-DAD Independent Training and Apprenticeship, et al v. CA Dept. of Industrial Relations, et al, No. 2:2011cv01047 - Document 20 (E.D. Cal. 2011)
Court Description: ORDER DENYING 6 Motion for Preliminary Injunction signed by Judge Garland E. Burrell, Jr on 8/15/11. (Manzer, C)
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-DAD Independent Training and Apprenticeship, et al v. CA Dept. of Industrial Relations, et al Doc. 20 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 INDEPENDENT TRAINING AND APPRENTICESHIP PROGRAM, a California corporation, BRANDIN MOYER, and HAROLD E. NUTTER, INC., a California Corporation, Plaintiffs, 11 v. 12 13 14 15 16 17 18 19 20 21 22 CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS, an agency of the State of California, by and through CHRISTINE BAKER, in her official capacity as Acting Director of the CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF APPRENTICESHIP STANDARDS, by and through GLEN FORMAN, in his official capacity as Acting Chief, DIVISION OF LABOR STANDARDS ENFORCEMENT, by and through JULIE SU, in her official capacity as Labor Commissioner, Defendants. ________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 2:11-cv-01047-GEB-DAD ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION Plaintiffs seek a preliminary injunction enjoining Defendants 23 24 from, inter alia, enforcing California’s prevailing wage and 25 apprenticeship laws on three California public works projects.1 The laws 26 at issue are prescribed in California Labor Code sections 1771, et seq. 27 28 1 The authority on which Plaintiffs’ injunctive relief is based is discussed infra. 1 Dockets.Justia.com 1 and section 3070, et seq. Plaintiffs argue enforcement of these laws on 2 the referenced projects violates the Supremacy Clause, Commerce Clause, 3 Equal 4 Immunities Clause in the United States Constitution. Defendants oppose 5 the motion. Argument on the motion was heard on July 18, 2011. Protection Clause, 6 Due Process Clause and Privileges and I. LEGAL STANDARD 7 A preliminary injunction is “an extraordinary remedy that may 8 only be awarded upon a clear showing that the plaintiff is entitled to 9 such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 10 (2008). Plaintiffs seeking a preliminary injunction must establish that 11 “(1) they are likely to succeed on the merits; (2) they are likely to 12 suffer irreparable harm in the absence of preliminary relief; (3) the 13 balance 14 injunction is in the public interest.” Sierra Forest Legacy v. Rey, 577 15 F.3d 1015, 1021 (9th Cir. 2009)(citing Winter, 555 U.S. at 19). of equities tips in their favor; and (4) a preliminary 16 Further, the Ninth Circuit’s “‘serious questions’ approach 17 survives Winter when applied as part of the four-element Winter test.” 18 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 19 2011). In other words, “‘serious questions going to the merits’ and a 20 balance of hardships that tips sharply towards the plaintiff can support 21 issuance of a preliminary injunction, so long as the plaintiff also 22 shows that there is a likelihood of irreparable injury and that the 23 injunction is in the public interest.” Id. 24 II. BACKGROUND 25 A. 26 The Fitzgerald Act, the Shelley–Maloney Act, and the Derecognition of California’s State Apprenticeship Council for Federal Purposes 27 Plaintiffs’ injunctive relief request concerns the following 28 congressional enactment act and California laws. “Congress enacted the 2 1 Fitzgerald Act [, 29 U.S.C. § 50,] in 1937 for the purposes of 2 protecting 3 standards, promoting apprenticeship as a system of training skilled 4 workers and encouraging the federal government to cooperate with state 5 agencies in formulating apprentice standards.” Joint Apprenticeship & 6 Training Council of Local 363, Int’l Bhd. of Teamsters, AFL-CIO v. New 7 York State Dep’t of Labor, 984 F.2d 589, 591 (2d. Cir. 1993). The 8 Fitzgerald Act provides in relevant part: 9 apprentices through the establishment of minimum labor The Secretary of Labor is authorized and directed to formulate and promote the furtherance of labor standards necessary to safeguard the welfare of apprentices, to extend the application of such standards by encouraging the inclusion thereof in contracts of apprenticeship, to bring together employers and labor for the formulation of programs of apprenticeship, to cooperate with State agencies engaged in the formulation and promotion of standards of apprenticeship.... 