Petition for Writ of Certiorari — Minnesota Living Assistance, Inc., dba Baywood Home Care, Petitioner v. Ken B. Peterson, et al.

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion and Judgment in the United

States Court of Appeals for the Eighth

Circuit

(August 8, 2018) . . . . . . . . . . . . . . App. 1

Appendix B Order in the United States District

Court, District of Minnesota, Civil No.

17-1011

(June 28, 2017) . . . . . . . . . . . . . . App. 15

Appendix C Judgment in a Civil Case in the

United States District Court, District

of Minnesota, Civil No. 17-1011

(June 28, 2017) . . . . . . . . . . . . . . App. 24

Appendix D Order in the United States Court of

Appeals for the Eighth Circuit

(September 14, 2018) . . . . . . . . . App. 26

Appendix E 29 U.S.C. §218(a) . . . . . . . . . . . . App. 28

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 17-2658

[Filed August 8, 2018]

________________________________

Minnesota Living Assistance,

)

Inc., doing business as

)

Baywood Home Care

)

)

Plaintiff - Appellant

)

)

v.

)

)

Ken B. Peterson, Commissioner,

)

Department of Labor and

)

Industry, State of Minnesota,

)

in his official capacity; John

)

Aiken, Interim Director of Labor )

Standards, Department of Labor )

and Industry, State of Minnesota, )

in his official capacity

)

)

Defendants - Appellees

)

________________________________ )

Appeal from United States District Court

for the District of Minnesota - Minneapolis

____________

Submitted: June 13, 2018

Filed: August 8, 2018

App. 2

____________

Before GRUENDER, ERICKSON, and GRASZ, Circuit

Judges.

____________

GRUENDER, Circuit Judge.

This case involves two sets of proceedings. In the

first, the Minnesota Department of Labor and Industry

(“DLI”) brought an administrative action against

Minnesota Living Assistance, Inc. (“Baywood”) for

failing to pay overtime compensation to

companionship-services employees in violation of the

Minnesota Fair Labor Standards Act (“MFLSA”). In the

second, the one before us today, Baywood sued in

federal court the Commissioner and the Director of

Labor Standards at the DLI, arguing that the federal

Fair Labor Standards Act (“FLSA”) preempts the

MFLSA and that Baywood therefore need not pay state

penalties for any MFLSA violation. The district court1

found that the Younger doctrine required it to abstain

while the state proceeding was pending and dismissed

the case. Because we find abstention appropriate, we

affirm.

I.

Baywood is a Minnesota corporation that employs

domestic-service workers who provide companionship

services.2 The FLSA and the MFLSA both provide

1

The Honorable David S. Doty, United States District Judge for

the District of Minnesota.

2

“[C]ompanionship services means the provision of fellowship and

protection for an elderly person or person with an illness, injury,

App. 3

requirements regarding the minimum wage and the

maximum hours per week that an individual can work

before an employer is required to pay overtime

compensation. But during the relevant time period,

there were two pertinent differences between the

statutes: (1) the FLSA standards were generally more

protective than the MFLSA, compare 29 U.S.C.

§§ 206(a)(1)(C), 207(a)(1), with Minn. Stat. §§ 177.24,

subdiv. 1(b) (2012), 177.25; and (2) the FLSA exempted

companionship-services employees from protection,

whereas the MFLSA did not, compare 29 U.S.C

§ 213(a)(15), with Minn. Stat. § 177.23, subdiv. 11.

In 2014, a Baywood employee filed a complaint

alleging that Baywood violated the MFLSA by failing

to pay overtime compensation to companionshipservices employees from March 2012 to March 2014.

The DLI conducted an investigation into Baywood’s

practices and determined that Baywood had not paid

its companionship-services employees the wages

required by the MFLSA. The DLI issued a compliance

order in May 2016. The order assessed a penalty of

$1,000 for failure to keep records pursuant to Minn.

Stat. § 177.30 and required Baywood to pay back wages

of $557,714.44 in addition to liquidated damages of

$557,714.44. The order also indicated that Baywood

should cease its illegal practices and comply with the

MFLSA.

Baywood contested the compliance order, so, in

August 2016, the DLI initiated a contested case

or disability who requires assistance in caring for himself or

herself.” 29 C.F.R. § 552.6. The MFLSA adopts the FLSA definition

of companionship services. See Minn. Stat. § 177.23, subdiv. 11.

