Capron v. Massachusetts Attorney General

United States Court of Appeals
For the First Circuit

No. 17-2140

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.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Torruella, Lynch, and Barron,
Circuit Judges.

Joan A. Lukey, with whom Justin J. Wolosz and Choate Hall &
Stewart LLP were on brief, for appellants.
Ryan P. McManus, Donna A. Mizrahi, and Hemenway & Barnes LLP
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, 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.

December 2, 2019
 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

- 3 -
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
Our conclusion accords with the only other precedent to
address the issue. See Beltran v. InterExchange, Inc., 176 F.
Supp. 3d 1066, 1083–84 (D. Colo. 2016).

- 4 -
 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:

- 5 -
 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

2 The "participants" in a DOS-designated exchange visitor
program are also called "exchange visitors" in the regulations.
22 C.F.R. §§ 62.1(b), 62.2 (defining "Exchange Visitors").

- 6 -
 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).

- 7 -
 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

- 8 -
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, au pairs, academics,

teachers, and camp counselors. See id. The section of the DOS

"Exchange Visitor Program" regulations at issue governs exchange

visitor programs for "au pair participants." Id. § 62.31(a).

These programs are also known as "au pair exchange program[s]."

Id. § 62.31(c).

In 1986, the United States Information Agency ("USIA"),

which was -- until 1999 -- responsible for the implementation of

the Fulbright-Hays Act, established au pair exchange programs on

a two-year, pilot basis. See Exchange Visitor Program, 59 Fed.

Reg. 64,296 (Dec. 14, 1994) (to be codified at 22 C.F.R. pt. 514)

(describing the 1986 program); see also Foreign Affairs Reform and

Restructuring Act of 1998, Pub. L. No. 105-277, div. G, §§ 1311-

1314, 112 Stat. 2681, 2681-776 (codified at 22 U.S.C. §§ 6531-

6533) (dissolving the USIA and transferring implementation of the

Fulbright-Hays Act to DOS). This two-year pilot, the USIA later

- 9 -
observed, had "rather non-specific program guidelines." See 59

Fed. Reg. at 64,296, 64,299 (describing the preexisting program).

After the two-year trial period ended, the USIA decided

not to designate the au pair exchange programs permanently due to

a concern that "the programs were outside the Agency's statutory

authority to oversee educational and cultural exchange

activities." Id. Nevertheless, because of the substantial

interest in the program, Congress enacted "special legislation" to

"obligat[e]" the USIA to continue the programs. Id. Congress

also directed the United States General Accounting Office ("GAO")

to examine them. See U.S. Gov't Accountability Office, GAO-90-

61, U.S. Information Agency: Inappropriate Uses of Educational and

Cultural Exchange Visas 19 (1990).

A GAO report, issued in 1990, determined that the pilot

au pair exchange programs were not consistent with the intent of

the Fulbright-Hays Act. Id. The report questioned whether the au

pair exchange programs were properly designated as employment or

cultural programs -- and thus the report questioned which federal

agency should run the programs. Id. The GAO report noted the

concern expressed by the United States Department of Labor ("DOL")

that the "au pair program violates the spirit of the J-visa

statute" because "a 40-hour week constitutes full-time employment,

and, as such . . . [t]hese [foreign] workers would normally have

to receive certification from the [DOL] that enough qualified U.S.

- 10 -
workers were not available and that the wages and working

conditions attached to job offers would not adversely affect

similarly employed U.S. workers." Id. Thus, the GAO report

concluded, "[a]s currently structured, au pair programs would

normally be subject to [DOL] administrative review and

certification." Id. at 20.

Notwithstanding the concerns raised in the GAO report,

Congress directed the USIA, pursuant to a new statute, to continue

to implement the au pair exchange programs "until [they] could be

transferred to a more appropriate federal agency." 59 Fed. Reg.

at 64,296-97; see Eisenhower Exchange Fellowship Act of 1990, Pub.

L. No. 101-454, 104 Stat. 1063. In 1994, Congress passed the

Technical Amendments to the State Basic Authorities Act, Public

Law 103-415, which authorized the USIA "to promulgate regulations

specifically governing the au pair programs." 59 Fed. Reg. at

64,297.

In 1994, the USIA promulgated interim final regulations

"to govern the au pair programs [in ways that are] consistent with

the provisions of the Fulbright-Hays Act." Id. Those interim

final regulations established the first iteration of what we refer

to as the "Au Pair Program." Id.

The 1994 interim final regulations stated that "[a]u

pair programs permit foreign nationals to enter the United States

for a period of one year for the purpose of residing with an

- 11 -
American host family while participating directly in the home life

of the family and providing limited childcare services." Id. at

64,296. They also contained a provision entitled "Stipend and

hours," which obliged sponsors to "require that au pair

participants . . . are compensated" -- presumably by their host

families, though the provision does not specify who must pay the

participants for the childcare services that they provide -- "at

a rate of not less than $155.00 per week." Id. at 64,300. The

provision obliged sponsors to require that participants would

receive weekly compensation at least equal to the wage due to them

under the FLSA if the participants had provided the full amount of

childcare services that they were permitted under the program to

provide to their host family in a given week, regardless of whether

the participants actually had done so. In this way, the provision

ensured that compensation for the participants would comply with

the FLSA in the event that the DOL would deem the participants

"employees" within the meaning of that statute. Id. at 64,298

(amending 22 C.F.R. § 514.31, though 22 C.F.R. § 514.31 has since

been redesignated).

In 1995, the USIA revised that provision to oblige

sponsors to "require that au pair participants . . . [a]re

compensated at a rate of not less than $115.00 per week." Exchange

Visitor Program, 60 Fed. Reg. 8547, 8553 (Feb. 15, 1995) (to be

codified at 22 C.F.R. pt. 514). Once again, the USIA did so in a

- 12 -
manner that was intended to ensure that participants would not be

paid less than the FLSA-prescribed minimum wage for domestic

workers who qualified as "employees." Id. at 8551.

The USIA then revised this provision once more in 1997.

The USIA did so this time in response, in part, to a formal

determination by the DOL that au pair participants are "employees"

within the meaning of the FLSA and thus that "au pair participants

are covered under the provisions of the [FLSA] and therefore must

receive federal minimum wage." Exchange Visitor Program, 62 Fed.

Reg. 34,632, 34,633 (Jun. 27, 1997) (to be codified at 22 C.F.R.

pt. 514).

The USIA at that time revised the "Stipend and hours"

provision to instead be titled "Wages and hours." Id. at 34,634.

That provision was also revised at that time to state that

"[s]ponsors shall require that au pair participants . . . [a]re

compensated at a weekly rate based upon 45 hours per week and paid

in conformance with the requirements of the [FLSA] as interpreted

and implemented by the [DOL]." Id.3 Congress then permanently

3
The plaintiffs assert that the District Court incorrectly
"suggested that the federal government has [since] 'abandoned'"
the formula establishing an au pair's minimum wage requirements
set out in the 1997 regulations, which was a formula based on the
federal minimum wage multiplied by a presumed 45-hour work week
minus a deduction for the costs of room and board. But, the
District Court merely accurately described how the text of the
regulations had changed over time.

- 13 -
authorized the Au Pair Program. See An Act to Provide Permanent

Authority for the Administration of Au Pair Programs, Pub. L. No.

105-48, 111 Stat. 1165 (1997).

The DOS now promulgates the au pair exchange program

regulations. Compare id. with 22 C.F.R. § 62.31(j)(1). The

current DOS version of the regulations describes the "objectives"

of this type of exchange visitor program as "afford[ing]" to

"foreign nationals" the "opportunity to live with an American host

family and participate directly in the home life of the host

family" while providing "up to" 45 hours a week of childcare

services to the host family and also pursuing a post-secondary

education. 22 C.F.R. § 62.31(a)-(b). The current version of these

regulations also includes a "Wages and hours" provision that

mirrors the one in the 1997 version of the USIA's au pair exchange

program regulations. That provision states: "Sponsors shall

require that au pair participants [a]re compensated at a weekly

rate based upon 45 hours of child care services per week and paid

in conformance with the requirements of the [FLSA] as interpreted

and implemented by the [DOL.]" Id. § 62.31(j)(1).

The current version of the regulations that govern au

pair exchange programs authorizes the DOS to designate a "bona

fide program[]" of this type as an "exchange visitor program" if

it "satisf[ies]" the specified "objectives" and if the "sponsor"

meets certain "eligibility" requirements, as well as the

- 14 -
regulations' "Wages and hours" requirements. Id. § 62.31(b)-(c),

(j). Sponsors that fail to meet those requirements or that fail

to "[e]nforce and monitor host family's compliance with the stipend

and hours requirements" may face "immediate program revocation

procedures." Id. § 62.31(n). The DOS au pair exchange program

regulations do not provide that an au pair exchange program

participant may enforce against a sponsor -- let alone against a

host family -- the only sanctions that the regulations specify.

See generally id. § 62.31.

3.

The au pair exchange program regulations, through their

"Wages and hours" provision, cross-reference the FLSA's

"requirements." 22 C.F.R. § 62.31(j)(1). We thus briefly review

the obligations that the FLSA and the DOL's regulations that

implement the FLSA impose on the employers of domestic workers, as

those "requirements" serve as the reference point under the Au

Pair Program for calculating the weekly compensation that sponsors

must require that au pair participants receive.

Under the FLSA, "employer[s] shall pay to each of [their]

employees" a minimum hourly wage that is currently set at $7.25

per hour. 29 U.S.C. § 206(a). In 1974, Congress amended the FLSA

so that it would apply to domestic workers and their employers.

Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, 88

Stat. 55 (codified as amended in scattered sections of 29 U.S.C.).

- 15 -
This amendment imposed a new requirement on employers of domestic

workers to pay the federally mandated minimum wage. Id. However,

the amendments exempt live-in domestic workers from the provisions

that require employers pay to employees time-and-a-half for

overtime. See 29 U.S.C. § 213(b)(21).

In implementing these amendments in 1975, the DOL

promulgated regulations that imposed certain recordkeeping

obligations on employers of domestic workers and that permitted

those employers to deduct the costs of the domestic worker's room

and board from the domestic worker's pay. Extension to Domestic

Service Employees, 40 Fed. Reg. 7404 (Feb. 20, 1975) (to be

codified at 29 C.F.R. pt. 552). Employers were to calculate such

deductions either by using a fixed credit that totaled $36 per

week or by deducting their actual costs for room and board,

provided that the employers kept records to support those itemized

deductions. Id. at 7406. The current version of these DOL

regulations permit employers of domestic workers to take

deductions either by using a fixed credit amount that is tied to

a percentage of the federal minimum wage or by deducting their

actual, itemized costs, if the itemized deductions are supported

by adequate records. 29 C.F.R. § 552.100(c)-(d).

The FLSA contains a savings clause. 29 U.S.C. § 218(a).

It provides that "[n]o provision of this chapter or of any order

thereunder shall excuse noncompliance with any Federal or State

- 16 -
law or municipal ordinance establishing a minimum wage higher than

the minimum wage established under this chapter." Id.

B.

We now turn to the state law measures. Like the federal

ones, they consist of a mix of statutory and regulatory provisions.

1.

We start with the Massachusetts Fair Wage Law. It

requires that all "employer[s]" pay a minimum wage set, as of

January 1, 2019, at $12 per hour, except in certain circumstances

that are not relevant here. Mass. Gen. Laws ch. 151, § 1. A

different section of the Massachusetts Fair Wage Law requires that

"employer[s]" pay "employee[s]" at a rate of time-and-a-half for

all hours that the "employee[s]" work in a week beyond 40 hours.

Id. § 1A.

2.

