and Submitted March 7, 2017 Pasadena, California
from the United States District Court No.
2:15-cv-02517-RGK-AGR for the Central District of California
R. Gary Klausner, District Judge, Presiding
Michael Strauss (argued), Strauss & Strauss APC, Ventura,
California, for Plaintiff-Appellant.
J. Holland (argued), Ellen M. Bronchetti, and Karin Dougan
Vogel, Sheppard Mullin Richter & Hampton LLP, San
Francisco, California, for Defendant-Appellee.
Before: Richard A. Paez, Marsha S. Berzon, and Morgan
Christen, Circuit Judges.
panel vacated the district court's dismissal on the
pleadings of California wage and hour claims brought by
workers employed on drilling platforms fixed on the Outer
Outer Continental Shelf Lands Act provides that the laws of
the adjacent state are to apply to drilling platforms fixed
to the seabed of the Outer Continental Shelf as long as state
law is "applicable" and "not
inconsistent" with federal law. The panel held that
California's minimum wage and overtime laws are not
inconsistent with the Fair Labor Standards Act, which
establishes a national floor under which wage protections
cannot drop. The panel therefore vacated the dismissal of
addition, the panel vacated the dismissal of claims brought
pursuant to California's meal period, final pay, and pay
stub laws, and instructed the district court to determine on
remand whether these laws are "not inconsistent"
with existing federal law. The panel also vacated claims
under California's Private Attorney General Act and
Unfair Competition Law, and it remanded the case for further
CHRISTEN, CIRCUIT JUDGE.
case presents the novel question whether claims under state
wage and hour laws may be brought by workers employed on
drilling platforms fixed on the outer Continental Shelf.
Brian Newton worked on such a platform off the coast of Santa
Barbara. His shifts lasted fourteen days and he regularly
worked twelve hours per day. After Parker Drilling
("Parker") terminated him, Newton sued in state
court for wage and hour violations under California law.
Parker removed the case to federal district court and filed a
motion for judgment on the pleadings. The district court
granted the motion, concluding that the Fair Labor Standards
Act is a comprehensive statutory scheme that is exclusive of
California wage and hour laws. Newton appeals. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
that the absence of federal law is not, as the district court
concluded, a prerequisite to adopting state law as surrogate
federal law under the Outer Continental Shelf Lands Act, 43
U.S.C. § 1333(a)(2)(A). We thus reject the proposition
that "necessity to fill a significant void or gap,
" Cont'l Oil Co. v. London S.S. Owners' Mut.
Ins. Ass'n, 417 F.2d 1030, 1036 (5th Cir. 1969), is
required in order to assimilate "applicable and not
inconsistent, " 43 U.S.C. § 1333(a)(2)(A), state
law into federal law governing drilling platforms affixed to
the outer Continental Shelf. We therefore vacate the district
court's dismissal of Newton's claims and remand for
further proceedings consistent with this opinion.
FACTUAL & PROCEDURAL BACKGROUND
worked as a roustabout and painter for Parker on drilling
platforms in the Santa Barbara Channel from approximately
January 2013 to January 2015. It is uncontested that the
drilling platforms where he worked were located more than
three miles offshore and fixed to the seabed of the outer
Continental Shelf. His fourteen-day shifts, known in the
industry as "hitches, " comprised twelve hours on
duty followed by twelve hours on "controlled
standby." Newton was paid for twelve hours of work per
day and he was not able to leave the platform during his
shifts. Newton alleges that he usually took fifteen to thirty
minutes during his shifts to eat without clocking out or ate
while not working and remaining on call, and that Parker did
not provide thirty-minute meal periods for each five hours
worked, as required by California law. Parker paid Newton
twice per month. In addition to compensation for twelve hours
per day, his pay stubs showed pay for "two hours for the
boat ride out, back and debriefing with the next crew."
filed a putative class action in California state court on
February 17, 2015. Although Parker paid an hourly rate well
above California and federal minimum wage, Newton maintained
that California law required Parker to pay him for the twelve
hours he was on controlled standby each day. The First
Amended Complaint (FAC) alleged that Newton's final
paycheck did not include all the wages owed to him,
"including the overtime/doubletime and meal period
wages." In all, Newton brought seven causes of action
under California law for: (1) minimum wage violations; (2)
failure to pay overtime and doubletime; (3) pay stub
violations; (4) failure to pay timely final wages; (5)
failure to provide lawful meal periods; (6) civil penalties
under the Private Attorney General Act of 2004 (PAGA); and
(7) unfair competition.
removed the action to federal court and filed a motion for
judgment on the pleadings. Parker argued that, under the
Outer Continental Shelf Lands Act, 43 U.S.C. §§
1331-1356b (OCSLA), the Fair Labor Standards Act (FLSA) is a
comprehensive statutory scheme that leaves no room for state
law to address wage and hour grievances arising on the
For his part, Newton contended that California's more
protective wage and hour laws may be applied concurrently
with the minimum guarantees of their federal counterpart.