10 11 12 13 14 15 29 16 regulations, 29 C.F.R. part 29, under the Fitzgerald Act “to establish, 17 for certain Federal purposes, labor standards, policies and procedures 18 for the registration, cancellation and deregistration of apprenticeship 19 programs, and apprenticeship agreements.” Apprenticeship Programs, Labor 20 Standards for Regulation, Amendment of Regulations, 72 Fed. Reg. 71020 21 (Dec. 13, 2007)(summary). U.S.C. § 50. In 1977, the Department of Labor promulgated 22 23 24 25 26 27 28 The[se] regulations establish the [Office of Apprenticeship Training, Employment and Labor Services (“OATELS”)], for the purpose of administering the registration and approval of apprenticeship programs and other provisions of the regulations. [OATELS] is authorized to certify apprenticeship standards and to register and approve local apprenticeship programs and apprenticeship agreements for federal purposes. The regulations also authorize [OATELS] to approve appropriate state bodies for registration and/or approval of local apprenticeship programs and agreements for federal purposes. 3 1 Elec. Joint Apprenticeship Comm. v. MacDonald, 949 F.2d 270, 273 (9th 2 Cir. 1991)(internal quotation marks and citations omitted). Thus, 29 3 C.F.R. part 29 “provides for a dual system of approval and recognition 4 so that either [OATELS] or the State Apprenticeship Council can approve 5 an apprenticeship program for federal purposes[; h]owever, either agency 6 is constrained in its approval to apply the requirements and standards 7 of the federal regulations.” Id. 8 “To be approved as a [State Apprenticeship Council (“SAC”)], 9 a state must submit proof of[, inter alia,] acceptable apprenticeship 10 laws and regulations; . . . a description of the standards, criteria, 11 and requirements for program registration and/or approval; and a 12 description of the policies and operating procedures which depart from 13 or impose requirements in addition to those in the federal regulations.” 14 S. Cal. Chapter of Assoc. Builders & Contractors, Inc., Joint 15 Apprenticeship Comm. v. Cal. Apprenticeship Council, 4 Cal. 4th 422, 433 16 (1992)(internal citations omitted). “If a state does not continue to 17 meet the federal requirements, it may be ‘derecognized.’” Id. (citing 29 18 C.F.R. § 29.13 (1992).) 19 “In California, apprenticeship training is governed by the 20 Shelley–Maloney Apprenticeship Labor Standards Act of 1939 21 [(“Shelley–Maloney Act”)], which is codified as California Labor Code 22 section 3070 et seq.” S. Cal. Chapter of Assoc. Builders & Contractors, 23 Inc., Joint Apprenticeship Comm., 4 Cal. 4th at 433. “Pursuant to the 24 Shelley–Maloney Act, apprenticeship training is administered by the 25 Division [of Apprenticeship Standards (“DAS”)], which is under the 26 auspices of the Department of Industrial Relations [(“DIR”)](hereafter 27 Department).” Id. (citation omitted). “The Chief of the [DAS] . . . 28 administers the apprenticeship law . . . and is empowered to investigate 4 1 and either approve or disapprove written standards for apprenticeship 2 programs.” Id. (citations omitted). 3 California was “authorized under 29 C.F.R. § 29.12 to approve 4 apprenticeship programs for federal purposes as a SAC state [in] 1978.” 