rewrite the
language of a statute, Am. Rivers v. FERC, 201 F.3d 1186,
1204 (9th Cir. 1999), but “clear evidence of congressional
intent may illuminate ambiguous text.” Milner v. Dep’t of
Navy, 562 U.S. 562, 572 (2011).
The Fifth Circuit in Continental Oil navigated OCSLA’s
choppy waters by taking legislative history as its lodestar.
417 F.2d at 1034–36. Continental Oil noted the “deep
political and emotional currents centered around the clash
between national sovereignty and states’ rights” during the
passage of the OCSLA and Congress’s “express reject[ion]”
of the “notion of supremacy of state law administered by state
agencies.” Id. at 1036. The Fifth Circuit concluded that “the
deliberate choice of federal law, federally administered,
requires that ‘applicable’ be read in terms of
necessity—necessity to fill a significant void or gap.” Id.
(footnote omitted).
The legislative history indicates that Congress was
solicitous to retain and indeed, assert, the federal
government’s civil and political jurisdiction over the OCS,
but we are not persuaded that this consideration justifies
judicial substitution of “necessary” for the actual statutory
term, “applicable.” These two terms are manifestly different,
and the latter does not connote the former. The OCSLA
commands us to give force to “applicable and not
inconsistent” state laws as surrogate federal law. 43 U.S.C.
§ 1333(a)(2)(A). By following the course charted by the
OCSLA, we do not accord state law supremacy over federal
law, nor cede the United States’ jurisdiction over the OCS to
state agencies. We simply acknowledge, as the Supreme
Court did in Rodrigue, 395 U.S. at 355–56, that Congress
adopted state law as surrogate federal law for the OCS, so
long as it is “applicable and not inconsistent with” existing
federal law.
Nor do we find in the legislative history a clear intent on
the part of Congress to require a “significant void or gap” in
federal legislation or regulation, meaning the complete
absence of any federal law, as a prerequisite to the application
of state law. Indeed, Senator Cordon, the floor manager of
the bill, noted that the contemplated extension of admiralty
law to the OCS was unsatisfactory because:
The so-called social laws necessary for
protection of the workers and their families
would not apply. I refer to such things as
unemployment laws, industrial-accident laws,
fair-labor-standard laws, and so forth. It was
necessary that the protection afforded by such
laws be extended to the outer Shelf area
because of the fact that ultimately some
10,000 or more men might be employed in
mineral-resource development there.
99 Cong. Rec. 6963 (1953); see Rodrigue, 395 U.S. at 362.
Read in context, Senator Cordon’s statements emphasized the
importance of having state law apply to the OCS, and do not
indicate that state laws had to be necessary to fill gaps or
voids in federal law before they would be adopted as
surrogate federal law. See Rodrigue, 395 U.S. at 363. As
Senator Cordon went on to explain:
[T]he legal situation [of the OCS] is
comparable to that in areas owned by the
Federal Government under the exclusive
jurisdiction of the Federal Government and
lying within the boundaries of a State in the
As a part of the same amendment, the
[Senate Committee on Interior and Insular
Affairs] provided, first, that the laws of
abutting States should become a part of the
Federal law within such areas opposite the
States as would have been included in the
States were their boundaries extended to the
edge of the Continental Shelf.
. . . .
The outer Continental Shelf will have the
protection of the Constitution itself, and will
have the protection and provision for conduct
of affairs as given by the laws of each of the
abutting States within the area immediately
opposite that State.
99 Cong. Rec. 6963–64 (1953) (emphasis added); see S. Rep.
No. 83-411, at 11 (1953).
Read in isolation, some remarks by Senators Anderson
and Long seem to endorse the idea that state law was to speak
as federal law only where existing federal law was “silent” or
otherwise left a “void.” 99 Cong. Rec. 7257, 7164 (1953).
But “scattered floor statements by individual lawmakers . . .
