Capron v. Office of the Attorney Gen. of Mass.

• Decision Date: 02 December 2019
• Docket Number: No. 17-2140,17-2140
• Parties: Erin CAPRON; Jeffrey Penedo; Cultural Care, Inc., d/b/a Cultural Care Au Pair, Plaintiffs, Appellants, v. OFFICE OF the ATTORNEY GENERAL OF the Commonwealth of MASSACHUSETTS; Maura T. Healey, in her capacity as Attorney General of the Commonwealth of Massachusetts, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

944 F.3d 9

Erin CAPRON; Jeffrey Penedo; Cultural Care, Inc., d/b/a Cultural Care Au Pair, Plaintiffs, Appellants,

v.OFFICE OF the ATTORNEY GENERAL OF the Commonwealth of MASSACHUSETTS; Maura T. Healey, in her capacity as Attorney General of the Commonwealth of Massachusetts, Defendants, Appellees.

No. 17-2140

United States Court of Appeals, First Circuit.

December 2, 2019

Joan A. Lukey, with whom Justin J. Wolosz and Choate Hall & Stewart LLP, Boston, MA, were on brief, for appellants.

Ryan P. McManus, Donna A. Mizrahi, and Hemenway & Barnes LLP, Boston, MA, on brief for Host Families, amici curiae.

Faith Kalman Reyes and Verdi & Ogletree PLLC on brief for the Alliance for International Exchange, amicus curiae.

Michael Shih, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, Joseph H. Hunt, Assistant Attorney General, Andrew E. Lelling, United States Attorney, and Alisa B. Klein, Attorney, Appellate Staff, Civil Division, on brief for the United States, amicus curiae.

Robert E. Toone, Assistant Attorney General, with whom Maura T. Healey, Attorney General of Massachusetts, and Elizabeth A. Kaplan, Assistant Attorney General, were on brief, for appellees.

Audrey R. Richardson, Greater Boston Legal Services, Catherine Fisher, Marley Brumme, Boston, MA, Meredith B. Stewart, Gillian B. Gillers, Southern Poverty Law Center, Benjamin Richard Botts, Centro de los Derechos del Migrante, Inc., Rocío Alejandra Avila, and National Domestic Workers Alliance, on brief for Worker Organizations, amici curiae.

Dawn L. Smalls, Byron Pacheco, Sean P. Rodriguez, Juan P. Valdivieso, Boies Schiller Flexner LLP, David Seligman, and Towards Justice, on brief for Sarah Carolina Azuela Rascon and All Other Similarly Situated Current and Former Au Pairs, amici curiae.

Before Torruella, Lynch, and Barron, Circuit Judges.

BARRON, Circuit Judge.

This appeal concerns the relationship between the wage and hour rights that Massachusetts confers on in-home childcare services providers and the operation of a federal program that promotes international cultural exchange. The United States Department of State ("DOS") administers this federal program, which we will refer to as the "Au Pair Program." Through it, foreign nationals may obtain a special type of visa and then be placed with host families in the United States, so that the foreign nationals may provide in-home childcare services to the host families while they also pursue their post-secondary school studies.

The issue that we must resolve in this appeal arises in connection with a lawsuit that was filed on August 31, 2016 in the United States District Court for the District of Massachusetts against the Attorney General of Massachusetts ("Attorney General"). The plaintiffs are Cultural Care, a DOS-approved private placement agency based in Massachusetts, as well as Erin Capron and Jeffrey Penedo, who each reside in Massachusetts and with whose families Cultural Care has in the past placed foreign national visa holders through the Au Pair Program.

The plaintiffs contend that the Au Pair Program impliedly preempts Massachusetts from requiring host families to comply with its wage and hour laws as employers of the visa holders who provide them childcare services through that program. The plaintiffs seek declaratory and injunctive relief.

The Attorney General moved to dismiss the plaintiffs' complaint. The District Court granted the motion on August 1, 2017. The next day, the District Court ordered the plaintiffs' case dismissed. The District Court also denied the plaintiffs' motion for reconsideration of the order of dismissal or, in the alternative, for leave to amend the complaint.

The plaintiffs timely appealed both the order of dismissal and the denial of the motion for reconsideration or, in the alternative, for leave to amend the complaint. We now affirm.¹

I.

We first describe the relevant federal and state bodies of law. We start with the federal measures. We then turn to the state law measures.

A.

The federal measures consist of authorizing legislation and implementing regulations. We consider each type of federal measure in turn.

1.