App. 4

proceeding before an administrative law judge (“ALJ”)

at the Minnesota Office of Administrative Hearings. In

June 2017, the ALJ issued a report recommending that

the DLI Commissioner enforce the compliance order as

to backpay and liquidated damages but that he deny it

as to the determination that Baywood failed to keep

accurate records.

While the proceeding before the ALJ was pending,

but before the June recommendation, Baywood filed

suit in federal district court seeking (1) a declaration

that the FLSA preempts the MFLSA and (2) injunctive

relief prohibiting the DLI from further processing,

investigating, or adjudicating its claims against

Baywood. The DLI moved to dismiss the complaint,

arguing that the district court should abstain from

exercising jurisdiction under Younger v. Harris, 401

U.S. 37 (1971). The district court granted the DLI’s

motion to dismiss under Younger.

II.

We review the district court’s decision to abstain

under Younger for abuse of discretion. Whether

Younger abstention is appropriate is a question of law,

and the district court abuses its discretion when it

makes an error of law. Geier v. Mo. Ethics Comm’n, 715

F.3d 674, 678 (8th Cir. 2013) (citing Plouffe v. Ligon,

606 F.3d 890, 894-95 (8th Cir. 2010) (Colloton, J.,

concurring)). Although federal courts have a “virtually

unflagging obligation . . . to exercise the jurisdiction

given them,” Colo. River Water Conservation Dist. v.

United States, 424 U.S. 800, 817 (1976), exceptions to

this obligation exist in limited circumstances. In

Younger v. Harris, the Supreme Court held that,

consistent with our nation’s commitment to the

App. 5

principles of comity and federalism, a federal court

should abstain from exercising jurisdiction in cases

where there is a parallel, pending state criminal

proceeding, so long as certain conditions are met. 401

U.S. 37, 43-46 (1971). Since Younger, the Supreme

Court has issued a series of decisions that have

clarified and expanded the Younger abstention

doctrine. See Sprint Commc’ns, Inc. v. Jacobs, 571 U.S.

69 (2013); New Orleans Pub. Serv., Inc. v. Council of

City of New Orleans (NOPSI), 491 U.S. 350 (1989);

Middlesex Cty. Ethics Comm. v. Garden State Bar

Ass’n, 457 U.S. 423 (1982).

Three lines of inquiry for determining whether

Younger abstention is appropriate emerge from these

decisions. See Sirva Relocation, LLC v. Richie, 794 F.3d

185, 192-93 (1st Cir. 2015) (distilling a three-part

taxonomy from the Court’s abstention analyses). First,

does the underlying state proceeding fall within one of

the three “exceptional circumstances” where Younger

abstention is appropriate? See Sprint, 571 U.S. at 78.

Second, if the underlying proceeding fits within a

Younger category, does the state proceeding satisfy

what are known as the “Middlesex” factors? See id. at

81 (discussing Middlesex). And third, even if the

underlying state proceeding satisfies the first two

inquiries, is abstention nevertheless inappropriate

because an exception to abstention applies? See

NOPSI, 491 U.S. at 367. We address these three lines

of inquiry in turn.

A.

We begin by determining whether the underlying

enforcement proceeding against Baywood fits within

one of the three categories where Younger abstention

App. 6

applies. Sprint, 571 U.S. at 72-73, 78. Younger

abstention is applicable only where the state

proceeding qualifies as (1) a criminal prosecution, (2) a

civil enforcement proceeding that is akin to a criminal

prosecution, or (3) a proceeding implicating a state’s

interest in enforcing the orders and judgments of its

courts. Id.

Here, the parties agree that a civil enforcement

proceeding resembling a criminal prosecution is the

only abstention category into which the DLI proceeding

could fit. Sprint identified three important

characteristics for recognizing a civil proceeding that

resembles a criminal prosecution: (1) the action was

initiated by the State in its sovereign capacity; (2) the

action involves sanctions against the federal plaintiff

for some wrongful act; and (3) the action includes an

investigation, often culminating in formal charges. 571

U.S. at 79-80. In this case, the underlying proceeding

meets all three criteria and thus falls within an

applicable Younger category.

The DLI proceeding satisfies both the stateinvolvement and the investigation criteria because the

action was initiated by the State, via the DLI, following

an investigation into Baywood’s failure to pay overtime

wages to companionship-services employees. Baywood

contests this conclusion by arguing that “the case was

initiated by an employee complaint about Baywood’s

nonpayment of overtime,” rather than the State.