[are] ‘among the least illuminating forms of legislative
history.’” Advocate Health Care Network v. Stapleton,
137 S. Ct. 1652, 1661 (2017) (quoting NLRB. v. SW General,
Inc., 137 S. Ct. 929, 943 (2017)); see Shell Oil, 488 U.S. at 29
(“We . . . find that Shell’s reliance on an isolated statement by
Senator Long,” who was a “vocal opponent of the OCSLA,”
“is misplaced.”); see also Hertzberg v. Dignity Partners, Inc.,
191 F.3d 1076, 1082 (9th Cir. 1999) (“This circuit relies on
official committee reports when considering legislative
history, not stray comments by individuals . . . .”). Here, the
legislative history is at best muddled, as illustrated by the
following exchange between Senator Cordon, the floor
manager of the bill, and Senator Daniel:
Mr. DANIEL: . . . Since we have applied
State laws in the fields which are not covered
by Federal laws or by regulations of the
Secretary of the Interior, I should like to ask
the Senator from Oregon whether he
understands that State laws relating to
conservation will apply in this area until and
unless the Secretary of the Interior writes
some rule or regulation to the contrary.
Mr. CORDON: There can be no question
about that; the Senator’s statement is correct.
The language clearly adopts State law as
Federal law where it is not inconsistent with
existing Federal law or with the rules and
regulations of the Secretary of the Interior:
and, of necessity, the inconsistency with
respect to rules and regulations of the
Secretary of the Interior must be in the case of
those rules and regulations which it is within
the power of the Secretary of the Interior to
When he has adopted them, those rules
and regulations must be inconsistent with or in
conflict with the conservation laws of the
States, which are then the conservation laws
of the United States with respect to that
particular area, or else the laws of the States,
having been adopted by the United States,
apply to that area. There can be no question
about it.
99 Cong. Rec. 7264 (1953) (emphasis added). We cannot
allow “ambiguous legislative history . . . to control the
ordinary meaning of [the] statutory language.” League to
Save Lake Tahoe, Inc. v. Trounday, 598 F.2d 1164, 1172 (9th
Cir. 1979) (citing NLRB v. Plasterer’s Local No. 79, 404 U.S.
116, 129–30 (1971)); see Milner, 562 U.S. at 572. Reading
the plain text of the OCSLA against the background of its
inconclusive legislative history, we are not convinced that
state law applies as surrogate federal law on the OCS only if
“necess[ary],” Cont’l Oil, 417 F.2d at 1036, in the sense that
there is no existing federal law on the subject.
We do not understand the Supreme Court to have
instructed otherwise. Although the Fifth Circuit has
sometimes described “necessity to fill a significant void or
gap” as the “recurring theme of Rodrigue,” Nations, 483 F.2d
at 585 (internal quotation marks omitted); Cont’l Oil,
417 F.2d at 1036, the issue actually decided by Rodrigue was
whether federal admiralty law applied on OCS platforms,
395 U.S. at 360, 366. Rodrigue established that, absent a
maritime nexus, federal admiralty law does not extend to the
OCS. Id. at 359–60. State law was deemed the law
governing the two wrongful death actions in Rodrigue, but
there was no competing applicable federal law, id. at 366, and
the Supreme Court has not yet squarely confronted a situation
where, as here, a state statutory scheme and an existing
federal statutory scheme are both “potentially applicable” to
a civil suit arising on the OCS. Cf. Gulf Offshore, 453 U.S.
at 486–87.
b. The Meaning of “Not Inconsistent”
As we see it, because there are California and federal
statutory schemes that are “applicable,” in the ordinary sense
of that term, to the parties’ conflict, the determinative
question in Newton’s case is not which law is “applicable,”
but whether California wage and hour laws are “inconsistent
with” existing federal law. 43 U.S.C. § 1333(a)(2)(A). If
they are not inconsistent, the OCSLA dictates that state wage
and hour grievances should be redressable as federal claims
on the OCS.