5 Cal. Div. Of Labor Standards Enforcement v. Dillingham Constr., N.A., 6 Inc., 519 U.S. 316, 320 (1997). However, after California amended its 7 apprenticeship law – California Labor Code § 3075 – in 1999, OATELS 8 “began proceedings to derecognize” California as a SAC state “contending 9 that the amended apprenticeship statute did not conform to federal 10 standards.” Cal. Dept. of Indus. Relations, Adm. Rev. Bd. Case No. 05- 11 093, 2007 WL 352459 (Dep’t of Labor Jan. 31, 2007) (final decision and 12 order). The United States Department of Labor’s Administrative Review 13 Board ultimately withdrew California’s recognition as a SAC state on 14 January 31, 2007. Cal. Dept. of Indus. Relations, 72 Fed. Reg. 9590-01 15 (Dep’t of Labor Mar. 2, 2007) (notice). Therefore, California “no longer 16 has the authority to register or oversee apprenticeship programs for 17 ‘Federal purposes.’” Id. 18 B. The Three Public Works Projects at Issue 19 Plaintiffs’ motion concerns the enforcement of California 20 apprenticeship and prevailing wage laws on the following three public 21 works projects (referenced collectively as “state projects”): (1) the 22 Chicago Park Elementary School Multi-purpose/Gymnasium Expansion & Four 23 New Relocatable Classroom Buildings Project in Nevada County, (“Chicago 24 Park Project”); (2) the Marysville High School Alternative Education 25 Center Project in Yuba County, (“Marysville High Project”); and (3) 26 Williams-Brotherhood Joint Use Gym in Stockton, California (“Stockton 27 Project”). The "Chicago Park Project" is a multi-purpose gymnasium and 28 classroom expansion project. (Pls.’ Compendium of Evidence in Supp. of 5 1 Mot. for Prelim. Inj., Decl. of Michael Genest ¶ 3, ECF No. 6-2 (“Genest 2 Decl.”).) 3 The Treasurer of the State of California used a portion of the 4 proceeds from the sale of “Build America Bonds,” which occurred in April 5 2009 and May 2010, to fund a portion of the Stockton Project and the 6 Chicago Park Project. (Genest Decl. ¶¶ 10a, 10c.) “Build America Bonds” 7 are a new form of municipal bond which are subject to federal taxes. Id. 8 ¶ 8. However, the U.S. Treasury pays a subsidy to the municipal lender 9 to cover the differential costs associated with the taxable nature of 10 the bond. Id. 11 Marysville High Project with funds received from the sell of municipal 12 bonds, which are usually exempt from federal taxation. Id. ¶¶ 5, 10b. 13 Plaintiffs argue that the referenced financing for the state projects 14 causes the projects to be projects for a “federal purpose” under the 15 Fitzgerald Act 16 referenced federal tax incentives involved with funding the projects. 17 (Pls. Mot. for Prelim. Inj. at 21-24.) The Treasurer of the State of California funded the and 18 19 20 21 its implementing regulations, because 24 25 26 27 28 the III. DISCUSSION A. Standing / Ripeness of Specific Injunctive Relief Sought Plaintiffs request the following specific relief in their preliminary injunction motion: 22 23 of [An order] . . . : enjoining and prohibiting Defendants (a) From refusing to recognize and comply with the United State Department of Labor Administrative Review Board’s “Final Decision and Order” of January 31, 2007 and the U.S. Department of Labor’s March 2, 2007 public notice, pursuant to 29 C.F.R. 29.13(d), that “the CDIR and the CAC no longer have authority to register or oversee apprenticeship programs for ‘Federal purposes’ ” (72 F.R. 9590). 6 1 2 3 (b) From enforcing California Code of Regulations Section 16001 with respect to projects involving “any Federal financial or other assistance, benefit, privilege, contribution, allowance, exemption, preference or right pertaining to apprenticeship;” 4 5 6 (c) From enforcing California Labor Code Section 1777.5 with respect to apprentices from federally approved apprenticeship training programs working on public works projects with a Federal purpose; 7 8 (d) From refusing to enforce 29 C.F.R. Part 29 with respect to what constitutes a “Federal purpose;” 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 (e) From refusing to acknowledge that Plaintiff I-TAP is an approved apprenticeship program for all public works projects with a “Federal purpose” in California; (f) From refusing to allow contractors to pay Plaintiff I-TAP’s apprentices at apprentice