We next describe the Massachusetts Domestic Workers Bill

of Rights Act ("DWBORA"). Enacted in 2014, it sets forth workplace

protections -- including concerning wages and hours -- for

"domestic workers." 2014 Mass. Acts ch. 148, § 3 (codified at

Mass. Gen. Laws ch. 149, §§ 190-191). The DWBORA defines

"domestic worker[s]" to include, in relevant part, "individual[s]

or employee[s]" providing "nanny services" and "other household

services for members of households . . . in private homes." Mass.

Gen. Laws ch. 149, § 190(a).

- 17 -
 The DWBORA also authorizes the Attorney General to

promulgate regulations to implement its provisions, which the

Attorney General has done. Id. § 190(o); see 940 Mass. Code Regs.

32.00-.06. We now describe the Attorney General regulations that

are relevant to this appeal.

Whenever a domestic worker clocks more than 40 hours of

"working time" in a given week, the Attorney General's regulations

require that he or she be "compensated at the overtime rate for

all hours worked over 40 per week pursuant to [the Massachusetts

Fair Wage Law]." 940 Mass. Code Regs. 32.03(3). One of the

regulations that implements the DWBORA defines "working time" as

"[c]ompensable time that includes all time during which a domestic

worker is required to be on the employer's premises or to be on

duty." Id. 32.02. This definition also defines "working time" to

include "meal periods, rest periods, and sleep periods

unless . . . a domestic worker is free to leave the employer's

premises and use the time for the domestic worker's sole use and

benefit and is completely relieved of all work-related duties."

Id. The regulation provides, however, that employers and domestic

workers may enter into an advance written agreement that excludes

"meal periods, rest periods, and sleep periods." Id.

Other regulations that implement the DWBORA concern the

deductions that an employer may take from a domestic worker's wages

for the costs of that domestic worker's food and lodging. These

- 18 -
regulations limit these deductions to $1.25 for breakfast, $2.25

for lunch, $2.25 for dinner, and to $35 per week for a single-

occupancy room. Id. 32.03(5)(b)-(c). These deductions must be

agreed to, in advance and in writing, by the domestic worker.

Id. 32.03(5)(a).

Finally, the regulations that implement the DWBORA

impose recordkeeping requirements on the employers of domestic

workers. For example, the employers of domestic workers must keep

and retain for a period of three years records concerning the

domestic workers' wages and hours, the rate of their pay, the costs

for their meals and lodging, and various workplace policies, such

as benefits afforded, required notice of termination, and job

responsibilities. See id. 32.04(2)-(3). In addition, the

employers of domestic workers must keep time sheets that reflect

the compensable working time of the domestic worker for each day

over a two-week period and provide the domestic worker an

opportunity to review and contest that accounting of hours. Id.

32.04(4).

3.

The parties agree that the Attorney General considers au

pair exchange program participants to be "domestic workers" and

their host families to be "employers" within the meaning of the

DWBORA. The parties also agree that au pair participants are

"employees" within the meaning of the Massachusetts Fair Wage Law.

- 19 -
 II.

The parties ask us to resolve two preliminary issues.

They concern, respectively, the scope and the nature of the

plaintiffs' preemption claims.

The "scope" issue arises because, although the

complaint's prayer for relief does not mention the Massachusetts

Fair Wage Law, the plaintiffs contend that their preemption

claims -- and thus their request for injunctive and declaratory

relief -- encompass that law. The Attorney General contends,

however, that the plaintiffs' preemption challenge is confined to

the DWBORA and its implementing regulations, because the prayer

for relief set forth in the plaintiffs' complaint refers only to

those specific state law measures. Our review of this issue is de

novo. Carter v. Ford Motor Co., 561 F.3d 562, 565 (6th Cir. 2009).

"A plaintiff's failure to seek a remedy in its complaint

does not necessarily forgo that remedy." Town of Portsmouth v.

Lewis, 813 F.3d 54, 61 (1st Cir. 2016). Thus, "a district court

need not dismiss a cause of action upon which relief is plausible,

even if that relief was not sought in the complaint." Id.

The plaintiffs' complaint expressly alleges that the

requirement that au pair participants comply with the

Massachusetts minimum wage, as prescribed by the Massachusetts

Fair Wage Law, "contradicts existing [DOS] requirements" about

"the federal minimum wage, which [the DOS] has chosen to use in

- 20 -
calculating the amount of the [au pair's] weekly stipend." In

addition, the District Court's opinion addressed whether the

Massachusetts Fair Wage Law was preempted insofar as it applied to

au pair participants. In fact, at each stage of this litigation,

the Attorney General has argued that the Massachusetts Fair Wage

Law's minimum wage requirement applies to au pair participants.

Thus, there is no unfair surprise to the Attorney General in our

consideration of whether the DOS regulations preempt the

Massachusetts minimum wage that the Massachusetts Fair Wage Law

generally establishes for those who qualify as "domestic workers"

under the DWBORA, insofar as that minimum wage requirement applies

to the host families as the employers of au pair participants.

See Lewis, 813 F.3d at 61 (explaining that complaints should

generally be read broadly, except when it would be likely to

prejudice a defendant).

The "nature" issue arises because the plaintiffs contend

that they need only establish that the challenged state "laws are

invalid" as applied to the "Au Pair Program." The plaintiffs

argue that they need not show that "no set of circumstances exists"

under which the challenged laws would be valid in any application.

Even though the plaintiffs' preemption challenges are facial in

nature, we agree with the plaintiffs. See John Doe No. 1 v. Reed,

561 U.S. 186, 194 (2010) (explaining that the particular label of

the claim -- facial versus as applied -- "is not what matters" and

- 21 -
that "[t]he important point" is that the plaintiffs must "satisfy

our standards for a facial challenge to the extent of [the] reach"

of their claims). In fact, we do not understand the defendants to

contend otherwise or the District Court to have ruled otherwise.4

III.

We now turn to the heart of the dispute: are the state

law measures at issue -- in whole or in part -- preempted, insofar

as they protect au pair participants by imposing obligations on

their host families as their employers that may be enforced against

those host families?5 The Supremacy Clause provides that federal

4 This case does arise in the pre-enforcement context, but
the preemption claims involve "purely legal questions, where the
matter can be resolved solely on the basis of the state and federal
statutes at issue," Labor Relations Div. of Constr. Indus. of
Mass., Inc. v. Healey, 844 F.3d 318, 327 (1st Cir. 2016)(quoting
Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 759 (7th Cir. 2008)).
There also is no question that Massachusetts intends to enforce
the challenged state law measures to protect au pair participants
insofar as they are denied the protection that those measures
afford their employers. See id.
5 The plaintiffs allege in their complaint that, in the spring
of 2015, the Office of the Attorney General of Massachusetts
("OAG") "suggested that Sponsors should be considered non-exempt
'placement agencies' -- and therefore potentially also employers
-- under the [DWBORA] and the MA regulations. The meeting
terminated without clarity as to whether the MA OAG ultimately
would, or would not, interpret the MA Act as applying to [Cultural
Care]." The plaintiffs asked the District Court to conclude that
the state law measures were preempted and could not be enforced
against Cultural Care or Cultural Care's host families. In so
doing, the plaintiffs did not develop an argument in support of
those preemption claims that depends on the state law measures
being enforced against Cultural Care, as a sponsor, and instead
focused their argument on why the state law measures were preempted

- 22 -
law "shall be the supreme Law of the Land . . . any Thing in the

Constitution or Laws of any State to the Contrary notwithstanding."

U.S. Const. art. VI, cl. 2. This Clause gives Congress "the power

to preempt state law," which Congress may exercise either expressly

or impliedly. Arizona v. United States, 567 U.S. 387, 399 (2012).

A federal agency, however, also may preempt state law through its

regulations, and a federal agency, too, may do so either expressly

insofar as they could be enforced against the host families as
employers of au pair participants. The District Court in rejecting
the plaintiffs' preemption claims did not address, specifically,
whether the DWBORA and its regulations -- or the state's minimum
wage -- could be enforced against sponsors and not just the host
families themselves.
On appeal, the plaintiffs refer to the "Au Pair Program"
but, once again, do not develop an argument for preemption that
depends on the application of the state law measures to sponsors
rather than to host families. Instead, in their briefing to us,
the plaintiffs refer only to the obligations that the state law
provisions at issue would impose on host families, in consequence
of the childcare services that au pair participants provide to
them through the Au Pair Program. We thus do not have the distinct
question before us on appeal whether the DWBORA and its
implementing regulations or the Fair Wage Law, as applied to
sponsors in particular, are preempted by the federal regulations
that govern sponsors of au pair exchange visitor programs. Nor is
it clear that such a challenge to the enforceability of those
measures against the sponsors would be ripe. See Labor Relations
Div., 844 F.3d at 327 (finding a preemption challenge unripe where
the nature of and legal basis for the state law enforcement action
was uncertain). We emphasize, though, that it is clear that
Cultural Care, even though it is a sponsor rather than a host
family, would be directly impacted by an application of the
relevant state law provisions to host families, in light of
Cultural Care's allegations about the impact that such application
to host families would have on Cultural Care's ability to find
host families with which to place au pair participants and the
host family plaintiffs' allegations about their intention to serve
as host families in the future.

- 23 -
or impliedly. See Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta,

458 U.S. 141, 153 (1982).

The plaintiffs assert only implied preemption. There

are two types -- field preemption and conflict preemption, which

itself comes in two varieties: obstacle preemption and

impossibility preemption. We begin with the plaintiffs' field

preemption claim. We then consider their conflict preemption

claims, which concern only obstacle preemption.

The burden to prove preemption is on the plaintiffs.

See United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 9 (1st

Cir. 2005). That is so even if the presumption against preemption

that often applies to implied preemption claims does not apply

here. Lusnak v. Bank of Am., N.A., 883 F.3d 1185, 1191 (9th Cir.),

cert. denied, 139 S. Ct. 567 (2018).

A.

States may not regulate "conduct in a field that

Congress, acting within its proper authority, has determined must

be regulated by its exclusive governance." Arizona, 567 U.S. at

399 (citing Gade v. Nat'l Solid Waste Mgmt. Ass'n, 505 U.S. 88,

115 (1992)(Souter, J. dissenting). Thus, unlike conflict

preemption, field preemption ousts state law measures even if no

evidence shows that they would conflict with the federal regulatory

scheme either by frustrating its purposes and objectives, see Hines

v. Davidowitz, 312 U.S. 52, 67 (1941), or by imposing obligations

- 24 -
that it would be impossible for the regulated party to comply with

and also comply with the obligations that the federal regulatory

scheme imposes, see Wyeth v. Levine, 555 U.S. 555, 589-90 (2009).

The federal government's intent to preempt a field instead "can be

inferred from [1] a framework of regulation 'so pervasive

. . . that'" it leaves "'no room for the States to supplement it'

or [2] where there is a 'federal interest . . . so dominant that

the federal system will be assumed to preclude enforcement of state

laws on the same subject.'" Arizona, 567 U.S. at 399 (quoting

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

The plaintiffs contend that the detailed and

comprehensive nature of the DOS au pair exchange program

regulations warrants the inference that the DOS intended to

exclusively govern a field of state regulation that encompasses

the Massachusetts wage and hour measures, insofar as these measures

may be enforced to protect the rights of au pair participants

against their host families as their employers. The plaintiffs

further contend that the dominance of the federal interests that

the Au Pair Program implicates -- namely, the federal foreign

affairs interest in regulating immigration and the federal foreign

- 25 -
affairs interest in managing foreign relations -- supports this

same inference.6

We review de novo the District Court's finding that there

is no field preemption. See Bower v. Egyptair Airlines Co., 731

F.3d 85, 92 (1st Cir. 2013). We conclude that the District Court

did not err in rejecting the plaintiffs' field preemption claim.

