United States Court of Appeals
For the First Circuit
No. 21-1676
KAREN MORALES POSADA; AMANDA SARMENTO FERREIRA GUIMARAES;
WILLIANA ROCHA; SARA BARRIENTOS, individually and on behalf of
all others similarly situated,
Plaintiffs, Appellees,
v.
CULTURAL CARE, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Barron, Chief Judge,
Lipez and Howard, Circuit Judges.
Kathleen M. Sullivan, with whom William B. Adams, Harvey J.
Wolkoff, Alex H. Loomis, Gavin S. Frisch, and Quinn Emanuel
Urquhart & Sullivan, LLP, were on brief, for appellant.
David H. Seligman, with whom Towards Justice, Peter Rukin,
Rukin Hyland & Riggin LLP, Matthew C. Helland, and Nichols Kaster,
LLP, were on brief, for appellees.
Brian M. Boynton, Principal Deputy Assistant Attorney
General, Civil Division, Department of Justice, Michael S. Raab,
Appellate Staff, Civil Division, Department of Justice, Gerard
Sinzdak, Appellate Staff, Civil Division, Department of Justice,
Rachael S. Rollins, United States Attorney, and Richard C. Visek,
Acting Legal Advisor, U.S. Department of State, on brief for amicus
curiae United States.
Ira J. Kurzban, Helena M. Tetzeli, Edward F. Ramos, Elizabeth
Montano, Kurzban Kurzban Tetzeli & Pratt P.A., on brief for amicus
curiae Alliance for International Exchange.
Dawn L. Smalls, Ann O'Leary, Illyana A. Green, and Jenner &
Block LLP, on brief for amici curiae National Domestic Workers
Alliance, National Employment Law Project, and Economic Policy
Institute.
April 26, 2023
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BARRON, Chief Judge. This appeal concerns Yearsley v.
W.A. Ross Construction Company, in which the Supreme Court of the
United States held that "there is no ground for holding [an] agent
[of the Government] liable" for actions "authorized and directed"
by the Government and taken "under" Government "authority" that
has been "validly conferred." 309 U.S. 18, 20-22 (1940). The
appellant, Cultural Care, Inc. ("Cultural Care"), a Massachusetts-
based company, claims that Yearsley not only protects it from being
held liable in the suit that underlies this appeal but also that
Yearsley makes it immune from the suit altogether.
In pressing this contention, Cultural Care takes aim at
the District Court for the District of Massachusetts's order
denying its Yearsley-based motion to dismiss the plaintiffs-
appellees' claims against it. Cultural Care contends that, even
though the appeal from that order is interlocutory, we have
appellate jurisdiction under the collateral order doctrine to
review the order's rejection of the claim of immunity under
Yearsley. Cultural Care goes on to contend that we also have
appellate jurisdiction under the doctrine of pendent appellate
jurisdiction over the remainder of its interlocutory appeal of the
order, in which Cultural Care challenges the order's rejection of
the portions of the motion to dismiss that were based on grounds
independent of the claim of immunity under Yearsley. Finally,
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Cultural Care contends that the order must be reversed, insofar as
the order rejected both Cultural Care's bid for immunity based on
Yearsley and the other grounds for dismissing the plaintiffs-
appellees' claims that Cultural Care is pressing in this appeal.
We conclude that Cultural Care has not shown that it is
entitled to the immunity that it claims under Yearsley. We thus
affirm the order in that respect, although we do so for reasons
distinct from those on which the order relied. We also decline to
exercise our discretion under the doctrine of pendent appellate
jurisdiction to review the remaining portions of Cultural Care's
appeal. We thus dismiss them for lack of appellate jurisdiction.
I.
The appellees are the four named plaintiffs in the
underlying suit: Karen Morales Posada, Amanda Sarmento Ferreira
Guimaraes, William Rocha, and Sara Barrientos. They filed suit in
October 2020 on behalf of themselves and others in their asserted
class in the United States District Court for the District of
Massachusetts. The operative complaint names the defendant as
Cultural Care, which is a private company that places foreign
nationals as au pairs with host families throughout the United
States.
The complaint alleges that Cultural Care placed the
plaintiffs-appellees -- named and unnamed -- as au pairs with host
families in various states while acting as the U.S. Department of
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State ("DOS")-designated "sponsor[]" of the "exchange visitor
program" for au pairs through which the plaintiffs-appellees were
granted the special visas that permitted them to come to this
country and participate in that program.1 See 8 U.S.C.
§ 1101(a)(15)(J); 22 C.F.R. § 62.2. The complaint further alleges
that Cultural Care, while acting as the "sponsor," violated the
plaintiffs-appellees' rights under the Fair Labor Standards Act
("FLSA"), various state wage and overtime laws, and various state
deceptive trade practices laws.
The complaint alleges more specifically that Cultural
Care qualified as an "employer" of the plaintiffs-appellees under
the relevant states' wage-and-hour laws and not only failed to pay
the plaintiffs-appellees what they were owed as "employees" under
those laws, but also failed to provide the plaintiffs-appellees
from California and New York with the wage statements required by
those two states' wage-and-hour laws. The complaint further
alleges that Cultural Care violated the FLSA "when it failed to
pay" the plaintiffs-appellees that it "employ[ed]" the minimum
wage "required by the FLSA" and the "required overtime [pay] for
their work." See 29 U.S.C. §§ 206, 207, 216(b). Finally, the
complaint alleges that Cultural Care engaged in an "unlawful,
1 For a more detailed description of the relevant
regulatory scheme, see Capron v. Office of Attorney General of
Massachusetts, 944 F.3d 9, 13-18 (1st Cir. 2019).
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unfair, or fraudulent business act or practice" in violation of
California law, see Cal. Bus. & Prof. Code § 17200 et seq., and
engaged in "deceptive trade practices under the consumer
protection laws of" New York, New Jersey, Illinois, Connecticut,
and Washington, by issuing "materially misleading" instructions to
"au pairs and host families that au pair wages should be a minimum
of $195.75 per week." The complaint requests, among other forms
of relief, monetary damages and an order requiring Cultural Care
to "immediately cease its wrongful conduct."
