Keeping Tabs on the Ninth Circuit
December 04, 2020 - This Week at the Ninth

This Week at the Ninth: Willfulness and Waterways

This Week at the Ninth: Willfulness and Waterways

This week, the Ninth Circuit came back from the Thanksgiving break with a bang, issuing three long-awaited en banc decisions in criminal and immigration cases. Here at Left Coast, however, we’ve focused on two other civil decisions—issued by smaller panels, perhaps, but no less interesting. In the first, the Court held that in the Family and Medical Leave Act, “willful” means “reckless.” In the second, the Court held that Holter Lake in Montana is not navigable water for purposes of admiralty jurisdiction. 

The Court clarifies the meaning of “willful” in the Family and Medical Leave Act (FMLA), joining the other courts of appeal in holding that the defendant must have acted recklessly. 

The panel: Judges Graber, Ikuta, and Benitez (S.D. Cal.), with Judge Benitez writing the opinion.

Key highlight: “[T]o benefit from the FMLA’s three-year statute of limitations, a plaintiff must show that her employer either knew or showed reckless disregard for whether its conduct violated the Act.”  

Background: Andrea Olson is an independent contractor who helped employers, including the Bonneville Power Administration (BPA), comply with the Americans with Disabilities Act. After she began experiencing anxiety, she initially asked that BPA allow her to telework, then invoked the FMLA and went on leave. Although the BPA considered terminating her, it consulted with its legal department and decided against it, and continued paying her for the limited telework she billed. When Olson attempted to more fully return to work, BPA told her that she would first have to meet with a BPA manager. Olson responded by filing a complaint with the BPA’s Equal Employment Office. She subsequently rejected BPA’s offer that she return for a trial work period. 

Nearly three years later, Olson filed suit, alleging that the BPA had violated her rights under the FMLA. At a bench trial, the district court found that because BPA’s conduct was not willful, Olson’s claims were governed by a two-year rather than three-year statute of limitations, and were thus time-barred. The district court did, however, also conclude that the BPA had failed to provide Olson notice of her rights under the FMLA. 

Result: The Ninth Circuit affirmed. First, the Court explained that to prove a FMLA violation based on a theory that the BPA had “interfered” with her FMLA rights by failing to inform her of them, Olson was required to show prejudice from the lack of notice. The Court concluded that it need not determine whether Olson had met that standard, as the district court’s finding that any such “interference” was not willful was not clearly erroneous, and only a willful violation would satisfy the applicable statute of limitations. 

The Ninth Circuit joined the other courts of appeals that have addressed the issue in holding that the FMLA undefined term “willful” should be given the same meaning as had been adopted for that term in the Fair Labor Standards Act. Under that standard, “the employer must know, or show reckless disregard for whether, its conduct was prohibited by the statute.” The Ninth Circuit reasoned that the FMLA is structured similarly to the Fair Labor Standards Act, the Supreme Court has extended this definition of “willful” to other employment discrimination statutes, and this definition reflects a common understanding of the term. Here, the Court concluded, the fact that the BPA had consulted with its legal department, declined to terminate Olson, and continued to pay her—along with the fact that there was some doubt whether it constituted her primary employer and was thus subject to the FMLA’s notice requirement—all supported the district court’s determination that any violation was not “willful.”

The Court holds that a lake situated between two dams on the Missouri River is not navigable for the purposes of federal courts’ admiralty jurisdiction.

The panel: Judges Tashima, Graber, and Ikuta, with Judge Tashima writing the opinion.

Key highlight: “[B]ecause the alleged tort here did not occur on navigable waters, the complaint here is not cognizable under the district court’s admiralty jurisdiction.”

Background: Caleb Garrett filed a complaint for exoneration from or limitation of liability relating to a boating accident on Holter Lake in Montana, invoking the district court’s admiralty jurisdiction under 28 U.S.C. § 1333(1). Holter Lake is located on a stretch of the Missouri River completely obstructed by the Hauser dam at one end and the Holter dam at the other. Because of those obstructions, the district court concluded that Holter Lake is not navigable water for purposes of admiralty jurisdiction and dismissed the complaint.

Result: The Ninth Circuit affirmed. As the Court explained, “[a] party seeking to invoke federal admiralty jurisdiction over a tort claim must satisfy both a location test and a connection test.” Garrett failed the location test, the Court said, which requires that the tort occur on navigable waters. Waters are navigable “when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.” Because Holter Lake was not an artery of interstate commerce for any part of the year, did not form an international border, and was not open to the ocean, it was not navigable for purposes of admiralty jurisdiction. The Court did not reach the connection test.