Amicus Curiae Brief — Tidewater Marine Service, Inc. v. Aubry

| Bunrome Court, US. |

FILED

Nos. 91-142 and 91-349 MAY 15 1992

THE CLERK

Iu the Supreme Court of the Unite:

OCTOBER TERM, 1991

TIDEWATER MARINE SERVICE, INC., ET AL., PETITIONERS

Uv.

LLoyYD W. AUBRY, JR.,

STATE OF CALIFORNIA LABOR COMMISSIONER, ET AL.

PACIFIC MERCHANT SHIPPING ASS’N, ET AL., PETITIONERS

Vv.

LLoyp W. AUBRY,

STATE OF CALIFORNIA LABOR COMMISSIONER, ET AL,

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

MAUREEN E. MAHONEY

Deputy Solicitor General

STEPHEN L. NIGHTINGALE

Assistant to the Solicitor General

ANTHONY J. STEINMEYER

JOHN P. SCHNITKER

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the Fair Labor Standards Act preempts

the application of California’s overtime compensation

laws to certain maritime workers.

2. Whether the application of California’s overtime

compensation laws to those workers is preempted by

the federal law of admiralty, as defined in Southern

Pacific Co. v. Jensen, 244 U.S. 205 (1917), and its

progeny.

(1)

TABLE OF CONTENTS

Page

EE SC a a sspssoviiddneseneunieesshoies 1

EE Ss a 7

Ie cebasetnteuwencase 20

TABLE OF AUTHORITIES

Cases:

Askew v. American Waterways Operators, Inc.,

Set Sa e ne 8,10, 16

Calbeck v. Travelers Ins. Co., 370 U.S. 114 (1962)... 9

Central Delivery Serv. v. Burch, 355 F. Supp. 954

(D. Md. 1973), aff’d mem., 486 F.2d 1399 (4th

a s saadelipintnanvuniicinienibiiiiees 12

Davis v. Department of Labor & Indus., 317 U.S.

a cceudemsanibenboniovaiions 9

Director, Office of Workers’ Compensation Pro- :

grams V. Perini North River Assocs., 459 U.S.

oo netunnsniuasonedbiaeimniieiaes 10

Grant Smith-Porter Ship Co. v. Rohde, 257 U.S.

a ducccnsmmnhepannetoabanaaes 9

Huron Portland Cement Co. v. City of Detroit, 362

ois cesmeceaencacantnbs 8,9

Just Vv. Chambers, 312 U.S. 383 (1941) —.............. 8,10, 14

Kassel v. Consolidated Freightways Corp., 450

AEST SERENE Es Sees are a 9

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149

UT iesideenimies SOLES Pima WEU 2 OSE ak Oa 12

Kossick v. United Fruit Co., 365 U.S. 731 (1961).. 17

Maccabees Mut. Life Ins. Co. v. Perez-Rosado, 641

I ME Uc ccacenstpmosnsdnsencoecornssnenbescere 12

McDermott Int’l, Inc. v. Wilander, 111 S. Ct. 807

NUN SE 3

Miles v. Apex Marine Corp., 111 S. Ct. 317

a EEL Ee ada LO ean eS 15-16

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207

ees adsbcssamiaghinoees 12, 14,17

Oil Workers Int’l Union v. Mobil Oil Corp., 426

Na ada casmevamnbices 12,13

(III)

Cases—Continued : Page

Overnight Transp. Co. Vv. Tianti, 926 F.2d 220 (2d

Cir.), cert. denied, 112 S. Ct. 170 (1991) ........... 12

Plouffe v. Farm & Ranch Equipment Co., 570 P.2d

Se CE adaticaceaibecce ee. 12

Pony Pettis Moving Co. v. Roberts, 784 F.2d 439

A I, i al 12

Ray V. Atlantic Richfield Co., 485 U.S. 151 (1978).. 8

Romero V. International Terminal Operating Co.,

Se i, BRR AAAs ed 7,10

Skyline Homes, Inc. v. Department of Indus. Re-

lations, 211 Cal. Rptr. 792 (Ct. App. 1985) _...... 12

Southern Pacific Co. v. Jensen, 244 U.S. 205

5, et eae BETH 8,9, 14, 15, 16

Standard Dredging Corp. Vv. Murphy, 319 U.S. 306

PUIIUIIIEY sicaserscecokstamesideiechssansicarreentteiecn mater meme ees 10, 11,17

State v. Comfort Cab Co., 286 A.2d 742 (N.J.