According to Baywood, because the case was initiated

by an employee, the DLI merely “stepped in to settle

the dispute between Baywood and its employees about

overtime.” Indeed, Baywood attempts to analogize the

facts here to those in Sprint, where administrative

App. 7

proceedings were triggered by a private complaint. See

571 U.S. at 74. But this analogy falls short.

In Sprint, “[a] private corporation . . . initiated the

action[,] [n]o state authority conducted an investigation

into Sprint’s activities, and no state actor lodged a

formal complaint against Sprint.” 571 U.S. at 80.

Under those circumstances, the Supreme Court

concluded that Iowa’s authority was merely “invoked to

settle a civil dispute between two private parties,” and

thus, the proceeding was not a civil proceeding akin to

a criminal proceeding for purposes of Younger. Id. By

contrast, here, the DLI conducted the investigation,

issued the compliance order, and brought the contested

case proceeding against Baywood before the ALJ to

enforce Minnesota law. The DLI was not merely an

arbiter of a private dispute. Thus, even though the

investigation was triggered by an employee complaint,

the underlying proceeding bears the first and third

characteristics of a civil proceeding akin to a criminal

prosecution.3 See Ohio Civil Rights Comm’n v. Dayton

Christian Schs., Inc., 477 U.S. 619, 623-24, 625 (1986)

(finding abstention appropriate even where the agency

investigation was initiated by a private complaint); see

also Sirva, 794 F.3d at 194.

3

Baywood also makes a related argument that because the

proceeding could have been brought by a private party, Younger

abstention is inappropriate. In other words, it suggests that

Younger abstention is not applicable where a private cause of

action is available. But neither Dayton nor Sprint, nor any circuit

deciding cases in their wake, suggests that the presence of a

private right of action renders abstention inappropriate. See, e.g.,

Sirva, 794 F.3d at 194, 200 (applying Younger abstention even

where a private cause of action was available). Therefore, we reject

this argument.

App. 8

The DLI proceeding also involves “sanctions for

wrongful conduct.” Baywood argues that the

underlying proceeding is merely an administrative

wage claim with no criminal analog, yet Baywood

concedes that the MFLSA provides for criminal

penalties in addition to the civil penalties pursued

here. See Minn. Stat. § 177.32, subdiv. 1(7). Thus, the

underlying proceeding resembles cases in which the

Supreme Court affirmed the exercise of abstention

where “state authorities also had the option of

vindicating the[] policies through criminal

prosecutions,” but instead chose to pursue less severe

civil sanctions. Trainor v. Hernandez, 431 U.S. 434, 444

(1977); see also id. at 449-50 (Blackmun, J., concurring)

(“The propriety of abstention should not depend on the

State’s choice to vindicate its interests by a less drastic,

and perhaps more lenient, route.”).

Here, the DLI imposed significant liquidated

damages in addition to backpay. Minn. Stat. § 177.27,

subdiv. 7 (providing for the imposition of equal

liquidated damages). These double damages function to

sanction Baywood for its failure to pay overtime wages.

See Helvering v. Mitchell, 303 U.S. 391, 400 (1938).

Furthermore, the cease and desist order sought by the

State operates to restrain Baywood’s conduct going

forward. Minn. Stat. § 177.27, subdiv. 7 (“If an

employer is found by the commissioner to have violated

[the MFLSA] . . . the commissioner shall order the

employer to cease and desist from engaging in the

violative practice . . . .”); Wilson v. Commodity Futures

Trading Comm’n, 322 F.3d 555, 561 (8th Cir. 2003)

(characterizing an agency’s order to “cease and desist”

as a sanction). Though not themselves criminal

App. 9

penalties, the sanctions sought support Younger

abstention.

Because all three essential characteristics identified

by Sprint are present here, the underlying proceeding

qualifies as a civil proceeding akin to a criminal

prosecution.

B.

Given that the DLI proceeding falls into one of the

categories that triggers Younger, we now consider the

three Middlesex factors as “additional factors

appropriately considered by [a] federal court before

invoking Younger.” See Sprint, 571 U.S. at 81. Under

Middlesex, we ask whether the state proceeding (1) is

judicial in nature, (2) implicates important state

interests, and (3) provides an adequate opportunity to

raise constitutional challenges. 457 U.S. at 432.

