Nelson v. Wal-Mart Associates, Inc.

• Court: District Court, D. Nevada
• Decided: February 9, 2022
• Docket: 3:21-cv-00066
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 CHRISTOPHER NELSON, Case No. 3:21-cv-00066-MMD-CLB

7 Plaintiff, v. ORDER 8 WAL-MART ASSOCIATES, INC., 9 Defendant. 10

11 I. SUMMARY 12 Plaintiff Christopher Nelson, on behalf of himself and other similarly situated 13 individuals, sued Defendant Wal-Mart Associates, Inc., for failing to pay employees for 14 pre-shift activities and labor. (ECF No. 14 at 4-8.) Before the Court is Defendant’s 15 motion to dismiss (ECF No. 16 (“Motion”)) the Amended Complaint (ECF No. 14 16 (“FAC”))1 under Federal Rule of Civil Procedure (“FRCP”) 12(b)(6). (ECF No. 16 at 1-2.) 17 Because Nelson has sufficiently pled the majority of his claims and the Court declines to 18 deviate from Nevada Supreme Court precedent, and as further explained below, the 19 Court will grant in part and deny in part the Motion. 20 II. BACKGROUND 21 The following allegations are adapted from the FAC unless otherwise noted. 22 (ECF No. 14.) 23 Nelson is a non-exempt hourly employee of Defendant’s food distribution 24 warehouse in Sparks, Nevada. (Id. at 4.) The warehouse is divided into a “Dry” Section 25 and “Cold” Section. (Id.) Nelson was a former processor in the Cold Section, where all 26 of Defendant’s frozen and refrigerated items are distributed, and currently works as a 27

28 1Nelson filed a response to the Motion (ECF No. 22) and Defendant filed a reply (ECF No. 25). 2 hours per shift. (Id. at 4.) 3 Nelson alleges that Defendant requires all Dry Section employees to be prepared 4 at the start of their shift time but does not permit them to clock in until immediately 5 before their shift. (Id.) In preparation for their shift, employees must check out and bring 6 back a mobile scanner and printer from Defendant’s system control window, which 7 takes approximately 15 minutes. (Id. at 5.) Nelson maintains that the scanner and 8 printer are “integral and indispensable” to his job since Dry Section workers need the 9 equipment to label and take inventory of Defendant’s products. (Id.) Nelson alleges that 10 he and other similarly situated workers are not compensated for this pre-shift activity, 11 which amounts to around one hour per workweek or $33.53 of overtime pay for Nelson. 12 (Id. at 5-6.) 13 Nelson alleges that Defendant similarly requires all Cold Section workers to be 14 prepared at the start of their shift but does not permit them to clock in until immediately 15 before their shift. (Id. at 6.) In preparation for their shift, Defendant requires Cold Section 16 employees to put on personal protective equipment (“PPE”) for safety reasons due to 17 the cold working environment. (Id.) According to Nelson, the PPE includes RefrigiWear 18 insulated bibs, a RefrigiWear thermal jacket, a thermal hooded sweatshirt, a stocking 19 hat, and wool socks. (Id. at 6-7.) Nelson alleges that the PPE is “integral and 20 indispensable” to the job of a Cold Section worker since they “cannot perform [their] job 21 safely and/or effectively without donning” the apparel. (Id. at 7.) Nelson estimates that 22 the process of donning the PPE takes 15 minutes per shift and employees are not 23 compensated for this pre-shift activity, which amounts to around one hour per workweek 24 or $33.90 of overtime pay for Nelson. (Id. at 7-8.) 25 Nelson subsequently filed this collective and class action, asserting the following 26 claims in the FAC: (1) failure to pay overtime wages in violation of the Fair Labor 27 Standards Act (“FLSA”); (2) failure to pay minimum wages in violation of the Nevada 28 Constitution; (3) failure to pay wages for all hours worked in violation of Nevada Revised 2 of NRS § 608.140 and § 608.018; and (5) failure to timely pay all wages due and owing 3 upon termination pursuant to NRS § 608.140 and §§ 608.020-608.050. (Id. at 11-15.) 