Amicus Curiae Brief — Parker Drilling Management Services, Ltd., Petitioner v. Brian Newton
Supreme Court briefFeb 27, 2019
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No. 18-389
In the Supreme Court of the United States
PARKER DRILLING MANAGEMENT SERVICES, LTD.,
PETITIONER
v.
BRIAN NEWTON
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOSEPH H. HUNT
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
CHRISTOPHER G. MICHEL
Assistant to the Solicitor
General
MARK B. STERN
JENNIFER L. UTRECHT
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
The Outer Continental Shelf Lands Act, 43 U.S.C.
1331 et seq., extends federal law to the Outer Continental Shelf (OCS) “to the same extent as if the [OCS]
were” a federal enclave, 43 U.S.C. 1333(a)(1). The laws
of the adjacent State are “declared to be” federal law to
“the extent that they are applicable and not inconsistent
with” other federal law. 43 U.S.C. 1333(a)(2)(A). The
question presented is whether California wage-andhour law is “applicable and not inconsistent” with federal wage-and-hour law and therefore “declared to be”
federal law on a drilling platform attached to the OCS
off the coast of California.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statutory and regulatory provisions involved ........................... 1
Statement ...................................................................................... 2
Summary of argument ................................................................. 7
Argument:
The Fair Labor Standards Act, and not California
wage-and-hour law, provides the enforceable federal
law on the outer continental shelf .......................................... 9
A. California wage-and-hour law is not “applicable”
to the OCS within the meaning of 43 U.S.C.
1333(a)(2)(a) ..................................................................... 10
1. Under OCSLA, state law is “applicable” only
if needed to fill a gap in existing federal law.......... 10
2. The meaning of “applicable” adopted by
respondent and the court below conflicts with
OCSLA’s text, context, history, and purpose ........ 20
3. The FLSA leaves no gap to fill, so California
wage-and-hour law is not applicable under
OCSLA ....................................................................... 21
B. California wage-and-hour law is “inconsistent with”
federal law under 43 U.S.C. 1333(a)(2)(a) ..................... 22
1. The meaning of “not inconsistent with” in
Section 1333(a)(2)(A) derives from federalenclave law ................................................................. 23
2. The California wage-and-hour law governing
respondent’s claims is inconsistent with the
FLSA.......................................................................... 26
3. The court of appeals’ holding that California
law is “not inconsistent with” the FLSA is
mistaken..................................................................... 28
C. The decision below would disrupt settled
expectations and orderly administration on the
OCS ................................................................................... 30
(III)
IV
Table of Contents—Continued:
Page
Conclusion ................................................................................... 33
Appendix — Statutory and regulatory provisions ................ 1a
TABLE OF AUTHORITIES
Cases:
Air Terminal Servs., Inc. v. Rentzel, 81 F. Supp. 611
(E.D. Va. 1949) .................................................................... 25
American Elec. Power Co. v. Connecticut,
564 U.S. 410 (2011).............................................................. 28
Blackburn v. United States,
100 F.3d 1426 (9th Cir. 1996) ............................................. 25
Chevron Oil Co. v. Huson,
404 U.S. 97 (1971) ................................................... 10, 17, 20
Cheyenne-Arapaho Tribes of Oklahoma v.
Oklahoma, 618 F.2d 665 (10th Cir. 1980) ......................... 26
Chicago, Rock Island & Pac. Ry. Co. v. McGlinn,
114 U.S. 542 (1885).................................................. 12, 13, 23
Continental Oil Co. v. London Steam-Ship Owners’
Mut. Ins. Ass’n, 417 F.2d 1030 (5th Cir. 1969),
cert. denied, 397 U.S. 911 (1970) .............................. passim
Department of the Treasury v. FLRA,
494 U.S. 922 (1990)........................................................ 11, 20
Ervin v. OS Rest. Servs., Inc., 632 F.3d 971
(7th Cir. 2011) ...................................................................... 29
Genesis Healthcare Corp. v. Symczyk,
569 U.S. 66 (2013) ............................................................... 22
Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473
(1981) .............................................................10, 11, 14, 17, 18
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) .................... 30
Leocal v. Ashcroft, 543 U.S. 1 (2004) ................................... 20
LeSassier v. Chevron USA, Inc.,
776 F.2d 506 (5th Cir. 1985) ............................................... 19
V
Cases—Continued:
Page
Lewis v. United States,
523 U.S. 155 (1998)..................................................... passim
Mendiola v. CPS Sec. Solutions, Inc.,
340 P.3d 355 (Cal. 2015) ............................................... 27, 31
Mutual Pharm. Co. v. Bartlett,
570 U.S. 472 (2013)........................................................ 29, 30
Nations v. W. W. Morris, 483 F.2d 577 (5th Cir.),
cert. denied, 414 U.S. 1071 (1973) ..................................... 19
Pacific Coast Dairy v. Department of Agric. of Cal.,
318 U.S. 285 (1943).............................................................. 12
Paul v. United States, 371 U.S. 245 (1963) ................... 12, 23
Powell v. United States Cartridge Co.,
339 U.S. 497 (1950).............................................................. 27
Ransom v. FIA Card Servs., N.A.,
562 U.S. 61 (2011) ......................................................... 11, 13
Rodrigue v. Aetna Cas. & Sur. Co.,
395 U.S. 352 (1969)..................................................... passim
Samantar v. Yousuf, 560 U.S. 305 (2010) ........................... 20
Shell Oil Co. v. Iowa Dep’t of Revenue,
488 U.S. 19 (1988) ..................................................... 2, 11, 13
Tetra Techs., Inc. v. Continental Ins. Co.,
814 F.3d 733 (5th Cir. 2016) ............................................... 19
United States v. California, 332 U.S. 19 (1947) ................... 2
United States v. Darby, 312 U.S. 100 (1941)....................... 22
United States v. Louisiana, 339 U.S. 699 (1950) ................. 2
United States v. Maine, 420 U.S. 515 (1975) ............ 3, 10, 32
United States v. Sharpnack, 355 U.S. 286 (1958) ......... 13, 14
United States v. Texas, 339 U.S. 707 (1950) ......................... 2
Williams v. United States,
327 U.S. 711 (1946).................................................. 13, 24, 27
VI
Constitution, statutes, regulations, and rules:
Page
U.S. Const.:
Art. I, § 8, Cl. 17 .............................................................. 12
Art. VI, Cl. 2 (Supremacy Clause) ................................. 30
Clean Air Act, 42 U.S.C. 7401 et seq. ................................... 31
42 U.S.C. 7416 .................................................................. 32
42 U.S.C. 7627(a) ............................................................. 32
Clean Water Act, 33 U.S.C 1251 et seq. ............................... 31
Contract Work Hours and Safety Standards Act,
40 U.S.C. 3701 et seq. .......................................................... 31
Deepwater Port Act of 1974, Pub. L. No. 93-627,
§ 19(f), 88 Stat. 2146............................................................ 14
Fair Labor Standards Act of 1938,
29 U.S.C. 201 et seq. .............................................................. 5
29 U.S.C. 206(a)(1)..................................................... 26, 8a
29 U.S.C. 207(a)(1)..................................................... 26, 9a
29 U.S.C. 218(a) ......................................................... 28, 9a
Longshore and Harbor Workers’ Compensation Act,
33 U.S.C. 901 et seq. ............................................................ 31
Outer Continental Shelf Lands Act,
43 U.S.C. 1331 et seq. ........................................................ 1, 3
43 U.S.C. 1331(a) ............................................................... 3
43 U.S.C. 1332(1) ..........................................1, 3, 10, 31, 1a
43 U.S.C. 1333(a) ................................................. 14, 15, 3a
43 U.S.C. 1333(a)(1) ...........................................passim, 3a
43 U.S.C. 1333(a)(2) ...........................................passim, 3a
43 U.S.C. 1333(a)(2)(A) .....................................passim, 3a
43 U.S.C. 1333(a)(3) ........................................................... 4
43 U.S.C. 1334-1354........................................................... 3
43 U.S.C. 1347 .................................................................. 31
Resource Conservation and Recovery Act of 1976,
42 U.S.C. 6901 et seq. .......................................................... 31
VII
Statutes, regulations, and rules—Continued:
Page
Service Contract Act of 1965,
41 U.S.C. 6701 et seq. .......................................................... 31
Submerged Lands Act, 43 U.S.C. 1301 et seq. ...................... 2
43 U.S.C. 1301-1302........................................................... 3
43 U.S.C. 1311-1312........................................................... 3
Walsh-Healey Act, 41 U.S.C. 6501 et seq. ........................... 27
Work Hours and Safety Standards Act,
40 U.S.C. 3701 et seq. .......................................................... 32
18 U.S.C. 13(a) ................................................................. 13, 7a
29 C.F.R. 785.23 ............................................................. 26, 10a
30 C.F.R.:
Ch. II ................................................................................ 32
Ch. V ................................................................................. 32
33 C.F.R. Ch. I, Subch. N ..................................................... 31
Cal. Lab. Code:
§ 510(a) (West 2011) ........................................................ 27
§ 1182.12(b) (West Supp. 2019) ...................................... 26
Miscellaneous:
Black’s Law Dictionary (10th ed. 2014) ............................... 11
Bureau of Ocean Energy Management, Gulf of
Mexico OCS Region, https://www.boem.gov/
Gulf-of-Mexico-Region (last visited Feb. 27, 2019) ......... 19
Warren M. Christopher, The Outer Continental
Shelf Lands Act: Key to a New Frontier,
6 Stan. L. Rev. 23 (1953) .................................2, 3, 14, 15, 16
99 Cong. Rec. (1953):
p. 6963 ............................................................................... 14
p. 7164 ............................................................................... 15
pp. 7232-7236.................................................................... 16
p. 7264 ............................................................................... 15
VIII
Miscellaneous—Continued:
Page
Jurisdiction Over Federal Areas Within the States:
Report of the Interdepartmental Committee for the
Study of Jurisdiction over Federal Areas Within
the States:
Pt. I (1956) ........................................................................ 12
Pt. II (1957) .................................................... 12, 23, 24, 26
H.R. Conf. Rep. No. 1031, 83d Cong.,
1st Sess. (1953) .................................................................... 15
H.R. Rep. No. 413, 83d Cong., 1st Sess. (1953) .................. 16
S. Rep. No. 411, 83d Cong., 1st Sess. (1953) ............. 2, 14, 15
S. Rep. No. 1217, 93d Cong., 2d Sess. (1974) ...................... 14
Webster’s New International Dictionary of the
English Language (2d ed. 1958) ..................... 11, 13, 21, 23
In the Supreme Court of the United States
PARKER DRILLING MANAGEMENT SERVICES, LTD.,
PETITIONER
v.
