Morales Posada v. Cultural Care, Inc.

66 F.4th 348

• Court: Court of Appeals for the First Circuit
• Decided: April 26, 2023
• Docket: 21-1676
• Status: Published

Opinion

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

- 2 - 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, - 3 - 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 - 4 - 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). - 5 - 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 - 6 - "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). - 7 - 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. - 8 - 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

- 9 - 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. - 10 - 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 - 11 - 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. - 12 - 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 § - 13 - 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 - 14 - 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 . . . ."); - 15 - 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

- 16 - 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)). - 17 - 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"). - 18 - 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 - 19 - 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 - 20 - 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); - 21 - 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.

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.

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 -