4 Defendant then filed the Motion,2 requesting dismissal of the FAC under Rule 12(b)(6). 5 (ECF No. 16.) 6 III. LEGAL STANDARD 7 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 8 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must 9 provide “a short and plain statement of the claim showing that the pleader is entitled to 10 relief.” Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 11 While Rule 8 does not require detailed factual allegations, it demands more than “labels 12 and conclusions” or a “formulaic recitation of the elements of a cause of action.” 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). “Factual 14 allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 15 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual 16 matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 17 (quoting Twombly, 550 U.S. at 570). 18 In Iqbal, the Supreme Court of the United States clarified the two-step approach 19 district courts are to apply when considering motions to dismiss. First, a district court 20 must accept as true all well-pleaded factual allegations in the complaint; however, legal 21 conclusions are not entitled to the assumption of truth. See Iqbal, 556 U.S. at 678. Mere 22 recitals of the elements of a cause of action, supported only by conclusory statements, 23 do not suffice. See id. Second, a district court must consider whether the factual 24 allegations in the complaint allege a plausible claim for relief. See id. at 679. A claim is 25 facially plausible when the plaintiff’s complaint alleges facts that allow a court to draw a 26 reasonable inference that the defendant is liable for the alleged misconduct. See id. at

27 2Defendant previously filed a motion (ECF No. 11) to dismiss Nelson’s original complaint (ECF No. 1-2), which the Court will deny as moot. 28 2 possibility of misconduct, the complaint has “alleged—but it has not show[n]—that the 3 pleader is entitled to relief.” Id. at 679 (alteration in original) (quotation marks and 4 citation omitted). That is insufficient. When the claims in a complaint have not crossed 5 the line from conceivable to plausible, the complaint must be dismissed. See Twombly, 6 550 U.S. at 570. Dismissal of a complaint without leave to amend is only proper when it 7 is clear the complaint could not be saved by any amendment. Ariz. Students' Ass'n v. 8 Ariz. Bd. of Regents, 824 F.3d 858, 871 (9th Cir. 2016); see also Fed. R. Civ. P. 9 15(a)(2) (instructing district courts to “freely give leave” to amend). 10 IV. DISCUSSION 11 The Court first addresses Defendant’s arguments that are premised on the 12 Nevada Supreme Court’s ruling in Neville v. Eighth Judicial District Court, 406 P.3d 499 13 (Nev. 2017). Defendant’s Neville arguments concern dismissal of Nelson’s state-law 14 claims asserted under NRS §§ 608.140, 608.016, 608.018, and 608.020-608.050. The 15 Court then examines Defendant’s non-Neville claims,3 which include Nelson’s minimum 16 wage claim under the Nevada Constitution, his claim for wages due upon termination 17 under NRS § 608.140 and §§ 608.020-608.050 because Nelson is a current employee, 18 and his FLSA claim for unpaid pre-shift activities in the Cold Section. Because the Court 19 declines to deviate from Neville and because Nelson has pled facially plausible claims, 20 the Court will deny in part and grant in part Defendant’s Motion. 21 /// 22 /// 23 24 3In the Motion, Defendant also argues that dismissal of Nelson’s FLSA and NRS 25 § 608.018 claims are appropriate because Nelson failed to allege that the “purported dry and cold section tasks took place prior to clocking in for work.” (ECF No. 16 at 13.) 