1.

In De Canas v. Bica, the United States Supreme Court

considered a claim that "Congress, in enacting the [Immigration

and Nationality Act ("INA")], intended to oust state authority to

regulate" the employment of undocumented aliens "in a manner

consistent with pertinent federal laws" due to the comprehensive

and detailed nature of that federal statute. 424 U.S. 351, 357

(1976). The Court applied the presumption against preemption, see

id. at 360-61, notwithstanding that the INA represented an exercise

6 The plaintiffs also make a textual argument for finding
field preemption based on the DOS "Exchange Visitor Program"
regulations as a whole, which specifically require sponsors of
certain other types of exchange visitor programs -- but not of au
pair exchange programs -- to ensure that those who employ
participants in those programs comply with state wage and hour
laws. The plaintiffs contend that we thus must infer -- by
negative implication -- that the DOS did intend to preempt a field
that would encompass state wage and hour laws that protect au pair
participants. As the plaintiffs make this same argument in a more
developed fashion in support of their claim of obstacle preemption,
see Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372 n.6
(2000) ("[w]e recognize, of course, that the categories of
preemption are not "rigidly distinct"), we explain our reasons for
rejecting the argument in that portion of our opinion, see infra
Section III.B.2.

- 26 -
of the federal government's power over immigration and thus

implicated the federal government's power over foreign affairs,

see id. at 353.

De Canas explained that the Court had "never held that

every state enactment which in any way deals with aliens is a

regulation of immigration and thus per se pre-empted by this

constitutional power, whether latent or exercised." Id. at 355.

De Canas added that the state laws at issue were not deciding "who

should or should not be admitted into the country and the

conditions under which a legal entrant may remain," as they merely

concerned the power to employ undocumented aliens already in the

country. Id.

The Court also explained that the state law measures --

which regulated employment -- concerned a quintessentially local

area of regulation. See id. at 356-57. This fact, the Court

determined, also counseled against inferring that Congress

intended to preempt the relevant field through the INA. Id.

With the presumption against preemption in place, the

Court then held that "[t]he comprehensiveness" of the INA, "without

more[,]" was not sufficient to establish the "clear and manifest"

congressional intent to oust state law that is required to overcome

the presumption against preemption. Id. at 357, 359. Accordingly,

the Court rejected the claim of field preemption, id., concluding

that the "nature and complexity" of the federal subject matter

- 27 -
made the "detailed statutory scheme . . . likely and appropriate,

completely apart from any questions of pre-emptive intent," id. at

359-60 (quoting New York Dep't of Social Servs. v. Dublino, 413

U.S. 405, 415 (1973)).

The plaintiffs do not dispute that the presumption

against preemption that De Canas applied would be especially

difficult to overcome here. The details of the federal program in

this case are set forth in federal regulations, not a federal

statute. See Hillsborough Cty. v. Automated Med. Labs., Inc., 471

U.S. 707, 717-18 (1985) (justifying a reluctance to infer

preemptive intent from the comprehensiveness of regulations based

in part on the "variety of means, including regulations, preambles,

interpretive statements, and responses to comments" through which

an agency can "make their intentions clear if they intend for their

regulations to be exclusive").

In fact, we do not understand the plaintiffs to argue

that, insofar as the presumption against preemption does apply,

their field preemption claim can succeed. The plaintiffs contend,

however, that the presumption against preemption on which De Canas

relied does not apply.

The plaintiffs rely on Buckman Co. v. Plaintiffs' Legal

Committee, 531 U.S. 341, 347 (2001), for that assertion. They

contend that the assertedly preemptive federal measures here

operate in fields that are "inherently federal in character," id.,

- 28 -
foreign relations and immigration, and thus that, under Buckman,

the presumption against field preemption that the Supreme Court

applied in De Canas does not apply. But, Buckman -- which

concerned conflict, not field preemption, id. at 348 -- explained

that the presumption against preemption did not apply there because

the "federal enactments [were] a critical element" in the state

law claim in that case. See id. at 353. The state employment

laws that the plaintiffs seek to preempt here, however, are

generally applicable to all domestic workers. Thus, they are not

predicated on the existence of the federal au pair exchange program

regulations. See Mass. Gen. Laws ch. 149, §§ 190-191; 940 Mass.

Code Regs. 32.00 et seq.7

7 The DOS, we note, in its amicus filing, invokes Wachovia
Bank, N.A. v. Burke, 414 F.3d 305, 314 (2d Cir. 2005), to argue
that there is no presumption against preemption if federal
authority has occupied the field "for an extended period of time."
But, Wachovia, which concerned the preemptive effect of the federal
regulation of national banks, did not purport to hold that the
presumption against preemption has no application to a federal
regulatory scheme merely because it implicates, in some manner, a
"field[] of regulation that ha[s] been substantially occupied by
federal authority for an extended period of time." 414 F.3d at
314 (citing Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178, 183
(2d Cir. 2005)). Nor, in light of De Canas, do we see how Wachovia
could be read to stand for such a proposition. We note, too, that
Wachovia addresses the application of the presumption against
preemption only in connection with the question of whether Congress
intended to authorize the federal agency charged with regulating
national banks to preempt state laws that purported to regulate
such banks and not with respect to the question of whether the
federal agency itself had intended to do so. There was no dispute
in that case -- as there plainly is here -- concerning the intent
of the federal agency with respect to preemption.

- 29 -
 Even if we were to agree that the presumption against

field preemption does not apply, the plaintiffs would still bear

the burden of proving that the Au Pair Program does preempt the

relevant field. And, as we will next explain, we find unpersuasive

the plaintiffs' arguments as to why there is affirmative evidence

of a field preemptive intent here.

2.

The plaintiffs emphasize that the DOS regulations that

establish the Au Pair Program are detailed and comprehensive. But,

we do not see why, especially in light of the reasoning in De

Canas, that fact alone justifies the inference that the federal

government intended the Au Pair Program to preempt a field that

would encompass the state law measures at issue. As in De Canas,

we conclude that here, too, a "detailed [federal] scheme [is]. . .

likely and appropriate, completely apart from any questions of

pre-emptive intent." 424 U.S. at 360 (quoting Dublino, 413 U.S.

at 415).

The regulations set forth detailed requirements that the

DOS may enforce through sanctions. The regulations are directed

at the sponsors, however, and the sanctions that the DOS may

enforce apply to them, not the host families themselves. The

sanctions also merely limit or end -- save for exceptions not

relevant here -- the ability of the sponsors to continue to conduct

DOS-approved au pair exchange programs. Thus, the DOS's decision

- 30 -
to promulgate detailed and comprehensive regulations, given that

they govern and sanction sponsors, does not support an inference

that the DOS thereby intended to oust state employment laws that

define, as part of a generally applicable regulatory scheme, the

rights and duties of au pair participants and host families with

respect to each other in their employment relationship. For, De

Canas makes clear, the mere fact that a state law implicates the

interests of persons who are the subject of federal regulation,

even with respect to immigration, does not alone provide a basis

for inferring that the federal regulatory scheme was intended to

preempt a field that encompasses such a state law, at least when

it concerns a matter of such quintessentially local concern as

employment. Cf. id. at 360-61, (explaining that federalism

concerns "require[] us not to find withdrawal from the States of

power to regulate where the activity regulated was a merely

peripheral concern of the (federal regulation)" (quoting San Diego

Unions v. Garmon, 359 U.S. 236, 243 (1959)) (second alteration in

the original)).8

8 In support of this aspect of their field preemption
challenge, the plaintiffs also invoke the conclusion in ASSE Int'l,
Inc. v. Kerry, 803 F.3d 1059, 1070–71 (9th Cir. 2015), that the
Exchange Visitor Program regulations, generally, are
"comprehensive." That case does not address, however, the question
of preemption. Rather, it concerns only whether there was
sufficient law to apply to permit review under the Administrative
Procedure Act, 5 U.S.C. §§ 551, 706, of the DOS's compliance with
those regulations. Furthermore, the Exchange Visitor Program

- 31 -
 The plaintiffs also point to the fact that the Au Pair

Program implicates the federal government's power over foreign

affairs, both with respect to immigration and foreign relations.

The plaintiffs contend that this feature of the Au Pair Program

also requires us to presume an intent to preempt the relevant

field. But, we do not agree.

Insofar as the Au Pair Program implicates the federal

power over immigration, the Court's ruling in De Canas stands in

the way of the plaintiffs' contention that, in consequence, we

must presume an intent to preempt the relevant field. The Court

made clear in De Canas that the fact that a state law applies to

aliens does not alone justify a presumption that the federal

government intended for the INA to preempt such a law. See id. at

355. Moreover, the state law employment measures at issue in De

Canas applied only if the employees were undocumented aliens, see

id. at 356, and thus, in that respect, more directly implicated

the federal power to regulate immigration (and thus foreign

affairs) than do the generally applicable state law wage and hour

measures that are at issue here. In addition, these state law

regulations at issue in ASSE Int'l did not include those governing
au pair participants. Moreover, consistent with our analysis, the
Ninth Circuit pointedly observed there that "[f]or program
sponsors, the regulations have the force of law, and there are
real consequences for failing to abide by them." Id. at 1070-71
(emphasis added).

- 32 -
measures do not purport -- as the ones at issue in De Canas did,

id. at 364, -- to preclude the foreign nationals affected by them

from being employed. They merely establish the wage and hour

rights that the foreign nationals affected by the federal

regulatory scheme enjoy if they are employed.

The plaintiffs separately contend that, because the Au

Pair Program implicates the distinct federal interest in promoting

international cultural exchange, it implicates "a 'federal

interest . . . so dominant that the federal system will be assumed

to preclude enforcement of state laws on the same subject.'"

Arizona, 567 U.S. at 399 (quoting Rice, 331 U.S. at 230). If the

states were allowed "to apply their own laws to the Au Pair

Program," the plaintiffs assert, then those states' laws "would

inevitably interfere with the federal government's exclusive power

to determine what regulations will best achieve its foreign

relations goals."

But, the plaintiffs do not account for the disjuncture

between the sponsor-based focus of the DOS regulations and the

employment-based focus of the state law measures. Nor is there

precedent that indicates that a federal program that represents an

exercise of the federal power to manage foreign relations -- even

if only through a program to promote international cultural

exchange -- must be presumed, for that reason alone, to preempt a

state law that merely implicates that power. See Am. Ins. Ass'n

- 33 -
v. Garamendi, 539 U.S. 396, 419 n.11 (2003) (explaining that, where

a state is "act[ing] within . . . its 'traditional competence,'"

it might well make sense to require some evidence of an actual

conflict between the federal and state laws in order to find

preemption on an implicit basis even when the federal law

implicates the federal interest in foreign affairs (quoting

Zschernig v. Miller, 389 U.S. 429, 459 (1968) (Harlan, J.,

concurring))).9

This case also is not one in which it would make sense

to adopt such a pro-field-preemption presumption. The plaintiffs

themselves emphasize that Congress intended for the Au Pair Program

to "promote international cooperation" and 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. It is hardly evident that a federal foreign

affairs interest in creating a "friendly" and "cooperative" spirit

with other nations is advanced by a program of cultural exchange

that, by design, would authorize foreign nationals to be paid less

9 The plaintiffs also point out that, although the au pair
regulations require that au pair participants be between the ages
of 18 and 26, Massachusetts age discrimination laws "prohibit age
discrimination against any person over the age of 40." See 40
Mass. Gen. Laws ch. 149, § 24A. But, the fact that the federal
scheme might conflict with, and thus preempt, specific sections of
Massachusetts law unrelated to a domestic worker's wage and hour
rights provides no support for the assertion that the entire field
of state wage and hour laws is preempted with respect to their
application to host families as employers of au pair participants.