Super. Ct. ADD. DIV. 1GTE) q.....-cceeccereccesecsccocnseeceees 12

Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715

ITI sctsar-ssdasniatutntbdoscopsdchapceisaitelacbenemiitsteseaieldeidsadlemnadcteanimnatatea 10

Webster v. Bechtel, Inc., 621 P.2d 890 (Alaska

SED snjcheiccncensetasasichoitadastnssssbecduikddinesih indian uses Rte cs 12

West Coast Hotel Co. v. Parrish, 300 U.S. 379

5, SCENE ET CCE OE EFT IIIS SP > SFP OR a ee 16

Wilburn Boat Co. Vv. Fireman’s Fund Ins. Co., 348

fk, SNR een WOR Cr de Oe oe ee 8

Williams v. W.M.A. Transit Co., 472 F.2d 1258

es EIS. EEED caccenccaschsnimsavecteniucweneetvonvebonesos ae 12

Constitution, statutes and regulations:

U.S. Const. :

Art. I, § 8, Cl. 3 (Commerce Clause) .................. 9

PA IR RAEN Oey Bor, Sei en A Nie eee en Se 7

Ee ME TIIs: i tocriiehidedatadabinecbiaticiaductiareass deuadalsueatanevnanees 7

Death on the High Seas Act § 7, 46 U.S.C. 767 _....... 14

Fair Labor Standards Act of 1938, 28 ¥ S.C. 201

SRNR <hans S ERERK seRN MeOER Se Cee 4

Oe FG Be Me ts BE COD vocceiesecveninevnsecsnsccvsecesees 1

hc | RB Foe}: |!) Ene 2,6, 11

Vv

Statutes and regulations—Continued:

National Labor Relations Act, 29 U.S.C. 151 et

seq.:

§ 8(a) (3), 29 U.S.C. 158 (a) (8) ....00002..

SE ge es TD teceesiitinichaninionninsinenerss

Shipping Act, 46 U.S.C. 2101 et seq.:

I he ities citccaccnatenscoutunstaroieaaianenion

I Cet GO airs ctvcnecstieeimedooererumtcanes

er ts Ie TD ncoccknseccerccscccsecesionetenesteus

ie CI aici sete pean

On PI ccnicscicesacesentcscesmasanstenieietaeiiaceease

is SEITE ckcrcisnevnssinscsctindatnactaminiaietaseeans

Miscellaneous:

1 S. Friedell, Benedict on Admiralty (rev. 7th ed.

1992) ...... srocodaanieaidesindideniad edamame naa

Page

10

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-142

TIDEWATER MARINE SERVICE, INC., ET AL., PETITIONERS

VU.

LLoypD W. AUBRY, JR.,

STATE OF CALIFORNIA LABOR COMMISSIONER, ET AL.

No. 91-349

PACIFIC MERCHANT SHIPPING ASS’N, ET AL., PETITIONERS

Uv.

LLoYD W. AUBRY, JR.,

STATE OF CALIFORNIA LABOR COMMISSIONER, ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is filed in response to the Court’s order

inviting the Solicitor General to express the views of the

United States.

STATEMENT

1. This case involves the intersection of admiralty law,

state minimum wage laws, and the Fair Labor Standards

Act (FLSA). Under Section 7(a) of the FLSA, 29

U.S.C. 207(a), overtime must generally be paid at one-

(1)

2

and-a-half times the regular rate to employees who work

more than 40 hours in a given week. Overtime need not

be paid, however, to “seamen.” Department of Labor

regulations define “seamen” as employees who “work

primarily as an aid in the operation of [a] vessel as a

means of transportation” (29 C.F.R. 783.383) and “per-

form|| no substantial amount of work of a different

character.” 29 C.F.R. 783.31. Other maritime employees

who work on vessels fall within the broader admiralty

definition of “seamen,” see McDermott Int’l Inc. Vv.

Wilander, 111 S. Ct. 807, 817 (1991), but are not ex-

empt from the overtime compensation requirements of

the FLSA.!

The FLSA does not completely displace state wage and

hour laws. The statute includes a savings clause, 29

U.S.C. 218(a), that preserves state laws that provide

greater protection to workers. That clause provides, in

pertinent part, that “|n]jo provision of [the FLSA] or

of any order thereunder shall excuse noncompliance with

any Federal or State law or municipal ordinance estab-

lishing a minimum wage higher than the minimum wage

established under |the FLSA] or a maximum work week

lower than the maximum workweek established under

[the FLSA].” 29 U.S.C. 218(a).

2. This controversy arises out of California’s effort

to enforce its state overtime compensation requirements

with respect to a very narrow class of maritime workers

who are all California residents serving on vessels that

ave not engaged in foreign, intercoastal, or coastwise

voyages.” All of the employees affected work on vessels

tha. do not travel to ports outside of California.

1 The lower courts referred to those employees who fall within the

FLSA’s definition of seamen as “seamen” and to other employees

who satisfy the traditional admiralty definition as “maritime em-

ployees.” Pet. App. A3, A47-A48. We use the same terminology in

this brief, but also use the term “maritime workers” to refer to

both categories of employees collectively. (Our citations to ‘Pet.

App.” refer to the appendix to the petition in No. 91-142.)