Cultural Care filed a motion to dismiss the complaint in
March of 2021. The motion contended that the complaint must be
dismissed for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1) because Cultural Care is
"shielded from the entirety of this suit under the doctrine of
derivative sovereign immunity" set forth in Yearsley. The motion
contended in that regard that Yearsley's so-called "derivative
sovereign immunity" "protects private entities from suits based on
conduct authorized and directed by the United States" and that
Cultural Care's allegedly unlawful conduct was of that kind.
The motion separately argued that the state law wage-
and-hour and deceptive trade practices claims had to be dismissed
for failure to state a claim on which relief could be granted
because the claims were preempted by the DOS regulations pursuant
to which Cultural Care was designated as the "sponsor" of the
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"exchange visitor program" for au pairs that is at issue. See 22
C.F.R. § 62.2. The motion also sought the dismissal of the FLSA
claims and the various state law wage-and-hour claims for failure
to state a claim upon which relief could be granted because those
claims failed plausibly to allege that Cultural Care, in its role
as "sponsor" of the "exchange visitor program," was acting as the
plaintiffs-appellees' "employer." Finally, the motion sought the
dismissal of the state law deceptive trade practices claims for
failure to state a claim upon which relief could be granted. The
motion contended in this regard that the complaint's allegations
were "vague[]," did not "identify a single relevant statute or
common law rule," and could not succeed "[i]n any event" because
the allegedly deceptive dissemination of information was fully
compliant with DOS regulations and guidance documents.2
In August of 2021, the District Court granted Cultural
Care's motion in part and denied it in part. See Morales Posada
v. Cultural Care, Inc., 554 F. Supp. 3d 309, 324 (D. Mass. 2021).
The District Court granted Cultural Care's motion to dismiss the
state law deceptive trade practices claims under Connecticut and
2 Insofar as this last assertion is distinct from
Cultural Care's Yearsley-based claim, the District Court did not
address it and Cultural Care does not raise it on appeal. See
Morales Posada v. Cultural Care, Inc., 554 F. Supp. 3d 309 (D.
Mass. 2021).
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Washington law for lack of standing under the laws of those states,
but otherwise denied the motion. See id.
The District Court ruled in denying the motion that there
was no basis for dismissing all the claims for lack of subject
matter jurisdiction based on Yearsley. The District Court did so
because it determined that Cultural Care, as "sponsor" of the
"exchange visitor program" at issue, was more akin to a private
bank that had been licensed to operate by the Government than the
Government contractor involved in Yearsley itself. Id. at 318-
19.
The District Court ruled that the motion also must be
denied insofar as it sought the dismissal on preemption grounds of
the plaintiffs-appellees' state law wage-and-hour and deceptive
trade practices claims. Id. at 319, 322-23. The District Court
determined in this regard that those claims were not preempted.
Id.
The District Court further denied the motion insofar as
it sought dismissal of the wage-and-hour claims -- seemingly both
state and federal -- based on plaintiffs-appellees' purported
failure to allege plausibly that Cultural Care was acting as an
"employer" in its role as "sponsor" of the "exchange visitor
program." Id. at 322-23. The District Court did so because it
ruled that the plaintiffs-appellees had plausibly alleged that
Cultural Care was their "employer." Id.
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Finally, the District Court denied the motion insofar as
the motion sought the dismissal on vagueness grounds of the
plaintiffs-appellees' state law deceptive trade practices claims.
Id. at 323. The District Court based that ruling on the ground
that those claims were sufficiently "specific." Id.
Cultural Care thereafter filed this interlocutory appeal
to challenge the District Court's denial of the motion to dismiss.
The District Court stayed the litigation at the parties' request
pending our resolution of the appeal. Meanwhile, the plaintiffs-
appellees filed in this Court a motion for summary disposition
pursuant to Local Rule 27.0(c).
The motion asserted that Cultural Care had no "plausible
basis to assert" Yearsley protection, thus warranting our summary
disposition of the appeal. The motion further asserted that, even
if Cultural Care did have a "plausible basis to assert" Yearsley
protection, the nature of the protection that Yearsley provides to
those entitled to it is not an immunity from suit. As a result,
the motion asserted that "this appeal would still not be proper
because the Court lacks appellate jurisdiction to hear an appeal
of the District Court's denial of Cultural Care's motion to
dismiss."
A separate panel of this Court denied the motion. See
Order, Morales Posada v. Cultural Care, Inc., No. 21-1676 (1st
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Cir. Nov. 1, 2021). It did so without prejudice to our
reconsideration of it. Id.
After this Court heard oral arguments by the parties, we
issued an order on August 29, 2022, "solicit[ing] the views of the
United States Department of State in an amicus curiae brief" on
the issues presented in this appeal. The United States asserts in
its brief that Yearsley is "merely a defense to liability," and
that the rejection by a district court of such a defense "can be
reviewed effectively following a final judgment and typically
involves the resolution of issues that are intertwined with the
merits," such that the collateral order doctrine does not apply.
Thereafter, Cultural Care sought leave to file a supplemental
responsive brief, which we granted on December 9, 2022, while also
allowing a supplemental response by plaintiffs-appellees.3
II.
We usually lack appellate jurisdiction over appeals of
orders that deny motions to dismiss because such orders are not
"final" under 28 U.S.C. § 1291. See Whitfield v. Mun. of Fajardo,
564 F.3d 40, 45 (1st Cir. 2009). Cultural Care contends that we
have such jurisdiction here, however, due to the combined effect
in this case of the collateral order doctrine, which often permits
us to hear interlocutory appeals from orders that deny motions to
We appreciate the contributions of the additional amici
3
who submitted briefs in this case.
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dismiss that are based on claims to immunity from suit, see Digit.
Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 871-72 (1994),
and the doctrine of pendent appellate jurisdiction, which permits
us to resolve on interlocutory appeal issues that are "inextricably
intertwined" with issues over which we otherwise have appellate
jurisdiction, see Swint v. Chambers Cnty. Comm'n, 514 U.S. 35, 51
(1995).