Before the district court, Baywood challenged only

the second factor, arguing that abstention was

inappropriate because an important state interest was

not implicated. On appeal, Baywood contests all three

factors. “Ordinarily this court will not consider

arguments raised for the first time on appeal,” see

Wever v. Lincoln Cty., 388 F.3d 601, 608 (8th Cir.

2004), and Baywood offers no persuasive reason to

deviate from our general practice, see Weitz Co. v.

Lloyd’s of London, 574 F.3d 885, 891 (8th Cir. 2009).

Thus, we limit our analysis to whether the underlying

proceeding implicates important state interests. See

Middlesex, 457 U.S. at 432.

Here, Minnesota has an important interest in the

application of its wage and hour laws. Indeed, “States

possess broad authority under their police powers to

App. 10

regulate the employment relationship to protect

workers within the State.” Metro. Life Ins. Co v.

Massachusetts, 471 U.S. 724, 756 (1985). Taking our

cue from the Supreme Court, we recognize that “States

have traditionally regulated the payment of wages,”

and, “[a]bsent any indication that Congress intended

[otherwise],” we are hesitant to “significantly interfere

with the separate spheres of governmental authority

preserved in our federalist system.” Massachusetts v.

Morash, 490 U.S. 107, 119 (1989) (internal quotation

marks omitted). Under this view, the underlying

proceeding satisfies the important-state-interest factor.

Baywood raises three counter arguments. First, it

points to cases in which federal courts were found to be

uniquely situated to adjudicate a claim even though it

implicated a traditionally state-law matter. But those

cases involved, at their core, non-state interests. See

Barzilay v. Barzilay, 536 F.3d 844, 850 (8th Cir. 2008)

(addressing issues related to the Hague Convention on

child abduction); Ayers v. Philadelphia Hous. Auth.,

908 F.2d 1184, 1195 n.21 (3d Cir. 1990) (focusing on the

federal interest in allocating funds for HUD housing

programs). Here, the state proceeding resolved a

question of Minnesota wage and hour law. Second,

Baywood claims that there can be no important state

interest “when the state law has been preempted and

the state does not have the authority to regulate.” But

this argument assumes preemption when the very

purpose of our inquiry is to determine whether we can

address preemption.4 In any case, the mere allegation

of preemption does not undermine the propriety of

4

To the extent that Baywood argues facial preemption, we address

that issue in the next section.

App. 11

abstention. Third, Baywood claims that finding an

important state interest in this case would be the

equivalent of finding an important interest any time a

state enacts and enforces its own laws. But this fear is

unfounded. Here, the Supreme Court has specifically

confirmed the importance of the state interest. See

Morash, 490 U.S. at 119.

C.

Because the underlying proceeding satisfies the first

two layers of the abstention inquiry, we move to the

final consideration: whether an exception to Younger

applies. Even where the proceeding falls into a Younger

category and satisfies the Middlesex factors, the Court

in NOPSI left open the possibility that a “facially

conclusive” claim of federal preemption may be

sufficient to render abstention inappropriate. See 491

U.S. at 367. While many of our sister circuits have

adopted such an exception to abstention, we have never

addressed the question in those terms.5 See Cedar

Rapids Cellular Tel., L.P. v. Miller, 280 F.3d 874, 880

(8th Cir. 2002) (noting that NOPSI left open the

possibility of an exception but declining to address the

issue). The courts that have considered this question

have found that preemption is facially conclusive if

binding precedent already decided the issue or if it is

otherwise “readily apparent.” See, e.g., Woodfeathers,

Inc. v. Washington Cty., 180 F.3d 1017, 1021-22 (9th

Cir. 1999). In other words, preemption is not facially

conclusive if it requires a “detailed analysis.” Colonial

5

We need not decide today whether this exception is a required

part of the abstention analysis because it does not affect the

outcome of the case. We address it here for completeness.

App. 12

Life & Accident Ins. Co. v. Medley, 572 F.3d 22, 27-28

(1st Cir. 2009); GTE Mobilnet of Ohio v. Johnson, 111

F.3d 469, 478 (6th Cir. 1997).

Here, Baywood asks the court to find facially

conclusive its assertion that the FLSA preempted the

MFLSA, even as to companionship-services employees,

during the relevant time period. But Baywood cites no

binding precedent deciding the issue, and we do not

find preemption “readily apparent.” Although the

MFLSA generally adopted a lower minimum wage and

higher maximum hours than did the FLSA, the FLSA

exempted companionship-services employees from its

protection. Resolving the preemption question would

require a detailed analysis of the relative protections of

the two statutes.6 Thus, as the district court correctly

determined, preemption is not facially conclusive, and

no exception to Younger abstention applies.