“As defined by federal statute, “foreign” voyages are voyages

between a port in the United States and a port in a foreign country

3

a. Clean Seas, a petitioner in No. 91-349, operates two

vessels, Mr. Clean II and Mr. Clean III, which control

and clean up oil spills and other environmentally hazard-

ous discharges off the California coast. Mr. Clean II is

moored at Port San Luis Harbor in California, approxi-

mately 90% of the time. Mr. Clean IIT conducts contain-

ment and clean-up operations four to ten nautical miles

off the California coast, and at other times is tied to a

buoy approximately seven miles off the California coast.*

Pet. App. A5. Employees on Mr. Clean III are organized

into rotating crews that serve seven days on duty fol-

lowed by seven days off. While on duty, crewmembers

work 12-hour shifts, alternating with 12-hour rest peri-

ods.4 Id. at A5-A6 & n.3.

b. The petitioners in No. 91-142, Tidewater Marine

Service and Western Boat Operators (collectively Tide-

water), operate two vessels that transport cargo and

passengers between California ports and off-shore oil

platforms. Their crews, like those of Clean Seas, work

alternating seven-day periods and 12-hour shifts. Pet.

App. A6-A7.

ec. In 1987, twelve Clean Seas employees filed claims

for unpaid overtime compensation with respondent Aubry,

the Labor Commissioner of California. Aubry is re

sponsible for enforcirg Wage Orders issued by the Cali-

fornia Industvial Welfare Commission. Aubry found that

the Clean Seas employees were entitled to overtime pay

other than Mexico, Canada, or the West Indies (46 U.S.C. 10301

(a)(1)); “coastal” voyages are voyages between ports on the At-

lantie and Pacific Oceans (46 U.S.C. 10301(a)(2)); and “coastwise”

voyages are voyages between a port in one State and a port in

another State (except an adjoining State) (46 U.S.C. 10501).

3 California’s territorial waters extend to a line three miles off the

State’s coast. The high seas lie beyond that line.

* The record does not indicate how the employees of Mr. Clean I]

are organized.

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With respect to the first prong of this test, the court

found that “‘{m]aritime statutes do not apply to maritime

employees, like these, who are not on vessels making for-

eign, intercoastal, or coastwise voyages”; that the FLSA

savings clause, 29 U.S.C. 218(a), “specifically allow[s]

states to enforce overtime laws more generous than the

FLSA”;° and that there is “no indication that Congress

intended that maritime employees not benefit from more

generous state wage and hour laws.” Pet. App. A27.

Thus, the court concluded, “California’s attempt to sup- P

plement federal law in this case does not present an

irreconcilable conflict with the statutory maritime law

or with the FLSA; it does not ‘contravene the essential

purpose expressed by an act of Congress.’” Ibid.

The court also concluded that application of Califor-

nia’s overtime pay laws “does not unduly disrupt federal

admiralty law and, for that reason, is not constitutionally

invalid.” Pet. App. A35. Balancing “federal and state

interests involved in application of the overtime provi-

sions,” the court determined “that the balance tips in

favor of California in this case.” Jd. at A31-A32. The

court detersgnined that “‘application of the state’s overtime

law will not disrupt international or interstate com-

merce”’ because the vessels in question operate exclusively

off the California coast and their crews consist of Cali-

fornia residents. Jd. at A34.

Judge Copple dissented. He would have held “that

state laws mandating overtime pay are preempted by

federal admiralty law” and by the FLSA. Pet. App.

A42.

v7

* The court of appeals rejected the district court’s characteriza-

tion of the savings clause as an impermissible delegation of au-

thority to prescribe maritime law. Rather, the panel stated, the

savings clause simply makes clear Congress's “intent not to disturb

the traditional exercise of the states’ police powers with respect to

wages and hours more generous than the federal standards.” Pet.

App. A265.

SS

|

DISCUSSION

This case presents difficult and novel issues concerning

a State’s exercise of its traditional powers to regulate the

minimum wages of its citizens in the context of mari-

time employment. Under this Court’s cases, the decisive

question—under the particular circumstances presented

here—is whether the State’s assertion of authority im-

permissibly interferes with the “proper harmony and

uniformity” or the “characteristic features” of general

maritime law. On the specific facts of this case, we be-

lieve that the court of appeals correctly concluded that

the State’s assertion of authority was not unconstitu-

tional. Furthermore, although this Court may ultimately

need to resolve the issues presented, we do not believe

that review is necessary at this time. Rather, it would be

appropriate to defer judgment on the constitutional ques-

tion resolved by the court of appeals at least until poten-

tially dispositive state law issues have been addressed by

the California state courts.

1. The permissible scope of the States’ role in regulat-

ing maritime activity has been a recurring issue in this

Court. The general principles applicable to this case are,

accordingly, well established.

a. Article III extends the judicial power to “all Cases

of admiralty and maritime Jurisdiction.” U.S. Const.

Art. III, § 2, Cl. 1. This jurisdictional grant empowers

“the federal courts in their exercise of the admiralty and

maritime jurisdiction * * * to draw on the substantive

law ‘inherent in the admiralty and maritime jurisdiction,’

and to continue the development of this law within con-

stitutional limits” and also empowers “Congress to revise

and supplement the maritime law within the limits of the

Constitution.” Romero v. International Terminal Operat-

ing Co., 358 U.S. 354, 360-361 (1959).