Cultural Care relies on the collateral order doctrine to
argue that we have appellate jurisdiction over the portion of its
appeal that challenges the District Court's rejection of its claim
of immunity from this suit under Yearsley. It relies on the
doctrine of pendent appellate jurisdiction to argue that we have
appellate jurisdiction over the portions of its appeal that
challenge the District Court's rejection of its contentions that
the plaintiffs-appellees failed to allege plausibly that Cultural
Care is an "employer" under the FLSA and that the DOS regulations
that implement the "exchange visitor program" for au pairs preempt
the plaintiffs-appellees' state law claims.
We begin with Cultural Care's arguments that concern
the collateral order doctrine. We then address its arguments
that concern the doctrine of pendent appellate jurisdiction.
A.
Cultural Care emphasizes that orders denying motions to
dismiss that are based on a claimed immunity from suit often
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satisfy the requirements of the collateral order doctrine, which
permits us to exercise appellate jurisdiction over appeals from
orders that are not otherwise "final" under 28 U.S.C. § 1291.
Cultural Care contends that is so because such orders "(1)
conclusively determine the disputed question, (2) resolve an
important issue completely separate from the merits of the action,
and (3) [are] effectively unreviewable on appeal from a final
judgment." Will v. Hallock, 546 U.S. 345, 349-50 (2006) (internal
citation omitted); see Digit. Equip. Corp., 511 U.S. at 871
(finding that orders denying motions to dismiss based on claims to
immunity from suit "are strong candidates for prompt appeal" under
the collateral order doctrine); Wyatt v. Cole, 504 U.S. 158, 166
(1992) (noting that immunities may be "effectively lost if a case
is erroneously permitted to go to trial" (quoting Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985))). Cultural Care further
contends that the District Court's order denying Cultural Care's
motion to dismiss, in rejecting the Yearsley-based claim of
immunity, has these three features.4 Thus, Cultural Care argues,
we have jurisdiction under the collateral order doctrine over the
Yearsley-based portion of this appeal.
We do not understand Cultural Care to contend that, if
4
Yearsley does not confer an immunity from suit and instead confers
only a defense to liability, an order denying protection under
Yearsley might still be reviewable on appeal under the collateral
order doctrine.
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The plaintiffs-appellees, joined by the United States as
amicus at our invitation, do not dispute that if Cultural Care can
show that it is entitled to Yearsley protection and that Yearsley
confers an immunity from suit over those entitled to its
protection, then we have appellate jurisdiction under the
collateral order doctrine over the Yearsley-based portion of this
appeal. But, the plaintiffs-appellees and the United States
contend, Cultural Care cannot make that showing.
The plaintiffs-appellees and the United States argue in
that regard that, contrary to Cultural Care's contentions,
Yearsley does not confer a derivative form of the United States'
own sovereign immunity, which we have held to be an immunity from
suit. See Villanueva v. United States, 662 F.3d 124, 126 (1st
Cir. 2011) ("[S]overeign immunity (which is jurisdictional in
nature) shields the United States from suit."). Rather, the
plaintiffs-appellees and the United States argue, Yearsley merely
recognizes a defense to liability that certain private parties may
assert in consequence of their having acted on the Government's
behalf. The plaintiffs-appellees and the United States thus
contend that the District Court's order denying Cultural Care's
Yearsley-based motion to dismiss is effectively reviewable on
appeal from a final judgment, as denials of defenses to liability
usually are. See Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1, 14
(1st Cir. 2000) (finding that a municipality's defenses to a §
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1983 lawsuit were not appealable under the collateral order
doctrine because they did not implicate "a right to immunity from
trial" but were merely "defense[s] to liability" (internal
citation omitted)). And so, the plaintiffs-appellees and the
United States argue, the order before us is for that reason alone
not an order from which, pursuant to the collateral order doctrine,
the Yearsley-based portion of this appeal may be taken.
The plaintiffs-appellees (though not the United States)
do not stop there, however. They go on to assert that Cultural
Care is not entitled to any protection under Yearsley, regardless
of the kind of protection that Yearsley confers on those entitled
to it.
The plaintiffs-appellees first contend that is so
because Cultural Care has not shown that it has the kind of tie to
the Government that would entitle it to the protection that
Yearsley recognizes. The plaintiffs-appellees emphasize in that
regard that Cultural Care makes no case that, in acting as the
DOS-designated "sponsor" of the "exchange visitor program" for au
pairs in which the plaintiffs-appellees were participants,
Cultural Care had either a contractual or common-law agency
relationship with the Government.
But, the plaintiffs-appellees also argue that, in any
event, Cultural Care cannot show that it is entitled to any
protection under Yearsley for another reason. Here, they contend
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that Cultural Care has failed to show that the claims that it seeks
to dismiss aim to hold it liable for actions that the Government
"authorized and directed." See Yearsley, 309 U.S. at 20.
B.
The parties do not clearly explain how all their
arguments about whether Cultural Care is entitled to immunity under
Yearsley bear on all their arguments about whether the District
Court's order denying Cultural Care's Yearsley-based motion to
dismiss satisfies the collateral order doctrine. Nor do the
parties address whether Cultural Care has advanced a "substantial
claim" of immunity, compare McMahon v. Presidential Airways, Inc.,
502 F.3d 1331, 1338-41 (11th Cir. 2007) (finding that plaintiffs
had presented a substantial claim of immunity under Yearsley),
with Houston Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., Inc.,
481 F.3d 265, 268-69 (5th Cir. 2007) (finding that plaintiffs had
not presented a substantial claim of immunity under Yearsley), and
whether, if so, we have appellate jurisdiction under the collateral
order doctrine over the Yearsley-based portion of this appeal
regardless of whether the claim of Yearsley protection is
ultimately meritorious, see McMahon, 502 F.3d at 1339 & n.6 ("A
substantial claim to immunity from suit, not immunity itself, is
the basis for a collateral order appeal."); see also Mitchell, 472
U.S. at 525 ("[T]he denial of a substantial claim of absolute
immunity is an order appealable before final judgment . . . .");
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Fisichelli v. City Known as Town of Methuen, 884 F.2d 17, 18 (1st
Cir. 1989) ("[T]he denial of a substantial claim to qualified
immunity can be immediately appealed under [the collateral order]
exception.").
