Independent Training & Apprenticeship Program v. California Department of Industrial Relations

*1028 OPINION

Pursuant to the National Apprenticeship Act of 1937 (also known as the “Fitzgerald Act”), federal regulations govern the employment of apprentices on public works projects qualifying as “Federal purposes,” a term that is defined under the regulations. Plaintiff Independent Training and Apprenticeship Program (“I-TAP”) is registered with the Department of Labor (“DOL”) as an approved apprenticeship program for such Federal purposes. I-TAP is not, however, recognized by California as a state-approved apprenticeship program. Consequently, I-TAP enrollees may not be employed as bona fide apprentices on public works projects in California that do not fall within the scope of Federal purposes. In 2010, the California Department of Industrial Relations (“CDIR”) sent letters to two contractors asserting that they were not in compliance with California law and threatening to impose fines because the contractors were using I-TAP enrollees on public works projects that the CDIR asserted were not for Federal purposes. Plaintiffs filed suit seeking declaratory and injunctive relief, principally on the ground that the CDIR’s actions were inconsistent with the federal regulations…

concurring:

I concur in Judge Tashima’s opinion, but write separately to highlight the unfortunate situation that our law on retroactivity creates in this case. In 2004, the Department of Labor (“DOL”) interpreted the phrase “Federal purposes” broadly in two letters that should have been given controlling deference under Auer v. Robbins, 519 U.S. 452, 461 , 117 S.Ct. 905 , 137 L.Ed.2d 79 (1997). Nutter Electric employed I-TAP apprentices on projects that it thought were “Federal purposes” under DOL’s then-controlling interpretation. We learned after oral argument, however, that the DOL had changed its position while this appeal was pending, withdrawing the 2004 interpretation and replacing it with a much narrower one that means the projects were not Federal purposes— thereby exposing Nutter to liability under California’s wage law for employing I-TAP apprentices.

We do not defer to the new interpretation because the DOL “pull[ed] the rug out from under litigants that [] relied on a long-established, prior interpretation of [the] regulation.” Maj. Op. at 1035. As the Supreme Court instructs, deferring to the agency in this situation would “frustrate] the notice and predictability…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INDEPENDENT TRAINING AND No. 11-17763 APPRENTICESHIP PROGRAM, a California corporation; BRANDIN D.C. No. MOYER; HAROLD E. NUTTER, INC., a 2:11-cv-01047- California corporation, GEB-DAD Plaintiffs-Appellants,

v. OPINION

CALIFORNIA DEPARTMENT OF

INDUSTRIAL RELATIONS, an agency of the State of California; CHRISTINE BAKER, in her official capacity as Acting Director of the California Department of Industrial Relations;

DIVISION OF APPRENTICESHIP

STANDARDS; GLEN FORMAN, in his official capacity as Acting Chief, Division of Labor Standards Enforcement; JULIE SU, in her official capacity as Labor Commissioner, Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Senior District Judge, Presiding 2 INDEP. TRAINING V. CAL. DEP’T INDUS. RELATIONS

Argued and Submitted December 3, 2012—San Francisco, California

Filed September 18, 2013

Before: Michael Daly Hawkins, A. Wallace Tashima, and Mary H. Murguia, Circuit Judges.

Opinion by Judge Tashima; Concurrence…