It is also firmly established, however, that States re-

tain authority to act on a variety of issues within the

scope of federal admiralty jurisdiction. As this Court

explained in Romero, 358 U.S. at 373-374: “It is true

8

that state law must yield to the needs of a uniform fed-

eral maritime law when this Court finds inroads on a

harmonious system. But this limitation still leaves the

States a wide scope.” Consequently, maritime law has

often been “modified or supplemented by state action.”

Just v. Chambers, 312 U.S. 388, 388 (1941).”

b. In defining the role that state law may properly

play in the maritime context, this Court has made clear

that state law may be preempted in either of two ways:

First, a federal statute has the same preemptive effect

in the maritime setting as in any other context. Thus,

under this Court’s familiar formulation, the federal stat-

ute may expressly preempt state law; it may occupy the

field to the exclusion of state law; and state laws that are

inconsistent with the federal statute or that stand as an

obstacle to Congress’s objectives are invalid. See Ray V.

Atlantic Richfield Co., 435 U.S. 151, 157-158 (1978).

Second, in the seminal case of Southern Paciic Co. V.

Jensen, 244 U.S. 205 (1917), this Court recognized a

further limitation on state authority in the maritime

context. In Jensen, a New York dockworker was killed

in the course of moving cargo from a vessel engaged in

the interstate shipment of goods. His survivors there-

after sought compensation under the New York Workers’

Compensation Act. This Court held that the state statute

could not be applied to the accident. While recognizing

that “general maritime law may be changed, modified, or

affected by state legislation * * * to some extent,” the

Court declared (244 U.S. at 216):

[Nlo such legislation is valid if it contravenes the

essential purpose expressed by an act of Congress or

works material prejudice to the characteristic fea-

tures of the general maritime law or interferes with

10 See, ¢.g., Askew v. American Waterways Operators, Inc., 411

U.S. 325 (1973); Huron Portland Cement Co. v. City of Detroit,

362 U.S. 440 (1960) ; Wilburn Boat Co. v. Fireman's Fund Ins. Co.,

348 U.S. 310 (1955).

9

the proper harmony and uniformity of that law in its

international and interstate relations.

As Jensen made clear, that limitation on state authority

is comparable to the one derived from the so-called “dor-

mant Commerce Clause.” ™

ec. As the Court’s subsequent decisions in the area

of workers’ compensation reflect, the so-called “Jensen

line’—between matters governed exclusively by uniform

federal maritime law and matters on which States may

act—is difficult to discern.’2 The Court has cautioned

11 The Court explained in Jensen (244 U.S. at 216-217) :

A similar rule in respect to interstate commerce deduced

from the grant to Congress of power to regulate it is now

firmly established. ‘Where the subject is national in its char-

acter, and admits and requires uniformity of regulation, affect-

ing alike all the States, such as transportation * * * between

the States, Congress can alone act upon it and provide the

needed regulations.” * * * And the same character of reason-

ing which supports this rule, we think, makes imperative the

stated limitation upon the power of the States to interpose

where maritime matters are involved.

See Huron Portland Cement Co. v. City of Detroit, 362 U.S. at 443

(noting that state statute may be unconstitutional if “unduly bur-

densome on maritime activities or interstate commerce”). See also

Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 669 (1981)

(the Commerce Clause itself “is ‘a limitation upon state power even

without congressional implementation’” and “requires that some

aspects of trade generally must remain free from interference by

the States”).

12 Although Jensen could have been read to preclude application

of state workers’ compensation statutes to any injuries on navigable

waters, this Court later held that state law would govern accidents

occurring on such waters that were “local matters.” Grant Smith-

Porter Ship Co. v. Rohde, 257 U.S. 469, 477 (1922). After a period

in which the Court had difficulty in clarifying the scope of that

exception to Jensen, it then recognized a “twilight zone” in which

an injured maritime employee could invoke either state workers’

compensation statutes or the federal Longshore and Harbor Work-

ers’ Compensation Act. See Davis v. Department of Labor & Indus.,

317 U.S. 249, 256 (1942); Calbeck v. Travelers Ins. Co., 370 U.S.

114 (1962).

10

against reading Jensen too broadly, but it has not re-

treated from the core principle articulated in that case—

that state law may not interfere with the “characteristic

features of the general maritime law” or “the proper har-

mony and uniformity of that law in its international and

interstate relations.” See, e.g., Director, Office of Work-

ers’ Compensation Programs v. Perini North River

Assocs., 459 U.S. 297, 306 & n.14 (1983); Sun Ship, Ine.

v. Pennsylvania, 447 U.S. 715, 717-719 (1980); Askew

v. American Waterways Operators, Inc., 411 U.S. at 337-

339, 344; Just v. Chambers, 312 U.S. at 389."