As a result, the parties do not address how the fact
that it is an open question in our Circuit whether Yearsley confers
an immunity from suit rather than merely a defense to liability
bears on whether we have appellate jurisdiction under the
collateral order doctrine over the Yearsley-based portion of
Cultural Care's appeal.5 Nor do the parties address whether, if
There is no consensus among our sister circuits as to
5
whether Yearsley confers an immunity from suit, the denial of which
is appealable under the collateral order doctrine. Compare, e.g.,
Childs v. San Diego Family Hous. LLC, 22 F.4th 1092, 1099 (9th
Cir. 2022) (finding that Yearsley protection is not an immunity
from suit appealable under the collateral order doctrine), with
Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 650-
51 (4th Cir. 2018) (finding that "the Yearsley doctrine" confers
an immunity "from suit"), In re World Trade Ctr. Disaster Site
Litig., 521 F.3d 169, 192, 196 (2d Cir. 2008) (finding that Boyle
v. United Techs. Corp., 487 U.S. 500 (1988), "refined" the
protection granted in Yearsley and that a court may exercise
collateral order jurisdiction over an appeal of a lower court's
denial of a private actor's claim of Boyle protection as applied
in the Stafford Act context), McMahon, 502 F.3d at 1339 (exercising
collateral order jurisdiction over a denial of a substantial claim
of protection under Feres v. United States, 340 U.S. 135 (1950),
as applied to a private actor under Yearsley), and Adkisson v.
Jacobs Eng'g Grp., Inc., 790 F.3d 641, 647 (6th Cir. 2015) (citing
Filarsky v. Delia, 566 U.S. 377, 388-94 (2012), in holding that
"Yearsley immunity is, in our opinion, closer in nature to
qualified immunity for private individuals under government
contract" than it is to sovereign immunity). But cf. Al Shimari
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we were to reject Cultural Care's claim of immunity solely on the
ground that Cultural Care is not entitled to any protection under
Yearsley at all, we would be required under the collateral order
doctrine to dismiss the appeal for lack of appellate jurisdiction
on the ground that no "substantial claim" of immunity had been
made or to affirm the order of the District Court in that regard
as an exercise of such jurisdiction. See Houston Cmty. Hosp., 481
F.3d at 268-69.
As it happens, though, we cannot dispose of this appeal
without at least addressing the claim of immunity that Cultural
Care makes, if only to determine whether that claim is
"substantial." And, we do not understand the collateral order
doctrine to require us, in the course of doing so, to address
whether Yearsley confers an immunity at all before addressing the
more case-specific question of whether Cultural Care is entitled
to any protection under Yearsley. Moreover, if, after undertaking
that latter inquiry, we were to conclude that Cultural Care was
not entitled to any such protection, that conclusion would be
v. CACI Premier Tech., Inc., 775 F. App'x 758, 760 (4th Cir. 2019)
("[W]e have never held . . . that a denial of . . . [Yearsley
protection] is immediately reviewable on interlocutory appeal.").
See also Murray v. Northrop Grumman Info. Tech., Inc., 444 F.3d
169, 175-76 (2d Cir. 2006) (finding that a private contractor
"hired to perform a quintessential governmental function" may be
entitled to "absolute[] immun[ity] from state tort liability for
claims resulting from" actions taken "in the course of its official
duties" under Westfall v. Erwin, 484 U.S. 292 (1988)).
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binding on the District Court regardless of whether we then would
be required to dismiss the Yearsley-based portion of the appeal
for lack of appellate jurisdiction or affirm the District Court's
order as the culmination of our exercise of such jurisdiction.
Thus, we conclude that we may bypass the fine point of
what constitutes a "substantial claim" of immunity in this context.
We similarly conclude that we may bypass the equally fine question
of whether a claim of immunity of that "substantial" sort could
suffice to secure our appellate jurisdiction under the collateral
order doctrine even if the claim were ultimately rejected.6 For,
as we will explain, we conclude that Cultural Care's challenge to
the order of dismissal would fail even if we were to assume that
we did have appellate jurisdiction solely because a "substantial
claim" of immunity had been made.
We reach this ultimate conclusion regarding Cultural
Care's Yearsley-based claim of immunity, moreover, because we
conclude that Cultural Care has not shown that it is entitled to
6 See Norton v. Matthews, 427 U.S. 524, 531-32 (1976);
Cowels v. Fed. Bureau of Investigation, 936 F.3d 62, 67 (1st Cir.
2019) ("Where a question of statutory jurisdiction is complex, but
the merits of the appeal are 'easily resolved against the party
invoking [] jurisdiction,' we can assume jurisdiction for purposes
of deciding the appeal." (alteration in original) (quoting In re
Fin. Oversight & Mgmt. Bd. for P.R., 916 F.3d 98, 114 n.13 (1st
Cir. 2019))); Aves v. Shah, No. 96-3063, 1997 WL 589177, at *1
(10th Cir. 1997) (assuming jurisdiction under § 1291 "where the
jurisdictional issues are difficult and the merits clearly and
obviously run against the party seeking jurisdiction").
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any protection under Yearsley at all. And that is because we
conclude that, whether or not the plaintiffs-appellees are right
that private parties must have contractual or common-law agency
relationships with the Government to be entitled to protection
under Yearsley, the plaintiffs-appellees are right that Cultural
Care has not shown that the Government "authorized and directed"
it to take the actions for which the claims that are at issue in
this appeal seek to hold it liable.
To explain our reasoning in coming to this conclusion,
we first review what Yearsley establishes about why the private
party in that case enjoyed the protection that Yearsley recognized.
We then explain how other courts have understood what Yearsley
establishes with respect to when a private party is entitled to
such protection. Finally, we explain why we conclude that Cultural
Care has not shown that it is entitled to Yearsley's protection,
first with respect to the plaintiffs-appellees' federal and state
wage-and-hour claims and then with respect to the plaintiffs-
appellees' deceptive trade practices claims.