We recently examined the usual meaning of
“inconsistent” in Ecological Rights Foundation v. Pacific Gas
& Electricity Co., 874 F.3d 1083 (9th Cir. 2017), where we
concluded that laws are inconsistent if they are mutually
“incompatible, incongruous, [or] inharmonious.” Id. at 1095
(quoting Webster’s Third New International Dictionary
To further articulate a framework for deciding whether a
state law is inconsistent with federal law under the OCSLA,
we draw on cases that have arisen in the context of two
statutes involving the incorporation of state law into federal
law: (1) the Assimilative Crimes Act (“Crimes Act”),
18 U.S.C. § 13, and (2) 42 U.S.C. § 1988. We look to the
Crimes Act because it is an example of Congress applying
state law in conjunction with federal law on enclaves. We
also consider 42 U.S.C. § 1988, because at the time Congress
enacted the civil rights statutes, it recognized that federal civil
rights law was not sufficiently comprehensive and would
have to rely, in part, on state law to effectuate its objectives.
See Burnett v. Grattan, 468 U.S. 42, 47 (1984). Similar to
§ 1333(a)(2)(A) of the OCSLA, 42 U.S.C. § 1988 conditions
the incorporation of state law on it being “not inconsistent
with the Constitution and laws of the United States.”
In Rodrigue, the Supreme Court emphasized that drilling
platforms on the OCS are “to be treated as island[s] or as
14 Ecological Rights Foundation involved inconsistency between
federal statutes. 847 F.3d at 1095.
federal enclaves within a landlocked State, not as vessels.”
395 U.S. at 361. “The central principle of federal enclave
doctrine is that Congress has exclusive legislative authority
over . . . enclaves. But in the absence of applicable federal
legislation displacing state law, those state laws that existed
at the time that the enclave was ceded to the federal
government remain in force.” Allison v. Boeing Laser Tech.
Servs., 689 F.3d 1234, 1237 (10th Cir. 2012). State law postdating
the creation of the enclave, however, is federal law on
the enclave only if Congress so directs. Id.
The Assimilative Crimes Act is one such directive.15
“The [Crimes Act] applies state criminal law to a defendant’s
acts or omissions [in federal enclaves] that are not made
punishable by any enactment of Congress.” Lewis v. United
States, 523 U.S. 155, 159 (1998) (emphasis and internal
quotation marks omitted). Its “basic purpose is one of
borrowing state law to fill gaps in the federal criminal law
that applies on federal enclaves.” Id. at 160. But as we have
recognized, the Supreme Court has held that a void or
gap—in the sense of a total absence of applicable federal
law—is not a prerequisite to the application of state law under
the Crimes Act. See, e.g., United States v. Reed, 734 F.3d
881, 888 (9th Cir. 2013) (citing Lewis, 523 U.S. at 166).
In Lewis, the Supreme Court formulated a two-step test
for whether state law applies to a defendant accused of
15 18 U.S.C. § 13(a), the Crimes Act, provides: “Whoever within or
upon any [federal enclave] . . . is guilty of any act or omission which,
although not made punishable by any enactment of Congress, would be
punishable if committed or omitted within the jurisdiction of the State . . .
in which such place is situated, . . . shall be guilty of a like offense and
subject to a like punishment.”
committing an offense on an enclave. 523 U.S. at 164–65.
The first question is the statutory one: whether the
defendant’s act or omission has been made punishable by any
enactment of Congress. Id. at 164. If the act is not
punishable by federal law, then the Crimes Act presumptively
assimilates state law. Id. If Congress has legislated to make
the defendant’s conduct punishable, then “the court must ask
the further question whether the federal statutes that apply to
the ‘act or omission’ preclude application of the state law in
question,” that is, whether “applicable federal law indicate[s]
an intent to punish conduct such as the defendant’s to the
exclusion of the particular state statute at issue?” Id. at 164,
166 (emphasis added). There is no “touchstone to provide an
automatic general answer to this second question,” and the
“primary question . . . is one of legislative intent . . . .” Id. at
Reed employed Lewis’s two-step test to hold that a federal
DUI regulation did not bar assimilation of a Nevada drugged
driving statute. 734 F.3d at 893. Reed was caught speeding
in Lake Mead National Recreation Area. Id. at 884. He
admitted to smoking marijuana and imbibing alcohol while
driving, and failed three of the four field sobriety tests
subsequently administered. Id. Reed was charged, inter alia,
under a Nevada statute that penalized the operation of a
vehicle while the concentration of marijuana in the operator’s
blood exceeded a statutorily established limit. Nev. Rev.
