Union Pacific Railroad Company v. Feek

• Court: District Court, W.D. Washington
• Decided: March 28, 2024
• Docket: 3:23-cv-05028
• Status: Unknown

Opinion

1 THE HONORABLE RICHARD A. JONES

9 UNITED STATES DISTRICT COURT 10 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 11

12 UNION PACIFIC RAILROAD COMPANY, No. 3:23-cv-05028-RAJ

13 Plaintiff, v. 14

15 CAMI FEEK, IN HER OFFICIAL ORDER GRANTING CAPACITY AS COMMISSIONER OF THE 16 WASHINGTON STATE EMPLOYMENT DEFENDANT’S MOTION TO DISMISS 17 SECURITY DEPARTMENT, Defendant. 18

19 20 I. INTRODUCTION 21 THIS MATTER comes before the Court on Defendant’s Motion to Dismiss 22 Pursuant to FRCP 12(B)(1). (“Motion”). Dkt. # 15. Plaintiff opposes the Motion. Dkt. 23 #18. Defendant filed a reply. Dkt # 19. Neither party requested oral argument. Having 24 reviewed the Motion, record, and relevant law, the Court GRANTS Defendant’s Motion. 25 // 26 // 27 1 II. BACKGROUND 2 The Washington Paid Family and Medical Leave Act (“PFML”), RCW 3 50A.05.005, et seq., provides paid sick leave benefits to Washington employees. Passed 4 in 2017, the law established a statewide insurance program—funded by premiums 5 charged against employee wages—to provide paid leave to Washington workers. The 6 Washington Legislature, in passing the law, declared it to be “in the public interest to 7 create a family and medical leave insurance program to provide reasonable paid family 8 leave for” the birth or placement of a child and care of a family member with a serious 9 health condition, and reasonable paid medical leave “for an employee’s own serious 10 health condition.” RCW 50A.05.005. The PFML requires employers to collect premiums 11 via mandatory payroll deductions, and the amounts collected are remitted to the 12 Employment Security Department (“ESD”). RCW 50A.10.030. 13 Plaintiff Union Pacific Railroad Company (“Union Pacific” or “Plaintiff”) is a 14 Nebraska-based Class I railroad that provides freight transportation services in 23 states, 15 including Washington. Dkt. # 1 (Complaint) ¶ 4, 5, 6. Defendant Cami Feek 16 (“Defendant”), is being sued in her official capacity as ESD Commissioner. Id. ¶ 7. 17 According to the Complaint, Union Pacific employee Mitchell Knobbe took leave 18 from January 4, 2022 to September 29, 2022. Id. ¶ 20. Mr. Knobbe filed an application 19 for paid family and medical leave with ESD, and ESD issued a decision approving him 20 for leave from January 4 to April 2, 2022. Id. ¶ 21, 22. On March 4, 2022, Plaintiff 21 appealed ESD’s decision, arguing that Washington’s PMFL was preempted as to railroad 22 carriers like Union Pacific. Id. ¶ 23. Plaintiff’s appeal was assigned to the Washington 23 Office of Administrative Hearings. Id. ¶ 24. According to Plaintiff, in the administrative 24 proceeding, Defendant took the position that the PFML applies to Plaintiff, and the 25 matter has “fully resolved.” Dkt. # 18 at 21. 26 Plaintiff’s complaint alleges that the Railroad Unemployment Insurance Act 27 (“RUIA”), 45 U.S.C. § 351, et seq., which requires that railroads pay for sickness 1 benefits for employees that are unable to work due to illness or injury, expressly 2 preempts other laws (such as the PFML) as to railroad employees.1 Id. ¶ 2, 13, 32. 3 Additionally, Plaintiff argues, the Adamson Act, 49 U.S.C. § 28301, preempts Defendant 4 from mandating paid sick leave benefits beyond those that are collectively bargained for. 5 Id. ¶ 2. Plaintiff requests that this Court: 1) declare that the PFML is preempted by the 6 RUIA, Plaintiff is not subject to the PFML, and Union Pacific employees are not entitled 7 to benefits under the PFML; 2) enter a permanent injunction prohibiting Defendant from 8 applying the PFML to Plaintiff or its RUIA-covered employees; 3) declare that the PFML 9 is preempted by the Adamson Act, Plaintiff is not subject to the PFML, and Union 10 Pacific employees are not entitled to benefits under the PFML; and 4) enter a permanent 11 injunction prohibiting Defendant from applying the PFML to Plaintiff or its employees 12 who are subject to collective bargaining. Id. ¶ 33, 40. On March 7, 2023, Defendant filed 13 a motion to dismiss for lack of subject matter jurisdiction, arguing that the Tax Injunction 14 Act (TIA), 28 U.S.C. § 1341, bars Plaintiff’s claims. Dkt. # 15. Further, Defendant argues 15 that Plaintiff lacks standing to challenge the law, and that the Employment Security 16 Department is the real party in interest and therefore immune from suit under the 17 Eleventh Amendment. Id. at 2-3. 18 19 III. LEGAL STANDARD 20 A party may move to dismiss a case for lack of subject matter jurisdiction. Fed. R. 21 Civ. P. 12(b)(1). Federal courts are tribunals of limited jurisdiction and may only hear 22 cases authorized by the Constitution or a statutory grant. Kokkonen v. Guardian Life Ins. 23 Co. of Am., 511 U.S. 375, 377 (1994). The burden of establishing subject matter 24 jurisdiction rests upon the party seeking to invoke federal jurisdiction. Id. A challenge 25 brought under Rule 12(b)(1) may be facial, where the inquiry concerns the allegations 26