prevailing wage rates rather than journeyman prevailing wage rates on public works projects in California with any Federal purpose; (g) From refusing to allow Plaintiff I-TAP to receive fringe training contributions as an approved program on such projects; (h) Directing Defendants to recognize Brandin Moyer and all other similarly situated electrical tradesmen enrolled in federally certified apprenticeship programs as “apprentices” entitled to all of the “assistance, benefits, privileges, contributions, allowances, exemptions, preferences and/or rights pertaining to apprenticeship” (29 C.F.R. § 29.2) on public works project in California that are accorded to “apprentices” in apprenticeship programs certified by DAS pursuant to the provisions of the California Labor Code; (i) Directing Defendants to rescind the Civil Wage and Penalty Assessment issued in Case No. 40-26553/254 as against Plaintiff Harold E. Nutter, Inc.; and 25 26 27 28 (j) Directing Defendants to refrain from purporting to enforce any penalties, assessments or sanctions against Plaintiff Harold E. Nutter, Inc. or any other contractor on the grounds that apprentices participating in I-TAP’s apprenticeship training program, or any other federally certified program, do not qualify for payment of apprentice 7 1 prevailing wage rates pursuant to California Labor Code §1777.5. 2 3 (Pls.’ Mem. of P.&A. in Supp. of Mot. for Prelim. Inj. (“Mot.”) 30:22- 4 32:4.) However, Plaintiffs have not shown that they have standing to 5 request much of the specific injunctive relief sought and/or that it is 6 ripe for judicial decision. 7 Article III of the Constitution “restricts federal court[] 8 [jurisdiction] to the resolution of cases and controversies.” Davis v. 9 Fed. Election Commm’n, 554 U.S. 724, 732 (2008). “Two components of the 10 Article III case or controversy requirement are [the closely related 11 concepts of] standing and ripeness.” Bova v. City of Medford, 564 F.3d 12 1093, 1095-96 (2009). “To allege a justiciable [request for injunctive 13 relief], [Plaintiffs] must plead facts that are sufficient to confer 14 standing and demonstrate that the [request] is ripe for determination.” 15 Dermer v. Miami-Dade Cnty., 599 F.3d 1217, 1220 (11th Cir. 2010). 16 Further, “[P]laintiff[s] must demonstrate standing separately for each 17 form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl. 18 Servs., Inc., 528 U.S., 167, 185 (2000)(citations omitted). “[S]tanding 19 is not dispensed in gross.” 20 (1996). Lewis v. Casey, 518 U.S. 343, 358 n.6 21 Specifically, Plaintiffs “must demonstrate three elements 22 which constitute the ‘irreducible constitutional minimum’ of Article III 23 standing.” San Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 24 (9th Cir. 1996)(quoting Lujan, 504 U.S. at 560). 25 26 27 28 First, [they] must have suffered an “injury-in-fact” to a legally protected interest that is both “concrete and particularized” and “actual or imminent,” as opposed to “‘conjectural' or ‘hypothetical.’” Second, there must be a causal connection between [their] injury and the conduct complained of. Third, it must be “likely” - not 8 1 merely “speculative” - that [their] injury will be “redressed by a favorable decision.” 2 Id. (quoting Lujan, at 560-61). 3 In comparison, “[r]ipeness is peculiarly a question of 4 timing.” Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 580 5 (1985). “For a suit to be ripe within the meaning of Article III, it 6 must present concrete legal issues, presented in actual cases, not 7 abstractions.” Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112, 8 1123 (9th Cir. 2009). “A claim is not ripe for adjudication if it rests 9 upon contingent future events that may not occur as anticipated, or 10 indeed may not occur at all.” Texas v. U.S., 523 U.S. 296, 300 11 (1998)(internal quotation marks and citation omitted). 12 In many cases, “the constitutional component of the ripeness 13 inquiry” “coincides squarely with standing’s injury in fact prong.” 