C.
Yearsley addressed whether a private company that the
Government had contracted to construct dikes in the Missouri River
was liable for the damage that construction caused to adjacent
landowners by allegedly "produc[ing] artificial erosion" that "had
washed away a part of" the landowners' land. 309 U.S. at 19. The
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Court explained that the private company had asserted as a defense
that "the work" that allegedly was unlawful -- and thus gave rise
to liability -- "was done pursuant to a contract with the United
States Government, and under the direction of the Secretary of War
and the supervision of the Chief of Engineers of the United States,
for the purpose of improving the navigation of the Missouri River,
as authorized by an Act of Congress." Id.
In assessing the merits of this asserted defense, the
Court recounted that the court of appeals had found that "[t]here
was evidence tending to show" that, to keep open a passage in the
river that would be adequate for navigation while constructing the
dike opposite the plaintiffs' land, the private company had
accelerated the erosion of the plaintiffs' land "by using the
paddle wheels of its steamboats to increase the action of the
current." Id. at 20 (internal quotations omitted). But, the Court
explained, the court of appeals also had found that "there was no
evidence . . . that this 'paddle washing' had done 'anything more
than hasten the inevitable.'" Id.
Moreover, the Court noted that the court of appeals had
found it to be "undisputed 'that the work which the contractor had
done'" for which plaintiffs were seeking to hold the contractor
liable -- in particular, the building of dikes in a riverbed that
resulted in erosion causing damage to the plaintiffs' adjacent
lands -- "was all authorized and directed by the Government of the
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United States." Id. (emphasis added). And, the Court noted
further that "[i]t is also conceded that the work thus authorized
and directed was performed pursuant" to an Act of Congress. Id.
It was only after the Court had given this rather
detailed account of the travel of the case that the Court set forth
the doctrine for which Yearsley is now known, stating that "[i]n
that view, it is clear that, if this authority to carry out the
project was validly conferred, that is, if what was done was within
the constitutional power of Congress, there is no liability on the
part of the contractor for exercising its will." Id. at 20-21
(emphasis added). The Court cited to three of its prior precedents
to support that proposition. See id. at 21 (citing Den ex dem.
Murray's Lessee v. Hoboken Land & Imp. Co., 18 How. 272, 283
(1855); Lamar v. Browne, 92 U.S. 187, 199 (1875); and United States
v. The Paquete Habana, 189 U.S. 453, 465 (1903)). And, in
elaborating on the protection that was being recognized, the Court
further stated that "[w]here an agent or officer of the Government
purporting to act on its behalf has been held to be liable for his
conduct causing injury to another, the ground of liability has
been found to be either that he exceeded his authority or that it
was not validly conferred." Id. As support for this proposition,
the Court then cited other of its prior precedents, all but the
last of which concerned only the "validly conferred" issue. See
id. (citing Philadelphia Co. v. Stimson, 223 U.S. 605, 619 (1912);
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United States v. Lee, 106 U.S. 196, 220 (1882); Noble v. Union
River Logging R.R. Co., 147 U.S. 165, 171-72 (1893); Tindal v.
Wesley, 167 U.S. 204, 222 (1897); Scranton v. Wheeler, 179 U.S.
141, 152 (1900); and Am. Sch. of Magnetic Healing v. McAnnulty,
187 U.S. 94, 108 (1902)).
Notably, the remainder of the Court's analysis addressed
only the landowners' separate assertion that the private company
was not entitled to protection from liability even for acting as
the Government had "authorized and directed" because any such
Government "authority" had not been "validly conferred." Id. at
21-23. The landowners had contended that was so because the
private company's work in constructing the dikes had, by causing
the river to erode the landowners' property, effected a "taking"
without "just compensation" in violation of the Fifth Amendment of
the U.S. Constitution, which the Government had no power under the
Constitution to authorize. Id. But, the Court disposed of that
issue solely by concluding that any such contention had to be
brought in the Court of Claims and so was not properly before the
Supreme Court on appeal. Id. at 23.
As this review of Yearsley reveals, then, the Court had
no reason to address in Yearsley itself when an "agent or officer"
of the Government may be denied protection from liability on the
ground that, even though the Government had "validly conferred"
some authority on the "agent or officer[,]" such an "agent or
- 22 -
officer" "exceeded" its authority to act on behalf of the
Government. Id. at 21. The Court instead proceeded on the
understanding that the Government contractor there faced liability
solely for the work that it had been "authorized and directed" to
undertake; after all, the only damage that the Government
contractor's work was alleged to have caused had been found to
have been the "inevitable" consequence of the Government
contractor having performed that very work under the direction of
the Secretary of War and the supervision of the Chief of Engineers
of the United States. Id. at 19-20 (emphasis added).
Thus, while Yearsley recognizes that an "agent or
officer" may enjoy protection from liability when "authorized and
directed" by the Government to take the action for which it is
alleged to be liable, Yearsley does not hold that an "agent or
officer" necessarily also enjoys protection from liability for not
taking other actions that the Government left it free to take while
acting as it had been so "authorized and directed."
We emphasize, too, that we do not understand Yearsley to
be implicitly suggesting otherwise, given the Supreme Court's
instruction that "an instrumentality of Government [one] might be
and for the greatest ends, but the agent, because he is agent,
does not cease to be answerable for his acts." Sloan Shipyards
Corp. v. U.S. Shipping Bd. Emergency Fleet Corp., 258 U.S. 549,
567 (1922). Indeed, in the wake of Yearsley, the Court emphasized
- 23 -
that the "liability of an agent for his own negligence has long
been embedded in the law." Brady v. Roosevelt S.S. Co., 317 U.S.
575, 580 (1943).
We do recognize that the Supreme Court rejected a claim
of Yearsley protection by a Government contractor in Campbell-
Ewald Co. v. Gomez on the ground that such protection is not
available to a party alleged to be liable for having acted in
violation of the Government's "explicit instructions." 577 U.S.