27 1 Plaintiff alleges, upon information and belief, that Mr. Knobbe was eligible for benefit payments under the RUIA during some or all of his leave period. Dkt. # ¶ 20. 1 made in the complaint; or factual, where the court may look beyond the complaint to 2 extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); see also 3 McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir. 1988) (“Moreover, when considering a 4 motion to dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the face 5 of the pleadings, but may review any evidence, such as affidavits and testimony, to 6 resolve factual disputes concerning the existence of jurisdiction.”). 7 Here, Defendant asserts a facial, rather than factual, jurisdictional challenge. “In a 8 facial attack, the challenger asserts that the allegations contained in the complaint are 9 insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 10 373 F.3d 1035, 1039 (9th Cir. 2004). If it is determined that a federal court lacks subject- 11 matter jurisdiction, the court has no choice but to dismiss the suit. Arbaugh v. Y & H 12 Corp., 546 U.S. 500, 514 (2006); Fed. R. Civ. P. 12(h)(3) (“If the court determines at any 13 time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). 14 15 IV. DISCUSSION 16 Defendant advances several arguments in support of dismissal. First, Defendant 17 argues that this Court lacks subject matter jurisdiction because the Tax Injunction Act 18 (“TIA”) bars the relief Plaintiff seeks because Plaintiff seeks to enjoin the collection of 19 state taxes. Dkt. # 15 at 5. Next, Defendant argues, Plaintiff lacks standing because Union 20 Pacific has failed to allege an injury that is concrete and remediable by a federal court. 21 Because of this, there is no “actual and substantial controversy” between the parties. Id. 22 at 14-19. Finally, Defendant asserts that the Eleventh Amendment bars all claims against 23 ESD and Commissioner Cami Feek. Id. at 21. 24 Plaintiff counters that the Ninth Circuit recently held that a similar California 25 leave act was pre-empted by the RUIA and asks this Court to follow suit. Dkt. # 18 at 1 26 (citing National R.R. Passenger Corp. v. Su, 41 F.4th 1147 (9th Cir. 2022)). Further, 27 Plaintiff argues, Union Pacific contests the entire regulatory scheme of the PFML and not just ESD’s assessment of premiums under the law; therefore, the TIA does not bar its 1 suit. Because the TIA is “meant to be a broad jurisdictional impediment to federal court 2 interference with the administration of state tax systems,” Dillion v. State of Mont., 634 3 F.2d 463, 466 (9th Cir. 1980), the Court will consider Defendant’s argument against 4 subject matter jurisdiction at the outset. See also May Trucking Co. v. Oregon Dep’t of 5 Transp., 388 F.3d 1261, 1266 (9th Cir. 2004) (The TIA has been interpreted as a “broad 6 jurisdictional barrier.”) (citations omitted). 7 A.) Applicability of the Tax Injunction Act to Plaintiff’s Claims 8 Defendant argues that Plaintiff’s claims brought under the RUIA and Adamson 9 Act are barred by the Tax Injunction Act (TIA), as the relief sought by Plaintiff amounts 10 to an injunction enjoining the collection of payroll taxes via PFML premiums. Dkt. # 15 11 at 8. The TIA provides that district courts “shall not enjoin, suspend or restrain the 12 assessment, levy or collection of any tax under State law where a plain, speedy and 13 efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1341. 