Stat. § 484C.110(3)(g). Above that limit, a violation of the
statute was established per se, i.e., without regard to actual
Reed moved to dismiss the state charge, arguing that
Nevada’s per se drugged driving law did not apply on the
federal enclave where he was stopped because a federal
regulation, 36 C.F.R. § 4.23(a)(1), also “prohibit[ed]
operating a vehicle while under the influence of alcohol or
drugs to a degree that renders the operator incapable of safe
operation.” Id. at 886. In other words, Reed argued that
because federal law made his conduct punishable, there was
no gap in federal law for state law to fill. After a magistrate
judge denied Reed’s motion to dismiss, Reed pleaded guilty
to the state law crime and appealed to our court. Id. at 884.
Applying the first step of the Lewis test, we agreed with
the trial court that the federal enactment punished Reed’s
conduct. Id. at 887. But at step two, we concluded that
federal law did not preclude application of the Nevada statute.
Id. at 888. We noted that there is no “automatic general
answer” to Lewis’s second question and that the primary
inquiry is one of legislative intent. Id. Although “a state
statute will not be assimilated if, for example, (1) its
application would conflict with federal policy; (2) it would
effectively rewrite an offense definition that Congress
carefully considered; or (3) the federal statutes reveal an
intent to occupy so much of a field as to exclude use of the
particular state statute,” we concluded that “the mere
presence of the federal DUI regulation [did] not manifest a
federal policy against assimilating Nevada’s per se drugged
driving law . . . .” Id. at 888, 892. Reed observed that federal
law only included a per se provision for alcohol; it did not
punish those who operated a vehicle under the influence of
marijuana absent actual impairment. Id. at 886 (citing 36
C.F.R. § 4.23(a)(1)). Further, by providing elsewhere in the
federal regulations that “State law that is now or may later be
in effect is adopted and made a part of the regulations . . . [,]”
36 C.F.R. § 4.2, the National Park Service clearly expressed
its intent for all nonconflicting state traffic laws to apply on
federal enclaves. Id. at 889. Finding “no indication of an
overriding federal policy with which Nevada’s per se drugged
driving law interferes,” we affirmed Reed’s convictions. Id.
at 893.
Although Congress has never provided for the wholesale
assimilation of state civil law into federal law on all federal
enclaves, it has the authority to do so, and it has done so for
the OCS, “an area of exclusive Federal jurisdiction.”
43 U.S.C. § 1333(a)(1). In legislating for the OCS, Congress
used more precise language than in the Crimes Act,
specifying that applicable state law is to apply unless
“inconsistent” with federal law. Reed, however, remains
instructive in two ways. First, it reinforces that where
Congress has provided for the assimilation of state law into
federal law governing a federal enclave, the “mere presence”
of federal law is not enough to prevent application of state
law. Reed, 734 F.3d at 892. Second, it illustrates the
principle that determining whether the presence of federal law
precludes the application of state law on an enclave is
primarily a question of congressional intent. Id. at 888–89
(citing Lewis, 523 U.S. at 166); see also United States v.
Souza, 392 F.3d 1050, 1054 (9th Cir. 2004). In Reed, there
was not only considerable overlap between the federal and
state DUI laws, but Reed’s conduct was actually criminalized
by existing federal law. Nevertheless, assimilating Nevada’s
drugged driving law was entirely consistent with federal law
and policy, as the overlapping federal regulation expressly
contemplated “assimilation of all nonconflicting state traffic
laws.” 734 F.3d at 888.