153, 166 (2016). But, in so holding, the Court at no point
suggested that Government agents or officers are entitled to
protection under Yearsley so long as they are not acting in
violation of such instructions. See id. And, of course, any such
notion would be implausible, given that Government agents and
officers may do all manner of things that are not in violation of
any express instructions of the Government but that have in no
sense been "authorized and directed" by the Government.
We add, in this regard, that our Circuit has not had
occasion to decide when conduct that is alleged to engender
liability has been "authorized and directed" by the Government for
purposes of Yearsley and so is not conduct that "exceeded"
authority that the Government "validly conferred." But, other
circuits have. And, they have not read Yearsley differently from
how we read Yearsley here. See Cabalce v. Thomas Blanchard &
Assocs., Inc., 797 F.3d 720, 732 (9th Cir. 2015) (holding that the
- 24 -
protection that Yearsley provides is "limited to cases in which a
contractor 'had no discretion in the design process and completely
followed government specifications.'" (quoting In re Hanford
Nuclear Rsrv. Litig., 534 F.3d 986, 1001 (9th Cir. 2008))); see
also In re U.S. Office of Personnel Mgmt. Data Sec. Breach, 928
F.3d 42, 69-70 (D.C. Cir. 2019) (holding that the contractor could
not "wrap itself in" Yearsley protection because it had not
established that it had been "authorized and directed" by the
government "to design its system with the security flaws that [the
plaintiffs] identif[ied]"); In re KBR, Inc., Burn Pit Litig., 744
F.3d 326, 345 (4th Cir. 2014) ("[S]taying within the thematic
umbrella of the work that the government authorized is not enough
to render the contractor's activities 'act[s] of the government'
[sufficient to trigger Yearsley protection]." (alteration in
original)). Or, at least, they have understood Yearsley's
protection to extend at most to cases in which the allegedly
liability-causing action (or inaction) of the private party
claiming that protection was specifically "approved" by the
Government in advance of that action having been taken to
accomplish the task that the Government did "authorize and direct"
that private party to perform. See Taylor Energy Co. v. Luttrell,
3 F.4th 172, 177 (5th Cir. 2021).
- 25 -
D.
Against this legal backdrop, Cultural Care asserts that
it enjoys protection under Yearsley because the plaintiffs-
appellees' claims at issue seek to hold the company liable for
merely "stepping into the State Department's shoes and
'perform[ing] exactly as' the government 'directed.'" See
Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 647
(4th Cir. 2018). We thus need to determine whether Cultural Care
has made that showing. To do so, we must address the contentions
that Cultural Care makes with respect to not only the plaintiffs-
appellees' federal and state wage-and-hour claims but also their
deceptive trade practices claims.
1.
With respect to the plaintiffs-appellees' federal and
state wage-and-hour claims, Cultural Care contends that the
plaintiffs-appellees seek to hold it "liable as an employer for
supposed wage-and-hour violations" because it told host families
that the minimum weekly "stipend" for au pairs is "$195.75" and
"it screens, trains, monitors, and maintains certain records for
au pairs." More specifically, Cultural Care contends that the
plaintiffs-appellees allege in this regard that Cultural Care "is
their 'employer' and thus is liable for their host families'
alleged violations of state and federal wage-and-hour laws"
because Cultural Care "monitors au pairs' welfare; has 'the right
- 26 -
to reject any au pair application'; 'exercises control over the
wages, hours and working conditions [of au pairs]'; 'maintains []
records regarding' au pairs; 'requires all its au pairs to attend
four days of training'; and 'instructs' host families to pay" a
weekly "stipend," which it currently describes as a "weekly payment
of $195.75."
Cultural Care appears to be contending, in other words,
that the plaintiffs-appellees' wage-and-hour claims seek to hold
the company liable for performing "exactly as directed" because
those claims seek to hold it liable merely for taking actions that
DOS regulations and guidance documents required it to take as a
"sponsor." See 22 C.F.R. §§ 62.10, 62.31(c)-(i). But, even if we
were to assume that the relevant DOS regulations and guidance
documents did "require . . . Cultural Care to perform" any or even
all the actions that we have just described, we cannot agree with
Cultural Care's contention.
The DOS regulations and guidance documents referenced
above do not purport to prevent Cultural Care from taking actions
that would have brought the company into compliance with what the
plaintiffs-appellees alleged the relevant wage-and-hour laws
require. For example, those regulations and guidance documents do
not purport to prevent Cultural Care from taking actions to ensure
that the au pairs received the wages that they claim had to be
paid to them under the relevant wage-and-hour laws. Thus, this is
- 27 -
not a case like Cunningham in which the Fourth Circuit held that
Yearsley protected a private party expressly authorized and
directed by the Government to violate the liability-engendering
laws that it was alleged to have violated. See 888 F.3d at 647;
cf. In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169,
196–97 (2d Cir. 2008) (finding -- in applying in the "Stafford Act
context" the protection recognized in Boyle v. United Techs. Corp.,
487 U.S. 500 (1988) -- that such protection "refined" the
protection granted in Yearsley and "will not preclude recovery for
injuries occasioned by violation of state statutes if the entity
could have abided by those statutes while implementing the agency's
specifications"). Accordingly, it is hard to see how we could
conclude -- at least at this stage of the litigation -- that the
plaintiffs-appellees seek to hold Cultural Care liable merely for
acting as the regulations and guidance documents required.
Moreover, Yearsley does not establish that a private
party is protected from liability for its actions so long as it
was "authorized and directed" by the Government to act in ways
that suffice only to bring it within the class of parties -- here,
"employers" -- that are subject to the laws on which the
plaintiffs' claims are premised. Yearsley protects parties from
liability for acting in a way that gives rise to liability because
so acting is unlawful. Cultural Care develops no argument -- and
- 28 -
identifies no precedent to suggest -- that Yearsley indicates
otherwise.