III.

For the foregoing reasons, we affirm the district

court’s decision to abstain.

______________________________

6

Indeed, similar preemption questions have generated conflicting

results in other courts. Compare, e.g., Pac. Merch. Shipping Ass’n

v. Aubry, 918 F.2d 1409, 1418-19 (9th Cir. 1990) (holding that the

FLSA overtime provision did not preempt a state’s overtime

provision as applied to seamen, a group of individuals, like

companionship-services employees, who are excluded from

relevant FLSA protection), with Coil v. Jack Tanner Co., 242 F.

Supp. 2d 555, 558-59, 561 (S.D. Ill. 2002) (holding that the FLSA

preempted a state’s overtime law as applied to the same group of

excluded workers).

App. 13

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 17-2658

[Filed August 8, 2018]

________________________________

Minnesota Living Assistance,

)

Inc., doing business as

)

Baywood Home Care

)

)

Plaintiff - Appellant

)

)

v.

)

)

Ken B. Peterson, Commissioner,

)

Department of Labor and

)

Industry, State of Minnesota,

)

in his official capacity; John

)

Aiken, Interim Director of Labor )

Standards, Department of Labor )

and Industry, State of Minnesota, )

in his official capacity

)

)

Defendants - Appellees

)

________________________________ )

Appeal from U.S. District Court

for the District of Minnesota - Minneapolis

(0:17-cv-01011-DSD)

JUDGMENT

Before GRUENDER, ERICKSON, and GRASZ, Circuit

Judges.

App. 14

This appeal from the United States District Court

was submitted on the record of the district court, briefs

of the parties and was argued by counsel.

After consideration, it is hereby ordered and

adjudged that the judgment of the district court in this

cause is affirmed in accordance with the opinion of this

Court.

August 08, 2018

Order Entered in Accordance with Opinion:

Clerk, U.S. Court of Appeals, Eighth Circuit.

____________________________________

/s/ Michael E. Gans

App. 15

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Civil No. 17-1011 (DSD/DTS)

[Filed June 28, 2017]

___________________________________

Minnesota Living Assistance, Inc.,

)

d/b/a Baywood Home Care,

)

)

Plaintiff,

)

)

v.

)

)

Ken B. Peterson, Commissioner,

)

Department of Labor and Industry,

)

State of Minnesota, in his official

)

capacity; and John Aiken, Interim

)

Director of Labor Standards,

)

Department of Labor and Industry,

)

State of Minnesota, in his official

)

capacity,

)

)

Defendants.

)

___________________________________ )

ORDER

Bruce J. Douglas, Esq., Stephanie J. Willing, Esq.

and Ogletree, Deakins, Nash, Smoak & Stewart,

P.C., 90 South Seventh Street, Suite 3800,

Minneapolis, MN 55402, counsel for plaintiff.

App. 16

Jonathan D. Moler, Minnesota Attorney General’s

Office, 445 Minnesota Street, Suite 900, St. Paul,

MN 55101, counsel for defendants.

This matter is before the court upon the motions to

dismiss by defendants Ken B. Peterson and John

Aiken1 and for summary judgment by plaintiff

Minnesota Living Assistance, Inc. d/b/a Baywood Home

Care (Baywood). Based on a review of the file, record,

and proceedings herein, and for the following reasons,

the court grants defendants’ motion to dismiss and

denies plaintiff’s motion for summary judgment.

BACKGROUND

Baywood is a Minnesota corporation that employs

domestic service workers who provide companionship

services as defined under the Federal Labor Standards

Act (FLSA).2 Compl. ¶¶ 1, 3. The FLSA establishes a

minimum wage of $7.25 an hour and a maximum

workweek of forty hours, after which employers must

pay workers one and one-half times their regular

hourly pay. See 29 U.S.C. §§ 206(a)(1)©, 207(a)(1).

Workers who perform companionship services,

1

Peterson and Aiken are sued in their official capacities as

Commissioner for the Minnesota Department of Labor and

Industry and Interim Director of Labor Standards for the

Minnesota Department of Labor and Industry. Although Aiken is

sued as Interim Director, he is actually the Director.