14 Congress’ intent in enacting the Act was “to prevent federal-court interference 15 with the assessment and collection of state taxes,” and the Act prohibits both declaratory 16 and injunctive relief. California v. Grace Brethren Church, 457 U.S. 393, 409, 102 S.Ct. 17 2498 (1982). A “broad jurisdictional barrier,” the Act “has its roots in equity practice, in 18 principles of federalism, and in recognition of the imperative need of a State to 19 administer its own fiscal operations.” Lowe v. Washoe County, 627 F.3d 1151, 1155 (9th 20 Cir. 2010) (citations omitted). 21 At the outset, Plaintiff argues that the TIA does not apply because Plaintiff 22 challenges the entirety of the law, and not merely the premiums. Dkt. # 18 at 6. Relying 23 on Direct Marketing Ass’n v. Brohl, 575 U.S. 1, 135 S.Ct. 1124 (2015), Plaintiff argues 24 that it is not seeking to “restrain” the “assessment, levy, or collection” of taxes, because 25 no premiums have yet been asserted against Union Pacific. Id. at 8. According to 26 Plaintiff, because Union Pacific has not yet paid PFML premiums and because Plaintiff 27 seeks declaratory and injunctive relief that would ensure that it does not have to comply 1 with any part of the law, the TIA does not apply. 2 This Court must consider the nature of the relief requested and whether the relief 3 will enjoin, suspend, or restraint the assessment, levy, or collection of state taxes. Hibbs 4 v. Winn, 542 U.S. 88, 99, 124 S.Ct. 2276 (2004). Here, Plaintiff seeks an order declaring 5 that the PFML is preempted by both the RUIA and the Adamson Act and a permanent 6 injunction prohibiting Defendant from applying the PFML to Plaintiff or its employees 7 covered under the RUIA or subject to collective bargaining. Dkt. # 1 ¶ 27-40. Such relief 8 would necessarily enjoin the collection of premiums against Plaintiff by Defendant, see 9 RCW 50A.10.030, and “[g]ranting the declaratory and injunctive relief requested 10 here…would reduce the flow of state tax revenue[.]” Fredrickson v. Starbucks Corp., 840 11 F.3d 1119, 1123 (9th Cir. 2016); Jerron West, Inc. v. State of California state Board of 12 Equalization, 129 F.3d 1334, 1338 (9th Cir. 1997) (TIA has been broadly construed to 13 apply to declaratory relief actions because such actions “may in every practical sense 14 operate to suspend collection of state taxes”) (quoting Grace Brethren, 457 U.S. at 408); 15 see also Ecklein v. Hawaii, No. C20-1267-MLP, 2020 WL 6939635, at *3 (W.D. Wash. 16 Nov. 25, 2020) (TIA analysis applies if the requested relief would reduce the flow of 17 state revenue). 18 Moreover, Plaintiff’s contention that the TIA cannot apply because Defendant has 19 failed to take official action to collect premiums is similarly unavailing. In Pacific Bells, 20 LLC v. Inslee, a 2022 case challenging the validity of the “WA Cares” statute2 on the 21 basis of ERISA preemption, inter alia, the Court considered whether the WA Cares 22 premiums were a tax under the TIA—even though premiums were yet to be paid into 23 state coffers. 600 F.Supp.3d 1149, 1156 (W.D. Wash. 2022). The Court noted that 24 premiums would be paid “[b]eginning July 1, 2023” and considered estimates of 25 26