BRIAN NEWTON
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
INTEREST OF THE UNITED STATES
The question presented in this case is whether California law prescribing minimum-wage and overtimepay requirements for employees is incorporated as federal law by the Outer Continental Shelf Lands Act
(OCSLA), 43 U.S.C. 1331 et seq., to govern employment
on a drilling platform attached to the Outer Continental
Shelf (OCS) off the coast of California. OCSLA places
the OCS within the exclusive jurisdiction and control of
the United States. 43 U.S.C. 1332(1). The United
States accordingly has a substantial interest in the resolution of the question presented.
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
Pertinent statutory and regulatory provisions are
reproduced in the appendix to this brief. App., infra,
1a-10a.
(1)
2
STATEMENT
1. The Continental Shelf extends “under the waters
of the ocean to the point where the continental slope
leading to the true ocean bottom begins.” S. Rep. No.
411, 83d Cong., 1st Sess. 4 (1953) (Senate Report). Off
the coast of New England, the Shelf “extends seaward
about 250 miles.” Ibid. In the Gulf of Mexico, it “ranges
in width from about 40 to about 100 miles.” Ibid. Along
the Pacific Coast, the Shelf “is relatively narrow, ranging in width from 5 miles or less to a maximum of about
40 miles.” Ibid.
The Continental Shelf “promises enormous riches.”
Warren M. Christopher, The Outer Continental Shelf
Lands Act: Key to a New Frontier, 6 Stan. L. Rev. 23,
25 (1953) (Christopher). Among other resources, the
Shelf is “thought to contain every major mineral, some
in large quantities.” Ibid. Partly for that reason,
coastal States and the federal government long disputed “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). In a series of decisions beginning with United States v. California, 332 U.S. 19
(1947), this Court determined that the United States
has exclusive jurisdiction over the Shelf and the mineral
deposits therein. Id. at 38-39; see United States v.
Texas, 339 U.S. 707, 717-718 (1950); United States v.
Louisiana, 339 U.S. 699, 705 (1950).
In 1953, Congress responded to those decisions by
striking a compromise. In the Submerged Lands Act
(SLA), 43 U.S.C. 1301 et seq., Congress ceded to the
States offshore lands within three nautical miles (or, for
Texas and Florida on the Gulf of Mexico, three marine
leagues) of their coast, while providing exclusive federal
jurisdiction and control over the rest of the Continental
3
Shelf, 43 U.S.C. 1301-1302, 1311-1312. The exclusively
federal portion, known as the Outer Continental Shelf
(OCS), “comprises about nine-tenths of the area of the
entire Continental Shelf,” and spans “some 261,000
square miles * * * , an area almost one-tenth that of
the continental United States.” Christopher 23, 25.
Later in 1953, Congress passed and President Eisenhower signed the Outer Continental Shelf Lands Act
(OCSLA), 43 U.S.C. 1331 et seq. OCSLA defines the
OCS to include “all submerged lands” between the
lands reserved to the States by the SLA and the edge of
the United States’ territorial jurisdiction. 43 U.S.C.
1331(a). OCSLA declares that “the subsoil and seabed
of the [OCS] appertain to the United States and are subject to its jurisdiction, control, and power of disposition.” 43 U.S.C. 1332(1). OCSLA then sets forth a variety of provisions regulating leasing, exploration, and
other mechanisms “for the orderly development of offshore resources.” United States v. Maine, 420 U.S. 515,
527 (1975); see 43 U.S.C. 1334-1354.
Of central importance here, OCSLA “define[s] a
body of law applicable to the seabed, the subsoil, and
the fixed structures such as [drilling platforms]” attached to the OCS. Rodrigue v. Aetna Cas. & Sur. Co.,
395 U.S. 352, 355 (1969). First, in 43 U.S.C. 1333(a)(1),
OCSLA extends “[t]he Constitution and laws and civil
and political jurisdiction of the United States” to the
“subsoil and seabed” of the OCS, as well as to “all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed.” Section
1333(a)(1) provides that such federal law shall apply “to
the same extent as if the [OCS] were an area of exclusive Federal jurisdiction located within a State,” i.e., a
federal enclave. Ibid.; see Rodrigue, 395 U.S. at 355.
4
Section 1333(a)(2)(A) then provides that “[t]o the extent
that they are applicable and not inconsistent with” federal law, “the civil and criminal laws of each adjacent
State * * * are declared to be the law of the United
States for that portion of the” OCS “which would be
within the area of the State if its boundaries were extended seaward to the outer margin of the [OCS].”
43 U.S.C. 1333(a)(2)(A). Section 1333(a)(2)(A) provides
that “[a]ll of such applicable laws shall be administered
and enforced by the appropriate officers and courts of
the United States,” and that “State taxation laws shall
not apply to the outer Continental Shelf.” Ibid. Section
1333(a)(3) adds that the “adoption of State law as the
law of the United States shall never be interpreted as a
basis for claiming any interest in or jurisdiction on behalf of any State for any purpose over the” OCS.
43 U.S.C. 1333(a)(3).
2. From January 2013 to January 2015, respondent
worked for petitioner on drilling platforms attached to
the OCS in the Santa Barbara Channel. Pet. App. 2-3.
As is standard for employees on such platforms, respondent worked 14-day shifts, referred to as “hitches.”
Id. at 3. During shifts, respondent spent 12 hours per
day on duty, for which he was paid “well above” the
state and federal minimum wage. Id. at 3, 20. He spent
the other 12 hours per day on “controlled standby,” during which “he was not able to leave the platform.” Id.
at 3. He was not paid for that standby time. Id. at 47.
In February 2015, respondent filed a putative class
action in California state court alleging violations of
several state wage-and-hour laws, as well as associated
state-law violations. Pet. App. 3. Among other things,
respondent claimed that California’s minimum-wage
5
and overtime statutes and accompanying administrative orders required petitioner to compensate him for
the 12 hours he spent on controlled standby. Ibid.
3. Petitioner removed the action to a federal district
court, which granted judgment on the pleadings to petitioner. Pet. App. 3-4. The court explained that, under
OCSLA, “the law to be applied * * * is exclusively federal,” but “the law of an adjacent state may be adopted
as the law of the United States to the extent that [it] is
‘applicable and not inconsistent’ with” existing federal
law. Id. at 51 (quoting 43 U.S.C. 1333(a)(2)(A)). The
court further explained that “state law is only ‘applicable’ to the extent that federal law, because of its limited
function in a federal system and inadequacy to cope
with the full range of potential legal problems, has a significant void or gap.” Ibid. (citing Rodrigue, 395 U.S. at
357). Thus, the court determined, “under 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.” Ibid. (quoting Continental Oil Co. v. London
Steam-Ship Owners’ Mut. Ins. Ass’n, 417 F.2d 1030,
1036 (5th Cir. 1969), cert. denied, 397 U.S. 911 (1970)).
Turning to respondent’s claims, the district court
concluded that the Fair Labor Standards Act of 1938
(FLSA), 29 U.S.C. 201 et seq., constitutes a “comprehensive [federal] scheme providing for minimum wages
and overtime pay.” Pet. App. 55 (citation omitted). Because the FLSA has no “ ‘significant voids or gaps’ ” that
need to be filled by state law, the court explained that
“it is not necessary to apply the law of the ‘adjacent
state’ ” under OCSLA. Ibid.; see id. at 52-59. The court
granted judgment to petitioner on respondent’s claims,
all of which were based on California law. Id. at 60.