2

“[C]ompanionship services means the provision of fellowship and

protection for an elderly person or person with an illness, injury,

or disability who requires assistance in caring for himself or

herself.” 29 C.F.R. § 552.6(b). The Minnesota Fair Labor Standards

Act (MFLSA) adopts the FLSA definition of companionship

services. See Minn. Stat. § 177.23, subdiv. 11.

App. 17

however, are exempt from the minimum wage and

weekly maximum hour requirements. See 29 U.S.C.

§ 213(a)(15). Unlike the FLSA, the MFLSA subjects

companionship services to minimum wage, maximum

weekly hours, and overtime requirements. See Minn.

Stat. § 177.23, subdiv. 11.

Based on a complaint by a Baywood employee, the

Minnesota Department of Labor and Industry (DLI)

investigated whether Baywood unlawfully withheld

overtime compensation for companionship services

employees from March 21, 2012, to March 21, 2014.3

Compl. ¶¶ 17-18. After its investigation, on May 17,

2016, DLI assessed a penalty of $1,000 for failure to

keep records pursuant to Minn. Stat. § 177.30 and

ordered Baywood to pay back wages of $557,714.44 in

addition to liquidated damages of $557,714.44. Compl.

¶ 22; Moler Aff. Ex. A. Baywood objected to the

penalties, and DLI brought a contested case proceeding

at the Minnesota Office of Administrative Hearings

before an Administrative Law Judge (ALJ).4 Compl.

¶ 23; Moler Aff. Ex. B.

On May 31, 2017, Baywood brought this suit

seeking a declaration that the FLSA preempts the

MFLSA and injunctive relief prohibiting DLI from

further processing, investigating, or adjudicating its

3

It is unclear when the complaint was made or the investigation

began.

4

On June 1, 2017, the ALJ recommended that the Commissioner

grant DLI’s motion for summary disposition regarding unpaid

overtime wages. See Moler Aff. II Ex. A. Baywood may file

exceptions with DLI within ten days, and the Commissioner has

ninety days to issue a final decision. See Minn. Stat. §§ 14.61-62.

App. 18

claims against Baywood. Defendants now move to

dismiss the complaint arguing that the court should

abstain from exercising jurisdiction under Younger v.

Harris, 401 U.S. 37 (1971).

DISCUSSION

I. Younger Abstention Doctrine

Under the Younger abstention doctrine, “federal

courts should abstain from exercising jurisdiction when

(1) there is an ongoing state proceeding, (2) which

implicates important state interests, and (3) there is an

adequate opportunity to raise any relevant federal

questions in the state proceedings.” Plouffe v. Ligon,

606 F.3d 890, 892 (8th Cir. 2010) (citing Middlesex Cty.

Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423,

432 (1982)). The parties do not dispute that the first

and third elements are met. Baywood argues, however,

that Younger abstention does not apply because an

important state interest is not implicated. Specifically,

Baywood contends that an important state interest

cannot exist when the state law the underlying

proceeding seeks to enforce is preempted by federal

law.

Baywood’s argument is based, in part, on dicta in

New Orleans Pub. Serv., Inc. v. Council of the City of

New Orleans, 491 U.S. 350 (1989) (NOPSI), where the

“Supreme Court left open the possibility of an exception

to Younger for preemption claims that are facially

conclusive.” Cedar Rapids Cellular Tel., L.P. v. Miller,

280 F.3d 874, 880 (8th Cir. 2002) (internal quotation

marks and citation omitted); see also NOPSI, 491 U.S.

at 367 (emphasis in original) (“[N]OPSI argues [that] ...

even if a substantial claim of federal pre-emption is not

App. 19

sufficient to render abstention inappropriate, at least

a facially conclusive claim is. Perhaps so. But we do not

have to decide the matter here ....”).

The Eighth Circuit has not addressed what makes

a preemption claim facially conclusive. Other circuits,

however, have identified the following scenarios where

preemption claims are not facially conclusive: (1) when

a further factual inquiry is required; (2) when the claim

involves a question of first impression; and (3) when

the court must conduct a “detailed analysis” of the

state statute in question, “including resolving

interjurisdictional differences.” Colonial Life &

Accident Ins. Co. v. Medley, 572 F.3d 22, 27-28 (1st Cir.

2009) (citing Woodfeathers, Inc. v. Washington County,

Oregon, 180 F.3d 1017, 1022 (9th Cir. 1999); GTR

Mobilnet of Ohio v. Johnson, 111 F.3d 469, 478 (6th

Cir. 1997)). When courts have found that preemption

was facially conclusive, they merely applied established

precedent that easily resolved the preemption issue.