- 34 -
than Americans performing similar work. We thus conclude, like

the District Court, that the plaintiffs have failed to meet their

burden to show that the federal government intended to preempt a

field that would encompass the state law measures that they

challenge.

B.

We now consider the plaintiffs' conflict preemption

claims, which concern only obstacle preemption.10 As we have noted,

the burden to establish this form of preemption is on the

plaintiffs, whether or not the presumption against preemption

applies.

The notion that underlies obstacle preemption is that

the federal government would want a federal measure to be

preemptive of any state law that "stands as an obstacle to the

accomplishment and execution of the full purposes and objectives"

of that federal measure, Hines, 312 U.S. at 67; see also Geier v.

Am. Honda Motor Co., 529 U.S. 861, 873 (2000). Thus, the

plaintiffs do not, as they did in arguing for field preemption,

ask us to infer an intent on the part of the federal government to

10The plaintiffs make no argument concerning the other
variant of conflict preemption -- known as impossibility
preemption -- because they do not dispute that it is possible for
sponsors, au pair participants, and host families alike to comply
with each of the state law measures at issue while also complying
with each of the federal ones.

- 35 -
oust a whole field of state regulation merely from the detailed

and comprehensive nature of the au pair exchange program

regulations. Nor do they ask us to infer such an intent from the

fact that the Au Pair Program implicates the federal foreign

affairs power over immigration or foreign relations. Instead,

they ask us to draw the requisite inference of an intent to oust

the state wage and hour laws at issue from what they contend are

the specific purposes and objectives that underlie that federal

program.

The plaintiffs contend in that regard as follows. The

plaintiffs argue that, to accomplish the underlying objective of

promoting international cultural exchange, Congress and the DOS

sought, in establishing the Au Pair Program, to: (1) encourage a

diverse array of American families throughout the United States to

host au pair participants, (2) encourage foreign nationals to seek

out placements with host families in all parts of the country, and

(3) ensure that the relationship between host families and au pair

participants would be marked by true cultural exchange. The

plaintiffs contend that it follows from these asserted underlying

purposes and objectives that we must infer (1) that the DOS

intended to set a uniform, nationwide ceiling on the obligations

that could be imposed by states on host families with respect to

the wage and hour rights of au pair participants; (2) that, in

service of this end, the federal government intended to establish

- 36 -
a nationwide, uniform ceiling on the recordkeeping and

administrative burdens that could be imposed on host families with

respect to au pair participants who provide in-home childcare

services to them; and (3) that the obligations set forth in the

DOS au pair exchange program regulations on sponsors themselves

constitute that ceiling.

The plaintiffs then tie up their argument for finding

obstacle preemption this way. They contend that the enforcement

of each of the challenged Massachusetts measures necessarily would

frustrate the federal objective of establishing such a nationally

uniform system of compensation. The enforcement of each such

measure, they argue, necessarily would exceed the regulatory

ceiling that the Au Pair Program established by imposing an

independent and additional state obligation on host families not

imposed by the Au Pair Program itself.11

11In setting forth this contention, the plaintiffs go into
considerable detail about the claimed burdensome impact of these
Massachusetts measures on host family obligations with respect to
compensation, recordkeeping, and administration. But, we
understand the plaintiffs to be pointing to these alleged burdens
merely to provide support for the actual premise of their obstacle
preemption claims: that the purpose of the DOS and Congress was to
establish a nationally uniform compensation and hours ceiling --
pegged in substantial part to the minimum requirements of the FLSA
-- that would preempt the wage and hour rights that states might
confer on the au pair participants themselves to enforce against
their host families. See infra Section III.B.3.a. We do not
understand the plaintiffs to be making an argument that these
particular state law measures may be deemed preemptive only because
they are especially burdensome, such that other state wage and

- 37 -
 We begin by reviewing the relevant precedents in this

area and how they bear on the plaintiffs' argument that there

should be no presumption against finding that the state law

measures in this case would pose an obstacle to the accomplishment

of the Au Pair Program's purposes and objectives. We then explain

why, reviewing the issue de novo, see Bower, 731 F.3d at 92, we

conclude that the plaintiffs have not met their burden to establish

obstacle preemption here, even if the presumption against

preemption does not apply.

1.

The plaintiffs contend, in essence, that the relevant

DOS regulations set not only a federal regulatory floor on au pair

participant wage and hour protections but also, implicitly, a

federal regulatory ceiling that limits the wage and hour

protections that states may provide to au pair participants. A

similar floor-ceiling issue arises with some frequency in disputes

over obstacle preemption. It often does so, however, in settings

that do not implicate immigration or foreign relations. It thus

often arises in settings in which the presumption against

preemption -- and thus a presumption against construing the federal

hour measures that would impose less burdensome but still
independent and additional obligations on host families would not
be preempted.

- 38 -
regulatory floor also to be a ceiling on state regulation-- more

clearly applies.

Here, however, the plaintiffs contend that no such

presumption against preemption applies, given the nature of the

federal interests implicated by the Au Pair Program. The

plaintiffs rely on Boyle v. United Technologies Corp., which they

contend holds that the evidence of "[t]he conflict with federal

policy need not be as sharp" when the federal government is

operating in a field of unique federal interest, such as the

plaintiffs contend that the fields of foreign relations and

immigration implicated by the Au Pair Program are. 487 U.S. 500,

507 (1988). The plaintiffs further contend that, in the absence

of such a presumption against preemption, we must conclude that

the state law measures would frustrate the federal objective of

establishing a nationally uniform compensation scheme for au pair

participants.

But, even if Boyle could be read to suggest that the

evidence of the ceiling-setting intention here need not be clear,

the plaintiffs still bear the burden of demonstrating that there

is a conflict between the state law measures and the Au Pair

Program by showing that the former would frustrate the purposes

and objectives of the latter. Moreover, the plaintiffs do not

dispute that, to meet that burden, they must identify affirmative

evidence that Congress or the DOS had a ceiling-setting -- and

- 39 -
thus obstacle-preemption-creating -- intent. See Arizona, 567

U.S. at 400, 414 (describing the presumption against preemption in

a case involving preemption based on federal immigration law and

finding one provision "likely would survive preemption -- at least

absent some showing that it has other consequences that

are adverse to federal law and its objectives").

As we will next explain, the plaintiffs' arguments about

the text of the relevant federal statutes and the DOS

regulations, as well as their underlying history, fails to

identify the needed affirmative evidence. Thus, we conclude that

a finding of the requisite ceiling-setting intent would

necessarily rest on the kind of unfounded speculation about the

federal government's implicit intentions that may not ground a

finding of obstacle preemption. See Chamber of Commerce of

U.S. v. Whiting, 563 U.S. 582, 607 (2011) (plurality opinion).12

12We note that two relatively recent cases, Geier, 529 U.S.
861, and Williamson v. Mazda Motor of Am., Inc., 562 U.S. 323 (2011),
wholly apart from their apparent reliance on the presumption
against preemption, are instructive in fleshing out the kind of
inquiry that courts must undertake to determine whether a federal
agency regulation that clearly sets a regulatory floor for private
conduct should nonetheless be construed to have impliedly also set
a federal regulatory ceiling for the regulation of that private
conduct by the states. In Geier, for example, the Court found
that, in requiring automobile manufacturers to install passive
restraints, such as airbags, in their vehicles, the United States
Department of Transportation ("DOT") had deliberately provided the
manufacturers with a range of choices to encourage technological
development. Geier, 529 U.S. at 874-79. Thus, the Court found
that the DOT had impliedly established not only a choice-

- 40 -
 2.

We have already explained why the federal statutory

provisions that authorize the Au Pair Program do not, by terms,

demonstrate that the federal government impliedly intended to

establish a nationally uniform compensation scheme. See supra

Section III.A.2. Nor do the plaintiffs develop an argument that

those provisions themselves, independent of the DOS regulations

that implement the Au Pair Program, show that the federal

government intended to establish the kind of ceiling that would

create the conflict that would warrant a finding of obstacle

restricting regulatory floor on the manufacturers, but also a
choice-preserving regulatory ceiling on what states could mandate
manufacturers must do with respect to installing passive
restraints. Id. Therefore, the Court held, a state tort law that
imposed a duty on the manufacturers to install a specific type of
passive restraint was preempted because its enforcement would
frustrate the implicit federal objective of preserving the choice
of manufacturers to comply with the federal regulation by a means
other than the installation of that type of passive restraint. Id.
at 882.
In Williamson, which concerned a related DOT regulation,
however, the Court came to the opposite conclusion. There,
the DOT's seatbelt regulation once again left manufacturers with
a choice -- this time as to what type of seatbelt to install.
Moreover, as in Geier, the state law at issue "would restrict that
choice" by requiring additional safety measures. Williamson, 562
U.S. at 332. But, Williamson ruled that, because the DOT, in the
federal regulation at issue, was concerned only with safety and
not with providing manufacturers with a choice as to
what seatbelt to install, the state law requirement under review
was not preempted. Id. Moreover, Williamson explained, although
the state law requirement that was being challenged would impose
costs on the manufacturers above those that they would incur by
complying with the federal regulation's floor, that fact alone
provided no basis for finding a preemption-creating conflict
between state and federal law. Id. at 335.

- 41 -
preemption. We thus follow the parties in focusing our attention

on the DOS regulations that define the parameters of the Au Pair

Program. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664

(1993).

To show the requisite ceiling-setting intent, the

plaintiffs focus chiefly on the provision of the au pair exchange

program regulations that is entitled "Wages and hours." 22 C.F.R.

§ 62.31(j). The provision states: "Sponsors shall require that au

pair participants: (1) Are compensated at a weekly rate based upon

45 hours of child care services per week and paid in conformance

with the requirements of the [FLSA] as interpreted and implemented

by the [DOL]." Id. That provision further states, with respect

to hours, that sponsors "shall require" that "au pair participants

. . . do not provide more than 10 hours of child care per day, or

more than 45 hours of child care in any one week." Id.

§62.31(j)(2).

The plaintiffs emphasize that the provision sets the

amount of compensation that sponsors shall require that au pair

participants receive each week. It sets that amount, the

plaintiffs note, on the assumption that au pair participants will

provide the full 45 hours of childcare services a week that the Au

Pair Program permits them to provide, regardless of whether the au

pair participants provide it. The plaintiffs contend that the

provision in this way reveals that the DOS intended to establish

- 42 -
a compensation system that is not intended to pay au pair

participants for the actual number of hours that they work. It is

proper to infer, the plaintiffs thus argue, that the DOS did not

intend for au pair participants to be able to require their host

families to pay them the minimum wage that a state might require

for each actual hour of work, if the resulting wage for the week

would exceed the weekly compensation amount set forth in the DOS

regulations themselves for 45 hours of such work. Rather, the

plaintiffs assert, the text of this provision shows, albeit

implicitly, that the DOS intended to set an independent, nationally

uniform compensation scheme that would preempt a more generous one

that a state might establish, even if the state law scheme took

the form of a generally applicable wage and hour law.

But, the text of this provision imposes the obligation

to require that au pair participants receive a certain amount of

weekly compensation only on the sponsors. No obligation, enforced

by the DOS, is imposed on the host families themselves. The

obligation that DOS may enforce against the sponsors is defined,

moreover, in terms that make it hard to draw the ceiling-setting

inference that the plaintiffs ask us to make.

An au pair participant is clearly paid "in conformance

with" the FLSA minimum wage for a domestic worker who provides 45

hours a week in childcare services, so long as that participant

receives not less than that minimum amount of weekly compensation.