6
4. The court of appeals reversed. Pet. App. 1-41.
The court rejected the district court’s conclusion that a
“significant void or gap” in federal law is required before state law can be applied as federal law under
OCSLA. Id. at 2 (quoting Continental Oil, 417 F.2d at
1036). Instead, the Ninth Circuit determined that state
law is “ ‘applicable’ ” under OCSLA whenever it “pertain[s] to the subject matter at hand.” Id. at 21. The
court acknowledged that its reading of “applicable” conflicted with the Fifth Circuit’s decision in Continental
Oil and the decision of every district court within the
Ninth Circuit that had addressed the issue. Id. at 2,
20 n.13 (citation omitted).
Having concluded that California wage-and-hour law
was “ ‘applicable’ ” under OCSLA, the court of appeals
turned to whether California law was “ ‘inconsistent
with’ existing federal law.” Pet. App. 27 (quoting
43 U.S.C. 1333(a)(2)(A)). The court reasoned that state
laws are “inconsistent” with federal law under OCSLA
only “if they are mutually incompatible, incongruous, or
inharmonious.” Id. at 28 (citation and internal quotation marks omitted). Under that standard, the court determined that no inconsistency exists between the
FLSA and California wage-and-hour law, because the
FLSA savings clause “explicitly permits more protective state wage and hour laws.” Id. at 36. The court
accordingly held that California law applied and
remanded for further proceedings on respondent’s
minimum-wage and overtime claims. Id. at 39. 1
The court of appeals directed the district court to consider in the
first instance whether respondent’s other claims were inconsistent
with federal law. Pet. App. 40. The court of appeals also reserved
for the district court on remand “the question whether [its] holding
should be applied retrospectively.” Id. at 43.
1
7
SUMMARY OF ARGUMENT
In OCSLA, Congress extends federal law to the OCS
“to the same extent as if the [OCS] were” a federal enclave, 43 U.S.C. 1333(a)(1), and adopts state law
as federal law to the extent it is “applicable and not inconsistent with” existing federal law, 43 U.S.C.
1333(a)(2)(A). The FLSA extends to the OCS and prescribes minimum-wage, overtime, and maximum-hour
standards that directly address respondent’s claims.
That resolves this case. Because the FLSA supplies the
“applicable” federal law, California law cannot. And
even if California law were “applicable” in some sense,
it would not be adopted as federal law under OCSLA
because it is “inconsistent” with the FLSA.
A. Under OCSLA, only federal law applies on the
OCS. That law comes, first and foremost, from the
“Constitution and laws * * * of the United States,” including the FLSA. 43 U.S.C. 1333(a)(1). Because federal law does not address every possible issue that could
arise on the OCS, however, OCSLA borrows “applicable” and “not inconsistent” state law. 43 U.S.C.
1333(a)(2)(A). But just as in federal enclaves—the jurisdictional model OCSLA expressly adopts—state law
is “applicable” only if federal law leaves a gap to fill.
Here, there is no gap. Because the FLSA prescribes
standards that govern respondent’s claims, the FLSA
provides the only “applicable” federal law.
The text, structure, history, and purpose of OCSLA
all reinforce that reading. The term “applicable,” while
capable of various definitions in isolation, takes its
meaning in OCSLA from the well-established law governing federal enclaves, under which state law applies
only when federal law leaves a gap. This Court’s deci-
8
sions construing OCSLA, along with the most significant aspects of its legislative history, similarly indicate
that state law applies only when federal law does not.
That important but secondary role also follows from
OCSLA’s overriding purpose—to make federal law
“ ‘exclusive’ in its regulation of” the OCS, with state law
“adopted only as surrogate federal law.” Rodrigue v.
Aetna Cas. & Sur. Co., 395 U.S. 352, 357 (1969).
B. Even if California wage-and-hour law were “applicable” in some sense, OCSLA would not adopt it as
federal law because it is “inconsistent with” the FLSA.
43 U.S.C. 1333(a)(2)(A). Under established principles
of federal-enclave law, state law that is inconsistent
with federal law or policy is not assimilated. Such inconsistency is most apparent when adopting state law
would effectively revise standards prescribed by federal law. That is what respondent seeks to do here, by
imposing wage-and-hour standards that differ from
those prescribed by the FLSA.
To be sure, the FLSA contains a savings clause that
requires employers to comply with laws that provide
greater protections for employees. The FLSA would
accordingly not preempt California law if this case arose
under state jurisdiction on the mainland. But preemption principles are irrelevant under OCSLA, because
state law never applies of its own force on the OCS. Under OCLSA, the only question is whether California law
is “declared to be” federal law. 43 U.S.C. 1333(a)(2)(A).
Because California’s minimum-wage and maximumhours standards are “inconsistent with” those prescribed by the FLSA, the answer is no. Ibid.
C. The decision below departs from the Fifth Circuit’s position for half a century that OCSLA adopts
state law on the OCS only to fill gaps in federal law.
9
Subjecting OCS employers to the wage-and-hour requirements of various adjacent States would disrupt
settled expectations and require substantial changes to
business arrangements. Assimilating new swaths of
state law would also multiply the burdens on federal officials charged with “administer[ing]” and “enforc[ing]”
all law on the OCS. 43 U.S.C. 1333(a)(2)(A). And the
consequences could extend beyond the wage-and-hour
laws at issue here. Many other federal statutes, administered by various federal agencies, regulate activity on
the OCS. Although many of those statutes indicate that
federal law applies exclusively on the OCS, the decision
below could provide a rationale to urge the adoption of
state regulatory law in disruptive and unpredictable
ways—all in conflict with OCSLA’s core directive that
federal law is paramount on the OCS.
ARGUMENT
THE FAIR LABOR STANDARDS ACT, AND NOT CALIFORNIA
WAGE-AND-HOUR LAW, PROVIDES THE ENFORCEABLE
FEDERAL LAW ON THE OUTER CONTINENTAL SHELF
OCSLA provides that the “laws * * * of the United
States are extended to” the OCS. 43 U.S.C. 1333(a)(1).
The FLSA is undisputedly among those laws. California law can serve as federal law on the OCS only if it is
“applicable” and “not inconsistent with” the FLSA.
43 U.S.C. 1333(a)(2)(A). The California wage-and-hour
law invoked by respondent does not satisfy either of
those requirements. It is not “applicable” because the
FLSA leaves no gap for state law to fill, and it is “inconsistent with” the FLSA because it would impose different minimum-wage and overtime requirements than
Congress directly prescribed. Ibid. The decision below
should be reversed on either or both of those grounds.
10
A. California Wage-And-Hour Law Is Not “Applicable” To
The OCS Within The Meaning Of 43 U.S.C. 1333(a)(2)(A)
The text and structure of OCSLA, its legislative history and purpose, and this Court’s precedent all indicate that state law is “applicable” as federal law on the
OCS only “to fill * * * substantial ‘gaps’ in the coverage
of federal law.” Gulf Offshore Co. v. Mobil Oil Corp.,
453 U.S. 473, 480 (1981); see Chevron Oil Co. v. Huson,
404 U.S. 97, 101 (1971); Rodrigue v. Aetna Cas. & Sur.
Co., 395 U.S. 352, 357-359 (1969). Where laws of the
United States apply of their own force, there is no gap
to fill and thus no need to adopt “state law * * * as surrogate federal law.” Rodrigue, 395 U.S. at 357. That is
the case here. The FLSA comprehensively regulates
wage-and-hour issues and leaves “no gaps” for state law
to fill. Continental Oil Co. v. London Steam-Ship Owners’ Mut. Ins. Ass’n, 417 F.2d 1030, 1036 (5th Cir. 1969),
cert. denied, 397 U.S. 911 (1970).
1. Under OCSLA, state law is “applicable” only if
needed to fill a gap in existing federal law
OCSLA “emphatically” asserts the federal government’s “paramount” sovereignty over the OCS. United
States v. Maine, 420 U.S. 515, 526 (1975). OCSLA provides that the United States has exclusive “jurisdiction,
control, and power of disposition” over OCS lands,
43 U.S.C. 1332(1), and Section 1333(a)(1) extends the
“Constitution and laws * * * of the United States” to
the OCS “to the same extent as if the [OCS] were an
area of exclusive Federal jurisdiction located within a
State,” 43 U.S.C. 1333(a)(1). Because those federal laws
“might be inadequate to cope with the full range of legal
problems” arising on the OCS, Rodrigue, 395 U.S. at
357, Section 1333(a)(2) provides that “the civil and criminal laws of each adjacent State * * * are declared to
11
be the law of the United States” on the OCS “[t]o the
extent that they are applicable and not inconsistent
with” federal law, 43 U.S.C. 1333(a)(2)(A). Thus, “[a]ll
law applicable to the [OCS] is federal law,” Gulf Offshore, 453 U.S. at 480, with “state law * * * adopted
only as surrogate federal law,” Rodrigue, 395 U.S. at
357, and only as specified in Section 1333(a)(2).
a. The text and context of OCSLA establish that
state law is “applicable” as federal law on the OCS under Section 1333(a)(2) only when there is a gap in the
laws of the United States that are “extended” to the
OCS by Section 1333(a)(1). As a matter of ordinary
meaning, both at the time of OCSLA’s adoption and
now, a law is “applicable” if it is “[c]apable of being applied” or “fit, suitable, or right to be applied.” Webster’s
New International Dictionary of the English Language 131 (2d ed. 1958) (Webster’s Second); see Ransom
v. FIA Card Servs., N.A., 562 U.S. 61, 69 (2011) (quoting
multiple dictionaries providing the same definition);
Black’s Law Dictionary 120 (10th ed. 2014) (same).