27 2 The “WA Cares” program is a long-term care benefit program enacted by the Washington legislature. Pacific Bells, 600 F.Supp.3d at 1153. individuals “potentially affected” by the implementation and enforcement of the law in its 1 analysis under the TIA. Id. Similarly, analysis of Plaintiff’s challenge to the PFML under 2 the TIA is appropriate regardless of whether Plaintiff has begun to remit premiums as 3 required. Brohl does not change this outcome, as it stands for the proposition that a 4 state’s tax-related notice and reporting requirements enacted in order to capture lost tax 5 revenue do not constitute an act of “assessment, levy or collection” under the TIA. 575 6 U.S. at 12-16. Now, to determine whether the TIA serves as a bar to federal jurisdiction, 7 this Court must consider whether PFML premiums are taxes under the TIA, and whether 8 Plaintiff has a “plain, speedy and efficient remedy” in state court. See 28 U.S.C. § 1341. 9 B.) Are PFML Premiums Taxes Within the Meaning of the TIA? 10 The Ninth Circuit has set forth a three-factor test to guide the Court in determining 11 whether a monetary assessment is a “tax” within the meaning of the TIA: (1) the entity 12 that imposes the charge; (2) the parties upon whom the charge is imposed; and (3) 13 whether the charge is expended for general public purposes, or used for the regulation or 14 benefit of the parties upon whom the assessment is imposed. Bidart Bros. v. Cal. Apple 15 Comm’n, 73 F.3d 925, 931 (9th Cir. 1996). “When the first two Bidart factors are not 16 dispositive, courts emphasize the third factor—the way in which the revenue is ultimately 17 spent.” Qwest Corp. v. City of Surprise, 434 F.3d 1176, 1183 (9th Cir. 2006). 18 “An assessment imposed directly by the legislature is more likely to be a tax than 19 an assessment imposed by an administrative agency.” Bidart, 73 F.3d at 931. Plaintiff 20 argues that although the PFML was “enacted” by the Washington Legislature, duties such 21 as the determination of premiums, the calculation of account balance ratios, and the 22 assessment of “solvency surcharges” have been delegated to ESD, rendering the 23 premiums “administrative charges” rather than taxes. Dkt. # 18 at 10 (citing RCW 24 50A.10.030(1)(a)). However, this argument is not persuasive. The premiums at issue here 25 are imposed and enacted by Washington’s legislative body. See Wash. Const. art. II § 1. 26 This is underscored when compared to the fact scenario before the court in Bidart. There, 27 assessment at issue was imposed by an independent Commission that, although 1 authorized by the California legislature, was a corporate body and could be terminated at 2 the election of member apple producers. The Commission’s independence “weigh[ed] in 3 favor a finding that the assessments [were] not taxes.” Compare Bidart, 73 F.3d at 931 4 with RCW 50A.10.030 (setting forth the rates of premiums to be assessed by the 5 Employment Security Department). Here, the delegation of collection to ESD does not 6 change the fact that the premiums have been imposed by the Washington Legislature and 7 therefore likely to be a tax. 8 Second, “[a]n assessment imposed upon a broad class of parties is more likely to 9 be a tax than an assessment imposed upon a narrow class,” although an assessment upon 10 a “narrow class of parties” may still be a tax under the TIA. Bidart, 73 F.3d at 931. Here, 11 the premium is assessed against a broad group: Washington employers with 50 or more 12 employees, RCW 50A.10.030(5)(a), and all Washington-based workers. Plaintiff notes 13 that only 3.7% of Washington employers are required to pay premiums, Dkt. # 18 at 10, 14 but according to Defendant, those large employers employ 61% of Washington workers. 15 Dkt. # 19 at 6.3 In Pacific Bells, the Court found the “WA Cares” premium, which is also 16 assessed against Washington employees (subject to exemptions for some groups of 17 workers), to be imposed upon a “broad, rather than a narrow, subset of the population.” 