Nearly sixty years ago, Congress enacted the Fulbright-Hays Act. See Pub. L. No. 87-256 § 102, 75 Stat. 527 (1961) (codified at 22 U.S.C. § 2452 ). That statute authorized a series of "educational" and "cultural exchanges." Id. The preamble to the statute describes Congress's purposes in authorizing these cultural exchanges as follows:

[T]o enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchange; to strengthen the ties which unite us with other nations by demonstrating the educational and cultural interests, developments, and achievements of the people of the United States and other nations, and the contributions being made toward a peaceful and more fruitful life for people throughout the world; to promote international cooperation for educational and cultural advancement; and thus to assist in the development of friendly, sympathetic, and peaceful relations between the United States and the other countries of the world.

22 U.S.C. § 2451.

The Fulbright-Hays Act provided funding for a series of cultural exchange programs to bring foreign nationals to this country and also created the J-Visa. See Pub. L. No. 87-256 § 109 (codified at 8 U.S.C. § 1101(a)(15)(J) ). The provision of the statute that creates the J-Visa states that, to qualify for it, a person must be:

an alien having a residence in a foreign country which he has no intention of abandoning who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist or leader in a field of specialized knowledge or skill, or other person of similar description, who is coming temporarily to the United States as a participant in a program ... for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills or receiving training.

8 U.S.C. § 1101(a)(15)(J).

The DOS is currently responsible for implementing the provisions of the Fulbright-Hays Act that we have just described. See 22 C.F.R. § 62.1. The DOS does so through regulations that govern different types of "exchange visitor programs." See id. §§ 62.3, 62.4; Exchange Visitor Program -- Au Pairs, 74 Fed. Reg. 15,844 (Apr. 8, 2009) (to be codified at 22 C.F.R. pt. 62). The "Exchange Visitor Program" regulations authorize the DOS to designate only certain types of exchange programs as "exchange visitor programs." See, e.g., 22 C.F.R. § 62.24(b) (authorizing designation of "exchange visitor programs in the Teacher category"); id. § 62.31 (authorizing designation of "au pair exchange program[s]").²

Participants in these "exchange visitor programs" can receive "J-1" visas. 8 C.F.R. § 214.1(a)(2) (designating visas provided pursuant to 8 U.S.C. § 1101(a)(15)(J) as "J-1" visas). A J-1 visa is a nonimmigrant visa that permits a foreign national to come to the United States for "teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training." 8 U.S.C. § 1101(a)(15)(J) ; 8 C.F.R. § 214.1(a)(2). Persons who possess J-1 visas "may be employed" in the United States only through "exchange visitor programs." 8 C.F.R. § 274a.12(b)(11).

The DOS "Exchange Visitor Program" regulations provide that exchange visitor programs are "conduct[ed]" by "sponsors[.]" 22 C.F.R. §§ 62.3, 62.31(c). The sponsors are private placement agencies, such as the one that is a plaintiff in this case: Cultural Care.

The "Exchange Visitor Program" regulations authorize the DOS to "designate" the private placement programs "conducted" by these sponsors as "exchange visitor programs." Id. §§ 62.3, 62.31 (a) - (c). The DOS's designation authorizes the sponsor to "select[ ]" foreign nationals to be "participants" in its exchange visitor program, which in turn permits the participants to be placed in employment settings in this country pursuant to their J-1 visas. See id. § 62.31(c) - (d).

Sponsors "must remain in compliance with all local, state, and federal laws, and professional requirements necessary to carry out the activities for which [they are] designated, including accreditation and licensure, if applicable." Id. § 62.9(c). Regardless of the nature of the DOS-designated exchange visitor program, the sponsor must, among other things, appoint "Responsible Officers." Id. § 62.11(a).

If the exchange visitor program has "an employment component," the "Responsible Officers" must have "a detailed knowledge of federal, state and local laws pertaining to employment." Id. Sponsors of exchange visitor programs that have an employment component must provide "clear information and materials" to program participants, including information on "employee rights and laws, including workman's compensation." Id. § 62.10(b)(9).

The DOS "Exchange Visitor Program" regulations do not purport to regulate directly those for whom the participants in these exchange visitor programs work after the sponsors have placed them in a job. See id. § 62.31. The regulations -- with limited exceptions not relevant here -- directly regulate only the sponsors themselves. Id. The only sanctions that the regulations set forth that the DOS may impose on a sponsor are for its failure to meet one of its obligations under the regulations. Those sanctions -- again, with limited exceptions not relevant here -- only concern the ability of the sponsors to retain or renew the DOS's designation of the placement programs that they run as ones that qualify as "exchange visitor program[s]." Id. §§ 62.31(n), 62.50.

2.

The DOS's "Exchange Visitor Program" regulations contain subsections that "govern" each type of exchange visitor program that the regulations encompass. See §§ 62.20-.32. The program types include ones for summer workers,...