Various forms of state regulation have been upheld

under this test. As this Court noted in Askew: “State-

created liens[,] * * *.[s]tate remedies for wrongful

death and state statutes providing for the survival of

actions|,] * * * [s]tate rules for the partition and sale

of ships, state laws governing the specific performance of

arbitration agreements, state laws regulating the effect

of a breach of warranty under contracts of maritime in-

surance—all these laws and others have been accepted as

rules of-decision in admiralty cases, even, at times, when

they conflicted wtih a rule of maritime law which did not

require uniformity.” 411 U.S. at 338, quoting Romero,

358 U.S. at 373-374.

The import of these decisions is that every attempt by

the States to regulate maritime activity must be care-

fully examined on its own facts. We therefore turn to

the question of whether application of state overtime

compensation laws to the vessels in issue is foreclosed

either because: (1) a federal statute, here the FLSA,

13 See Standard Dredging Corp. V. Murphy, 319 U.S. 306, 309

(1943); Askew v. American Waterways Operators, Inc., 411 U.S.

at 344.

14 Cases applying that general principle to specific situations are

legion. See 1 S. Friedell, Benedict on Admiralty §§ 112-113 (rev.

7th ed. 1992) (collecting cases in which state law has and has not

been preempted).

11

preempts state law; or (2) the application of California’s

laws to the circumstances of this case unduly interferes

with maritime uniformity under Jensen.

2. The court of appeals’ basic conclusion—that the

FLSA does not preempt California’s overtime statute—

is required by the statutory language itself. That

conclusion is also fully consistent with this Court’s

precedents."®

a. The literal language of the FLSA’s savings clause,

29 U.S.C. 218(a), forecloses petitioners’ claim of statu-

tory preemption. That Section states that “[n]o provi-

sion” of the FLSA—a reference broad enough to encom-

pass both the exemption for “seamen” and the Act’s over-

time provisions as applied to other maritime employees—

shall excuse noncompliance with “any * * * State law”

establishing higher minimum wages or more generous

overtime protection. Congress scarcely could have ex-

pressed its intention to preserve state law more clearly.

Cf. Standard Dredging Corp. v. Murphy, 319 U.S. 306,

310 (1943) (rejecting the contention that an exemption

from federal Social Security taxes for persons employed

“as an officer or member of the crew of a vessel on the

navigable waters of the United States’ preempted state

unemployment insurance taxes) ."®

15—In the courts below, petitioner Tidewater also relied on 46

U.S.C. 8104, a provision of the Shipping Act which regulates the

maximum number of hours that seamen may work aboard certain

United States-documented vessels. 91-142 Pet. 6, 26, 29. Both the

district court (Pet. App. A59-A60) and court of appeals (id. at

A12-A14) concluded that this provision does not preempt state laws

requiring overtime pay for those working fewer hours. Neither ©

petition seeks further review of that determination. Similarly, is-

sues concerning federal regulation of the minimum manning re-

quirements to certain commercial vessels are not at issue. State

regulation of this issue would present a very different question

from the one presented here.

16 Federal and state courts have uniformly construed 29 U.S.C.

218(a) to preserve state laws from claims that they are preempted

ee

12

b. This Court’s decisions in Knickerbocker Ice Co. V.

Stewart, 253 U.S. 149 (1920); Oil Workers Intl Union V.

Mobil Oil Corp., 426 U.S. 407 (1976); and Offshore Logis-

tics. Inc. v. Tallentire, 477 U.S. 207 (1986), do not sug-

vest a different conclusion. In Knickerbocker Ice, the

Court struck down a federal statute that purported to

authorize application of state workers’ compensation laws

beyond the “Jensen line’—i.e., to the area in which this

Court had already held that application of state law would

interfere unduly with the uniformity of federal maritime

law. The savings clause in the FLSA is not subject to

se on the same basis. It protects state laws from

claims that they have been preempted by the FLSA; it

does not purport to add to the authority States possess to

enact maritime law or to protect such laws from Jensen-

type preemption.

Although somewhat closer to the mark, Mobil Oil and

Tallentire are also distinguishable. In Mobil Oil, the

Court addressed a provision of the National Labor Rela-

tions Act that preserves certain state right-to-work laws.

Section 8(a) (3) of that Act, 29 U.S.C. 158(a) (3), gener-

ally authorizes agency and union shop agreements, but a

savings clause provides that njothing in thle] [Act]

shall be construed as authorizing the execution or appli-

cation of agreements requiring membership in a labor

organization as a condition of employment in any State

se

by FLSA exemptions. Overnight Transp. Co. v. Tianti, 926 F.2d

220, 222 (2d Cir.), cert. denied, 112 S. Ct. 170 (1991) ; Pony Pettis

Moving Co. v. Roberts, 784 F.2d 439, 441 (2d Cir. 1986); Mac-

cabees Mut. Life Ins. Co. v. Perez-Rosado, 641 F.2d 45, 46-47

(Ist Cir. 1981); Central Delivery Serv. v. Burch, 355 F. Supp. 954,

958 (D. Md. 1973), aff’d mem., 486 F.2d 1399 (4th Cir. 1973);

Williams v. W.M.A. Transit Co., 472 F.2d 1258, 1261 (D.C. Cir.