Determining whether a law is “applicable” under
that definition requires analyzing the statutory context.
See Shell Oil Co. v. Iowa Dep’t of Revenue, 488 U.S. 19,
25 (1988) (explaining, in interpreting Section 1333(a)(2),
that “the meaning of words depends on their context”);
see also Ransom, 562 U.S. at 70-71 (relying on “statutory context” to interpret “ ‘applicable’ ”); Department
of the Treasury v. FLRA, 494 U.S. 922, 930 (1990) (similar). Here, the critical context for the meaning of “applicable” in Section 1333(a)(2) comes from Section
1333(a)(1), which extends federal law to the OCS “to the
same extent as if the [OCS] were an area of exclusive
Federal jurisdiction located within a State”—i.e., “an
upland federal enclave.” Rodrigue, 395 U.S. at 357.
12
When Congress enacted Section 1333(a)(1), choiceof-law principles governing federal enclaves were wellestablished. The Constitution empowers Congress to
“exercise exclusive legislation” in federal enclaves, such
as military reservations, post offices, and parks. U.S.
Const. Art. I, § 8, Cl. 17; see Jurisdiction over Federal
Areas Within the States: Report of the Interdepartmental Committee for the Study of Jurisdiction over
Federal Areas Within the States, Pt. I, at 2 (1956) (Federal Study). When a federal enclave is created within a
State, any existing state “laws, ordinances, and regulations in conflict with the political character, institutions,
and constitution of the [federal] government” are “at
once displaced.” Chicago, Rock Island & Pac. Ry. Co.
v. McGlinn, 114 U.S. 542, 546 (1885). The only state
laws that apply as federal law in the new enclave are
those “in no respect inconsistent with any law of the
United States,” and that Congress “never
***
changed or abrogated.” Id. at 547; see Paul v. United
States, 371 U.S. 245, 269 (1963) (explaining that a preexisting state law is “applicable” in a federal enclave when
“there is no conflicting federal policy”). Any state law
enacted “after the transfer of sovereignty” is “without
application” unless adopted by the federal government.
Pacific Coast Dairy v. Department of Agric. of Cal.,
318 U.S. 285, 294-295 (1943). In sum, state law applies
to a federal enclave only to “fill[] a vacuum which would
otherwise exist in the absence of” federal law. Federal
Study, Pt. II, at 158 (1957).
Against that background, OCSLA’s provision that
state laws are adopted as federal law “[t]o the extent
they are applicable and not inconsistent” with federal
law, 43 U.S.C. 1333(a)(2)(A), is best understood to follow the federal-enclave model that Congress expressly
13
specified in Section 1333(a)(1). See Shell Oil, 488 U.S.
at 26 (“[r]eading the statutory provisions” in Section
1333(a)(2)(A) “in the context of the entire section in
which they appear”) (emphasis omitted). Just as state
law applies in federal enclaves only to fill gaps in federal
law, see McGlinn, 114 U.S. at 547, so too state law is
“applicable” on the OCS only to “supplement[] gaps in
the federal law,” Rodrigue, 395 U.S. at 357.
Congress’s adoption of state law to fill gaps in federal law on the OCS—i.e., when it is “fit, suitable, or
right to be applied,” Webster’s Second 131, or “appropriate,” Ransom, 562 U.S. at 69-70, for that purpose—
also follows from its longstanding practice of assimilating state criminal law to “fill in gaps” in federal law on
federal enclaves. Williams v. United States, 327 U.S.
711, 719 (1946). Beginning in 1825, Congress enacted a
series of Assimilative Crimes Acts that “made applicable to enclaves the criminal laws in force in the respective States,” but did not incorporate crimes “punishable
by any enactment of Congress.” United States v.
Sharpnack, 355 U.S. 286, 291, 293 (1958); see 18 U.S.C.
13(a). Those statutes thus “borrow[ed] state law to fill
gaps in the federal criminal law,” but not where “there
[wa]s no gap to fill.” Lewis v. United States, 523 U.S.
155, 160, 163 (1998). Given Congress’s adoption of the
federal-enclave model in OCSLA, its longstanding practice of making state criminal law “applicable on federal
enclaves” only to “fill gaps” in federal law, strongly indicates that Section 1333(a)(2) similarly makes state law
“applicable” on the OCS only to “fill in gaps” in federal
law. Id. at 159.
Congress’s subsequent treatment of Section 1333(a)(2)
further reinforces the connection between OCSLA and
the Assimilative Crimes Act. OCSLA initially provided
14
for incorporation of state law only as of the effective
date of OCSLA’s enactment, because Congress believed
prospective incorporation of state laws might be an unconstitutional delegation of legislative authority. See
Senate Report 33. After this Court held that the Assimilative Crimes Act could fill gaps in federal law by prospectively incorporating state law, Sharpnack, 355 U.S.
at 294, Congress amended Section 1333(a)(2) to adopt
“applicable” state law then in effect or later enacted,
Deepwater Port Act of 1974, Pub. L. No. 93-627 § 19(f ),
88 Stat. 2146; see S. Rep. No. 1217, 93d Cong., 2d Sess.
60, 76 (1974). That conscious decision to link state law
made “applicable” on the OCS through OCSLA to state
criminal law made applicable on federal enclaves
through the Assimilative Crimes Act further underscores that state law in both statutes is “applicable”
only to “fill gaps in” federal law. Lewis, 523 U.S. at 160;
Gulf Offshore, 453 U.S. at 479 n.7.
b. The legislative history and purpose of OCSLA
further indicate that state law is “applicable” under
Section 1333(a)(2) only to fill gaps in federal law. “In
introducing the bill to the Senate,” Acting Interior
Committee Chairman Cordon explained that OCSLA
created a “legal situation [that] is comparable to that in”
federal enclaves. Rodrigue, 395 U.S. at 361-362 (quoting 99 Cong. Rec. 6963 (1953)). 2 Consistent with that
understanding, the Senate Committee Report summarized the “body of law * * * extended to the” OCS by
Section 1333(a) as “consisting of: (a) The Constitution
and the laws * * * of the Federal Government; (b) the
As one commentator has explained, “Senator Cordon’s superior
knowledge of the structure and details of the bill * * * made him
an important figure” in enacting OCSLA. Christopher 32.
2
15
regulations, rules, and operating orders of the Secretary of the Interior; and (c) “in the absence of such applicable Federal law or adequate Secretarial regulation, the civil and criminal laws of the State adjacent to
the” OCS. Senate Report 2 (emphasis added). Likewise, Senator Anderson, a member of the Conference
Committee, explained that Section 1333(a) “provides
that Federal laws and regulations shall be applicable in
the [OCS], but that where there is a void, the State law
may be applicable.” Rodrigue, 395 U.S. at 358 (quoting
99 Cong. Rec. 7164 (1953)) (emphases added). And Senator Daniel explained that OCSLA “applied State laws
in the fields which are not covered by Federal laws
or by regulations of the Secretary of the Interior.”
99 Cong. Rec. 7264 (1953) (emphasis added). 3
Opponents of OCSLA “realized full well that state
law was being used only to supplement federal law,” and
“introduced an amendment to the Act which would have
made ‘the laws of such State applicable to the newly acquired area, and * * * the officials of such State [empowered] to enforce the laws of the State in the newly
acquired area.’ ” Rodrigue, 395 U.S. at 358-359 (citing
99 Cong. Rec. 7232-7236). But Congress expressly “rejected” that proposal. Id. at 359. Congress likewise rejected the approach of the House bill, under which state
laws would have been made “applicable” of their own
force on the OCS “[e]xcept to the extent that they are
inconsistent with applicable Federal laws.” H.R. Rep.
“Particular weight also attaches to the comments of Senator
Clinton Anderson * * * , who was the informal leader of the Committee Democratic minority, and of Senator Price Daniel [of Texas],
who represented a state having a great stake in the controversy.”
Christopher 32.
3
16
No. 413, 83d Cong., 1st Sess. 9 (1953). Congress’s decision to replace that approach with the federal-enclave
model, see Christopher 41, underscores that federal law
applies exclusively on the OCS (as on federal enclaves),
with state laws incorporated as federal law only “to the
extent” they are “applicable”—i.e., suitable or appropriate—to fill gaps, 43 U.S.C. 1333(a)(2)(A). 4
c. This Court’s precedents interpreting OCSLA further reinforce that conclusion.
This Court first interpreted OCSLA’s choice-of-law
provision in Rodrigue. The Court there considered
whether wrongful-death suits brought by the families of
men killed on OCS drilling rigs off the coast of Louisiana should proceed under federal admiralty law or a
state wrongful-death statute. See 395 U.S. at 352-353.