To be sure, Cultural Care does contend that DOS
regulations and guidance documents provided that a "sponsor" "need
only '[e]nforce and monitor [the] host family's compliance with
[the State Department's] stipend and hours requirement,'" citing
22 C.F.R. § 52.31(n). And, for that reason, Cultural Care contends
that the regulations and guidance documents "directed and
certainly authorize[d]" it to act as it did -- in other words, to
do only what it did and no more. (Emphasis added.)
But, insofar as Cultural Care means to shift from a
contention that the plaintiffs-appellees' federal and state wage-
and-hour claims seek to hold Cultural Care liable only for doing
what it was "directed to do" to a contention that those claims
seek to hold it liable for merely doing what it was "certainly
authorized" to do, Cultural Care does not explain how the latter
showing can in and of itself suffice to trigger protection under
Yearsley. See Yearsley, 309 U.S. at 20. Moreover, even if an
entity need do no more than Cultural Care did to meet the
requirements of being a "sponsor," the regulations and guidance
documents that set forth the requirements do not purport to bar
such an entity from taking actions that (according to the
plaintiffs-appellees) would have brought Cultural Care into
compliance with the laws that underlie plaintiffs-appellees'
- 29 -
claims. Indeed, as we explained in Capron v. Office of Attorney
General of Massachusetts, the text of the regulations that govern
the "exchange visitor program" make it "hard to draw" the
"inference" that the regulations prohibit au pairs from being paid
above the minimum amount required in the regulations. 944 F.3d 9,
29-30 (1st Cir. 2019); see 22 C.F.R. § 62.31(j).
Thus, Cultural Care at most has shown that a decision
not to take the actions that the plaintiffs-appellees alleged would
have brought it into compliance with the state and federal laws at
issue was a decision that it could make without thereby failing to
comply with the DOS regulations and guidance documents. Cultural
Care develops no argument that in deciding not to comply with state
and federal wage-and-hour laws it would have been acting as it had
been "directed" to do. Nor does Cultural Care even develop an
argument that any such decision not to comply was itself approved
(rather than not prohibited) by the Government in supervising its
actions as a "sponsor." See Taylor Energy Co., 3 F.4th at 175-
76.
Of course, Cultural Care does argue that the plaintiffs-
appellees' state wage-and-hour claims are preempted by the DOS
regulations. But, Cultural Care rightly recognizes that the
question of whether it has been "authorized and directed" by the
Government for purposes of Yearsley is distinct from the question
of whether it enjoys protection from liability based on preemption.
- 30 -
Thus, we do not see how Cultural Care's arguments regarding
preemption suffice to show that it is entitled to protection under
Yearsley on the ground that the federal and state wage-and-hour
claims seek to hold it liable only for doing what the Government
"authorized and directed" it to do.
2.
With respect to the plaintiffs-appellees' claims that
Cultural Care violated deceptive trade practices laws, our
reasoning is similar. Cultural Care contends in its briefing to
us that DOS guidance documents and binding regulations state that
"[s]ponsors shall require that au pair participants," 22 C.F.R. §
62.31(j), receive a weekly stipend "directly connected to the
federal minimum wage" of at least "$195.75." Cultural Care further
contends that DOS, in part via "Federal Minimum Wage Increase"
"Notice" guidance documents issued by the Department, directed
Cultural Care to inform host families that the minimum "weekly
stipend" is "$195.75." Cultural Care then asserts that these
directives, per Yearsley, protect it from the plaintiffs-
appellees' claims that Cultural Care violated deceptive trade
practices laws. Cultural Care contends that these regulations and
guidance documents do so by giving "materially misleading"
instructions to host families that the minimum weekly "stipend"
for au pairs is "$195.75," which the plaintiffs-appellees contend
"deceiv[ed] au pairs and host families by claiming it is legal to
- 31 -
pay an au pair $195.75 per week for up to 45 hours of work" in
select states where such payments are allegedly illegal.
But, the DOS regulations and guidance documents on which
Cultural Care relies show only that the company was required as a
"sponsor" to make sure that host families were informed of a
minimum amount that they were required to pay. The regulations
and guidance documents do not show that the Government directed
Cultural Care as a "sponsor" to suggest to host families that they
need compensate au pairs with only this amount to comply with
federal and state wage-and-hour laws. See Capron, 944 F.3d at 29-
30. Nor does Cultural Care identify any basis for our concluding
at this stage of the litigation that, in directing Cultural Care's
conduct as a "sponsor," the DOS specifically approved Cultural
Care so suggesting. Indeed, Cultural Care develops no argument to
us -- and, at the motion to dismiss stage, we do not see how we
can conclude based on the DOS regulations and guidance documents,
as written -- that the government "authorized and directed"
Cultural Care to do such a thing.
Cultural Care does assert that it is entitled to Yearsley
protection from plaintiffs-appellees' deceptive trade practices
claims because the DOS regulations required the company to provide
DOS with "[a] complete set of all promotional materials, brochures,
or pamphlets distributed to either host family or au pair
participants," which DOS reviewed for federal compliance every
- 32 -
year. 22 C.F.R. § 62.31(m)(4), (6). But, Cultural Care does not
contend that the DOS review process barred it from providing
information to host families that would have informed them of what
wage-and-hour laws would have required host families to pay
(insofar as those laws would have required a higher payment than
the minimum that the DOS regulations and guidance documents
required Cultural Care to describe). We thus do not see how these
DOS regulations support Cultural Care's claim of protection under
Yearsley as to the plaintiffs-appellees' deceptive trade practices
claims. See Cunningham, 888 F.3d at 647; cf. In re World Trade
Ctr. Disaster Site Litig., 521 F.3d at 196–97 (explaining, in
applying in the "Stafford Act context" the protection recognized
in Boyle, 487 U.S. 500, that such protection "refined" the
protection granted in Yearsley and that, "if the government merely
accepted, without substantive review or enforcement authority,
decisions made by an entity, that entity would not be entitled" to
Boyle protection).
Finally, as we noted above, neither Campbell-Ewald, see
577 U.S. at 166, nor Cultural Care's assertions of the separate
defense of preemption have any bearing on the question that is
critical here -- namely, whether Cultural Care was "authorized and
directed" by the Government to act in the ways for which
plaintiffs-appellees seek to hold it liable. Thus, just as we
conclude that Cultural Care has not shown that it is entitled to
- 33 -
Yearsley protection from the plaintiffs-appellees' federal and
state wage-and-hour claims, we conclude that the same is true with
respect to the plaintiffs-appellees' deceptive trade practices
claims.