- 43 -
Indeed, the plaintiffs concede that this text does not forbid au

pair participants from being paid more. Thus, the plaintiffs

acknowledge, for example, that, in accord with this provision, a

host family may voluntarily pay an au pair participant more than

the minimum wage required by the FLSA for that amount of work

without creating any conflict with this provision. But, if a

sponsor would meet its obligation -- which is the obligation that

the regulations empower the DOS to enforce -- in the event a host

family chooses to be that generous, then we fail to see what in

the provision's text indicates that a host family may not be

required to pay that higher wage in order to comply with a state

wage and hour law. After all, a sponsor would be no less able to

fulfill its obligation to ensure that au pair participants are

paid "in conformance with" the FLSA -- given that it merely sets

a non-preemptive floor -- in that circumstance.13

13We note, too, that the current "Wage and hour" provision
replaced the "Stipend and hours" provisions of the 1994 and 1995
regulations. See supra Section I.A.2. Each of those prior
versions of the au pair exchange program regulations,
respectively, obliged sponsors to require that au pair
participants "are compensated not less than" $155 or $115. 59 Fed.
Reg. at 64,300; 60 Fed. Reg. at 8553 (emphasis added). That "not
less than" formulation sounds in floor-setting, not
ceiling-setting, terms. 59 Fed. Reg. at 64,300; 60 Fed. Reg. at
8553. Yet, the plaintiffs do not contend that the agency later
meant to shift course when it changed the language to oblige
sponsors to require that au pair participants received
compensation pegged to a calculation based on "conformance with"

- 44 -
 The au pair exchange program regulations do contain a

section that purports to describe the "objectives" of the Au Pair

Program. See 22 C.F.R. § 62.31(a)-(b). But, this provision does

not refer to a federal governmental interest in setting a uniform

national standard for either au pair participant wages or for host

family recordkeeping requirements. Id. Nor do the plaintiffs

contend otherwise, as they do not argue that the "objectives"

provision itself supports their position about what the implicit

objectives of the Au Pair Program are.

The "objectives" section does state that "[a]u pair

participants provide up to forty-five hours of child care services

per week and pursue not less than six semester hours of academic

credit . . . during their year of program participation." Id. §

62.31(a). But, neither the "objectives" section nor any other

provision of the DOS regulations refers -- at least in any express

way -- to an agency interest in capping, based on the FLSA minimum

wage, the costs of a host family that chooses to have an au pair

participant provide the full amount of childcare services that the

Au Pair Program allows. Nor do the Au Pair Program regulations

reference state wage and hour laws, which is not surprising given

the lack of any indication that the agency anticipated at the time

the FLSA's "requirements" rather than to a fixed, minimum dollar
amount.

- 45 -
of the regulations' promulgation that state wage and hour laws

would apply to domestic workers. See infra Section III.B.3.a.

Thus, the fact that a state wage and hour law might increase host

family costs beyond what they would be in the absence of such a

law is not, in and of itself, evidence that demonstrates that such

a law would impede the accomplishment of the federal objective

reflected in the text of the DOS regulations. Cf. Williamson, 562

U.S. at 332.

From all one can tell from the text of these provisions,

in other words, the Au Pair Program operates parallel to, rather

than in place of, state employment laws that concern wages and

hours and that protect domestic workers generally, at least with

respect to the obligations that such state law wage and hour

measures impose on host families to do more than what the FLSA

itself requires. Thus, the text of au pair exchange program

regulations themselves does not supply the affirmative evidence

that the state measures at issue will frustrate the federal

scheme's objectives that the plaintiffs need to identify if they

are to meet their burden to show obstacle preemption.

The plaintiffs ask us, however, to consider the Au Pair

Program in light of the DOS "Exchange Visitor Program" Regulations

as a whole. They point out that the regulations that govern

certain other exchange visitor programs expressly require sponsors

to ensure that program participants are paid "the higher of . . .

- 46 -
[t]he applicable Federal, State or Local Minimum Wage," 22 C.F.R.

§ 62.32(i)(1)(i).14 They note that, by contrast, the section of

the "Exchange Visitor Program" regulations that governs the au

pair exchange programs does not. See id. § 62.31(j). The

plaintiffs contend that this relative silence gives rise to an

inference of a ceiling-setting intent on the part of the DOS by

negative implication.

But, these other regulatory measures are themselves

sponsor focused, and the plaintiffs do not suggest that, just

because sponsors must ensure that the participants in those

programs must comply with those state laws, those participants are

barred from enforcing those state laws directly against their

employers, insofar as their employers fail to comply with them.15

In addition, the regulatory provisions that impose the obligation

14 The summer work-travel regulations, 22 C.F.R.
§ 62.32(i)(1)(i), the teacher program, id. § 62.24(f)(5), and the
camp counselor program, id. § 62.30(f), include references to the
applicability of state and local wage laws or state that exchange
visitors should be paid like their American counterparts.
15 Consistent with this conclusion, the plaintiffs do not

dispute that au pair participants are "employees" under the FLSA,
as the DOL determined them to be in 1997 and as the au pair exchange
program regulations have long accepted. 62 Fed. Reg. at 34,633.
Nor do the plaintiffs appear to dispute that, if an au pair
participant could show that she had worked a given number of hours
in a week, then she would appear to have the independent statutory
right as an "employee" under the FLSA to seek compensation for
that amount of work from her host family as her "employer" if she
had not in fact been paid the required wage. The plaintiffs appear
to accept this fact, moreover, notwithstanding that the Au Pair
Program itself does not confer that right on the participants.

- 47 -
on the sponsors of those other programs are silent with respect to

whether the DOS understood that the participants in them would be

preempted from enforcing state wage and hour laws against their

employers unless their sponsors were obliged to ensure that those

employers complied with those laws. See, e.g., Exchange Visitor

Program -- Summer Work Travel, 76 Fed. Reg. 23,177, 23,177-78 (Apr.

26, 2011) (to be codified at 22 C.F.R. pt. 62). In consequence,

the fact that the DOS did not impose that same obligation on Au

Pair Program sponsors does not show by negative implication that

the DOS must have intended for the Au Pair Program to impose such

a preemptive bar.

There is, moreover, textual evidence in other provisions

of the DOS "Exchange Visitor Program" regulations that appears to

be at odds with the inference that the plaintiffs ask us to draw

from the relative silence of the regulations that govern the Au

Pair Program. The plaintiffs do not dispute that au pair

participants are "employees" within the meaning of the FLSA. The

plaintiffs thus appear to accept that the Au Pair Program does

have an "employment component[.]" Id. § 62.11(a). The general

provisions of the "Exchange Visitor Program" regulations, however,

expressly contemplate that state laws that regulate employment --

and thus that regulate an employee's wages and hours -- will

independently protect participants in exchange visitor programs

that have an "employment component." Id.; see id. § 62.10(b)(9)

- 48 -
(providing that sponsors must also provide "clear information and

materials" to program participants, including information

pertaining to "employee rights and laws, including workman's

compensation").

The plaintiffs' only response is that, at least with

respect to participants in the au pair exchange program, this

general "employment component" provision must be referring merely

to employee rights and laws other than state wage and hour laws.

But, the ordinary meaning of the phrase "pertaining to employment,"

see id. § 62.11(a), would not appear to exclude wages and hour

laws. The provision also applies, by terms, to any exchange

visitor program with an "employment component." The plain text of

the "employment component" provision thus provides no support for

reading in the plaintiffs' preferred implicit limitation -- let

alone for reading in that au-pair-exchange-program-based

limitation and then also drawing the negative inference from

relative silence that the plaintiffs ask us to draw.

Such a limitation on that "employment component"

provision also is not compelled by the fact that sponsors of some

exchange visitor programs must ensure that employers comply with

state wage and hour laws. It would be odd to construe the more

onerous directive that requires sponsors of certain visitor

exchange programs to ensure employer compliance with state wage

and hour laws to limit the scope of the less onerous directive

- 49 -
that requires all sponsors merely to have detailed knowledge of

such laws and to convey information about them to program

participants. Per the regulations, moreover, sponsors clearly

must have detailed knowledge of some state employment laws --

including concerning workman's compensation -- that the

regulations do not require them to ensure that employers follow.

See id. §§ 62.11, 62.10(b)(9).

We do not mean to challenge the plaintiffs' assertion

that the au pair exchange program regulations do not themselves

oblige sponsors (let alone host families) to require that au pair

participants receive the minimum wage that a state would require

that they be paid. The regulations plainly do not. But, the fact

that the regulations do not themselves impose on host families an

obligation to comply with state wage and hour laws that the DOS

may enforce against them does not supply the needed affirmative

evidence that the regulations were intended to preempt the

enforcement of such a state law obligation against those families.

Finally, we find it significant that, although the DOS's

au pair exchange program regulations make no reference to state

wage and hour laws, they do refer to the expressly non-preemptive

FLSA. It is conspicuous -- insofar as the DOS is said to have the

asserted preemptive intent -- that, in cross-referencing the

FLSA's expressly non-preemptive requirements, the provision says

nothing similarly express to indicate that the au pair exchange

- 50 -
program regulations preempt independently conferred wage and hour

rights that the FLSA does not itself preempt.

In sum, the text of the au pair exchange program

regulations and the "Exchange Visitor Program" regulations more

generally do not supply the requisite affirmative evidence that

the state law measures would pose an obstacle to the accomplishment

of the purposes and objectives of the Au Pair Program. In fact,

the text of the regulations reflects the DOS's intention to ensure

that the regulations would accommodate the DOL's determination

that au pair participants are employees who are entitled to be

protected by an independent wage and hour law that is not itself

preemptive. The regulations also reflect the fact that the DOS

contemplated that state employment laws would protect exchange

visitor program participants from their employers. Thus, if there

is a basis for concluding that the relevant DOS provisions preempt

wage and hour laws that the FLSA does not itself preempt, that

conclusion must find support somewhere other than in the text of

the DOS regulations themselves.

3.

The plaintiffs argue that the regulatory history lends

the necessary support that, as we have explained, the regulatory

text fails to supply. The plaintiffs point specifically, however,

only to a few brief passages from the agency commentary that

accompanied the 1994 and 1995 precursors to the current section of

- 51 -
the DOS regulations, which at the time had been promulgated by the

USIA. We do not disagree that this history may be relevant to our

inquiry into agency intent. See Geier, 529 U.S. at 884-85 (finding

regulations to have a preemptive effect without clear text to that

effect based on the regulatory history). But, we conclude that,

when considered in context, that history does not provide the

affirmative evidence that the plaintiffs must identify to meet

their burden to show obstacle preemption.

a.

The plaintiffs first point to a passage from the

commentary that accompanies the USIA's 1994 Interim Final au pair

exchange program regulations. That passage refers to the need for

there to be "uniform compensation" for au pair participants. 59

Fed. Reg. at 64,298. The plaintiffs contend that this reference

shows, quite clearly, that the agency did intend to establish the

nationally uniform compensation system on which their obstacle

preemption claims are premised. But, the context shows otherwise.

The agency commentary indicates that a central concern

for the agency at that time was whether "an employer/employee

relationship [was] established between the au pair and the host

family" -- and thus whether the FLSA applied to that relationship.

See id. The commentary shows that the agency thought that the au

pair-host family relationship presented an analogous relationship

to that of domestic workers and their employers under the FLSA.

- 52 -
The commentary further shows that the agency was inclined to

"defer[] to more appropriate authorities" as to the nature of that

relationship rather than to make its own independent judgment.

Id. Nevertheless, the commentary goes on to explain, the agency

had decided to base the weekly "Stipend" amount that sponsors would

have to ensure that au pair participants received on the FLSA's

wage and hour requirements for live-in domestic workers, assuming

the au pair participants provided 45 hours of childcare services

in that week, as if those FLSA requirements did apply of their own

accord. See id. at 64,298-300.