14 Sacks v. Office of Foreign Assets Control, 466 F.3d 764, 773 (9th Cir. 15 2006). 16 For example, a claim is not ripe for adjudication if it rests upon contingent future events . . . . That is so because, if the contingent events do not occur, the plaintiff likely will not have suffered an injury that is concrete and particularized enough to establish the first element of standing. In this way, ripeness and standing are intertwined. 17 18 19 20 21 Id. 22 Part of the injunctive relief Plaintiffs seek essentially asks 23 the Court to address their conjectural concern that Defendants could 24 enforce California’s apprenticeship and prevailing wage laws on any 25 public works project that has a “federal purpose.” However, this 26 concern “is contingent upon events [that may not occur,]” and has not 27 been shown to be “concrete and particularized enough to survive the 28 standing/ripeness inquiry.” Bova, 564 F.3d at 1096-97. Therefore, this 9 1 concern has not been shown ripe for adjudication, and the issue is 2 whether Plaintiffs have a basis for enjoining the state projects. 3 generally, Lewis, 518 U.S. at 343 n.6 (stating “[i]f the right to 4 complain of one administrative deficiency automatically conferred the 5 right to complain of all administrative deficiencies, any citizen 6 aggrieved in one respect could bring the whole structure of state 7 administration before the courts for review. That is of course not the 8 law”). 9 B. See Likelihood of Success on the Merits 10 1. 11 Plaintiffs Supremacy Clause Claim argue Defendants’ enforcement of California’s 12 apprenticeship and prevailing wage laws on the state projects violates 13 the Supremacy Clause of the United States Constitution because the 14 subject California law “violate[s] [the] national standard” created by 15 the Fitzgerald Act and its implementing regulations. (Mot. 15:15, 17:20- 16 18:1, 20:15-18, 24:13-25:20.) 17 Congress intended the Fitzgerald Act to preempt the subject California 18 law. 19 “[T]he Supremacy This argument concerns the issue whether Clause, U.S. Const., Art. VI, cl. 2, 20 invalidates state laws that interfere with, or are contrary to federal 21 law.” Hillsborough Cnty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 22 707, 712 (1985)(internal quotation marks and citations omitted). 23 24 25 26 27 28 Congressional intent to preempt state law can either be expressed in statutory language or implied from the scheme of federal regulation. Implied pre-emption comes in two forms: field and conflict preemption. Field preemption occurs when the federal regulation is sufficiently comprehensive to leave no room for supplementary state regulation. Conflict preemption, in turn, arises when: (1) compliance with both federal and state regulations is a physical impossibility, or (2) state law stands as an obstacle to the 10 1 accomplishment and execution of the full purposes and objectives of Congress. 2 Gaeta v. Perrigo Pharm. Co., 630 F.3d 1225, 1230-31 (9th Cir. 3 2011)(internal quotation marks and citations omitted). However, 4 Plaintiffs concede in their Reply that Defendants “[are] free to 5 regulate apprenticeship for solely state purposes (i.e., where there is 6 no Federal purpose by the D.O.L regulatory definition)[.]” (Reply 13:187 21.) Therefore, Plaintiffs’ Supremacy Clause claim is based on the 8 contention that the state projects have a “federal purpose” prescribed 9 in 29 C.F.R. § 29.2, since the projects are funded, at least in part, by 10 municipal bonds that receive a benefit from a “Federal income tax 11 exemption for interest paid” on the bonds, or a Federal “subsidy to the 12 municipal lender [that] cover[s] the differential interest costs 13 associated with the . . . bonds.” (Mot. 21:12-18, 22:7-16.) 14 Defendants counter that enforcement of the subject California 15 apprenticeship and prevailing wage laws on these projects is not 16 preempted by the Fitzgerald Act because the referenced public works 17 projects involve “state contract[s] for public construction[,]” which 18 are not within the “federal purpose” definition in 29 C.F.R. § 29.2. 