The Court explained that Congress enacted OCSLA to
provide a single “body of law applicable to the” OCS,
and that “this law was to be federal law of the United
States, applying state law only as federal law and then
only when not inconsistent with applicable federal law.”
Id. at 355-356. Relying on “the language of the Act,”
the Court further explained that “federal law, because
of its limited function in a federal system, might be inadequate to cope with the full range of potential legal
problems,” so “the Act supplemented gaps in the federal law with state law through the ‘adoption of State
law as the law of the United States.’ ” Id. at 356-357
To be sure, some statements in the legislative history can be
read to support the position adopted below. See, e.g., Pet. App. 2526; H.R. Conf. Rep. No. 1031, 83d Cong., 1st Sess. 13 (1953). But
the repeated congressional emphasis on state law as a means to fill
gaps in federal law, along with the rejection of proposals to apply
state law directly, indicate that OCSLA envisioned only a secondary
role for state law.
4
17
(emphasis added). The Court concluded that it was “evident from this that federal law is ‘exclusive’ in its regulation of this area, and that state law is adopted only
as surrogate federal law.” Id. at 357. Because the Court
concluded that federal admiralty law did not apply to
the OCS, it adopted the state wrongful-death statute to
govern the claim. Id. at 366.
Two years later, the Court again interpreted OCSLA’s
choice-of-law provision in Huson. There, the question
was whether the federal admiralty doctrine of laches or
a state statute of limitations governed a tort action arising from an injury on the OCS. 404 U.S. at 98-99. The
Court observed that Rodrigue had “clarified the scope
of application of federal law and state law under”
OCSLA. Id. at 101. Specifically, the Court explained
that Rodrigue concluded that “comprehensive admiralty law remedies” did not apply to the OCS, that “a
substantial ‘gap’ in federal law” therefore exists, and
that “the ‘gap’ must be filled with the applicable body of
state law under” Section 1333(a)(2). Ibid. After describing state limitations law, the Court explained that
OCSLA incorporated state law only “for filling in the
‘gaps’ in federal law.” Id. at 103-104 (emphasis added).
Because Congress’s decision not to apply federal admiralty law to the OCS left such a gap, the Court adopted
state law as federal law under OCSLA. Id. at 105.
The Court again discussed OCSLA’s choice-of-law
provision in Gulf Offshore. There, the question was
whether federal courts have exclusive jurisdiction over
cases arising under OCSLA. 453 U.S. at 475. In analyzing OCSLA’s jurisdictional scheme, the Court explained that “[a]ll law applicable to the [OCS] is federal
law, but to fill the substantial ‘gaps’ in the coverage of
18
federal law, OCSLA borrows the ‘applicable and not inconsistent’ laws of the adjacent States as surrogate federal law.” Id. at 480 (emphasis added) (quoting
43 U.S.C. 1333(a)(2)). The Court added that OCSLA incorporated the “law of adjacent States to fill gaps in
federal law” to “retain exclusive federal control of the
administration of the” OCS, while also recognizing “the
close, longstanding relationship between the Shelf and
the adjacent States.” Id. at 480 n.7 (emphasis added). 5
d. Although this Court has not addressed a case in
which existing federal law extended to the OCS left no
gap, the logic of its decisions leads to the conclusion that
state law would not apply under Section 1333(a)(2) in
such a scenario. As explained in Rodrigue, OCSLA
makes federal law “exclusive,” with “state law * * *
adopted only as surrogate federal law.” 395 U.S. at 357
(emphasis added).
The Fifth Circuit adopted that reading of OCSLA a
half-century ago in Continental Oil. The court there
applied OCSLA’s choice-of-law provision to an action by
an OCS drilling platform operator against the owner of
an ocean-going vessel that collided with the platform.
417 F.2d at 1032-1033. Unlike the wrongful-death action in Rodrigue, which fell outside federal admiralty
jurisdiction, the involvement of the ocean-going vessel
in the collision brought the claim in Continental Oil undisputedly within federal admiralty law. See id. at 1035.
As with the legislative history, some statements in this Court’s
decisions can be read to support a different interpretation. See, e.g.,
Rodrigue, 395 U.S. at 359 (referring to the potential for “federal law
to oust adopted state law”); id. at 356-358 (referring to adoption of
state law “not inconsistent” with federal law). But the decisions as
a whole strongly indicate that state law is applicable as federal law
on the OCS only to fill gaps in existing federal law.
5
19
The platform owner contended that state law was nevertheless “applicable” under Section 1333(a)(2) because
it was relevant to “the subject matter in question.” Ibid.
The Fifth Circuit rejected that position as irreconcilable with the statute. The court explained that Congress’s “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. at 1036 (footnote omitted). The contrary view, under
which “applicable” simply meant “applicable to the subject matter in question,” would effectively read the word
out of the statute by placing “almost 100% [e]mphasis on
the ‘not inconsistent * * * with federal laws’ element of
§ 1333(a)(2). ” Id. at 1035. Because the court concluded
that there were “no gaps” to fill under federal admiralty
law, the court concluded that there was no “necessity”
to adopt state law as federal law under OCSLA. Id. at
1036.
Over the past 50 years, the Fifth Circuit—the site of
the vast majority of OCS energy exploration—has repeatedly reaffirmed the holding of Continental Oil.
See, e.g., Tetra Techs., Inc. v. Continental Ins. Co., 814
F.3d 733, 738 (2016) (per curiam); LeSassier v. Chevron
USA, Inc., 776 F.2d 506, 509 (1985) (per curiam); Nations v. W. W. Morris, 483 F.2d 577, 585, cert. denied,
414 U.S. 1071 (1973); see also Bureau of Ocean Energy
Management, Gulf of Mexico OCS Region, https://www.
boem.gov/Gulf-of-Mexico-Region (noting that “about
97% of all OCS oil and gas production” occurs in the Gulf
of Mexico). District courts within the Ninth Circuit
have likewise uniformly followed the reasoning of Continental Oil. See Pet. App. 20 n.13; see also id. at 51-52
(district court in this case applying Continental Oil).
20
The decision below appears to be the first to depart
from that long-settled understanding of OCSLA.
2. The meaning of “applicable” adopted by respondent
and the court below conflicts with OCSLA’s text, context, history, and purpose
The court of appeals interpreted “applicable” to
mean “pertain[ing] to the subject matter at hand,” a
definition it said “does not lend itself to the notion that
state laws have to fill a gap in federal law to qualify as
surrogate federal law.” Pet. App. 21. Respondent defends that approach. Cert. Br. 17. Although the Ninth
Circuit’s reading might be one possible meaning of the
word “applicable” in isolation, this Court does not “construe statutory phrases in isolation” but rather “read[s]
statutes as a whole.” Samantar v. Yousuf, 560 U.S. 305,
319 (2010) (citation omitted).
In context, respondent’s reading of “applicable” to
mean “pertain[ing] to the subject matter at hand” gives
the word no meaning. Pet. App. 21. Even without the
word “applicable,” no one would read OCSLA to require
incorporation of irrelevant state law—i.e., divorce law
in a personal-injury action. The limitation proposed by
respondent and the Ninth Circuit is thus no limitation,
and fails to “give effect to every word of a statute wherever possible.” Leocal v. Ashcroft, 543 U.S. 1, 12 (2004);
see FLRA, 494 U.S. at 930 (refusing to read the term
“applicable laws” as “a pointless tautology”).
Reading “applicable” to mean “pertain[ing] to the
subject matter at hand,” Pet. App. 21, also conflicts with
this Court’s precedent. In both Rodrigue and Huson,
there was no dispute that the Louisiana law invoked by
the respective plaintiffs pertained to the subject matter
at hand. The Court nevertheless analyzed at length
whether federal admiralty law applied, see Huson,
21
404 U.S. at 100-105; Rodrigue, 395 U.S. at 359-366—an
inquiry that would have been unnecessary if any state
law pertaining to the same subject matter were “applicable” under Section 1333(a)(2)(A).
Finally, the Ninth Circuit’s reasoning makes little
sense on its own terms. The court of appeals recognized
that state law adopted as federal law under OCSLA is
“surrogate federal law.” Pet. App. 21. But the concept
of state law as “surrogate federal law” recognizes that
state law takes on the role of federal law only when existing federal law is unavailable to play that role itself.
See, e.g., Webster’s Second 2540 (defining a “surrogate”
as a “substitute”). The suggestion that state law could
substitute for federal law even if federal law were “applicable” cannot be squared with ordinary language or
the principle of federal exclusivity that runs throughout
OCSLA. See Rodrigue, 395 U.S. at 357. The only meaning of “applicable” that makes sense of OCSLA’s text,
structure, history, and purpose is the one adopted by
the Fifth Circuit a half-century ago and followed without exception until the decision below: State law is “applicable”—that is, suitable or appropriate—on the OCS
only to fill a “void or gap” in existing federal law. Continental Oil, 417 F.2d at 1036.
3. The FLSA leaves no gap to fill, so California wageand-hour law is not applicable under OCSLA
Applying that rule to this case, the FLSA is the only
law applicable to respondent’s claims. There is no dispute that the FLSA is among the “laws * * * of the
United States” that are “extended to the” OCS by Section 1333(a)(1). See Pet. App. 27; see also Rodrigue,
395 U.S. at 362 (indicating that Congress drafted
OCSLA to ensure that “fair-labor standard laws” would
extend to the OCS) (citation omitted). And the FLSA
22
does not leave any “gaps” that would need to be filled
by state law acting as “surrogate federal law.” Rodrigue, 395 U.S. at 357.