We draw a similar lesson from the jurisprudence
pertaining to 42 U.S.C. § 1988(a).16 Notably, § 1988(a) does
use the term “inconsistent.” But unlike the OCSLA, it
requires, before the assimilation of state law, not simply that
the state law be “not inconsistent with the Constitution and
laws of the United States,” but that “the laws of the United
States [be] . . . not adapted to the object, or . . . deficient in
the provisions necessary to furnish suitable remedies and
punish offenses against [the] law . . . .” 42 U.S.C. § 1988(a).
In other words, unlike the OCSLA, § 1988 does require a gap
in federal law as a prerequisite for assimilation of state law.
Taking that substantial difference into account, judicial
interpretation of the term “not inconsistent” in § 1988(a)
remains instructive here. In enacting the federal civil rights
acts, Congress recognized that federal law would not contain
every rule that may be required to adjudicate suits brought
under them. Burnett, 468 U.S. at 47. Accordingly, in
§ 1988(a), “Congress determined that gaps in [the] federal
civil rights acts should be filled by state law, as long as that
law is not inconsistent with federal law.” Hardin v. Straub,
490 U.S. 536, 538 (1989) (footnote omitted). The Supreme
Court has explained that “[i]n resolving questions of
inconsistency between state and federal law raised under
§ 1988, courts must look not only at particular federal statutes
and constitutional provisions, but also at the policies
16 42 U.S.C. § 1988(a) provides that in the event that the federal civil
rights acts “are deficient in the provisions necessary to furnish suitable
remedies and punish offenses against law, the common law, as modified
and changed by the constitution and statutes of the State wherein the court
having jurisdiction of such civil or criminal cause is held, so far as the
same is not inconsistent with the Constitution and laws of the United
States, shall be extended to and govern the said courts in the trial and
disposition of the cause, and, if it is of a criminal nature, in the infliction
of punishment on the party found guilty.” (emphasis added.)
expressed in them.” Robertson v. Wegmann, 436 U.S. 584,
590 (1978) (alteration and internal quotation marks omitted).
An example of inconsistency between state and federal
law is illustrated by Burnett. 468 U.S. at 55. Plaintiffs in
Burnett were white employees of a predominantly black
college who sued their employer for racial and gender
discrimination after it refused to renew their contracts. Id. at
43–44. The district court borrowed the six-month statute of
limitations for filing an employment discrimination complaint
with the relevant Maryland administrative body, and
dismissed the action. Id. at 45. The Fourth Circuit reversed,
holding that Maryland’s generic three-year statute of
limitations applied, id. at 45–46, and the Supreme Court
affirmed the Fourth Circuit’s decision. Id. at 46. The
Supreme Court observed that “[a] legislative definition of a
statute of limitations also reflects a policy assessment of the
state causes of action to which it applies.” Id. at 52. Hence,
insofar as state policies are “inconsistent with, or of marginal
relevance to, the policies informing the Civil Rights Acts,”
their accompanying statutes of limitations may be unsuitable
for use under § 1988(a). Id. at 53. Contrasting the broad
remedial goals of the federal civil rights
statutes—“compensation of persons whose civil rights have
been violated, and prevention of the abuse of state
power”—to the relatively modest ambitions of Maryland’s
administrative scheme for employment discrimination, the
Burnett court found Maryland’s policy to be “manifestly
inconsistent with the central objective of the Reconstruction-
Era civil rights statutes, which is to ensure that individuals
whose federal constitutional or statutory rights are abridged
may recover damages or secure injunctive relief.” Id. at
While § 1988(a) is not textually parallel to
§ 1333(a)(2)(A) of the OCSLA, we glean from Burnett and
similar cases, see, e.g., Board of Regents v. Tomanio,
446 U.S. 478 (1980), the principle that inconsistency between
state and federal law is assessed by looking at Congress’s
objective in enacting the federal statutes at issue.
c. Whether California Minimum Wage and
Overtime Laws are Inconsistent with Federal
We thus turn to the remaining question and the crux of
Newton’s appeal: whether California’s minimum wage and
overtime laws are inconsistent with the FLSA.
The FLSA was enacted to “protect all covered workers
from substandard wages and oppressive working hours.”
