Redgrave v. Ducey
| Decision Date | 25 March 2020 |
| Docket Number | No. 18-17150,18-17150 |
| Citation | 953 F.3d 1123 (Mem) |
| Parties | Marcie A. REDGRAVE, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Doug DUCEY, Governor; Thomas J. Betlach, in his official capacity as Director of the Arizona Health Care Cost Containment System; Arizona Department of Economic Security; Arizona Division of Developmental Disabilities, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kaitlyn Redfield-Ortiz (argued), Nicholas J. Enoch, and Stanley Lubin, Lubin & Enoch P.C., Phoenix, Arizona, for Plaintiff-Appellant.
Cory G. Walker (argued) and Mark Ogden, Littler Mendelson P.C., Phoenix, Arizona, for Defendants-Appellees.
Before: Diarmuid F. O’Scannlain, Susan P. Graber, and Eric D. Miller, Circuit Judges.
ORDER CERTIFYING QUESTION TO ARIZONA SUPREME COURT
Pursuant to Arizona Revised Statutes section 12-1861 and Supreme Court of Arizona Rule 27, we certify to the Arizona Supreme Court the question of law set forth in Part I of this order. The answer to this question may be determinative of the cause pending before this court, and there appears to be no controlling precedent in the decisions of the Arizona Supreme Court or the Arizona Court of Appeals.
The question to be answered is:
Has Arizona consented to damages liability for a State agency’s violation of the minimum wage or overtime provisions of the federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 206 – 207 ?
The Arizona Supreme Court may rephrase the question as it deems necessary.
Counsel for Plaintiff–Appellant Marcie A. Redgrave are:
Counsel for Defendants–Appellees Doug Ducey, in his capacity as Governor of the State of Arizona; Thomas J. Betlach, in his capacity as Director of the Arizona Health Care Cost Containment System; the Arizona Department of Economic Security; and the DES Division of Developmental Disabilities are:
Marcie Redgrave works as an in-home caretaker for an individual with cerebral palsy
. That individual, P.L., is a beneficiary of the Arizona Long-Term Care System ("ALTCS"). ALTCS is a Medicaid program operated by the Arizona Department of Economic Security’s Division of Developmental Disabilities ("DDD"), which functions as a managed care organization. Called an "independent provider," Redgrave is hired directly by DDD.
Redgrave has served as P.L.’s attendant caretaker in several states. She alleges that she is responsible for P.L.’s round-the-clock needs: personal hygiene, preparing meals, managing medical appointments, housecleaning, laundry, and assistance in P.L.’s daily activities, such as visiting friends, all allowing her little time off. In 2010, Redgrave and P.L. moved to Arizona, where P.L. became a beneficiary of ALTCS. According to Redgrave, she is paid $12.30 an hour for sixteen hours a day, seven days a week. Before her compensation was adjusted in 2016, she asserts that she was paid for only eight hours a day, seven days a week. Redgrave argues that she and other independent providers work twenty-four hours a day and, at the very least, that the DDD’s method for calculating compensation hours violates federal regulations.
In February 2018, Redgrave filed this putative collective action "on behalf of herself and other similarly-situated Independent Providers" in Maricopa County Superior Court pursuant to 29 U.S.C. § 216(b), FLSA’s private right of action for damages. She alleges that an independent provider like herself meets the definition of an "employee" of the DDD and that the DDD is a "third-party employer." See 29 U.S.C. § 203(e)(2) ; 29 C.F.R. § 552.109(c) (). As such, she claims the protections of the FLSA’s minimum-wage provision and its time-and-a-half overtime provision. See 29 U.S.C. § 206(a) (); id . § 207(a)(1) (); 29 C.F.R. § 552.102(a) (). She seeks awards of unpaid overtime, unpaid minimum wages, and liquidated damages, plus interest. She also seeks a declaration that she and other similarly situated individuals are entitled to be paid for all the hours they work, including time-and-a-half for their overtime hours.
Redgrave sued her alleged employer, DDD, along with the Department of Economic Security (of which DDD is a division), Thomas Betlach in his official capacity as Director of the Arizona Health Care Cost Containment System, and Doug Ducey in his official capacity as Governor of Arizona. For our purposes, we refer to the four Defendants–Appellees collectively as simply "the State."