See Chaulk Servs., Inc. v. Mass. Comm’n Against

Discrimination, 70 F.3d 1361, 1370 (1st Cir. 1995)

(holding that under Supreme Court precedent it was

“readily apparent” the conduct at issue was subject to

the National Labor Relations Act); Gartrell Constr. Inc.

v. Aubry, 940 F.2d 437, 441-42 (9th Cir. 1991) (holding

that under Ninth Circuit precedent it was “readily

apparent” that the state law at issue was preempted by

ERISA).5

5

Baywood also cites Norfolk & W. Ry. Co. v. Pub. Utils. Comm’n

of Ohio, 926 F.2d 567, 573 (6th Cir. 1991), but in that case the

federal statute expressly preempted the state statute. Here, it is

undisputed that the FLSA does not expressly preempt the MFLSA.

App. 20

Here, Baywood fails to cite to any binding precedent

that the FLSA preempts the MFLSA, or, more

specifically, that the FLSA preempts state regulation

of workers who are exempt under the FLSA. In fact, it

appears that federal courts may be divided on the

issue. Compare Pac. Merch. Shipping Ass’n v. Aubry,

918 F.2d 1409, 1418 (9th Cir. 1990) (holding that

preemption from the FLSA did not preempt the state’s

ability to enforce overtime provision as to seamen),

with Coil v. Jack Tanner Co., 242 F. Supp. 2d 555, 559

(S.D. Ill. 2002) (holding that the state’s overtime laws

as applied to seamen directly conflicted with the

exemption of seamen under the FLSA). This division in

the federal courts belies Baywood’s argument that

preemption of the MFLSA is readily apparent.

Baywood also argues that the FLSA clearly

preempts the MFLSA because the MFLSA fails to meet

the requirements of the FLSA’s Savings Clause.6

Specifically, Baywood argues that the Savings Clause

does not apply because, during the relevant period, the

MFLSA set a minimum wage of $6.15 per hour and a

forty-eight-hour maximum workweek whereas the

FLSA set a minimum wage of $7.25 per hour and a

forty-hour maximum workweek. See 29 U.S.C. §§ 206

6

The Savings Clause states in relevant part:

No provision of this chapter or 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 workweek lower than the maximum

workweek established under this chapter ....

29 U.S.C. § 218(a).

App. 21

(a)(1)©, 207 (a)(1); Minn Stat. §§ 177.24, subdiv. 1(b)

(2011), 177.25, subdiv. 1. Defendants reply that the

court should focus on the work requirements as applied

to companionship services. Under defendants’ analysis,

the MFLSA provides a higher minimum wage and

lower maximum workweek because under the FLSA

companionship services are subject to no minimum

wage and no maximum workweek.

In order to determine whether the Savings Clause

applies to the MFLSA, the court must conduct a

detailed analysis as to whether the Savings Clause

requirements refer to a state’s regulations in general,

as argued by Baywood, or as applied to the specific

class of workers at issue, as argued by defendants. As

a result, it is not readily apparent that the FLSA

preempts the MFLSA. In the absence of a readily

apparent preemption of the MFLSA, the court finds

that the State has a strong interest in its ability protect

workers by enforcing its wage and labor laws. See

Massachusetts v. Morash, 490 U.S. 107, 119 (1989)

(citation and internal quotation marks omitted) (“The

States have traditionally regulated the payment of

wages .... Absent any indication that Congress intended

[otherwise], we are reluctant to ... significantly

interfere with the separate spheres of governmental

authority preserved in our federalist system.”).

Baywood next argues that Younger abstention is

inappropriate because the DLI proceeding is not a type

of exceptional case to which abstention applies.

Younger abstention is appropriate only in exceptional

cases, which include “[1] state criminal prosecutions,

[2] civil enforcement proceedings, and [3] civil

proceedings involving certain orders that are uniquely

App. 22

in furtherance of the state courts’ ability to perform

their judicial functions.” Sprint Commc’ns, Inc. v.

Jacobs, 134 S. Ct. 584, 588 (2013) (citation and internal

quotation marks omitted). The Younger doctrine

applies to civil enforcement proceedings only if the civil

enforcement is similar to a criminal prosecution.7 Id. at

592. A civil enforcement proceeding is similar to a

criminal prosecution when a state actor initiates a

proceeding that seeks to sanction the federal plaintiff.