19 (Opp’n 10:4-7, 10:23-26.) Defendants also argue that Plaintiffs’ 20 Supremacy Clause claim “reach[es] too far,” “by stretching the meaning 21 of the phrase ‘federal purposes pertaining to apprenticeship’ beyond any 22 reasonable interpretation.” Id. at 10:15-18, 27. Defendants further 23 argue that the projects do not involve “federal financial or other 24 assistance pertaining to apprenticeship[; i]nstead, there is federal tax 25 exemption . . . that pertains to investors, not apprentices.” Id. 10:2426 26. 27 29 C.F.R. § 29.2 prescribes “federal purposes” to include: 28 “any Federal contract, grant, agreement or arrangement dealing with 11 1 apprenticeship; and any Federal financial or other assistance, benefit, 2 privilege, contribution, allowance, exemption, preference or right 3 pertaining to apprenticeship.” (emphasis added). Plaintiffs have not 4 shown that what they characterize as federal tax benefits constitute a 5 “federal purpose” prescribed in § 29.2. Plaintiffs’ construction of 6 “federal purpose” in § 29.2 “reads the words [‘Federal’ and ‘pertaining 7 to apprenticeship’] into thin air[,]” contrary to the court’s duty in 8 interpreting a regulation “to give effect, if possible, to every clause 9 and word” of the regulation. Ramadan v. Keisler, 504 F.3d 973, 976 (9th 10 Cir. 2007) (citation omitted). “It is a fundamental cannon of statutory 11 construction that a statute should not be construed so as to render any 12 of its provisions mere surplusage.” 13 969, 975 (2003). United States v. Wenner, 351 F.3d 14 Plaintiffs rely upon two opinion letters written by the 15 Administrator of OATELS as support for their argument that § 29.2's 16 definition of 17 federal benefits which are sufficient to make the “state projects” 18 projects that are with § 29.2's definition of “federal purpose.” (Mot. 19 15:2-7; Reply 7:20-8:1.) The referenced opinion letters were written in 20 response to inquiries concerning the status of apprenticeship programs 21 registered by OATELS in California and predate OATELS’ de-recognition of 22 the California Department of Industrial Relations and the California 23 Apprenticeship 24 Fitzgerald Act. The first opinion letter is dated July 16, 2004, and 25 states in pertinent part: 26 27 28 “federal purpose” encompasses what they characterize as Council as an SAC for federal purposes DOL’s position is that all SAC’s, including California’s, are to accept programs and apprentices registered by OATELS, for Federal purposes, on all federally funded or supported public works projects, regardless of how much Federal funding or support is provided. 12 under the 1 Accordingly, the Department expects the SACs to accept OATELS registration for an entire public works project, even if the project is funded in part by the state or local government. 2 3 (Pls.’ Compendium of Evidence in Supp. of Mot. for Prelim. Inj., Decl. 4 of Juli Nutter, Ex. B, ECF No. 6-2, at 89.) The second opinion letter, 5 dated October 4, 2004, states in relevant part: “OATELS’ registered 6 apprentices must be recognized as registered apprentices for the 7 purposes of all public works projects funded in whole or part with 8 Federal funds.” Id., at 91. 9 Assuming arguendo that these opinion letters support 10 Plaintiffs’ argument that “federal purpose” is defined broadly enough to 11 include a federal financial benefit as tangential as a tax exemption or 12 tax subsidy provided to a municipal lender, this interpretation would 13 not be entitled to deference. “Interpretations . . . in opinion 14 letters-like interpretations contained in policy statements, agency 15 manuals, and enforcement guidelines, all of which lack the force of 16 law-do not warrant Chevron-style deference.” Christensen v. Harris Cty., 17 529 U.S. 576, 587 (2000) (citations omitted). “Instead, interpretations 18 contained in formats such as opinion letters are ‘entitled to respect’ 19 under [the Supreme Court’s] decision in Skidmore v. Swift & Co., 323 20 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), but only to the extent 21 that those interpretations have the ‘power to persuade[.]’” Id. 22 (citation omitted). Like Plaintiffs’ construction of “federal purpose,” 23 these two opinion letters render the terms “Federal” and “pertaining to 24 apprenticeship” in § 29.2 mere surplusage. Therefore, even assuming 25 arguendo that the opinion letters could be interpreted as broadly as 26 Plaintiffs argue, that interpretation would be unpersuasive and would 27 not be “entitled to respect.” 