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2121
(2016) (internal quotation marks omitted). It “seeks to
prohibit ‘labor conditions detrimental to the maintenance of
the minimum standard of living necessary for health,
efficiency, and general well-being of workers.’” Kasten v.
Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 11
(2011) (quoting 29 U.S.C. § 202(a)). Critical to our analysis,
the FLSA “establish[es] a national floor under which wage
protections cannot drop.” Pac. Merch. Shipping Ass’n v.
Aubry, 918 F.2d 1409, 1425 (9th Cir. 1990); see Wang v.
Chinese Daily News, Inc., 623 F.3d 743, 759 (9th Cir. 2010)
(“[T]he FLSA sets a floor rather than a ceiling on protective
legislation.”), vacated on other grounds, Chinese Daily News,
Inc. v. Wang, 565 U.S. 801 (2011). The FLSA’s savings
clause expressly provides that states are free to adopt more
protective standards for minimum wages or maximum hours
in a work week:
No provision of this chapter or of any order
thereunder shall excuse noncompliance with
any Federal or State law or municipal
ordinance establishing a minimum wage
higher than the minimum wage established
under this chapter or a maximum work week
lower than the maximum workweek
established under this chapter.
29 U.S.C. § 218(a). Since “the best evidence of Congress’s
intent is the statutory text,” Nat’l Fed’n of Indep. Bus. v.
Sebelius, 567 U.S. 519, 544 (2012), and the FLSA explicitly
permits more protective state wage and hour laws, we reject
Parker’s suggestion that California’s minimum wage and
overtime laws are antagonistic to the remedial purposes of the
FLSA simply because they establish different and more
generous benchmarks than the floor set by the FLSA’s
statutory and regulatory scheme.17
Moreover, the application of California minimum wage
and overtime laws as federal law on the OCS serves the
purpose of the OCSLA. In Huson, the Supreme Court
observed that “Congress . . . recognized that the special
17 Newton asserts that “inconsistency with regulations promulgated
by departments other than the Department of the Interior does not bar the
application of the state law” on the OCS. As a general matter, “properly
promulgated, substantive agency regulations have ‘the force and effect of
law’” such as “to pre-empt state law under the Supremacy Clause.”
Chrysler Corp. v. Brown, 441 U.S. 281, 295–96 (1979); see Wyeth v.
Levine, 555 U.S. 555, 576 (2009). We have “turned to these longstanding
DOL regulations in resolving FLSA . . . disputes.” Brigham v. Eugene
Water & Elec. Bd., 357 F.3d 931, 940 (2004). The OCSLA does not
preclude courts from looking beyond the bare text of the FLSA to DOL
regulations for illumination as to the content of existing federal law.
relationship between the men working on these artificial
islands and the adjacent shore to which they commute
favored application of state law with which these men and
their attorneys would be familiar.” 404 U.S. at 103 (internal
quotation marks omitted). Application of California’s
minimum wage and “hours worked” provisions does not
vitiate the “special relationship between the men working on
these [platforms] and the adjacent shore to which they
commute to visit their families,” Rodrigue, 395 U.S. at 365;
if anything, this policy consideration indicates that the
overlapping state and federal statutory schemes regulating
employment on the California shore should also govern, as
federal law, on the OCS.18 Application of California’s wage
and hour laws also does not frustrate an interest in national
uniformity, because in enacting OCSLA, Congress
“specifically rejected national uniformity as a paramount
goal.” Gulf Offshore, 453 U.S. at 487 (quoting Huson,
404 U.S. at 104) (internal quotation marks omitted).
Parker cites numerous cases for its contention that the
FLSA is inconsistent with California’s minimum wage and
overtime laws. In particular, Parker relies on Mendiola v.
CPS Security Solutions, Inc., 60 Cal. 4th 833 (2015).