26 However, the Court is unpersuaded since it is clear from the factual allegations in Nelson’s FAC that the Cold and Dry Section activities occurred before the start of his 27 shift and that he was not compensated for the activities. (ECF No. 14 at 4-8.) The Court therefore declines to dismiss the claims on this ground. See Iqbal, 556 U.S. at 678. 28 608.050 2 3 Most of Defendant’s Motion is predicated on its belief that the Nevada Supreme 4 Court erred in Neville. Accordingly, Defendant argues that this Court should deviate 5 from Neville’s holding and find that Nelson does not have a private right of action under 6 NRS §§ 608.140, 608.016, 608.018, 608.020-608.050. (ECF No. 16 at 6-9.) Nelson 7 counters that the Court should follow the holding in Neville, which expressly found that 8 Nevada employees have a private right of action to recover unpaid wages under those 9 statutes. (ECF No. 22 at 2.) The Court agrees with Nelson. 10 The Court declines to deviate from the Nevada Supreme Court on a Nevada 11 state-law issue. The United States Supreme Court has long held that “the highest court 12 of the state is the final arbiter of what is state law” and when the state’s highest court 13 has spoken, “its pronouncement is to be accepted by federal courts as defining state 14 law unless it has later given clear and persuasive indication that its pronouncement will 15 be modified, limited or restricted.” West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236 (1940) 16 (citing Wichita Royalty Co. v. City Nat’l Bank of Wichita Falls, 59 306 U.S. 103, 107 17 (1939)). Here, Defendant asks the Court to dismiss Nelson’s state-law claims because 18 the Nevada Supreme Court held pre-Neville that the Nevada Labor Commissioner 19 enforced the state’s labor laws and there was no private right of action under NRS § 20 608.160. (ECF No. 16 at 6-9.) See Baldonado v. Wynn Las Vegas, LLC, 194 P.3d 96, 21 98 (Nev. 2008). However, the Nevada Supreme Court was clear in Neville—its most 22 recent decision on this issue—that “NRS [§] 608.140 explicitly recognizes a private 23 cause of action for unpaid wages” and allowed the plaintiff to pursue his claims under 24 NRS §§ 608.016, 608.018, and 608.020-608.050—the same statutes under which 25 26 27 28 2 P.3d at 500-01.4 3 In the Motion, Defendant also cites to pre-Neville decisions from this District as 4 support that Nelson and other similarly situated individuals do not have a private right of 5 action. (ECF No. 16 at 8-9.) However, Defendant notably neglects to include the 6 numerous post-Neville decisions in this District, which have consistently recognized and 7 adopted the Nevada Supreme Court’s holding. See Lewis v. Casa di Amore LLC, Case 8 No. 2:15-cv-01368-RFB-PAL, 2018 WL 4031605, at *3 (D. Nev. Aug. 23, 2018); Sargent 9 v. HG Staffing, LLC, Case No. 3:13-cv-00453-LRH-GWF, 2019 WL 1117905, at *2 (D. 10 Nev. Mar. 8, 2019); Buchanan v. Watkins & Letofsky, LLP., Case No. 2:19-cv-00226- 11 GMN-VCF, 2019 WL 3848785, at *3 (D. Nev. Aug. 15, 2019). Because Nevada’s 12 highest court, the “final arbiter,” has already spoken on this state-law issue, the Court is 13 bound to follow Neville. See West, 311 U.S. at 236. 14 Defendant also insinuates that, based on the plain language of NRS § 608.140, 15 Nelson and other similarly situated individuals may only bring a private right of action for 16 breach of contract or Nelson must allege the existence of an enforceable employment 17 agreement first—which he failed to do in the FAC.5 (ECF No. 16 at 10-11.) The Court is 18 unpersuaded. The Nevada Supreme Court did not articulate such stringent 19 requirements in Neville. Instead, the Nevada Supreme Court broadly held that “the 20 Legislature intended to create a private cause of action for unpaid wages pursuant to 21 NRS [§] 608.140” and that “NRS [§] 608.140 explicitly recognizes a private cause of 22 action for unpaid wages.” Neville, 406 P.3d at 500, 504.