28 13 1 For the stated reasons, Plaintiffs have not shown that the 2 challenged California law and projects conflict with federal law. 3 Therefore, they have not shown a likelihood of success, nor raised 4 serious questions, on the merits of their Supremacy Clause claim. 5 2. 6 Plaintiffs also argue Defendants’ enforcement of California’s 7 apprenticeship and prevailing wage laws on the three referenced public 8 works 9 interstate commerce in violation of the [Commerce Clause of the United Commerce Clause Claim projects “constitutes an unjustifiable interference with 10 States 11 apprentices from programs approved by the U.S. DOL in the other forty- 12 nine states from pursuing public work employment opportunities within 13 California.” (Mot. 26:12-19.) Constitution,] because it prevents thoroughly qualified 14 The Commerce Clause of the United States Constitution provides 15 “[t]he Congress shall have Power . . . [t]o regulate Commerce . . . 16 among the several States.” 17 been understood to have a ‘negative’ [or dormant] aspect that denies the 18 States the power unjustifiably to discriminate against or burden the 19 interstate flow of articles of commerce.” Or. Waste Sys., Inc. v. Dep’t 20 of Environmental Quality, 511 U.S. 93, 99 (1994); see also Brown v. 21 Hovatter, 561 F.3d 357, 364 (4th Cir. 2009) (stating “[t]he dormant 22 Commerce 23 interstate commerce commerce–the flow of goods, materials, and other 24 articles of commerce across state lines” (emphasis in original)). 25 Clause is Art. I, § 8, cl. 2. “[T]he Clause has long implicated by burdens placed on the flow of Plaintiffs make no showing that California’s regulation of 26 its 27 apprenticeship laws has any relationship to the flow of articles of 28 inter-state commerce. apprenticeship programs through 14 its prevailing wage and 1 Therefore, Plaintiffs have not shown a likelihood of success, 2 nor raised serious questions, on the merits of their Commerce Clause 3 claim. 4 3. 5 Plaintiffs Equal Protection Clause Claim also argue that Defendants are enforcing a 6 classification in violation their Equal Protection rights that favors 7 apprenticeship programs already certified under state law while programs 8 certified under federal law are “economically disfavored and burdened 9 with rules so restrictive they effectively prevent individuals and 10 businesses 11 apprenticeship programs operating in the state.” (Mot. 27:25-28:4.) from participating in California’s economy through 12 “The first step in equal protection analysis is to identify 13 the state’s classification of groups.” Country Classic Dairies v. 14 Montana, Dep’t of Commerce Milk Control Bureau, 847 F.2d 593, 596 (9th 15 Cir. 1988). “Once the plaintiff establishes governmental classification, 16 it is necessary to identify a ‘similarly situated’ class against which 17 the plaintiff’s class can be compared.” Freeman v. City of Santa Ana, 68 18 F.3d 19 Protection Clause ‘is essentially a direction that all persons similarly 20 situated should be treated alike.’” Christian Legal Soc’y Chapter of 21 Univ. Of Cal. v. Wu, 626 F.3d 483, 487 (9th Cir. 2010) (citing City of 22 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). An equal 23 protection claim will not lie by conflating all persons not injured into 24 a 25 Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005). 1180, preferred 1187 class (9th Cir. receiving 1995) better (citation treatment omitted). than the “The Equal plaintiff. 