Mendiola involved California wage and hour claims brought
by security guards who regularly patrolled construction sites
for eight hours on weekdays and sixteen hours on weekends,
and who were required to reside, uncompensated, in an
employer-provided trailer for eight hours after each shift and
18 To be clear, this “special relationship with the shore community,”
alone, does not support claims brought pursuant to § 1333(a)(2)(A) of the
OCSLA “regardless of the location of the accident.” See Tallentire,
477 U.S. at 218–19. This policy consideration only applies for grievances
that arise on the OCS. Id.
remain on-call. 60 Cal. 4th at 837. The Mendiola court held
that these on-call hours were “hours worked” for the purposes
of California’s Wage Order 4, and that the employer “could
not exclude ‘sleep time’” from the compensable hours in the
security guards’ 24-hour shifts. Id. at 838. In reaching this
result, the California Supreme Court rejected the employer’s
argument that federal DOL regulations furnished the
appropriate definition for hours worked under California’s
wage order. Id. at 842–44. Emphasizing that it had
previously “cautioned against confounding federal and state
labor law,” the California Supreme Court ruled that the
language of Wage Order 4 did not evidence the state
Industrial Welfare Commission’s intent to incorporate, by
reference, federal law and regulations. Id. at 843, 847
(internal quotation marks omitted). Parker argues that
Mendiola illustrates that California law is inconsistent with
the FLSA. See Brigham, 357 F.3d at 940–41. We disagree.
Mendiola only establishes that California embraces a more
protective standard for determining hours worked, not that
California’s standard is inconsistent with federal law. Indeed,
the savings clause in the FLSA reflects Congress’s express
intent that states should be allowed to adopt more protective
standards. See 29 U.S.C. § 218(a). Parker has failed to
demonstrate that California’s minimum wage and overtime
laws are inconsistent with federal law, and we know of
nothing else indicating that California’s provisions for
minimum wage and maximum hours worked are inconsistent
with the FLSA.
We conclude the district court erred by dismissing the
claims Newton brought pursuant to California’s minimum
wage and overtime laws, and that California’s minimum
wage and maximum hours worked provisions are “applicable
and not inconsistent,” 43 U.S.C. § 1333(a)(2)(A), with the
FLSA. We vacate the order dismissing these claims and
remand to the district court.
2. Newton’s Claims under California Meal Period,
Final Pay, and Pay Stub Laws
The district court dismissed the claims Newton brought
pursuant to California’s meal period, final pay, and pay stub
laws because it concluded that state law does not apply on the
OCS unless there is a “significant void or gap” in federal law,
and it found that there were no such voids or gaps. In
reaching this ruling, the district court relied on its conclusion
that the FLSA is a comprehensive scheme, rather than
considering whether California’s wage and hour laws are
inconsistent with the FLSA. Because we hold that the
absence of federal law is not a prerequisite for applicable and
not inconsistent state law to become surrogate federal law on
the OCS, we vacate the order dismissing these claims. The
district court shall determine on remand whether California’s
meal period, final pay, and pay stub laws are “not
inconsistent” with existing federal law. If they are, the
OCSLA adopts them as federal law on the OCS.
3. Newton’s Civil Penalties and Unfair Competition
Newton’s claims under California’s Private Attorney
General Act (PAGA) and Unfair Competition Law (UCL)
were dismissed by the district court on the grounds that he
had not demonstrated a violation of California’s labor and
employment laws. Because we vacate the dismissal of
Newton’s other claims under California law, we also vacate
the dismissal of his PAGA and UCL claims.
4. Leave to Amend
Newton’s operative complaint suggests that some of
Parker’s allegedly unlawful conduct occurred in California.
We cannot determine on the record before us whether
Newton has any claim arising from the time he spent onshore
or within California’s territorial waters. This portion of the
complaint is cryptic and it has not been addressed by the
district court. Under our precedent, Newton is entitled to an
opportunity to clarify these claims. See Eminence Capital,
LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003)
(observing that the rule that leave to amend shall be “freely
given” is “to be applied with extreme liberality”) (citing
Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712
(9th Cir. 2001)).

Outcome: We vacate the order dismissing Newton’s claims and
remand to the district court for further proceedings consistent
with this opinion.


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