It is at this point in the commentary that the reference

to "uniform compensation" appears. The reference arose because,

even after having decided to peg the stipend to an amount that

would ensure compliance with the FLSA's floor -- insofar as the

FLSA turned out to govern of its own force the au pair

participant-host family relationship -- the agency still faced a

choice. The agency needed to determine how high to set that FLSA-

compliant weekly compensation amount.

The USIA noted in the accompanying commentary that this

choice arose due to a DOL rule that implemented the 1975 FLSA

amendments that governed domestic workers. Id. at 64,298. That

DOL rule permitted employers of live-in domestic workers to deduct

from those workers' wages either a fixed credit in the amount of

$36 per week for their room and board costs or their actual room

- 53 -
and board costs on an itemized basis, so long as employers who

chose the latter option kept records to support those itemized

deductions. 40 Fed. Reg. at 7406 (DOL regulation setting maximum

deductions).

Given that DOL rule, if the agency pegged the weekly

stipend amount to a wage due a domestic worker for 45 hours of

labor under the FLSA that was based on the $36 fixed credit that

the DOL permitted employers to take, then the resulting

compensation amount -- to be FLSA compliant -- would have to be a

fixed and thus uniform dollar amount for every family of at least

-- "not less than" -- $155 a week. 59 Fed. Reg. at 64,298. But,

if the agency instead pegged the amount to the itemized deductions

that host families were permitted to claim under the DOL's

implementing regulations, then that amount (though still FLSA-

compliant) would not only potentially be much lower, it also would,

necessarily, not be uniform across families. For, in that event,

that amount necessarily could vary from family to family (even

within a state) with the amount of the legitimate itemized

deductions that each host family might choose to claim. Id.

The USIA, having considered both approaches, explained

in the commentary that it had decided to "adopt[] the $36 credit

approach . . . in order to ensure that all au pair participants

receive uniform compensation." Id. Thus, the context for the

- 54 -
reference to "uniform compensation" on which the plaintiffs rely

shows the following.

The USIA made the reference to its interest in uniform

compensation only in the course of attempting to explain why,

having decided to peg the weekly compensation amount that sponsors

would have to ensure to an amount that would "not [be] less than"

the FLSA floor, it had chosen as between two possible

FLSA-compliant amounts the one that was uniform (because pegged to

the fixed credit) rather than the one that was variable (because,

pegged to the itemized option). Accordingly, the reference to

"uniform compensation" does not provide the needed affirmative

evidence that the agency had an independent interest in ensuring

the kind of nationwide uniformity in au pair participant

compensation that would necessitate the imposition of a ceiling on

the compensation that host families could be required by a state

to pay an au pair participant.

In fact, no mention is even made of any state wage and

hour laws, even though there is extensive discussion in the agency

commentary of the expressly floor-setting -- rather than ceiling-

setting -- FLSA. Nor is the absence of any such reference so

surprising that we must assume that the agency failed to mention

such state wage and hour measures only because it understood that

they would be preempted.

- 55 -
 The regulations then -- just like the DOS regulations

now -- purported only to define the obligations of the sponsors of

au pair exchange programs. It is hard to leap from the fact that

a sponsor was not obliged to ensure that host families comply with

those wage and hour laws to the conclusion that host families

themselves were not obliged to do so, such that au pair employee

participants could not enforce the rights that they otherwise would

have under such laws against their host family employers. In fact,

it is not clear that the agency was even aware at the time that

state wage and hour laws protected the rights of domestic workers.

Against that uncertain state law landscape, it would have made

sense for the agency to have been concerned only with defining the

sponsors' obligation as to the federal minimum wage, which the

accompanying agency commentary makes clear that the agency was

aware at the time might protect au pair participants.

b.

The plaintiffs' other evidence from the regulatory

history comes from the commentary that accompanies the 1995

revisions to the Au Pair Program regulations. The plaintiffs

point, first, to a portion of this commentary in which the agency

states: "the programmatic need for a uniform wage remains." 60

Fed. Reg. at 8551. The plaintiffs then point to a portion of the

commentary in which the agency describes a possible future revision

by the DOL of its domestic worker regulations concerning room-and-

- 56 -
board costs deductions by employers of domestic workers. Id.

That portion notes that, once made, that revision would "eliminate

the need for host families to keep individualized records." Id.

But, when considered in context, these passages do not provide the

basis for drawing the inference with respect to obstacle preemption

that the text of the regulations themselves fail to supply.

With respect to the agency's statement that "the

programmatic need for a uniform wage remains," the context shows

that host families had contended that the $155 stipend amount in

the 1994 regulations was too high. Id. The host families were of

that view because they contended that, in using the $36 fixed

credit to generate the $155 amount, the USIA was relying on an

outdated -- and thus artificially low -- means of estimating the

actual room and board costs of host families as of 1995. Id. The

host families thus had argued that the agency should permit host

families to deduct their actual room and board costs on an itemized

basis, as was permitted by that same DOL regulation, in order to

account for inflation over the last decades. Id.

The agency found this contention persuasive, in part,

but then added: "however, the programmatic need for a uniform wage

remains." Id. For that reason, the agency opted for a new stipend

amount -- $115 a week -- that would be lower than the prior one

but still tied to a fixed dollar amount rather than to one that

would vary with a particular host family's itemized deductions.

- 57 -
Id. That revised approach would permit host families to claim

itemized deductions but only up to an amount $40 greater than the

$36 fixed credit amount, assuming that host families documented

the up-to-$40-worth of itemized deductions with the records that

the DOL rule required for deductions claimed on such an itemized

basis. Id.

Thus, once again, the passage that refers to uniformity

as an agency interest appears in a specific context. That context

reveals that the reference to uniformity reflects the agency's

continued interest in setting the compensation amount that

sponsors would be required to ensure was paid at an amount at least

equal to the FLSA minimum but still uniform for all host families

(because pegged to a fixed dollar amount greater than the FLSA's

$36 fixed credit deduction option) rather than as low as the FLSA

minimum but potentially variable, even within a state, as to each

host family (because pegged to the FLSA's itemized deductions

option). In context, then, the reference does not concern the

distinct issue on which the obstacle preemption inquiry turns:

whether the federal agency, in establishing this uniform floor for

the amount that a sponsor must ensure that an au pair participant

is compensated, intended also to set a nationally uniform wage

ceiling, to ensure uniformity across states, that would preclude

au pair participants from enforcing state wage and hour laws

against their host families.

- 58 -
 The commentary also supplies important context for the

reference to the elimination of recordkeeping burdens that appears

in the accompanying agency commentary to this iteration of the

USIA regulations. The agency explained in that commentary that it

set the new stipend amount $40 lower than it had set it in the

1994 interim final regulations. The agency explained that it had

done so because the DOL had by then proposed a domestic worker

regulation that would raise the cap on the fixed credit that

employers of domestic workers could claim for room and board costs

to an as-yet unknown amount. Id. Thus, the agency explained, the

DOL's proposed revision to its domestic worker rule would -- once

finalized -- substantially increase the fixed credit amount while

still providing an option for claiming itemized deductions for

room and board costs if supported by adequate records.16 Id.; see

16 We note that the regulatory history references a
"programmatic need for a uniform wage." 60 Fed. Reg. at 8551
(emphasis added). It appears that the "programmatic need" for
uniformity was a need that the agency was attributing to the
privately conducted "programs," rather than to the agency itself,
presumably because the "programs" had an interest in opposing
itemized deductions. A duty to ensure that au pair participants
received a fixed-dollar-amount-based stipend each week, after all,
is more easily satisfied than is a duty to ensure that the
participants receive a stipend amount from their host families
that would depend on the legitimacy of the itemized deductions
that individual host families claimed. See id. This understanding
comports with the agency's explanation that, in the end, it chose
to balance the "programmatic need" for uniformity with the needs
of host families, who favored a variable stipend based on itemized
deductions. Id. In this way, too, then, the passage from the
agency commentary on which the plaintiffs rely appears to provide

- 59 -
also Application of the Fair Labor Standards Act to Domestic

Service, 58 Fed. Reg. 69,310 (Dec. 30, 1993) (to be codified at 29

C.F.R. pt. 552) (proposed DOL rule permitting a fixed credit amount

tied to the federal hourly minimum wage and deduction of actual

costs supported by adequate records). The agency then noted that,

once the DOL did so revise that fixed credit cap, the need for

host families to keep records to claim deductions above the $36

fixed credit would thereby be eliminated. Id.

Given this context, the reference to the elimination of

the need to undertake recordkeeping burdens fails to indicate that

the agency intended to eliminate the imposition of independently

imposed recordkeeping burdens on host families. In fact, as we

have explained, the 1995 regulations affirmatively permitted host

families to claim some itemized deductions under the DOL domestic

workers rule in a way that the 1994 interim final regulations --

due to the higher compensation floor that had been set -- did not.

But, the 1995 regulations permitted families to claim the itemized

deductions without suggesting that, in doing so, they would not

have to comply with the recordkeeping requirements for taking such

itemized deductions that the DOL regulation imposed of its own

little support for concluding that the agency's interest in
uniformity reflected an interest in establishing a nationally
uniform compensation ceiling applicable in every state rather than
merely a compensation floor that would not depend on the deductions
claimed by particular families within any state.

- 60 -
accord. 40 Fed. Reg. at 7406 (1975 DOL regulations);

Administrative Changes, 44 Fed. Reg. 6715 (Feb. 2, 1979) (to be

codified at 29 C.F.R. pt. 552) (1979 amendments). To the contrary,

the agency noted that this approach "will ensure adherence to

federal law," 60 Fed. Reg. at 8551, which further reflects the

agency's understanding that the FLSA's (non-preemptive) minimum

wage and attendant recordkeeping requirements would apply as

independent legal obligations to which host families may be subject

separate and apart from any obligation that the USIA's au pair

exchange program regulations imposed on them.

Moreover, as we shall next see, the agency ultimately

opted to require sponsors to ensure that au pair participants

received weekly compensation based on a calculation that would be

"in conformance with the requirements of" the FLSA. 22 C.F.R.

§ 62.31(j)(1); 62 Fed. Reg. at 34,634. Significantly, the agency

did so at a time when those FLSA "requirements" contemplated that

employers could deduct from the wages of domestic workers the

actual costs of room and board on an itemized basis only if such

deductions were backed up with adequate supporting records. See

29 C.F.R. § 552.100(c)-(d); Application of the Fair Labor

Standards Act to Domestic Service, 60 Fed. Reg. 46,766, 46,768

(Sept. 8, 1995) (to be codified at 29 C.F.R. pt. 552).

It is worth noting, too, that, in the commentary

accompanying the 1995 regulations, the USIA explained for the first

- 61 -
time that it had been "specifically advised" by the DOL that au

pairs were "employees" of their host families and thus subject to

the FLSA. 60 Fed. Reg. at 8550. The USIA also explained in that

same commentary that it would defer to the DOL on that issue. Id.

Yet, in providing the DOL's analysis that supported that

conclusion, the USIA did not refer to any potential conflict

between the imposition of the FLSA's obligations on host families

and any USIA interest, such as the goal of cultural exchange. See

id. at 8550-51. Nor did the USIA express reservations about the

DOL's characterization of the au pair participant-host family

relationship as an employee-employer relationship. Nor, finally,

did the USIA assert that, even though the FLSA's requirements are

not preemptive of state wage and hour laws, the USIA's regulations

keyed to those very same requirements were. See id.