26 Plaintiffs have not shown that federal apprenticeship programs 27 and California apprenticeship program are “similarly situated” for 28 purposes of an Equal Protection claim. Further, Plaintiffs’ purported 15 1 class has not been shown to be similarly situated to any individual 2 approved to participate in California’s apprenticeship program. 3 Therefore, Plaintiffs have not shown a likelihood of success, 4 nor raised serious questions, on the merits of their Equal Protection 5 claim. 6 4. 7 Plaintiffs Due Process Clause claims also argue that Defendants actions, which 8 “require[] contractors to use only California-certified apprentices” and 9 “preclude[] federally certified apprenticeship programs and their 10 enrollees from participating in public works projects in California”, 11 “deprive 12 occupation” in violation of their substantive due process rights. (Mot. 13 26:25-28:13.) [P]laintiffs of liberty – the right to pursue a lawful 14 “Substantive due process forbids the government from depriving 15 a person of life, liberty, or property in such a way that shocks the 16 conscience or interferes with the rights implicit in the concept of 17 ordered liberty.” Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009). 18 “To establish a violation of substantive due process, a plaintiff must 19 first show a deprivation of some fundamental right or liberty interest 20 that 21 Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1061 (9th Cir. 22 2006) (internal quotation and citation omitted). “The protections of 23 substantive due process have for the most part been accorded to matters 24 relating to marriage, family, procreation, and the right to bodily 25 integrity[,]” and “the [Supreme] Court has always been reluctant to 26 expand the concept of substantive due process because the guideposts for 27 responsible 28 open-ended.” Albright v. Oliver, 510 U.S. 266, 271-72 (1994). is deeply rooted in decisionmaking this in Nation's this 16 history uncharted area and are tradition.” scarce and 1 2 Plaintiffs have not shown that any fundamental right or liberty interest is implicated in this case. 3 At the hearing on their motion Plaintiffs also indicated they 4 have also allege a procedural due process claim but made only a 5 conclusory unpersuasive oral argument in support of this claim. 6 For the stated reasons, Plaintiffs have not shown that they 7 have not shown a likelihood of success, nor raised serious questions, on 8 the merits of their Due Process claims. 9 5. Privileges & Immunities Clause Claim 10 Lastly, when the court was sua sponte considering whether 11 subject matter jurisdiction exist in this action, it became aware that 12 Plaintiffs also allege that the California subject laws violate the 13 Privileges and Immunities Clause of the United States Constitution. (See 14 Compl. ¶ 9.) 15 “Discrimination on the basis of out-of-state residency is a 16 necessary element for a claim under the Privileges and Immunities 17 Clause.” Russell v. Hug, 275 F.3d 812, 821 (9th Cir. 2002). 18 Plaintiffs’ allegations are woefully insufficient to allege a claim 19 under the Privileges and Immunities Clause a claim under the Privileges 20 and Immunities Clause. 21 However, B. Irreparable Harm / Balance of the Equities / Public Interest 22 Since Plaintiffs have failed to show a likelihood of success, 23 or raise a serious question, on the merits of any claim, the three 24 remaining injunction factors need not be addressed. See Doe v. Reed, 586 25 F.3d 671, 681 n.14 (9th Cir. 2009)(stating: “Because we conclude that 26 Plaintiffs have failed to satisfy the first Winter factor-likelihood of 27 success on the merits-we need not examine the three remaining Winter 28 factors . . . ”). 17 1 IV. CONCLUSION 2 For the stated reasons, Plaintiffs’ motion for a preliminary 3 injunction is DENIED. 4 Dated: August 15, 2011 5 6 7 GARLAND E. BURRELL, JR. United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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