See 29 U.S.C. § 201, et seq.
Newton's opposition did not explain the complaint's
allegation that some of Parker's allegedly unlawful
conduct occurred in California rather than on the OCS, but
did request that if the district court were to grant
Parker's motion, it do so "without prejudice to
allow Plaintiff to correct any
district court granted Parker's motion for judgment on
the pleadings, reasoning that "under [the] OCSLA,
federal law governs and state law only applies to the extent
it is necessary 'to fill a significant void or gap'
in federal law." Finding no significant voids or gaps in
the FLSA, the district court held that Newton could not
invoke California wage and hour laws as surrogate federal
law. The district court reached this decision after
considering the Department of Labor (DOL) regulations
elaborating the FLSA. While recognizing that the FLSA has a
savings clause that expressly allows for more protective
state minimum wage and overtime laws, the district court
nevertheless concluded that California wage and hour claims
were unavailable to Newton. The district court did not
address Newton's request for leave to amend. Newton
STANDARD OF REVIEW
dismissal on the pleadings pursuant to Rule 12(c) is reviewed
de novo. Lyon v. Chase Bank USA, N.A., 656
F.3d 877, 883 (9th Cir. 2011). "Dismissal without leave
to amend is improper unless it is clear, upon de
novo review, that the complaint could not be saved by
any amendment." Thinket Ink Info. Res.,
Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th
for any claims that may have arisen while Newton was
transiting to and from the offshore drilling platforms where
he worked, Newton's grievances relate to his employment
on the OCS, and the parties agree that the fate of
Newton's appeal rests on the OCSLA's choice of law
provision. See 43 U.S.C. § 1333(a)(2)(A).
The Outer Continental Shelf Lands Act
OCSLA's Choice of Law Provision
outer Continental Shelf generally refers to submerged lands
lying more than three miles offshore, outside the territorial
jurisdiction of the states. See 43 U.S.C.
§§ 1331(a), 1301(a)(2); Valladolid v. Pac.
Operations Offshore, LLP, 604 F.3d 1126, 1130 (9th Cir.
2010). Subject to certain exceptions and conditions, the
OCSLA declares that the Constitution and laws of the United
States extend to the outer Continental Shelf, as well as
"all artificial islands, and all installations and
other devices permanently or temporarily attached to the
seabed . . . for the purpose of exploring for,
developing, or producing resources therefrom . . . to the
same extent as if the outer Continental Shelf were an area of
exclusive Federal jurisdiction located within a State."
43 U.S.C. § 1333(a)(1) (emphasis added). OCSLA's
assertion of jurisdiction is unique because it comprises the
ocean floor but not the waters above it. "[T]he
jurisdiction asserted is a 'horizontal jurisdiction'
and does not affect the status of superjacent waters."
Warren M. Christopher, The Outer Continental
Shelf Lands Act: Key to a New Frontier, 6 Stan. L. Rev.
23, 34 (1953) (citing S. Rep. No. 83-411, at 2 (1953)). The
OCSLA's choice of law provision declares:
To the extent that they are applicable and not
inconsistent with this subchapter or with other Federal
laws and regulations of the Secretary now in effect or
hereafter adopted, the civil and criminal laws of each
adjacent State, now in effect or hereafter adopted, amended,
or repealed are declared to be the law of the United States
for that portion of the subsoil and seabed of the outer
Continental Shelf, and artificial islands and fixed
structures erected thereon, which would be within the area of
the State if its boundaries were extended seaward to the
outer margin of the outer Continental Shelf, and the
President shall determine and publish in the Federal Register
such projected lines extending seaward and defining each such
43 U.S.C. § 1333(a)(2)(A) (emphasis added). Because the
OCSLA makes plain that the laws of the adjacent state are to
apply to drilling platforms fixed to the seabed of the outer
Continental Shelf as long as state law is "applicable
and not inconsistent with . . . Federal laws, " the
parties' dispute turns on the interpretation of the terms
"applicable" and "not inconsistent."
Supreme Court has not been called upon to decide a case
involving wage and hour laws on the OCS. Both Newton and
Parker ask us to look to the Fifth Circuit's
interpretation of the OCSLA for guidance. Though the parties
disagree as to the Fifth Circuit's prevailing test for
choice of law on the OCS, they both argue that we ought to
follow the Fifth Circuit's lead and adopt the approach it
has taken in cases involving injury, wrongful death, and
contract claims arising on the OCS. Newton urges that the
Fifth Circuit's test is the one set out in Union
Texas Petroleum Corp. v. PLT Engineering, Inc., 895 F.2d
1043 (5th Cir. 1990) (PLT). According to Newton,
platform workers may bring state wage and hour claims to the
extent that state law is not inconsistent with existing
federal law, see Breton Energy, L.L.C. v. Mariner Energy
Res., Inc., 764 F.3d 394, 398 (5th Cir. 2014), and
California's wage and hour laws are not inconsistent with
the FLSA insofar as they are preserved by the FLSA's
savings clause. Relying on Continental Oil, 417 F.2d
at 1036, Parker argues that the FLSA is a comprehensive
statutory and regulatory scheme that leaves no voids or gaps
for state law to fill, so state wage and hour laws do not
apply on the OCS and Newton's grievances may be redressed
only by the FLSA.
examined the text of the original OCSLA and its 1975
amendment, the legislative history, and the Supreme
Court's case law addressing the Act, we hold that state
wage and hour laws are adopted as surrogate federal law on
the OCS as long as they are "applicable and not
inconsistent" with existing federal law.
