The Supreme Court today granted a Ninth Circuit panel’s request to answer a state law question. The order — in Troester v. Starbucks Corp. — is not unusual; the Supreme Court more often than not obliges the federal appellate courts. What is out of the ordinary is the Ninth Circuit’s request.
In Troester, the Ninth Circuit wants the Supreme Court to decide whether “the federal Fair Labor Standards Act’s de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) and Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984), appl[ies] to claims for unpaid wages under the California Labor Code sections 510, 1194, and 1197.”
However, this question has already been decided in a published opinion by a different Ninth Circuit panel than the one that is considering the Troester case. Just three months ago, that other panel concluded the de minimis doctrine does in fact apply to California wage claims. (Corbin v. Time Warner Entertainment-Advance/Newhouse Partnership (9th Cir. 2016) 821 F.3d 1069, 1081, fn. 11.) Under the general Ninth Circuit “law of the circuit” rule, Corbin would normally be controlling — a 3-judge panel is “bound by our prior decisions interpreting state as well as federal law in the absence of intervening controlling authority.” (F.D.I.C. v. McSweeney (9th Cir. 1992) 976 F.2d 532, 535.)
A California Supreme Court decision could apparently be that “intervening controlling authority” (see TwoRivers v. Lewis (9th Cir. 1999) 174 F.3d 987, 996; see also Miller v. Gammie (9th Cir. 2003) 335 F.3d 889, 892-893 (en banc)), but it seems quite unusual for a Ninth Circuit panel to affirmatively solicit that authority.
In the Troester request — made in an order that is unpublished, which is itself unusual, if not unprecedented — the Ninth Circuit panel says, “we agree to accept and follow the [Supreme] Court’s decision.” (See Cal. Rules of Court, rule 8.548(b)(2) [request for a Supreme Court answer must include “a statement that the requesting court will accept the decision”].) Because simply asking the question after Corbin was decided might not be consistent with the “law of the circuit” rule, it is uncertain whether that’s a promise the Troester panel can keep.