1972): Skyline Homes, Inc. v. Department of Indus. Relations, 211

Cal. Rptr. 792, 799 (Ct. App. 1985); Webster v. Bechtel, Inc., 621

r¢

i

P.2d 890, 896-900 (Alaska 1980) ; Plouffe v. Farm & Ranch Equip-

ment Co., 570 P.2d 1106, 1109 (Mont. 1977); State v. Comfort Cab

Co., 286 A.2d 742, 746-748 (N.J. Super. Ct. App. Div. 1972).

13

or Territory in which such execution or application is

prohibited by State or Territorial Law,’ 29 U.S.C. 164 (b)

(emphasis added). In keeping with the highlighted phrase,

this Court determined that the savings clause preserved

state law only within certain territorial limits. Specifi-

cally, the Court held that “predominant job situs is the

controlling factor in determining whether * * * a State

can apply its right-to-work laws to a given employment

relationship” and, accordingly, that no State could apply

its right-to-work laws to employees who spent most of

their time working on the high seas. 426 U.S. at 420.17

There is no language in the FLSA’s savings clause that

places any comparable territorial limit on the state law

it preserves. To the contrary, the FLSA provision pro-

tects “any * * * State law” providing minimum wages

17 In reaching that conclusion, the Court relied on several factors:

(1) the fact that the savings clause, like the provision authorizing

agency shop agreements, focuses on “post-hiring conditions of em-

ployment,” which by their nature center on the job situs (426 U.S.

at 417); (2) legislative history indicating that the validity of

agency shop agreements was to be determined “under the laws of

any State in which they are to be performed,” presumably the job

situs (id. at 418); and (3) two “practical considerations’—the

propriety of “minimizling| the possibility of patently anomalous

extra-territorial applications of any given State’s right-to-work

laws” (ibid.) and promoting predictability regarding the legality of

agency shop agreements (id. at 419). None of those factors was

tied tu the maritime character of the employment at issue.

In fact, the majority in Mobil Oil declined to adopt Justice

Powell’s suggestion, which parallels petitioners’ position here, that

the employees’ status as seamen should be decisive. See 426 U.S.

at 421 (Powell, Jr., concurring in the judgment) (urging that the

NLRA savings clause should not apply to “employment contracts

of maritime workers whose job situs is the high seas and who

thereby enjoy a special status’). The Court also made clear that

it was “creat[ing| no ‘exemption’ from § 14(b) for the maritime

industry.” Jd. at 420 n.12.

Far from supporting petitioners’ position, therefore, Mobil Oil

indicates that a savings clause that is capable of applying in both

the land-based and maritime settings should have the same basic

effect in both contexts.

14

or overtime above the floor set by the FLSA, thereby

preserving those laws to the fullest extent permissible.

Tallentire construed Section 7 of the Death On the

High Seas Act (DOHSA), 46 U.S.C. 767, as a “jurisdic-

tional savings clause’ preserving the jurisdiction of the

state courts over actions under that statute, as opposed

to “a guarantee of the applicability of state substantive

law to wrongful deaths on the high seas.” 477 U.S. at

232. The Court chose from among those two alternatives

on the basis of a detailed review of the drafting history

of that Section in light of the maritime law prevailing at

the time of its enactment. /d. at 220-233. In the course

of this analysis, the Court found support for its choice in

the “prevailing ‘uniformity’ doctrine” recognized by

Jensen. See id. at 227. The Court did not suggest that

a savings clause must invariably be construed to preclude

application of state law in the maritime setting, and the

FLSA’s savings clause cannot be construed in a manner

analogous to Section 7. Consequently, Tallentire does not

support petitioners’ position.

3. Because the FLSA neither adds to nor detracts

from the authority States otherwise possess to apply their

overtime laws to maritime workers, the issue of Jensen

interference must be addressed. As set forth above, Jen-

sen requires preemption if application of California’s

statute to the workers at issue here “works material

prejudice to the characteristic features of the general

maritime law” or “interferes with the proper harmony

and uniformity of that law in its international and in-

terstate relations.” 244 U.S. at 216; Just v. Chambers,

312 U.S. at 388 n.7, 389. The Jensen test is defined at

such a high level of generality, however, that it provides

very little guidance for determining when a State has

exceeded its constitutional authority to regulate conduct.

We are nevertheless persuaded—based on the precedents

that have applied Jensen—that the court of appeals cor-

rectly concluded that the State’s assertion of authority

was constitutional on the specific facts of this case.