23 4The Nevada Supreme Court also recognized and reiterated the Neville holding in 2020. See HG Staffing, LLC v. Second Judicial Dist. Ct., 462 P.3d 687 (Nev. 2020) 24 (stating that the Court held in Neville that “exhaustion of administrative remedies is not required before filing an unpaid-wage claim in district court”). 25 5Defendant further argues that dismissal is proper because Nelson failed to make 26 a demand for fees at least five days before he initiated this action, as required by NRS § 608.140. (ECF No. 16 at 11.) However, this is a remedy issue that will be resolved upon 27 a finding of liability and is not a basis for complete dismissal of Nelson’s state-law claims. 28 2 denies the Motion as to Nelson’s claims under NRS §§ 608.140, 608.016, 608.018, and 3 608.020-608.050. 4 B. Minimum Wage Claim Under the Nevada Constitution 5 Defendant next argues that the Court should dismiss Nelson’s claim under the 6 Minimum Wage Amendment (“MWA”) of the Nevada Constitution because his hourly 7 rate does not fall below the state minimum. (ECF No. 16 at 12-13, 15-16.) Nelson 8 counters that he and similarly situated employees did not receive any compensation for 9 their pre-shift activities, in violation of the MWA, and Defendant’s argument is incorrectly 10 premised on Nevada’s adoption of FLSA’s “workweek requirement” for calculating the 11 minimum wage. (ECF No. 22 at 7.) The Court agrees with Nelson. 12 To start, Defendant essentially asks the Court to apply FLSA’s workweek 13 requirement to Nelson’s Nevada Constitution claim. (ECF Nos. 16 at 13, 15, 22 at 7, 25 14 at 6-7.) Under FLSA’s calculation scheme, there is no violation “[i]f the total wage paid 15 to an employee in any given workweek divided by the total hours worked that week 16 equals or exceeds the applicable minimum wage.” Sullivan v. Rivera Holdings Corp., 17 Case No. 2:14-cv-00165-APG-VCF, 2014 WL 2960303, at *1 (D. Nev. June 30, 2014); 18 see also Adair v. City of Kirkland, 185 F.3d 1055, 1059 (9th Cir. 1999). Defendant 19 suggests that because Nelson’s normal hourly wage is more than twice the required 20 minimum in Nevada, his average hourly pay per workweek, including his pre-shift 21 activities, does not fall below Nevada’s minimum wage.6 (ECF No. 16 at 12-13, 15-16.) 22 Since the Nevada Supreme Court has not directly addressed whether it adopts the 23 same calculation standard that the FLSA uses, the Court will “predict how the highest 24 6Defendant refers to Nevada’s minimum wage rate in the Motion. (ECF No. 16 at 25 15.) The Court notes that the state’s current minimum wage rate is $8.75 per hour for employees to whom health care benefits have been offered and $9.75 per hour for all 26 other employees. See State of Nevada Minimum Wage 2021 Annual Bulletin, Office of the Labor Commissioner, https://labor.nv.gov/uploadedFiles/labornvgov/content/ 27 Employer/2021%20Minimum%20Wage%20Bulletin%2003.24.2021.pdf (last visited Feb. 7, 2022). 28 2 decisions, decisions from other jurisdictions, statutes, treatises, and restatements as 3 guidance.” Kaiser v. Cascade Capital, LLC, 989 F.3d 1127, 1131-32 (9th Cir. 2021) 4 (citations omitted). 5 Defendant primarily relies on the Nevada Supreme Court’s prior decision in Terry 6 v. Sapphire Gentlemen’s Club to argue that Nevada’s laws should be read in parallel 7 with the FLSA, absent conflicting language. (ECF No. 25 at 3, 6-7.) See 336 P.3d 951, 8 955 (Nev. 2014). However, Terry only addressed FLSA’s Economic Realities Test—an 9 entirely different analysis—and the Court in Terry noted that the plaintiffs did not bring a 10 minimum wage claim under the MWA. See 336 P.3d at 955. Therefore, the Court does 11 not agree that this reasoning necessarily applies to Nevada’s minimum wage 12 calculation, and finds Terry is of limited application. 13 Defendant also cites to Nevada Administrative Code (“NAC”) § 608.115 for 14 support, which provides that minimum wage is calculated by “the amount paid to an 15 employee in a pay period” divided by “the number of hours worked by the employee 16 during the pay period”—thereby mirroring FLSA’s language. (ECF No. 25 at 6.) See 17 Nev. Admin. Code § 608.115(2). However, NAC § 608.115 actually undermines 18 Defendant’s argument, since the provision expressly exempts hourly workers like 19 Nelson and the other Opt-in Plaintiffs from the calculation scheme. (ECF No. 14 at 4.) 