If anything, then, the accompanying agency commentary

indicates that the regulations were crafted to accommodate the

fact that an independent wage and hour law -- the FLSA -- might

treat the relationship between au pair participant and host family

to be one between employee and employer and thus give independent

rights to the former that could be enforced against the latter.

But, that independent federal wage and hour law itself sets only

a floor for the compensation and record keeping requirements that

states may exceed through their own wage and hour laws. It is

thus hard to see how either the USIA's 1995 au pair exchange

- 62 -
program regulations or the agency commentary to them provides the

requisite support for the conclusion that the agency must have

implicitly intended to establish a preemptive ceiling on wage and

hour requirements that no state could exceed; no such state law

measures were even mentioned in either the regulations themselves

or the accompanying agency commentary. It is especially hard to

see how those materials provide such support, insofar as the state

law obligations would be imposed on host families as the employers

of au pair participants, given that the regulations, by their

terms, purported to impose obligations that the DOS could enforce

only on the sponsors.

c.

The one last piece of the regulatory history that the

parties discuss -- the USIA's 1997 revision to the au pair exchange

program regulations -- supports the same conclusion. That revision

introduced, for the first time, the language on au pair participant

compensation that appears in the current version of the DOS's au

pair exchange program regulations. See 60 Fed. Reg. at 46,768.

The language refers to such compensation as a "wage" --

and thus calls to mind an employment relation -- and pegs the

amount not to a fixed-dollar number but to a calculation based on

the "requirements" of the FLSA, which, of course, are themselves

expressly not preemptive. Id. The USIA explained in the

commentary to the 1997 version of the regulations that accompany

- 63 -
these provisions, moreover, that, as of that time, the DOL had

"determin[ed]" that au pair participants were "employees" under

the FLSA and thus that they "must" be compensated in accordance

with its terms. 62 Fed. Reg. at 34,633. The 1997 commentary goes

on to explain that the USIA had thus decided -- as it had long

suggested that it would -- to defer to the DOL's final view of

that question. Id.

Given this context, it is notable that the accompanying

agency commentary says not a word about either the need for

"uniform" compensation or the elimination of recordkeeping

burdens. See id. at 34,632-33. Once the USIA had decided to defer

to the DOL's final determination that au pair participants had to

be treated as "employees" under the FLSA, it would appear, the

USIA's only interest was in obliging sponsors to ensure that au

pair participants got at least what protection they would be due

under the FLSA, whatever its "requirements" were. Id. But that

federal interest may be fully accomplished by merely setting a

FLSA-pegged weekly compensation floor that sponsors must require

that host families meet --- and a floor that could vary based on

the itemized deductions, if backed by supporting records, that a

given host family might claim for room and board costs. The

fulfillment of that federal interest would not require the agency

to make that floor also do double duty as a ceiling that no state

could exceed in setting the obligations of host families, as a

- 64 -
species of employer, with respect to those whom they employed to

provide in-home childcare services.

Nor is there anything anomalous about concluding that

the USIA had no interest in making that floor do such double duty.

As discussed above, it is not clear whether the USIA was even aware

that any state law measures protecting the wage and hour rights of

domestic workers existed. See supra Section III.B.3.a. A federal

agency would have acted quite sensibly, therefore, in obliging

sponsors of this type of exchange visitor program to be responsible

for requiring compliance only with clearly established federal

statutory wage and hour standards, while leaving the employer-

host-families responsible for ensuring that they complied with any

generally applicable state wage and hour law requirements that

might emerge. Thus, contrary to the plaintiffs' contention, the

fact that there is no history of federal agency attempts to oblige

sponsors to require host family compliance with state wage and

hour laws hardly supplies a supportable basis for concluding that

the agency must have intended to preempt the participants

themselves from enforcing such state law measures against their

host families.

C.

The plaintiffs separately point to what they claimed

would be the adverse practical impact on the Au Pair Program of

the application of the state law measures to host families. The

- 65 -
plaintiffs contend that, if those measures were applicable to host

families as the employers of au pair participants, then the

enforcement of those measures would make participation in the

program for host families so costly that it would preclude "many,

and probably most" families from doing so. The plaintiffs also

contend that such application of the Massachusetts measures would

formalize what they portray as a more informal host-family-au pair

participant relationship in ways that the federal government could

not possibly have intended.

This line of argument rests in part on the disputed claim

that, under Massachusetts law, domestic workers must be

compensated for sleep and meal periods even if they are completely

relieved of job duties and free to leave the premises. See 940

Mass. Code Regs. 32.02 (defining "working time"). But, we have no

reason here to disregard the Attorney General's assertion about

the proper construction of state law, given the lack of clarity in

the relevant provisions. See Amerijet Int'l, Inc. v. Miami-Dade

Cty., 627 F. App'x 744, 749 (11th Cir. 2015) ("In evaluating the

[Appellant's] facial challenge, we must consider the county's

authoritative constructions of the ordinance, including its own

implementation and interpretation of it." (alteration in

original)(quoting Forsyth Cty. v. Nationalist Movement, 505 U.S.

123, 131 (1992))).

- 66 -
 Moreover, the plaintiffs' assertions that the

Massachusetts measures would preclude large numbers of families

from participating in the Au Pair Program are cast in conspicuously

speculative terms ("many, probably most"). (Emphasis added). The

Massachusetts wage and hours measures are generally applicable to

domestic workers, whether they participate in the au pair exchange

program or not. The plaintiffs' complaint provides no basis for

surmising, however, that families who otherwise would have become

host families in order to obtain needed in-home childcare services

would opt in large numbers to forgo obtaining such services

altogether in order to avoid the costs imposed by the DWBORA and

the Massachusetts Fair Wage Law. Yet, if such families would not

opt to forgo all such services, then the plaintiffs have failed to

explain why those families would opt out of the Au Pair Program,

for there is simply no way for such families to obtain such

services from anyone -- au pair participants or not -- in

Massachusetts without incurring the costs imposed by the DWBORA

and the Massachusetts Fair Wage Law.

The plaintiffs' assertions about the impact of the

administrative burdens and recordkeeping obligations imposed by

the Massachusetts measures suffer from similar problems. The

assertions do not, for example, take account of the fact that

similar (though not identical) burdens and recordkeeping

requirements are already imposed by the FLSA on host families.

- 67 -
Compare 29 C.F.R. §§ 552.100, 552.110, with Mass Gen. Laws ch.

151, § 15, and Mass Gen. Laws ch. 149, § 190(l). But see Mass.

Gen. Laws ch. 149 § 190(l)(v)-(ix) (requiring that host families

keep records of various employment policies, such as job

responsibilities and procedures regarding termination). The

assertions thus fail to show why the differential recordkeeping

burdens would be so transformative as to require the conclusion

that they would prevent the Au Pair Program from serving its goal

of promoting international cultural exchange.

This impact-based line of argument, however, ultimately

suffers from a more serious flaw, which we conclude is

determinative. In asking us to infer a ceiling-setting agency

intent on the basis of only speculative predictions about the

future effects on host family participation of the application of

state laws, the plaintiffs are necessarily asking us to engage in

precisely the sort of "freewheeling judicial inquiry" into the

intention of the federal agency that we are supposed to avoid in

evaluating an obstacle preemption claim. Whiting, 563 U.S. at

607; see Boyle, 487 U.S. at 507 n.3 (requiring at least evidence

of a "significant conflict"). This is not a case, we emphasize,

in which there is an extensive regulatory history replete with

agency commentary that provides support for drawing the inference

that the agency had deliberately intended to set both a floor with

which the private actors would have to comply and a ceiling on the

- 68 -
additional regulatory burdens that a state could impose on them.

Compare Geier, 529 U.S. at 875-78, 885-86, with id. at 910-11

(Stevens, J., dissenting) ("[T]he Court identifies no case in which

we have upheld a regulatory claim of frustration-of-purposes

implied conflict pre-emption based on nothing more than an ex post

administrative litigating position and inferences from regulatory

history and final commentary." (second emphasis added)). Rather,

neither the text nor the regulatory history affirmatively

indicates that the federal government made such a deliberate,

ceiling-setting choice, and, other provisions indicate the

opposite. In such circumstance, speculation about future impacts

supplied by the plaintiffs themselves cannot satisfy their burden

to show the requisite -- implicit -- preemptive intent.

IV.

We recognize that the DOS, as reflected in its amicus

filing, reads its current regulations -- as well as the regulatory

history that we have just reviewed -- differently than we do. We

thus consider the contentions that the DOS makes, too. Geier, 529

U.S. at 883; Williamson, 562 U.S. at 335-36; see also Kisor v.

Wilkie, 139 S. Ct. 2400, 2418 n.6 (2019) (reaffirming courts’

ability to defer to "agency interpretations advanced for the first

time in legal briefs" where there is "no reason to suspect that

the interpretation [did] not reflect the agency's fair and

- 69 -
considered judgment on the matter in question" (quoting Auer v.

Robbins, 519 U.S. 452, 462 (1997))).

In doing so, however, we are mindful that we may not

defer to an "agency's conclusion that state law is preempted."

Wyeth, 555 U.S. at 576. Instead, we must attend to the

"thoroughness, consistency, and persuasiveness" of the agency's

explanation of how state law affects the federal regulatory scheme

that the agency administers. Id. at 577. And here, as we will

explain, the DOS's explanation, even if not in conflict with any

previously articulated and well-considered DOS explanation, fails

to warrant a finding of either field or obstacle preemption.

Like the plaintiffs, the DOS points to the fact that the

"Exchange Visitor Program" regulations for certain other exchange

visitor programs, unlike those for the Au Pair Program, explicitly

reference state and local minimum wage laws. See 22 C.F.R.

§ 62.32(i)(1)(i). The DOS contends that this aspect of the

regulations shows that when the DOS "intends to require payment in

accordance with state and local law for [other exchange visitor

program] participants the Department say[s] so expressly[.]" But,

as we have noted, by terms, the "Exchange Visitor Program"

regulations address only the obligations that sponsors must meet

in order to avoid the sanctions that the DOS may impose on them

under the regulations. The regulations do not, by terms, purport

to define the obligations of the employers themselves that those

- 70 -
whom they employ may enforce against them. See supra Section

III.A.2.

The DOS does not attempt to account for this disjuncture

between the Au Pair Program's focus on the obligations of sponsors

and the state wage and hour measures' focus on the obligations of

the employers to the domestic workers whom they employ. The DOS

merely asserts that, because sponsors of au pair exchange programs

are not required to ensure that employers comply with state wage

and hour laws, while the sponsors of other exchange visitor

programs are so required, the participants in au pair exchange

programs may not independently ensure that their employers do

comply with those state laws. There is no indication, however,

that the participants in those other exchange visitor programs

would be prevented from enforcing their state law wage and hour

rights against their employers unless the sponsors of those

programs were required to show that the employers of those

participants complied with them. The DOS thus fails to provide a

persuasive explanation for drawing the negative inference that,

because au pair exchange programs are not required to ensure such

compliance, au pair participants may not enforce state wage and

hour rights against their employers.

The DOS also asserts that the federal obligations on

sponsors to require that au pairs are paid "in conformance with

the requirements of the FLSA" based on the au pair having worked

- 71 -
45 hours in a week should be understood to be a preemptive ceiling

on what the au pair participant may claim as a wage from her host

family. But, as we have explained, that language simply does not

by terms establish such a ceiling. See supra Section III.B.2.

The DOS separately contends that the regulations that

govern the Au Pair Program should be construed to be preemptive in

the same way that the federal statute that authorized the President

of the United States to impose sanctions on Burma that was at issue

in Crosby v. National Foreign Trade Council, 530 U.S. 363, 380

(2000), was construed to be. The DOS contends that the

regulations, like the federal Act in Crosby, are "drawn not only

to bar what they prohibit but to allow what they permit." Id.