See id. Further, in such proceedings, “investigations

are commonly involved, often culminating in the filing

of a formal complaint or charges.” Id.

Baywood contends that the DLI proceeding is

insufficiently akin to a criminal prosecution. The court

is not persuaded. Here, the DLI proceeding meets all

three indicia of a criminal proceeding: the civil

enforcement action was “brought by the State in its

sovereign capacity” in order to sanction Baywood after

an investigation which culminated in charges against

it. Trainor v. Hernandez, 431 U.S. 434, 444 (1977).

Baywood responds that, because DLI has not sought

criminal sanctions, the enforcement action is more akin

to civil suits brought by employees to recover unpaid

wages than a criminal enforcement proceeding. But the

Younger doctrine does not require that the State seek

criminal penalties in addition to civil enforcement. See

Trainor, 431 U.S. at 444 (applying the Younger

doctrine to a state civil enforcement action to recover

fraudulent obtained welfare payments where the state

“also had the option of vindicating these policies

7

It is undisputed that the DLI proceeding does not fall into the

first or third category of cases.

App. 23

through criminal prosecutions”); see also Ohio Civil

Rights Comm’n v. Dayton Christian Sch., 477 U.S. 619,

627-29 (1986) (holding abstention was appropriate in a

state-initiated civil proceeding to enforce civil rights

laws); Moore v. Sims, 442 U.S. 415 (1979) (stateinitiated civil proceeding to gain custody of allegedly

abused children). As a result, the civil enforcement

proceeding against Baywood is akin to a criminal

prosecution, and abstention is appropriate.

II. Summary Judgment

Because the court abstains from exercising

jurisdiction, it denies Baywood’s motion for summary

judgment as moot.

CONCLUSION

Accordingly, based on the above, IT IS HEREBY

ORDERED that:

1. Defendants’ motion to dismiss [ECF No. 8] is

granted;

2. Plaintiff’s motion for summary judgment [ECF

No. 10] is denied as moot; and

3. The case is dismissed without prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: June 27, 2017

s/David S. Doty

David S. Doty, Judge

United States District Court

App. 24

APPENDIX C

UNITED STATES DISTRICT COURT

District of Minnesota

Case Number: 17-cv-1011 DSD/DTS

[Filed June 28, 2017]

___________________________________

Minnesota Living Assistance,

)

Inc., d/b/a Baywood Home Care,

)

)

Plaintiff(s),

)

)

v.

)

)

Ken B. Peterson, Commissioner,

)

Department of Labor and Industry,

)

State of Minnesota, in his official

)

capacity; and John Aiken, Interim

)

Director of Labor Standards,

)

Department of Labor and Industry,

)

State of Minnesota, in his official

)

capacity,

)

)

Defendant(s).

)

___________________________________ )

JUDGMENT IN A CIVIL CASE

9 Jury Verdict. This action came before the Court

for a trial by jury. The issues have been tried and

the jury has rendered its verdict.

App. 25

: Decision by Court. This action came to trial or

hearing before the Court. The issues have been

tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED THAT:

1. Defendants’ motion to dismiss [ECF No. 8] is

granted;

2. Plaintiff’s motion for summary judgment [ECF

No. 10] is denied as moot; and

3. The case is dismissed without prejudice.

Date: 6/28/2017

RICHARD D. SLETTEN, CLERK

s/Katie Thompson

(By) Katie Thompson, Deputy Clerk

App. 26

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 17-2658

[Filed September 14, 2018]

___________________________________

Minnesota Living Assistance,

)

Inc., doing business as Baywood

)

Home Care

)

)

Appellant

)

)

v.

)

)

Ken B. Peterson, Commissioner,

)

Department of Labor and Industry,

)

State of Minnesota, in his official

)

capacity and John Aiken, Interim

)

Director of Labor Standards,

)

Department of Labor and Industry,

)

State of Minnesota, in his official

)

capacity

)

)

Appellees

)

___________________________________ )

_________________________________________________

Appeal from U.S. District Court for the District of

Minnesota - Minneapolis

(0:17-cv-01011-DSD)

__________________________________________________

App. 27

ORDER

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

September 14, 2018

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

____________________________________

/s/ Michael E. Gans

App. 28

APPENDIX E

29 U.S.C. § 218. 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

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.

*

*

*