As this Court has long explained, the FLSA is a
“comprehensive legislative scheme,” United States v.
Darby, 312 U.S. 100, 109 (1941), that establishes, inter
alia, “federal minimum-wage, maximum-hour, and
overtime guarantees,” Genesis Healthcare Corp. v.
Symczyk, 569 U.S. 66, 69 (2013); see p. 26, infra. The
FLSA thus addresses respondent’s minimum-wage and
overtime claims. California wage-and-hour law is therefore not “applicable” within the meaning of Section
1333(a)(2). And because Section 1333(a)(2) adopts state
law as federal law only when state law is both “applicable and not inconsistent with” existing federal law,
43 U.S.C. 1333(a)(2)(A) (emphasis added), the inapplicability of state law alone means that the Ninth Circuit
erred in adopting California wage-and-hour law to resolve respondent’s minimum-wage and overtime claims.
This Court can reverse on that basis alone.
B. California Wage-and-Hour Law Is “Inconsistent With”
Federal Law Under 43 U.S.C. 1333(a)(2)(A)
Even if California wage-and-hour law were “applicable” within the meaning of Section 1333(a)(2)(A), it
would not be adopted as federal law under OCSLA because it is “inconsistent with” the FLSA. 43 U.S.C.
1333(a)(2)(A). Contrary to the decision below, the
standard for “inconsisten[cy]” set by OCSLA does not
mirror ordinary conflict-preemption principles, which
govern in deciding whether federal law ousts state law
that would otherwise apply of its own force to a matter
within the State’s jurisdiction. The standard under
OCSLA instead concerns whether state law is affirmatively incorporated as federal law in an area of exclusive
23
federal jurisdiction. Under OCSLA, California wageand-hour laws cannot be incorporated to impose minimum-wage and overtime requirements different from
those Congress specified in the FLSA. Congress has
already created one federal law on the issue; OCSLA
provides no basis to adopt another. The decision below
should be reversed on that basis as well.
1. The meaning of “not inconsistent with” in Section
1333(a)(2)(A) derives from federal-enclave law
Like the term “applicable,” the term “not inconsistent” has a general definition—“incompatible; incongruous; inharmonious,” Webster’s Second 1259—that
must be understood within the context of OCSLA. And
as with the term “applicable,” the relevant context is the
well-established law of federal enclaves that Congress
expressly referenced in Section 1333(a)(1).
As noted above, federal-enclave law allows incorporation of state law only if it preexisted establishment of
the enclave, and only if it is not “inconsistent with any
law of the United States” or “in conflict with the political character, institutions, and constitution of the [federal] government.” McGlinn, 114 U.S. at 546-547; see
Federal Study, Pt. II, at 159-163. As McGlinn suggests, the standard for inconsistency is broader than
pure legal conflict. A state law is inconsistent with federal law if there exists “conflicting federal policy.”
Paul, 371 U.S. at 269.
The standard for inconsistency in federal-enclave
law has developed primarily through interpretation of
the Assimilative Crimes Act and its predecessors, which
have long provided for state law to fill gaps in federal
criminal law on federal enclaves. See Lewis, 523 U.S. at
160-161. Although those Acts have not expressly provided that adopted state laws may not be incorporated
24
if “inconsistent with” federal law, this Court has long
interpreted them to contain such a limitation. See id. at
164-165. In Lewis, for example, the Court explained
that state criminal law may not be assimilated as federal
law if it “would interfere with the achievement of a federal policy,” if adoption of “state law would effectively
rewrite” federally prescribed and “carefully considered” standards, or if “federal statutes reveal an intent
to occupy so much of a field as would exclude use of the
particular state statute at issue.” Ibid.
Of particular relevance here, this Court has emphasized that assimilation of state law is inappropriate
when Congress has defined a crime with precision.
More than 70 years ago in Williams, for example, the
Court refused to assimilate an Arizona crime because
Congress had defined “the precise acts” the defendant
committed to constitute a different federal crime.
327 U.S. at 717. The Court reached that result even
though federal law did not expressly foreclose Arizona’s
definition and would not have preempted a state prosecution under the State’s ordinary jurisdiction. The
Court explained that, in the context of a federal enclave
governed exclusively by federal law, Congress’s precise
definition of a crime “is not to be redefined and enlarged
by application” of state law, because such a redefinition
would have the impermissible “effect of modifying or repealing existing provisions of the Federal Code.” Id. at
717-718. The Court reiterated that principle in Lewis,
explaining that assimilation of state law “may not rewrite distinctions among the forms of criminal behavior
that Congress intended to create.” 523 U.S. at 165; accord Federal Study, Pt. II, at 132.
25
Those considerations apply a fortiori to OCSLA.
Unlike the Assimilative Crimes Act, OCSLA’s text expressly includes a “not inconsistent with” standard.
43 U.S.C. 1333(a)(2)(A). Unlike most newly established
federal enclaves, moreover, the OCS was never part of
a State, so no reliance interests on preexisting state law
could have developed. Considerations of state sovereignty likewise play no role on the OCS, because (unlike
with many federal enclaves) States have never exercised sovereign control over the land at issue.
To be sure, it may be relatively rare that a state law
could be “applicable” in the sense that federal law
leaves a gap to fill yet “inconsistent with” other federal
law. See Continental Oil, 417 F.2d at 1040. But such a
scenario is conceivable, so—unlike in respondent’s
reading—neither term is rendered superfluous. See id.
at 1037. For example, state law may be “applicable” because federal law does not address a particular issue,
but “inconsistent” with federal law because it “interfere[s] with the achievement of a federal policy” on a
broader level. Lewis, 523 U.S. at 164. Thus, a federal
court declined to assimilate on a federal enclave a Virginia criminal law that banned racial integration in
“places of public assemblage”—a crime with no counterpart in the federal code—because the law conflicted
with federal policy “prohibiting the maintenance of racial segregation.” Air Terminal Servs., Inc. v. Rentzel,
81 F. Supp. 611, 611 (E.D. Va. 1949); see Federal Study,
Pt. II, at 135-136 (discussing this case). Federal courts
of appeals have similarly declined to assimilate state
criminal laws that could be seen as filling gaps in federal
criminal law but that would undermine, inter alia,
“Congress’s policy and purpose in establishing” national parks, Blackburn v. United States, 100 F.3d 1426,
26
1435 (9th Cir. 1996), or federal policy protecting “Indian
hunting and fishing rights,” Cheyenne-Arapaho Tribes
of Oklahoma v. Oklahoma, 618 F.2d 665, 668 (10th Cir.
1980). Moreover, just as state laws can be “applicable”
but “inconsistent,” so too state laws can be inapplicable
but substantively consistent—for example, a state law
that parrots the wage-and-hour standards of the FLSA.
43 U.S.C. 1333(a)(2)(A). By barring adoption of state
laws that are either not “applicable” or “inconsistent
with” federal law, OCSLA preserves the primacy of federal law and protects the federal government’s paramount interests on the OCS. Ibid.
2. The California wage-and-hour law governing respondent’s claims is inconsistent with the FLSA
The California wage-and-hour laws that respondent
invokes are “inconsistent with” the FLSA under Section
1333(a)(2)(A). The FLSA generally requires employers
to pay a minimum hourly wage of $7.25, 29 U.S.C.
206(a)(1), and time-and-a-half at the employer’s regular
rate for work in excess of 40 hours in a week, 29 U.S.C.
207(a)(1). In addition, Department of Labor regulations
provide that “[a]n employee who resides on his employer’s premises on a permanent basis or for extended
periods of time is not considered as working all the time
he is on the premises.” 29 C.F.R. 785.23. The California
laws that respondent invokes depart from those federal
standards. California requires most employers to pay a
minimum hourly wage of $12, see Cal. Lab. Code
§ 1182.12(b) (West Supp. 2019); mandates time-and-ahalf pay for “[a]ny work in excess of eight hours in one
workday and any work in excess of 40 hours in any one
workweek and the first eight hours worked on the seventh day of work in any one workweek,” and double pay
for “[a]ny work in excess of 12 hours in one day” or “any
27
work in excess of eight hours on any seventh day of a
workweek,” Cal. Lab. Code § 510(a) (West 2011); and
has been interpreted to require employers in certain industries (including those at issue here) to pay personnel
residing on the employer’s premises for all hours on
call, including those “engaged in personal activities, including sleeping, showering, eating, reading, watching
television, and browsing the Internet,” Mendiola v.
CPS Sec. Solutions, Inc., 340 P.3d 355, 361 (Cal. 2015).
To adopt the different wage-and-hour rules prescribed by California “would effectively rewrite” the
“carefully considered” standards in the FLSA, Lewis,
523 U.S. at 164, thereby “modifying or repealing” the
minimum-wage and maximum-hours requirements selected by Congress, Williams, 327 U.S. at 718. That is
precisely the kind of inconsistency this Court has determined precludes adopting state law under the Assimilative Crimes Act. See Lewis, 523 U.S. at 169 (refusing to
assimilate state law given “the detailed manner in which
the federal” statute “is drafted”); Williams, 327 U.S. at
717 (refusing to assimilate state law where Congress
has defined “precise acts” constituting a crime).