15

a. The Ninth Circuit’s resolution of the Jensen issue

derives strong support from several considerations. First,

it is not clear that application of the State’s overtime

compensation rules to vessels that do not engage in inter-

state or foreign commerce disrupts the “uniformity” of

maritime law “in its international and interstate rela-

tions.” Jensen, 244 U.S. at 216. Jensen itself involved

application of state law to the owner of a vessel engaged

in interstate transportation of goods. The court of ap-

peals’ holding in this case is in fact limited to vessels

Whose significant contacts are all exclusively with Cali-

fornia—i.e., to vessels that “do not engage in foreign,

intercoastal, or coastwise voyages.” Pet. App. A9-A10

nb. See also id. at A30-A37 (same).'*’ Further, the

employment relationship has strong ties to California.

The employees at issue are all California residents who

were hired in California, receive paychecks at California

addresses, and pay California taxes. Jd. at A7, A382.

A34-A35, A37.

We recognize that the vessels in issue are not engaged

in wholly “intrastate” activities because their operations

are conducted at least in part on the high seas off the

California coast. It seems to be more germane to this

prong of the Jensen inquiry, however, that the vessels

are not travelling to other state and foreign ports, where

concerns of “uniformity” and conflicting legal require-

ments are more likely to come into play. Cf. Miles v.

'® The court expressly reserved the question whether respondent

is “preempted by federal law from applying California’s overtime

pay laws to maritime employees employed primarily on the high

seas on coastwise vessels engaged in coastwise voyages.” Pet. App.

A9-Ayl0 n.5. It should be noted that some interstate and foreign

voyages fall outside the definitions of “coastwise,” “coastal.” and

“foreign” voyages—for instance, voyages between adjoining States,

or between a State and Canada or Mexico. See note 2, supra. The

court of appeals’ reasoning, however, suggests that its holding

would not reach vessels engaged in any interstate or foreign voy-

ages. See id. at A384 (noting that application of State’s law would

not disrupt “international or interstate commerce”).

16

Apex Marine Corp., 111 8. Ct. 317 (1991) (declining to

adopt a rule of maritime law coverning wrongful death

actions that would distinguish between territorial waters

and the high seas).

Second. it is not apparent that a uniform rule gov-

erning overtime pay is the kind of “characteristic fea-

ture|] of the general maritime law” (Jensen, 244 U.S.

at 216) that precludes state law supplementation. As the

cases cited by petitioners indicate (91-349 Pet. 11-12),

admiralty courts have generally enforced the parties’ bar-

gain with respect to overtime, regardless of whether that

bargain precluded or required overtime pay. Although

petitioners emphasize that 12-hour shifts are standard in

the industry, California does not prohibit that practice.

Finally, as the court of app als correctly observed,

Stutes have a keen interest in protecting the welfare of

their citizens through the adoption of overtime compen-

sation laws. See West Coast Hotel Co. Vv. Parrish, 300

U.S. 379 (1937) (upholding the States’ constitutional au-

thority to impose minimum wage requirements as an

exercise of the police power). A State may refrain from

regulating employment in the maritime industry for a

variety of compelling reasons, but its underlying interest

in protecting the wages of its citizens who work on board

vessels is no different than its interest in protecting its

citizens who work in factories.

b. That being said, there is, we believe, considerable

force to petitioners’ arguments that state law should not

apply to their operations. The interest in the uniformity

of maritime law has retained tne greatest force with re-

spect to “suits relating to the relationship of vessels, ply-

ing the high seas and our navigable waters, and to their

crews.” Askew v. American Waterways Operators, Inc.,

411 US. at 344. In terms of their effect on vessels and

their crews, overtime compensation laws are in many

respects similar to the workers’ compensation law at issue

‘n Jensen itself, and the state statute of frauds that this

Court held could not bar a seaman from recovering dam-

17

ages under an oral contract with a vessel owner in Kos-

sick v. United Fruit Co., 365 U.S. 731 (1961).

This Court has nevertheless permitted some state reg-

ulation of the relationship between the vessel and its crew.

In Standard Dredging Co. v. Murphy, 319 U.S. 306

(1943), the Court found that application of a state un-

employment insurance statute to vessels employing sea-

men off the coast of New York was not “destructive of

admiralty uniformity.” /d. at 309. The Court found that

Jensen invalidated a State’s efforts to provide workers’

compensation remedies because they “interfered with the

existing admiralty system of relief,” ibid., but that no

similar argument could be made with respect to the im-

position of taxes on vessels to provide unemployment com-

pensation for workers. Similarly, Kossick can be read

to mean only that the state law of contracts should not be

invoked to directly prohibit a method of contracting—

the use of oral agreements—that had been widely used in

maritime commerce.

In contrast, California’s overtime compensation require-

ment simply imposes a financial burden on the vessel

owner as a nondiscriminatory exercise of the State’s police

power in furtherance of the public welfare of its citizens.

See, Kossick, 365 U.S. at 741 (emphasizing thet the stat-

ute of frauds was a rule of contract law, not a “public

regulation”). Requiring overtime compensation, as in

Murphy, does not directly interfere with any rule of

admiralty law or prohibit any method of contracting or

navigating.’®

We also recognize that application of state overtime

statutes on the high seas is more likely to lead to the

possibility for conflicts among state laws. See Tallentire,

477 U.S. at 213-214 (describing the consequences of ef-

forts to apply state wrongful death statutes in that set-

ting). When a State seeks to assert jurisdiction over a

vessel based upon such factors as the residence of the

19 A state law imposing a maximum number of hours per shift

would, in our view, pose a greater potential for direct interference.