Origins of the OCSLA
OCSLA grew out of a dispute, which first developed in the
1930's, between the adjacent States and the Federal
Government over territorial jurisdiction and ownership of the
OCS and, particularly, the right to lease the submerged lands
for oil and gas exploration." Shell Oil Co. v. Iowa
Dep't of Revenue, 488 U.S. 19, 26 (1988).
Passed in 1953, "[t]he purpose of the [OCSLA] was to
define a body of law applicable to the seabed, the subsoil,
and the fixed structures such as [drilling platforms] on the
outer Continental Shelf." Rodrigue v. Aetna Cas.
& Sur. Co., 395 U.S. 352, 355 (1969).
initially considered extending maritime law to the OCS, but
it envisioned that 10, 000 or more people might eventually be
employed on the OCS to develop mineral
resources. See 99 Cong. Rec. 6963-64 (1953);
Shell Oil, 488 U.S. at 27 n.8. Anticipating a broad
range of activity associated with this mineral resource
development, Congress feared that federal law, standing
alone, would be inadequate because it "was never
designed to be a complete body of law in and of itself."
99 Cong. Rec. 6963 (1953). Congress also rejected the
incorporation of the OCS into the boundaries of the several
states, see S. Rep. No. 83-411, at 6 (1953),
deciding instead that existing federal law and the law of the
abutting state (except for state taxation laws) were to comprise
the body of law governing the OCS. Because the Department of
Justice and several members of Congress voiced concerns that
the prospective incorporation of state laws on the OCS might
be an unconstitutional delegation of Congress's
legislative authority, S. Rep. No. 83-411, at 33 (1953);
see 99 Cong. Rec. 6963-64 (1953), the OCSLA only
borrowed state law then in existence. Thus, as originally adopted
in 1953, "applicable" state law for purposes of
§ 1333(a)(2)(A) referred to state non-tax law, in
existence on the effective date of the Act, that bore on the
relevant subject matter.
"applicable" state law for purposes of §
1333(a)(2)(A) changed in 1975 when Congress enacted the
Deepwater Port Act, 33 U.S.C. §§ 1501, et
seq., and simultaneously amended the OCSLA, see
Pub. L. No. 93-627, § 19(f), 88 Stat. 2176 (1975). By
then, United States v. Sharpnack, 355 U.S. 286
(1958), had allayed the concern that the prospective adoption
of state law might amount to an unconstitutional delegation
of congressional legislative authority. The 1975
amendment redefined state law in § 1333(a)(2)(A) as
"the civil and criminal laws of each adjacent State, now
in effect or hereafter adopted, amended, or
repealed." § 1333(a)(2)(A) (emphasis added).
This amendment ensured that the same law governed resource
development structures on the OCS and deep water
ports.The OCSLA's choice of law provision has
not undergone significant statutory amendments since 1975.
Judicial Interpretation of the OCSLA
Supreme Court first applied the OCSLA's choice of law
provision in Rodrigue v. Aetna Casualty & Surety
Co., 395 U.S. 352, 355 (1969). The families of two
workers who perished on drilling rigs fixed to the outer
Continental Shelf off the Louisiana coast brought claims
pursuant to Louisiana state law and the Death on the High
Seas Act (High Seas Act). 395 U.S. at 352-53 (1969);
see 46 U.S.C. §§ 30301-08. The High Seas
Act provides an admiralty remedy for deaths resulting from
traditional maritime activity on the high seas, i.e., in
waters three or more nautical miles from shore. See
Rodrigue, 395 U.S. at 359. The trial courts in the two
cases that were consolidated in the Rodrigue appeal
dismissed the state wrongful death claims, ruling that the
federal statutory remedy was exclusive. Id. at
353-54. The Fifth Circuit affirmed that ruling, but the
Supreme Court reversed. Id. at 355. The Supreme
Court explained that the OCSLA requires fixed drilling
platforms to be treated as artificial islands or federal
enclaves within a landlocked state, not as vessels.
Id. As such, "the [federal] admiralty action
under the [High] Seas Act no more applies to these accidents
actually occurring on the islands than it would to accidents
occurring in an upland federal enclave."Id. at
366. Moreover, since the accidents befalling the workers
"involved no collision with a vessel, and the ...