To be sure, complying with both the FLSA and state
law would not be impossible. An employer could do so
by following the more demanding requirements. And
this Court has held that the FLSA does not bar adherence to a more demanding standard imposed by a different federal statute. See Powell v. United States Cartridge Co., 339 U.S. 497, 518-519 (1950) (concluding that
the FLSA could be enforced in tandem with the WalshHealey Act, 41 U.S.C. 6501 et seq.). But the “impossibility” standard this Court applied in reconciling two
federal laws enacted by Congress, ibid., is not the standard that governs here, because California law does not
28
become federal law unless a court first determines that
it is “not inconsistent with” the FLSA. 43 U.S.C.
1333(a)(2)(A).
The appropriate analogy is thus not to this Court’s
cases attempting to harmonize multiple laws enacted by
Congress, but to its cases determining whether to adopt
state law as federal law. See Lewis, 523 U.S. at 164-165.
Closely related are cases in which this Court has determined whether federal statutory law displaces federal
common law (of which assimilated state law could be
considered a variety). See, e.g., American Elec. Power
Co. v. Connecticut, 564 U.S. 410, 423-424 (2011). In
those cases, the Court has refused to apply federal common law if a federal statute “speaks directly to the question at issue.” Id. at 424 (brackets, citation, and internal
quotation marks omitted). Here, the FLSA speaks directly to the question at issue by prescribing particular
minimum-wage, overtime, and maximum-hours requirements. No basis exists to nullify those carefully
specified requirements by elevating different requirements to the status of federal law and then displacing
the choices made by Congress with choices made by
California.
3. The court of appeals’ holding that California law is
“not inconsistent with” the FLSA is mistaken
In determining that California wage-and-hour law is
“not inconsistent with” the FLSA, the Ninth Circuit relied heavily on the FLSA’s savings clause, which “expressly provides that states are free to adopt more protective standards for minimum wages or maximum
hours in a work week.” Pet. App. 36. That reasoning is
flawed. The FLSA savings clause provides only that the
FLSA itself does not bar enforcement of more protective wage-and-hour standards. See 29 U.S.C. 218(a)
29
(“No provision of this chapter * * * shall excuse noncompliance” with “higher” minimum-wage or “lower”
maximum-hours laws.) (emphasis added). The FLSA
does not, however, assimilate state law prescribing
more protective wage-and-hour standards than federal
law or provide for enforcement of such standards by the
Department of Labor or private plaintiffs. See, e.g.,
Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 977 (7th
Cir. 2011). The presence of the FLSA savings clause thus
does not affect the conclusion that California wage-andhour law is inconsistent with the substantive wage-andhour provisions of the FLSA. Indeed, the savings clause
is, by definition, implicated only when there is some measure of inconsistency between the FLSA and another law.
See 29 U.S.C. 218(a) (referring to a “higher” minimum
wage or a “lower” maximum workweek).
The Ninth Circuit’s contrary position would effectively adopt principles from one species of conflict
preemption—i.e., that state law is “impliedly preempted where it is ‘impossible for a private party to
comply with both state and federal requirements’ ”—as
the governing rule on the OCS. Mutual Pharm. Co. v.
Bartlett, 570 U.S. 472, 480 (2013) (citation omitted). But
that is a fundamental principle that applies to all juridictions. The Ninth Circuit’s position thus disregards
OCSLA’s extension of federal law to the OCS “to the
same extent as if the [OCS] were an area of exclusive
Federal jurisdiction located within a State” (i.e., a federal enclave). 43 U.S.C. 1333(a)(1). Indeed, the court’s
position would largely adopt a legal regime that Congress expressly rejected when it declined to pass “an
amendment to the Act which would have made ‘the laws
of such State applicable to the newly acquired area’ ” as
a general matter. Rodrigue, 395 U.S. at 359 (citation
30
omitted). That is not a permissible reading of the statute. See INS v. Cardoza-Fonseca, 480 U.S. 421, 442-443
(1987) (“Congress does not intend sub silentio to enact
statutory language that it has earlier discarded.”) (citation omitted).
More fundamentally, the Ninth Circuit’s position
would extend impossibility-preemption principles “derived” from the Supremacy Clause, Bartlett, 570 U.S. at
480 (citation omitted), to a setting in which the Supremacy
Clause has no role to play. Because OCSLA incorporates
state law only as “the law of the United States,” 43 U.S.C.
1333(a)(2)(A), there is no possible conflict between state
law as such and federal law, and therefore no basis for the
Supremacy Clause to supply the rule of decision.
C. The Decision Below Would Disrupt Settled Expectations And Orderly Administration On The OCS
The decision below would disrupt long-settled expectations on the OCS. As the Ninth Circuit recognized, its
reading of OCSLA departs from the Fifth Circuit’s in
Continental Oil, which provided the governing standard in OCS cases for a half-century. Pet. App. 20 n.13.
Affirming the Ninth Circuit’s novel construction would
dramatically alter business arrangements on the OCS.
California’s rule that employers must pay employees
for all hours spent on the drilling platform would appear
to require employers to more than double their labor
costs, cut their workers’ wages, or adjust their employment structures, for example by requiring employees to
return to the mainland every night. Additional applications of California wage-and-hour law could have other
unpredictable effects. And the Ninth Circuit left open the
possibility of retroactive liability as well. See id. at 43.
Adopting state wage-and-hour law as federal law on
the OCS would also create new administrative burdens.
31
Because all OCS law must be “administered and enforced by the appropriate officers and courts of the
United States,” 43 U.S.C. 1333(a)(2)(A), federal officials, presumably in the Department of Labor, would
have to learn and apply a multiplicity of unfamiliar state
requirements over and above the provisions of the
FLSA that those officials have long enforced. Many of
those additional state requirements are complex and
depend on judicial or administrative constructions of
state law. See Mendiola, 340 P.3d at 361. Imposing
such responsibilities on federal officials would be especially anomalous given OCSLA’s overriding focus on the
exclusivity of federal “jurisdiction, control, and power
of disposition.” 43 U.S.C. 1332(1).
The Ninth Circuit’s decision could have implications
well beyond the wage-and-hour laws at issue here. Numerous federal statutes, administered by various federal agencies, specify regulatory standards affecting
the OCS. The Department of Labor, for example, administers multiple statutes that apply on the OCS, including the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 901 et seq.; the Service Contract
Act of 1965, 41 U.S.C. 6701 et seq.; and the Contract
Work Hours and Safety Standards Act, 40 U.S.C. 3701
et seq. The Coast Guard administers comprehensive
safety regulations for the OCS. See 43 U.S.C. 1347;
33 C.F.R. Ch. I, Subch. N. The Environmental Protection Agency administers the Clean Air Act, 42 U.S.C.
7401 et seq., the Clean Water Act, 33 U.S.C. 1251 et seq.,
and the Resource Conservation and Recovery Act of
1976, 42 U.S.C. 6901 et seq., for portions of the OCS. And
the Department of the Interior administers numerous
32
statutes and programs related to energy and mineral exploration, development, and production on the OCS. See
30 C.F.R. Chs. II and V. 6
Many of those statutes expressly provide that they
apply to, or limit state jurisdiction on, the OCS, which
makes especially clear that Congress intended those
federal regulatory regimes and not state law to govern.
But some of those statutes also have general provisions
that resemble the FLSA’s savings clause. See, e.g.,
42 U.S.C. 7416. If this Court were to affirm the Ninth
Circuit’s decision, courts could be urged to conclude (erroneously, in the government’s view) that such general
savings clauses likewise require adoption of state regulatory law as federal law on the OCS. That would result
in more chaotic regulatory regimes, heavier federal administrative burdens, and more significant interference
with statutorily mandated policy objectives. More fundamentally, the widespread adoption of state law on the
OCS would undermine the textually demonstrated and
long-understood principle that OCSLA “emphatically”
asserts the federal government’s “paramount” sovereignty over the OCS. Maine, 420 U.S. at 526. Confining
state law to its important but secondary role to “supplement[] gaps in the federal law” on the OCS, by contrast,
is consistent with the text, history, and purpose of
OCSLA, as well as this Court’s longstanding precedent
interpreting it. Rodrigue, 395 U.S. at 357.
The Department of the Interior, rather than EPA, regulates air
pollutant emissions for portions of the OCS in the Gulf of Mexico
and the Arctic Ocean. 42 U.S.C. 7627(a).
6
33
CONCLUSION
The judgment of the court of appeals should be
reversed.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JOSEPH H. HUNT
Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
CHRISTOPHER G. MICHEL
Assistant to the Solicitor
General
MARK B. STERN
JENNIFER L. UTRECHT
Attorneys
FEBRUARY 2019
APPENDIX
1.