18 Pacific Bells, 600 F.Supp.3d at 1157-58 (citing Bidart, 73 F.3d at 931); see also RCW 19 50B.04.101. Here, PFML premiums are to be assessed against both Washington 20 employees and employers—a broad class of parties. The premiums are therefore more 21 likely to be a tax.4 22 23 3 Both parties derive this information from data published at ESD’s website, and the court may 24 take judicial notice of such data. Hong v. Recreational Equip., Inc., No. 19-0951JLR, 2019 WL 5536406, at *7 n.3 (W.D. Wash. Oct. 25, 2019). 25 4 The parties dispute whether PFML premiums have actually been assessed against Plaintiff or collected from Plaintiff or its employees, Dkt. # 18 at 8 n.3, or whether Plaintiff must 26 affirmatively request that Defendant undertake an audit of Union Pacific’s financial liability to 27 create an appealable determination, Dkt. # 15 at 13. However, this does not change this Court’s analysis. See Frederickson v. Starbucks Corp., 840 F.3d 1119, 1123 (9th Cir. 2016) (even if Third, this Court considers “the ultimate use of the assessments.” Bidart, 73 F.3d 1 at 932. “Assessments treated as general revenues and paid into the state’s general fund 2 are taxes.” Id. (citations omitted). However, “[t]he question, in the long run, is not simply 3 where the money is deposited at some point; it is what the purpose or use of the 4 assessment truly is.” Hexom v. Oregon Dept. of Transp., 177 F.3d 1134, 1138 (9th Cir. 5 1999). Although an assessment placed in a special fund to be used for a special purpose is 6 less likely to be a tax, it may be considered a tax if it is designed to “provide[] a general 7 benefit to the public.” San Juan Cellular Telephone Co. v. Public Service Comm’n of 8 Puerto Rico, 967 F.2d 683, 685 (1st Cir. 1992). Such is the case here, where PFML 9 premiums are deposited into an insurance account in the custody of the Washington state 10 treasurer to be used for the purposes of the program, RCW 50A.05.070(1), and the 11 program itself was created by the Legislature to “promote family stability and economic 12 security” for small businesses, parents, newborns, children, and families in Washington. 13 RCW 50A.05.005; see also MCI Commc’n Serv., Inc. City of Eugene, OR, 359 14 Fed.App’x 692, 695-6 (9th Cir. 2009) (City ordinance that required two-percent payment 15 charged to telecommunications providers operating facilities within the city to be placed 16 in segregated fund and used to fund telecommunications programs and projects that 17 benefit the public at large was tax under the TIA). Applying the “practical and sensible 18 approach” set forth by the Ninth Circuit, Hexom, 177 F.3d at 1137, this Court finds that 19 the PFML premiums constitute a tax for the purposes of the TIA. 20 // 21 // 22 // 23 // 24 25 Plaintiff fails to challenge the amount in taxes ultimately owed, if the declaratory and injunctive 26 relief requested would ultimately inhibit the flow of tax revenue into state coffers, the TIA strips 27 the district court of jurisdiction). C.) Are State Court Remedies Available to Plaintiff? 1 Next, the Court must consider whether Plaintiff has a “plain, speedy and efficient 2 remedy” in Washington state courts. If a “plain, speedy and efficient remedy” is not 3 available in state court, a federal district court may exercise jurisdiction over the party’s 4 challenge; however, this exception must be narrowly construed. Lowe, 627 F.3d at 1155. 5 The law requires only that the state court remedy “meet certain minimal procedural 6 criteria.” Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 512, 101 S.Ct. 1221 (1981). A 7 “plain” remedy is one where “the procedures available in state court” are “certain.” Lowe, 8 627 F.3d at 1156; see also Direct Marketing Ass’n, Inc. v. Bennett, 916 F.2d 1451, 1453 9 (9th Cir. 1990) (a state remedy is not plain within the meaning of the TIA “if there is 10 uncertainty regarding its availability or effect.”). A remedy is “efficient” unless it 11 imposes an “unusual hardship” requiring “ineffectual activity or an unnecessary 12 expenditure of time or energy.” Rosewell, 450 U.S. at 518. And a “speedy” remedy is one 13 that “does not entail a significantly greater delay than a corresponding federal 14 procedure.” Hyatt v. Yee, 871 F.3d 1067, 1073 (9th Cir. 2017) (citing US West, Inc. v. 15 Nelson, 146 F.3d 718, 725 (9th Cir. 1998)). However, the state court remedy “need not 16 necessarily be the best remedy available or even equal to or better than the remedy which 17 might be available in the federal courts.” Id. (citing Mandel v. Hutchinson, 494 F.2d 364, 18 367 (9th Cir. 1974)). 