20 See Nev. Admin. Code § 608.115(2). Moreover, NAC § 608.115 explicitly states that an 21 employer, like Defendant, must pay an employee for “all time worked by the employee 22 at the direction of the employer, including time worked by the employee that is outside 23 the scheduled hours of work of the employee”—which Defendant allegedly failed to do 24 here since Nelson was not compensated for his pre-shift activities. See Nev. Admin. 25 Code § 608.115(1) (emphasis added). Therefore, the Court is unpersuaded that Nevada 26 law permits averaging unpaid overtime with compensated regularly scheduled work to 27 provide cover for employers who do not pay minimum and overtime wages. 28 2 the Nevada Constitution. The MWA explicitly requires employers to pay employees a 3 wage of not less than the hourly minimum rate. See Nev. Const. art. 15, § 16. Despite 4 Defendant’s suggestions to the contrary, the Nevada Supreme Court acknowledged that 5 the MWA “provides [even] broader minimum wage coverage than that offered by NRS 6 Chapter 608” and the provision “reflects voters’ wish that more, not fewer, persons 7 would receive minimum wage protections.” (ECF Nos. 16 at 3, 16, 25 at 3, 5.) Doe 8 Dancer I v. La Fuente, Inc., 481 P.3d 860, 872 (Nev. 2021) (citations and quotation 9 marks omitted). In the FAC, Nelson alleges that he and other similarly situated 10 individuals were paid $0 or no minimum wage at all for the pre-shift activities or the 11 extra hours they worked prior to the start of their shifts. (ECF No. 14 at 12-13.) Nelson 12 maintains that these extra hours were in excess of his scheduled 40 hours per week 13 and provided the Court with his specific work schedule and paystub records. (Id. at 5-8, 14 20-21, 23-24.) Nelson has therefore pled enough facts in the FAC for the Court to draw 15 a reasonable inference that Defendant violated the MWA. See Iqbal, 556 U.S. at 678. 16 Accepting Nelson’s allegations as true, and when viewed in conjunction with 17 MWA’s broad protections and the Court’s rejection of the FLSA standard, the Court 18 finds that Nelson has pled a facially plausible claim that Defendant’s non-payment of the 19 pre-shift activities violates the Nevada Constitution. Nelson may therefore proceed with 20 his MWA minimum wage claim, and the Court denies Defendant’s Motion as to this 21 claim. 22 In the Motion, Defendant also argues that the Court should dismiss Nelson’s 23 claim under NRS § 608.016 and NRS § 608.140 because he “does not allege he is 24 owed for unpaid, straight time worked—i.e., for work performed before he reached forty 25 (40) hours worked in a workweek.” (ECF No. 16 at 12.) However, NRS § 608.016 26 requires an employer to pay an employee “wages for each hour the employee works,” 27 and Nelson alleged that Defendant failed to pay him and other similarly situated 28 employees for pre-shift activities that exceeded their scheduled 40 hours per week. 2 pay period and included records of his paystubs as support of the non-compensation. 3 (Id. at 5-8, 20-21, 23-24.) Thus, Nelson has sufficiently pled his NRS § 608.016 claim. 4 C. Unpaid Wages Due Upon Termination Under NRS §§ 608.020-608.050 5 Nelson has not established that he or any of the three Opt-in Plaintiffs have 6 current standing to bring a claim under NRS §§ 608.020-608.050. Defendant argues, in 7 part, that dismissal of Nelson’s claim under NRS §§ 608.020-608.050 is appropriate 8 because Nelson is still employed by Defendant and is not an appropriate class 9 representative. (ECF No. 16 at 3, 15.) Nelson counters, in part, that the Court should 10 not dismiss the claim in the interest of judicial economy since “former employees will 11 become part of this case” once the Court “certifies this case as either a collective action 12 under the FLSA or a class action under [FRCP] 23.” (ECF No. 22 at 6-7.) The Court 13 agrees with Defendant. 