43 U.S.C. 1332 provides:
Congressional declaration of policy
It is hereby declared to be the policy of the United
States that—
(1) the subsoil and seabed of the outer Continental Shelf appertain to the United States and are
subject to its jurisdiction, control, and power of disposition as provided in this subchapter;
(2) this subchapter shall be construed in such a
manner that the character of the waters above the
outer Continental Shelf as high seas and the right to
navigation and fishing therein shall not be affected;
(3) the outer Continental Shelf is a vital national resource reserve held by the Federal Government
for the public, which should be made available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent
with the maintenance of competition and other national needs;
(4) since exploration, development, and production of the minerals of the outer Continental Shelf
will have significant impacts on coastal and noncoastal areas of the coastal States, and on other affected States, and, in recognition of the national interest in the effective management of the marine,
coastal, and human environments—
(A) such States and their affected local governments may require assistance in protecting
their coastal zones and other affected areas from
(1a)
2a
any temporary or permanent adverse effects of
such impacts;
(B) the distribution of a portion of the receipts from the leasing of mineral resources of
the outer Continental Shelf adjacent to State
lands, as provided under section 1337(g) of this
title, will provide affected coastal States and localities with funds which may be used for the mitigation of adverse economic and environmental
effects related to the development of such resources; and
(C) such States, and through such States, affected local governments, are entitled to an opportunity to participate, to the extent consistent
with the national interest, in the policy and planning decisions made by the Federal Government
relating to exploration for, and development and
production of, minerals of the outer Continental
Shelf. 1
(5) the rights and responsibilities of all States
and, where appropriate, local governments, to preserve and protect their marine, human, and coastal
environments through such means as regulation of
land, air, and water uses, of safety, and of related
development and activity should be considered and
recognized; and
(6) operations in the outer Continental Shelf
should be conducted in a safe manner by well-trained
personnel using technology, precautions, and tech1
So in original.
The period probably should be a semicolon.
3a
niques sufficient to prevent or minimize the likelihood of blowouts, loss of well control, fires, spillages, physical obstruction to other users of the waters
or subsoil and seabed, or other occurrences which
may cause damage to the environment or to property, or endanger life or health.
2.
43 U.S.C. 1333 provides:
Laws and regulations governing lands
(a)
Constitution and United States laws; laws of adjacent
States; publication of projected State lines; international boundary disputes; restriction on State taxation and jurisdiction
(1) The Constitution and laws and civil and political
jurisdiction of the United States are extended to the
subsoil and seabed of the outer Continental Shelf and
to all artificial islands, and all installations and other
devices permanently or temporarily attached to the
seabed, which may be erected thereon for the purpose
of exploring for, developing, or producing resources
therefrom, or any such installation or other device
(other than a ship or vessel) for the purpose of transporting such resources, to the same extent as if the
outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State: Provided,
however, That mineral leases on the outer Continental
Shelf shall be maintained or issued only under the provisions of this subchapter.
(2)(A) To the extent that they are applicable and
not inconsistent with this subchapter or with other
4a
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. All of such applicable laws shall be administered and enforced by the appropriate officers and
courts of the United States. State taxation laws shall
not apply to the outer Continental Shelf.
(B) Within one year after September 18, 1978, the
President shall establish procedures for setting1 any
outstanding international boundary dispute respecting
the outer Continental Shelf.
(3) The provisions of this section for adoption of
State law as the law of the United States shall never be
interpreted as a basis for claiming any interest in or
jurisdiction on behalf of any State for any purpose over
the seabed and subsoil of the outer Continental Shelf,
or the property and natural resources thereof or the
revenues therefrom.
1
So in original.
Probably should be “settling”.
5a
(b)
Longshore and Harbor Workers’ Compensation Act
applicable; definitions
With respect to disability or death of an employee
resulting from any injury occurring as the result of operations conducted on the outer Continental Shelf for
the purpose of exploring for, developing, removing, or
transporting by pipeline the natural resources, or involving rights to the natural resources, of the subsoil
and seabed of the outer Continental Shelf, compensation shall be payable under the provisions of the Longshore and Harbor Workers’ Compensation Act [33 U.S.C.
901 et seq.]. For the purposes of the extension of the
provisions of the Longshore and Harbor Workers’ Compensation Act under this section—
(1) the term “employee” does not include a master or member of a crew of any vessel, or an officer
or employee of the United States or any agency thereof or of any State or foreign government, or of any
political subdivision thereof;
(2) the term “employer” means an employer
any of whose employees are employed in such operations; and
(3) the term “United States” when used in a geographical sense includes the outer Continental
Shelf and artificial islands and fixed structures
thereon.
(c)
National Labor Relations Act applicable
For the purposes of the National Labor Relations
Act, as amended [29 U.S.C. 151 et seq.], any unfair
labor practice, as defined in such Act, occurring upon
6a
any artificial island, installation, or other device referred to in subsection (a) of this section shall be deemed
to have occurred within the judicial district of the State,
the laws of which apply to such artificial island, installation, or other device pursuant to such subsection, except
that until the President determines the areas within
which such State laws are applicable, the judicial district shall be that of the State nearest the place of
location of such artificial island, installation, or other
device.
(d)
Coast Guard regulations; marking of artificial
islands, installations, and other devices; failure of
owner suitably to mark according to regulations
(1) The Secretary of the Department in which the
Coast Guard is operating shall have authority to promulgate and enforce such reasonable regulations with
respect to lights and other warning devices, safety
equipment, and other matters relating to the promotion
of safety of life and property on the artificial islands,
installations, and other devices referred to in subsection (a) of this section or on the waters adjacent thereto, as he may deem necessary.
(2) The Secretary of the Department in which the
Coast Guard is operating may mark for the protection
of navigation any artificial island, installation, or other
device referred to in subsection (a) of this section
whenever the owner has failed suitably to mark such
island, installation, or other device in accordance with
regulations issued under this subchapter, and the owner shall pay the cost of such marking.
7a
(e)
Authority of Secretary of the Army to prevent
obstruction to navigation
The authority of the Secretary of the Army to prevent obstruction to navigation in the navigable waters
of the United States is extended to the artificial islands, installations, and other devices referred to in
subsection (a) of this section.
(f )
Provisions as nonexclusive
The specific application by this section of certain
provisions of law to the subsoil and seabed of the outer
Continental Shelf and the artificial islands, installations, and other devices referred to in subsection (a) of
this section or to acts or offenses occurring or committed
thereon shall not give rise to any inference that the application to such islands and structures, acts, or offenses of any other provision of law is not intended.
3.
18 U.S.C. 13(a) provides:
Laws of States adopted for areas within Federal jurisdiction
(a) Whoever within or upon any of the places now
existing or hereafter reserved or acquired as provided
in section 7 of this title, or on, above, or below any portion of the territorial sea of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district 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, Territory, Possession, or District in which such place is situ-
8a
ated, by the laws thereof in force at the time of such act
or omission, shall be guilty of a like offense and subject
to a like punishment.
4.
29 U.S.C. 206(a)(1) provides:
Minimum wage
(a)
Employees engaged in commerce; home workers in
Puerto Rico and Virgin Islands; employees in American Samoa; seamen on American vessels; agricultural employees
Every employer shall pay to each of his employees
who in any workweek is engaged in commerce or in the
production of goods for commerce, or is employed in an
enterprise engaged in commerce or in the production of
goods for commerce, wages at the following rates:
(1) except as otherwise provided in this section,
not less than—
(A) $5.85 an hour, beginning on the 60th day
after May 25, 2007;
(B) $6.55 an hour, beginning 12 months after
that 60th day; and
(C) $7.25 an hour, beginning 24 months after
that 60th day;
9a
5.
29 U.S.C. 207(a)(1)
Maximum hours
(a)
Employees engaged in interstate commerce; additional applicability to employees pursuant to subsequent amendatory provisions
(1) Except as otherwise provided in this section, no
employer shall employ any of his employees who in any
workweek is engaged in commerce or in the production
of goods for commerce, or is employed in an enterprise
engaged in commerce or in the production of goods for
commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a
rate not less than one and one-half times the regular
rate at which he is employed.
6.
29 U.S.C. 218(a) provides:
Relation to other laws
(a) 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, and no provision of this chapter relating
to the employment of child labor shall justify noncompliance with any Federal or State law or municipal ordinance establishing a higher standard than the standard established under this chapter. No provision of this
chapter shall justify any employer in reducing a wage
10a
paid by him which is in excess of the applicable minimum wage under this chapter, or justify any employer
in increasing hours of employment maintained by him
which are shorter than the maximum hours applicable
under this chapter.
7.
29 C.F.R. 785.23 provides:
Employees residing on employer’s premises or working
at home.
An employee who resides on his employer’s premises
on a permanent basis or for extended periods of time is
not considered as working all the time he is on the premises. Ordinarily, he may engage in normal private
pursuits and thus have enough time for eating, sleeping,
entertaining, and other periods of complete freedom
from all duties when he may leave the premises for purposes of his own. It is, of course, difficult to determine
the exact hours worked under these circumstances and
any reasonable agreement of the parties which takes
into consideration all of the pertinent facts will be accepted. This rule would apply, for example, to the pumper of a stripper well who resides on the premises of his
employer and also to a telephone operator who has the
switchboard in her own home.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.