But, in Crosby, as the Court expressly recognized, Congress's

purpose was clear -- to give the President full discretion in

regard to trade with "Burma." Id. at 374-76. It is not similarly

clear that, in setting the compensation obligation of a sponsor of

an au pair exchange program -- enforceable only by the DOS against

that sponsor -- the regulatory scheme's purpose was to set not

only the minimum amount that the sponsor must ensure that au pair

participants must receive but also a ceiling on what a state may

require a host family to pay that au pair participant. In fact,

the wages and hours obligation that the DOS imposes on sponsors is

pegged to the requirements of a federal statute that itself makes

clear that the floor that it sets for the wage that employers must

- 72 -
pay is not also a ceiling on what states may require them to pay.

See 29 U.S.C. § 218.

Turning to the DOS's discussion of the regulatory

history, the DOS points only to the very same passages in the

agency commentary that we have already reviewed. The DOS does not

purport to examine the context within which the passages appear.

Instead, it seizes on certain phrases in isolation. As we have

explained, though, considered in context, the passages that the

DOS invokes show that the agency intended to establish a uniform

rather than variable compensation floor -- pegged to the FLSA

minimum -- that sponsors would be obliged to ensure was met. See

supra Section III.B.3.a. The agency interest in ensuring that

kind of uniformity, however, accords with the agency having merely

established a floor for sponsors to meet. The DOS thus fails to

explain why these references affirmatively indicate that the

agency also had the requisite ceiling-setting intent.

There is, moreover, regulatory text that appears to

point directly against the DOS's view. Specifically, DOS appears

to acknowledge that the au pair regulations include an "employment

component," and that the general "Exchange Visitor Program"

regulations' requirement that sponsors who "work with programs

with an employment component" must have "Responsible Officers" who

have "a detailed knowledge of federal, state, and local laws

- 73 -
pertaining to employment" applies to the Au Pair Program. See 22

C.F.R. § 62.11(a).

To respond to this seemingly problematic language, the

DOS contends that state wage and hour laws only apply to "Exchange

Visitor Programs" that have additional, specific regulations

regarding state laws on top of the general regulations, such as

the summer work-travel program. According to the DOS's

construction of the regulations, the general "Exchange Visitor

Program" regulations' requirement that sponsors have "Responsible

Officers" who understand all state laws that are relevant to their

programs applies to the Au Pair Program only "with respect to

matters" beyond wage and hour laws, such as state negligence laws.

But, insofar as this assertion by the DOS depends on our granting

the negative inference that the plaintiffs ask us to draw from the

requirement that sponsors of other exchange visitor program ensure

that employers of the participants in those programs do comply

with such laws, we have already explained why such an inference is

unwarranted. See supra Section III.B.2. And, insofar as this

assertion does not depend on that premise, it cannot be squared

with the plain text of the regulations, for reasons that we have

already explained. See id.

Thus, while we do owe respectful deference to the DOS's

own view of its regulations, the portions of the regulatory text

and the passages in the underlying regulatory history that the DOS

- 74 -
invokes to support the assertions that it makes about them simply

do not support those assertions. And, of course, an agency's mere

"conclusion that state law is pre-empted" is not one to which we

may defer. Wyeth, 555 U.S. at 576-77.

There is one last set of materials to which the DOS --

and, in passing, the plaintiffs -- point: a series of agency

guidance documents and fact sheets concerning changes to the

federal minimum wage that were issued by the USIA and the DOS

between 1997 and 2007. The DOS does not contend that we owe such

material any deference. But, the DOS does contend that these

materials show that the Au Pair Program regulations were long

understood by the agency itself to oust state minimum wage laws.

We do not agree.

The 1997 agency documents merely clarify that federal

changes to minimum wage laws affect the stipend and wage calculated

in the 1995 regulations. Thus, these guidance documents serve

only to reinforce the conclusion -- already evident from the text

-- that the DOS regulations apply only to sponsoring organizations

and that Au Pair Program participants' actual entitlement to wages

that they may enforce against their host families comes from the

FLSA -- not the DOS regulations. In particular, the documents

warn host families that if they fail to "abide by the . . . au

pair stipend increases" they are "in violation of federally-

mandated minimum wage law," not DOS regulations. These documents

- 75 -
thus show, at most, that state wage and hour laws were not

considered, not that they were considered and preempted.

The 2007 fact sheet does refer to a fixed-dollar amount

for the minimum weekly compensation in explaining the impact of

the raised federal minimum wage on the Au Pair Program. That is

so even though the au pair exchange program regulations would

appear to permit that minimum to vary based on the actual costs

host families incurred. Relying on this apparent discrepancy, the

DOS and the plaintiffs -- though, again, only in passing -- argue

that these guidance documents indicate that the agency had imposed

a national, uniform system for au pair compensation.

But, the 2007 guidance is itself directed only at

sponsors. At most, it would suggest that sponsors were obliged to

enforce a weekly amount of compensation that was higher than what

the FLSA and its regulations would require that the au pair

participants be paid. We thus do not see how that one guidance

document, insofar as it even comports with the text of the DOS

regulations themselves, could supply the basis for inferring an

intent from the Au Pair Program to transform the non-preemptive

FLSA floor on the wage and hour rights that au pair participants

have vis-a-vis their host family employers into a preemptive

federal ceiling on those rights.

In fact, if we are considering past agency practice, the

DOS acknowledges that, when litigation first arose to enforce a

- 76 -
state wage and hour measure for the benefit of au pair participants

in 2015, a DOS spokesperson publicly stated that au pair exchange

program sponsors must "comply with all other applicable federal,

state, and local laws, including any state minimum wage

requirements." Lydia DePillis, Au Pairs Provide Cheap Child Care.

Maybe Illegally Cheap., Wash. Post, Mar. 20, 2015. With regard to

communicating these requirements to au pair sponsor agencies,

moreover, the DOS spokesman went on to say: "The Department has

been communicating with au pair sponsors to confirm that they are

aware of their obligations under the regulations -- including with

respect to host family requirements -- and will continue to do

so." Id.17

We recognize that the DOS asserts that it is not "clear"

that the agency's public response at that time represented a

considered view. We do not suggest otherwise. But, insofar as

the agency means to invoke other aspects of its past practice that

it concedes do not represent the kind of considered agency view

17
Although a 2014 version of a State Department informational
pamphlet, the Wilberforce Pamphlet, stated that all recipients of
nonimmigrant visas “have the right to be paid the higher amount"
of the federal or state minimum wages, the State Department took
out that statement when it revised the pamphlet in 2016. Compare
U.S. Dep’t of State, 2014 Wilberforce Pamphlet 7 (2014),
https://internationalservices.ncsu.edu/files/2015/03
/Wilberforce-Pamphlet.pdf, with U.S. Dep’t of State, 2016
Wilberforce Pamphlet (2016), https://j1visa.state.gov/wp-
content/uploads/2017/01/Wilberforce_Pamphlet_October2016.pdf.

- 77 -
that merits deference to demonstrate how unthinkable it has always

been that the Au Pair Program could function if state wage and

hours laws could be enforced against host families, this aspect of

the agency's past history at least suggests that the supposedly

unthinkable was thought.

The regulatory history does suggest that the au pair

exchange program regulations were promulgated at a time when it

may not have been evident that there were independently enforceable

wage and hour protections for domestic workers beyond those

established by the FLSA itself. See supra Section III.B.3.a.

State laws providing such protections are never mentioned by the

agency. But, the fact that the agency may not have had those state

laws in view does not permit us to conclude that the agency must

therefore have preempted them, at least given the sponsor-

targeting, floor-setting words that the agency chose to use in the

regulations and what the history underlying those words reveals

about the agency's focus. For, while we may assume that the DOS

would be free to preempt such state laws now by revising the

regulations, it may not simply ascribe to them, retrospectively,

a ceiling-setting character that neither the text, nor the

regulatory history, nor even past practice demonstrates that they

have had.

- 78 -
 V.

We come, then, to the plaintiffs' fallback grounds for

challenging the District Court's ruling. They contend that,

insofar as we find the Massachusetts state laws not to be

preempted, the District Court erred in denying their motion under

Rule 59(e) for reconsideration of the District Court's decision on

the motion to dismiss or, in the alternative, for leave to amend

their complaint pursuant to Rule 15(a). We review denials of both

motions for abuse of discretion. United States ex rel. Ge v.

Takeda Pharm. Co., 737 F.3d 116, 127 (1st Cir. 2013). We find

none.

The plaintiffs can succeed on a Rule 59(e) motion for

reconsideration -- relief for which, we have noted, is "granted

sparingly," -- only if they can show that "the original judgment

evidenced a manifest error of law, if there is newly discovered

evidence, or in certain other narrow situations." Biltcliffe v.

CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014) (internal

quotations omitted). Starting with the first of the motions, we

note that the plaintiffs premised it on the availability of what

they deemed "new evidence," which included, among other things, an

affidavit from Stanley Colvin, a former DOS official, and letters

from current members of Congress.

The plaintiffs contend that, in rejecting the motion, it

was "unreasonable" for the District Court to decline to consider

- 79 -
the Colvin affidavit, host family declarations, and letters from

members of Congress, because of the "persuasive information" that

they contained. The plaintiffs further contend that the District

Court abused its discretion in failing to do so because it

"declined to consider documents outside the pleadings in ruling

on" the motion to dismiss pursuant to Rule 12(b)(6) and relied on

this rationale for denying the motion for reconsideration. As the

plaintiffs put it, the District Court abused its discretion in

this regard because it made this decision "without even reviewing

[the Colvin affidavit] . . . even though the District Court had

previously suggested at an earlier status conference that the

parties could agree to submit additional facts outside the

Complaint, and even though the District Court did consider other

materials outside the pleadings in its decision."

The District Court did consider a congressionally

commissioned report from the GAO that the Attorney General cited,

but which was not in the record, in deciding the motion to dismiss.

But, that document, as the District Court noted, is publicly

available and the plaintiffs did not object to its inclusion. The

documents at issue in this challenge, by contrast, were not

publicly available, and the Attorney General did object to their

consideration and thus did not agree to their submission.

The plaintiffs' arguments concerning the denial of their

request to amend their complaint pursuant to Rule 15(a) are

- 80 -
similarly unavailing. Under that Rule, District Courts "freely

give leave [to amend the complaint] when justice so requires."

Fed. R. Civ. P. 15(a). But, as we have explained, "once [a]

judgment has been entered, the district court is without power to

entertain any amendments unless the judgment is set aside." Deka

Int'l S.A. v. Genzyme Corp. (In re Genzyme Corp. Secs. Litig.),

754 F.3d 31, 46 (1st Cir. 2014). And here, judgment was entered

prior to the plaintiffs' motion to amend and, thus, the District

Court denied that motion on that basis.

The plaintiffs do contend that the District Court abused

its discretion in denying this motion for leave to amend by relying

on our decision in Fisher v. Kadant, 589 F.3d 505, 509 (1st Cir.

2009), because there "the plaintiffs had two months between the

order on the motion to dismiss and entry of judgment." But, Fisher

did not rely on the time between the order on the motion to dismiss

and the entry of judgment in reaching its conclusion. See id. at

509-14. And, the plaintiffs do not grapple with a series of other

cases applying Rule 15(a) also without regard for the time between

the order on the motion to dismiss and the entry of judgment. See,

e.g., In re Genzyme, 754 F.3d at 46; Feliciano-Hernández v.

Pereira-Castillo, 663 F.3d 527, 538 (1st Cir. 2011). Thus, we see

no abuse of discretion by the District Court on this score either.

VI.

The judgment of the District Court is affirmed.

- 81 -