The State removed the case to federal court, asserted its sovereign immunity from such claims, and moved to dismiss the case. In the district court, Redgrave raised two objections to the State’s purported sovereign immunity: first that, by removing the case to federal court, the State waived its sovereign immunity and, second, that Arizona has waived its sovereign immunity from FLSA claims as a matter of law. The district court rejected each supposed waiver of state sovereign immunity.
On the question of whether Arizona waived its sovereign immunity from FLSA claims as a matter of law, the district court concluded that neither the Arizona Supreme Court’s decision to abrogate state sovereign immunity in Stone v. Arizona Highway Commission , 93 Ariz. 384, 381 P.2d 107 (1963), nor the Arizona State Legislature’s limitations on state sovereign immunity established in the Actions Against Public Entities or Public Employees Act ("Public Entities Act"), Ariz. Rev. Stat. §§ 12-820 – 12-826, amounted to a waiver of immunity from claims under FLSA because each dealt only with immunity from tort liability. Redgrave v. Ducey , No. CV-18-01247-PHX-DLR, 2018 WL 4931722, at *2 (D. Ariz. Oct. 11, 2018).
Our court has determined that when a State removes a case it invokes the jurisdiction of the federal district court and thereby waives the sovereign immunity from suit it would enjoy in state court. Walden v. Nevada , 945 F.3d 1088, 1092 n.1, 1094–95 (9th Cir. 2019). The State asserts that its removal of this case did not effect a waiver of its sovereign immunity from liability . Indeed, the several circuits to share Walden ’s conclusion all hold that removal merely waives immunity from suit but not the defense of immunity from liability. See , e.g. , Trant v. Oklahoma , 754 F.3d 1158, 1172 (10th Cir. 2014) ; Stroud v. McIntosh , 722 F.3d 1294, 1302 (11th Cir. 2013) ; Lombardo v. Pa. Dep’t of Pub. Welfare , 540 F.3d 190, 198 (3d Cir. 2008) ; Meyers ex rel. Benzing v. Texas , 410 F.3d 236, 255 (5th Cir. 2005) ; see also Jessica Wagner, Note, Waiver by Removal? An Analysis of State Sovereign Immunity , 102 Va. L. Rev. 549, 555–60 (2016) (). A state’s invocation of sovereign immunity from liability would be an affirmative defense to a congressionally created private right of action for damages, such as those under FLSA. As the Supreme Court explained in Alden v. Maine , 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), because the states retain a "residuary and inviolable sovereignty," it is beyond the power of Congress to authorize private suits for monetary damages against a state without that state’s consent to such actions. Id. at 712, 715, 748–54, 119 S.Ct. 2240. We have not decided and in this Order do not decide whether removal to federal court effects a waiver of such state sovereign immunity from liability.
We ask the Arizona Supreme Court to advise whether Arizona possesses the defense of immunity from FLSA liability in the first place. In other words, we ask whether Arizona is among those states that consent to private suits for damages for violations of FLSA’s overtime and minimum-wage provisions or if it is among those states that do not so consent. Cf. Meyers , 410 F.3d at 253 ().
The Public Entities Act identifies a range of circumstances in which Arizona maintains its sovereign immunity. See Ariz. Rev. Stat. §§ 12-820.01 –.05. In Redgrave’s view, Arizona has consented to private suits for damages under FLSA because the Public Entities Act’s absolute immunity provision fails to assert immunity from FLSA claims. See id . § 12-820.01.
Under section 12-820.01(A), the state and its subdivisions:
Id. By implication, the Public Entities Act may accept liability for all other claims against the state and its subdivisions. Redgrave argues that Arizona does not enjoy sovereign immunity from her FLSA claims because the setting of independent providers’ pay and hours is neither a judicial function, nor a legislative function, nor a determination of fundamental government policy. There appears to be no controlling precedent specifying that ALTCS’s compensation of independent providers is not a fundamental government policy. Nor is it apparent to us whether section 12-820.01...
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