19 Plaintiff is unaware of any pending or foreseeable action in Washington state 20 courts that could address the federal preemption argument with respect to rail carriers and 21 employees. Dkt. # 18 at 21. However, this does not mean that state court remedies are out 22 of Plaintiff’s reach. The PFML provides that “any aggrieved party may file an appeal 23 from any determination or redetermination with the commissioner,” RCW 24 50A.50.010(1), and further provides for administrative appeals by “delinquent 25 employers” who believe that ESD’s assessment of their premiums is “unjust or 26 incorrect.” RCW 50A.50.020. Indeed, Plaintiff appears to have availed itself of the 27 administrative appeal process, leading to the present dispute. Dkt. # 1 ¶ 23. However, 1 Plaintiff does not appear to have pursued judicial review by the superior court, despite the 2 Washington Legislature having provided for it within the PFML. See RCW 50A.50.130 3 (“Judicial review.”). And although the administrative proceeding is “fully resolved” 4 according to Plaintiff, Dkt. # 18 at 21, Washington’s Administrative Procedure Act 5 allows for Plaintiff to seek judicial review in the absence of the exhaustion of 6 administrative remedies when the remedies would be “patently inadequate,” exhaustion 7 would be “futile,” or the “grave irreparable harm” that would result from exhaustion 8 would clearly outweigh the public policy of requiring exhaustion. RCW 34.05.534. 9 Although Plaintiff notes that “abstentions are generally inappropriate when the 10 case concerns preemption,” Dkt. # 18 at 22 (quoting Hotel Emp. and Restaurant Emp. 11 Int’l Union v. Nevada Gaming Comm’n, 984 F.2d 1507, 1512 (9th Cir. 1993)), Plaintiff 12 points to no authority preventing the Washington state courts from adequately addressing 13 the issue of preemption—including the issue of express preemption of state law by 14 federal railroad law. See, e.g., Veit, ex rel. Nelson v. Burlington Northern Santa Fe Corp., 15 171 Wn.2d 88 (2011) (en banc) (Washington Supreme Court held that Federal Railroad 16 Safety Act of 1970, 49 U.S.C. § 20106, preempted common law excessive speed claim 17 brought after a train collided with a car at a railroad crossing); see also Washington 18 Trucking Ass’n v. Trause5, No. C11-1223RSM, 2012 WL 585077, at *3 (W.D. Wash. 19 Feb. 21, 2012) (Court in this district declined to consider claim that Federal Aviation 20 Administration Amendments Act, 49 U.S.C. § 14502(c), preempted Washington law due 21 to lack of subject matter jurisdiction under the TIA). Moreover, Plaintiff’s alleged loss 22 before Washington’s administrative tribunal does not compel this Court to assume 23 jurisdiction. See City of Surprise, 434 F.3d at 1184 (Finding that there was no evidence 24 suggesting an adequate remedy not available in state courts when telecommunications 25 26

27 5 The Washington Supreme Court eventually considered the matter in Washington Trucking Ass’n v. State Emp. Sec. Dep’t., 188 Wn.2d 198 (2017). company challenging tax “already challenged [the city’s] tax in state court and lost.”). 1 Because Plaintiffs have a “plain, speedy and efficient” state court remedy within reach, 2 the TIA deprives this court of subject matter jurisdiction over Plaintiff’s claims. This 3 Court declines to address Defendant’s other arguments in support of dismissal; namely, 4 lack of standing and Eleventh Amendment immunity. 5 6 V. CONCLUSION 7 Based on the foregoing reasons, the Court GRANTS Defendant’s Motion to 8 Dismiss Pursuant to FRCP12(b)(1). Dkt. # 15. This action is DISMISSED without 9 prejudice for lack of subject matter jurisdiction. 10 11 DATED this 28th day of March, 2024. A 12 13 The Honorable Richard A. Jones 14 United States District Judge 15

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