14 Sections 608.020 to 608.050 of the NRS address unpaid wages and 15 compensation for employees who resign, quit, or are terminated from their jobs, and 16 outline penalties for employers who fail to pay the former employees upon their 17 termination or discharge. However, Nelson, the Party Plaintiff, and the three Opt-in 18 Plaintiffs are all currently employed by Defendant. (ECF Nos. 14 at 4, 37 at 7-8.) They 19 accordingly do not have standing to bring the claim on behalf of former employees and 20 may not serve as class representatives. Since Nelson has failed to establish this 21 “threshold issue” of standing, the Court grants Defendant’s Motion as to Plaintiff’s NRS 22 §§ 608.020-608.050 claim and dismisses this claim without prejudice. See Lierboe v. 23 State Farm Mutual Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003) (noting that 24 “standing is the threshold issue in any suit. If the individual plaintiff lacks standing, the 25 court need never reach the class action issue”). However, Plaintiffs may seek 26 amendment if an appropriate class representative, who can properly represent the 27 former employees, joins this lawsuit. 28 /// 2 Defendant finally contends that the FAC lacks “factual allegations establishing 3 that the donning of Cold Section PPE is compensable under the FLSA” and Nelson’s 4 allegations are “merely a recitation of the legal elements.” (ECF No. 16 at 17.) Nelson 5 counters that he sufficiently pled the claim because he alleged that donning the PPE is 6 integral and indispensable to the job by “prevent[ing] workplace illness and injury” and is 7 therefore compensable. (ECF Nos. 14 at 6-7, 22 at 10-12.) The Court agrees with 8 Nelson. 9 The Ninth Circuit requires a “three-stage inquiry” to determine if certain activities 10 are compensable under the FLSA. See Bamonte v. City of Mesa, 598 F.3d 1217, 1224 11 (9th Cir. 2010). First, the activity must be considered “work”; second, the activity must 12 be “integral and indispensable” to the principal work performed; and, third, the activity 13 must not be de minimus. Id. (citation omitted). A preliminary or postliminary activity is 14 compensable if it is integral and indispensable to an employee's principal activities, 15 meaning “if it is an intrinsic element of those activities and one with which the employee 16 cannot dispense if he is to perform his principal activities.” Integrity Staffing Sol., Inc. v. 17 Busk, 574 U.S. 27, 33 (2014). 18 Accepting Nelson’s allegations as true, Nelson has stated a plausible FLSA claim 19 for the Cold Section activities. (ECF No. 14 at 6-8, 11-12.) In the FAC, Nelson 20 sufficiently pled that donning the PPE prior to his shift was integral and indispensable to 21 working in the freezer/refrigerator section of Defendant’s warehouse because the PPE 22 “prevent[s] workplace illness and injury due to the cold environment.” (Id. at 6.) See 23 Bamonte, 598 F.3d at 1224 (citation omitted). He alleges that the PPE is necessary for 24 a Cold Section employee to “perform his or her job safely and/or effectively.” (ECF No. 25 14 at 7.) See Busk, 574 U.S. at 33. Moreover, the RefrigiWear clothing that employees 26 wear is specially and uniquely made for “helping cold storage employees stay warm and 27 protected in the cooler and freezer while they work.” (Id. at 7-8.) See Alvarez v. IBP, 28 Inc., 339 F.3d 894, 897, 903 (9th Cir. 2003) (holding that employers are “required to 1 || compensate its employees for the time it takes to change into required specialized 2 || protective clothing and safety gear’). However, according to Nelson, Cold Section 3 || employees are not compensated for the time it takes to don the PPE, which amounts to 4 || around 15 minutes per shift. (ECF No. 14 at 8.) 5 In sum, Nelson has included sufficient factual allegations in the FAC to state a 6 || facially plausible claim that donning the PPE is compensable under the FLSA. See 7 || Iqbal, 556 U.S. at 678-79. The Court therefore permits Nelson’s FLSA Cold Section 8 || claim to proceed and denies Defendant's Motion as to this claim. 9 || V. CONCLUSION 10 The Court notes that the parties made several arguments and cited to several 11 || cases not discussed above. The Court has reviewed these arguments and cases and 12 || determines that they do not warrant discussion as they do not affect the outcome of the 13 || issues before the Court. 14 It is therefore ordered that Defendant’s Motion to Dismiss (ECF No. 16) the 15 || Amended Complaint (ECF No. 14) is granted in part and denied in part. 16 It is further ordered Defendant’s Motion to Dismiss (ECF No. 11) the Original 17 || Complaint (ECF No. 1-2) is denied as moot. 18 DATED THIS 9" Day of February 2022.

20 MIRANDA M. DU 21 CHIEF UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 12