De

18

members of the crew or contacts between the vessel and

a State ‘rather than the vessel’s exclusive presence in its

territorial waters), the potential that more than one State

will be in a position to assert such an interest is not diffi-

cult to envision. Although the court of appeals identified

facts in this case that made such conflicts unlikely, the

mobility of vessels, their potential for multiple uses, and

the turnover in their crews may make those limitations

hard to enforce in later cases. For these reasons, there

is considerable force to the point that application of state

overtime laws could lead to undue interference with the

essential uniformity of federal maritime law.

4. States have seldom sought to regulate activities on

the high seas and, to our knowledge, have never sought to

regulate the overtime compensation of seamen and mari-

time employees. Although it is difficult to resolve the con-

stitutionality of such state regulation under the imprecise

standard adopted in Jensen, we do not believe that review

of respondent’s action is necessary at this time. In our

view, several factors counsel in favor of deferring con-

sideration of this question.

First, the state courts have not yet had an opportunity

to consider petitioners’ claims that the wage order in issue

cannot properly be applied to maritime workers under

state labor and administrative law. It does not appear

that these claims are frivolous. As petitioners point out,

the express terms of the wage order appear to be directed

at “land-based” occupations, 91-142 Pet. 7; 91-349 Pet. 9;

the order has never previously been applied to maritime

workers, ibid.; the wage order was adopted by a separate

agency, the Industrial Welfare Commission, after public

rulemaking, 91-142 Pet. 7 n.9; and respondent’s extension

of the order to maritime workers was made without any

period for notice and comment.*’ Petitioners have ac-

20 Even the California Labor Commissioner has expressed uncer-

tainty as to the category of maritime workers he will seek to

protect under the law. Br. in Opp. 8, 12-14 (questioning whether, in

19

cordingly asserted that respondent failed to “comply with

state administrative and procedural requirements re-

garding wage and hour ru'emaking and law enforce-

ment,” Pet. App. A32; vet these claims have not been re-

solved because petitioners’ challenves to the state admin-

istrative proceedings have been stayed pending the out-

come of this case. Br. in Opp. 7.

This is not to suggest that in applying these recula-

tions to petitioners’ operations respondent exceeded his

administrative authority. We suggest, more modestly,

that the Court may wish to decline to consider whether

respondent’s actions were unconstitutional until after the

state courts have had an opportunity to determine whether

they were proper under state law. If the state courts con-

clude that respondent exceeded his authority under state

labor or administrative law, then the constitutional issue

will obviously be rendered moot.

Second, we are persuaded that the decision’s potential

for immediate disruption of maritime commerce is not

sufficient to outweigh these countervailing prudential con-

siderations. There is apparently no dispute that the issue

is “novel,” and that no other State has sought to apply

its overtime compensation laws to maritime workers.

Pet. App. A46; 91-142 Pet. 5 n.8. The vessel owners

therefore cannot presently claim that they are being

subjected to conflicting state law requirements. The

Ninth Circuit in fact minimized the potential for such

conflict by expressly limiting its decision to application of

California’s overtime rule to vessels that do not make in-

terstate or foreign voyages.

Third, and relatedly, the Ninth Circuit is the first court

of appeals to consider the issue presented. As a result,

there is no disharmony, as yet. in the body of federal law.

In addition, the analysis required by Jensen depends

heavily on the nature of the burdens the state requirement

imposes on maritime commerce. Consideration of the

light of the court of appeals’ limitations on relief, petitioners’

with the ruling will ever arrive).

y

“anticipated problems”

20

question might therefore be more informed after a

greater opportunity for the courts to evaluate the prac-

tical impact of the specific regulatory efforts in issue.

All in all, further review can appropriately wait for

another day.”

CONCLUSION

The petition for a writ of certiorari should be denied.

respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

MAUREEN E. MAHONEY

Deputy Solicitor General

STEPHEN L. NIGHTINGALE

Assistant to the Solicitor General

ANTHONY J. STEINMEYER

JOHN P. SCHNITKER

Attorneys

MAy 1992

21 Principles of issue preclusion and stare decisis will limit the

ability of some parties to relitigate this constitutional question in

California. It would not appear likely, however, that further con-

sideration of the issue will be totally foreclosed in future proceed-

ings. Parties with proper standing who were not represented in

this case could raise the constitutional question in state court pro-

ceedings. A judgment of the California court on the constitutional

issue would then be subject to review on certiorari. Further, the

issue would also be subject to review again in federal proceedings

if respondent seeks to enforce the overtime laws to other vessels

that present materially different facts.

YoU. S. GOVERNMENT PRINTING orrice; 1992 312324 45429

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