E.
In sum, Cultural Care has not shown, at least at this
stage of the litigation, that it is entitled to protection under
Yearsley, because it has not shown that any of the plaintiffs-
appellees' claims at issue in this appeal seek to hold it liable
for taking actions that the Government "authorized and directed."
Yearsley, 309 U.S. at 20. Accordingly, we need not -- and do not
-- decide in this appeal either whether Yearsley recognizes an
immunity from suit rather than merely a defense to liability or
whether a party, to be entitled to the protection that Yearsley
recognizes, must have a contractual or common-law agency
relationship with the Government. And that is because we reject
Cultural Care's challenge to the District Court's order denying
its motion to dismiss based on Yearsley for the separate reasons
that we have just given.
III.
There remains Cultural Care's contention that we have
pendent appellate jurisdiction to address whether the state law
wage-and-hour and deceptive trade practices claims brought by
plaintiffs-appellees are preempted and whether Cultural Care is an
- 34 -
"employer" under the FLSA. For this to be the case, these issues
must be "inextricably intertwined" with or "necessary to ensure
meaningful review" of some other issue over which we have appellate
jurisdiction. Swint, 514 U.S. at 51.
The parties do not address whether we would lack pendent
appellate jurisdiction over the remaining portions of Cultural
Care's appeal if we were to lack appellate jurisdiction under the
collateral order doctrine over Cultural Care's appeal from the
order denying its Yearsley-based claim of immunity. But here,
too, we need not concern ourselves with a fine point of appellate
jurisdiction. And that is because, as we will explain, we conclude
that we have no basis for exercising pendent appellate jurisdiction
over these remaining portions of Cultural Care's appeal in any
event. Thus, we conclude that we must dismiss these portions of
Cultural Care's appeal even assuming, as we do, that we have
appellate jurisdiction under the collateral order doctrine over
the Yearsley-based portion of its appeal. See Norton, 427 U.S. at
531-32; Cowels, 936 F.3d at 67.
A.
In urging us to exercise pendent appellate jurisdiction
here, Cultural Care contends that we have such jurisdiction over
the portion of its appeal that takes aim at the order denying its
motion to dismiss on the ground that it is not an "employer" under
the FLSA. That is so, Cultural Care contends, because the issue
- 35 -
of whether it is an "employer" under the statute is "inextricably
intertwined" with the issue of whether Cultural Care is entitled
to immunity under Yearsley.
Cultural Care reasons in this regard as follows. It
asserts that if it were immune from suit based on Yearsley, then
the FLSA would waive that immunity if Cultural Care were an
"employer" under FLSA. See 29 U.S.C. § 216(b). Thus, Cultural
contends, we then would have to decide whether Cultural Care was
an "employer" under the FLSA to resolve whether it was entitled to
the claimed immunity.
But, as we have explained, we have concluded that
Cultural Care has not shown that it is entitled to immunity under
Yearsley solely because we have concluded that Cultural Care has
not shown at this stage of the proceedings that it is entitled to
Yearsley protection at all. And, in concluding on that basis that
Cultural Care was not entitled to protection under Yearsley, we
had no occasion to determine whether Cultural Care is an "employer"
under the FLSA. Accordingly, we see no basis for exercising
pendent appellate jurisdiction over the portion of Cultural Care's
appeal in which it contends that it is not an "employer" under the
FLSA.
B.
That leaves Cultural Care's contention that we have
pendent appellate jurisdiction over the portion of its appeal in
- 36 -
which it challenges the District Court's order denying its motion
to dismiss insofar as that motion is based on the contention that
the plaintiffs-appellees' state law wage-and-hour and deceptive
trade practices claims are preempted. But, here, too, Cultural
Care has not shown that the issues that this portion of its appeal
raises are "inextricably intertwined" with the issues that the
Yearsley-based portion of its appeal raises.
As we have explained, the Yearsley-based portion of the
appeal fails on the ground that Cultural Care has not shown that
any of the state law wage-and-hour and deceptive trade practices
claims at issue on appeal seek to hold it liable merely for
following the DOS regulations and guidance documents. The state
wage-and-hour claims, we have explained, instead seek to hold
Cultural Care liable for not taking actions as an "employer" that
it retained the discretion to undertake even if it were to follow
the regulations and guidance. And, as we have explained, the
deceptive trade practice claims are not relevantly different in
that regard.
That is significant because Cultural Care does not, in
the preemption-based portion of this appeal, suggest that it lacks
discretion under the assertedly preemptive DOS regulations -- or
any other requirement imposed by federal law on it as a "sponsor"
-- to take the actions that the plaintiffs-appellees allege would
have protected it from liability under their state law wage-and-
- 37 -
hour and deceptive trade practices claims. See also Capron, 944
F.3d at 29-30. Moreover, in concluding that Yearsley does not
apply because Cultural Care has not shown that these claims seek
to hold it liable for acting as "authorized and directed" by the
Government, we have no occasion to address the many distinct issues
that would be presented by the separate question of whether federal
law displaces these state law claims even though federal law does
not bar the exercise of discretion by Cultural Care that would
permit it to be in compliance with the various state laws that
underlie the claims at issue.
Thus, we conclude that the preemption-based portion of
Cultural Care's appeal is not inextricably intertwined with the
Yearsley-based portion. Accordingly, we decline to exercise our
discretion to assert pendent appellate jurisdiction over the
preemption-based portion of this appeal. See Limone v. Condon,
372 F.3d 39, 51-52 (1st Cir. 2004).
IV.
We therefore affirm the District Court's denial of
Cultural Care's motion to dismiss on the ground that Cultural Care
is not entitled to protection under Yearsley at this stage of the
litigation, and we dismiss the remainder of Cultural Care's appeal
for lack of appellate jurisdiction.
- 38 -