Defendant's Attorney: Robert G. Young and Timothy P. Van Dyck
Description: At its inception, this appeal
seemed to present a single question — albeit a novel one — about
how to interpret the Massachusetts Wage Act (the Wage Act). See
Mass. Gen. Laws ch. 149, §§ 148, 150. But appearances can be
deceiving, cf. Aesop, The Wolf in Sheep's Clothing (circa 550
B.C.), and at oral argument, a threshold question emerged as to
the existence vel non of federal subject-matter jurisdiction.
After careful consideration, we hold that federal subject-matter
jurisdiction existed at the time of removal because there was then
a colorable claim of complete preemption under the Labor Management
Relations Act (LMRA), 29 U.S.C. § 185(a). Even after it became
evident that LMRA preemption was not in the cards, the district
court retained authority to exercise supplemental jurisdiction
over the case. See 28 U.S.C. § 1367(c). With our jurisdictional
concerns assuaged, we reach the merits, grapple with the disputed
Wage Act question, and affirm the judgment below.
The facts are, for all practical purposes, undisputed.
Defendant-appellant Steward Health Care System, LLC owns and
operates several medical facilities in Massachusetts, including
Carney Hospital (Carney). Plaintiff-appellee Margaret Lawless
worked as a nurse at Carney for many years. At the times relevant
hereto, she was a member of the Massachusetts Nurses Association,
a union that had a collective bargaining agreement (CBA) with the
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defendant. The CBA contained various provisions addressing
On March 5, 2016, the defendant terminated the
plaintiff's employment. On March 7, the plaintiff sued the
defendant in a Massachusetts state court, alleging failure to pay
accrued wages by the date of her termination. Specifically, the
plaintiff alleged that the defendant had failed to pay $20,154.30
in paid time off (PTO) and $21,191.11 in extended sick leave (ESL).
These payment shortfalls, she alleged, were in breach of her
employment contract and in violation of the Wage Act, Mass. Gen.
Laws ch. 149, §§ 148, 150. That same day, the plaintiff filed an
administrative complaint with the Attorney General of
Massachusetts, requesting leave to proceed with her suit. See id.
On March 10, the defendant made a direct deposit into
the plaintiff's bank account in the amount of $12,754.33 — a sum
that was intended to compensate her for all of the PTO owed. Six
days later, the plaintiff received a check from the defendant in
the amount of $2,440.80 — a sum that was intended to compensate
her for all of the accrued ESL. On March 22, the Attorney General
assented to the plaintiff's maintenance of her suit.
On May 23, the plaintiff amended her complaint and
withdrew her claim for breach of contract. The amended complaint
also revised the amounts that the plaintiff claimed were overdue:
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it alleged that, at the time of her discharge, she was owed
$20,354.44 in PTO and $2,440.80 in ESL. The defendant removed the
case to the federal district court the next day, pegging federal
subject-matter jurisdiction on the basis of LMRA preemption. See
28 U.S.C. §§ 1331, 1441(a), 1446; see also 29 U.S.C. § 185(a).
The plaintiff did not move to remand. The case proceeded in the
district court and, in due course, the parties cross-moved for
summary judgment. See Fed. R. Civ. P. 56(a). The district court
granted summary judgment in favor of the plaintiff, awarding her
treble damages in an amount equal to three times the cumulative
total of her accrued PTO and ESL as of the date of her discharge,
together with reasonable attorneys' fees and costs. See Mass.
Gen. Laws ch. 149, § 150. This timely appeal ensued.
Following the filing of briefs, the case came on for
oral argument in this court on May 10, 2018. Although neither
party had broached the existence of federal subject-matter
jurisdiction, we raised doubts about jurisdiction at oral argument
and ordered supplemental briefing. Those briefs having been
submitted, the appeal is now ripe for resolution.
A court without jurisdiction is like a king without a
kingdom: both are powerless to act. Since the existence of
federal subject-matter jurisdiction implicates our power to hear
and determine a case, we must address that issue before proceeding
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further. See Steel Co. v. Citizens for a Better Env't, 523 U.S.
83, 94-95 (1998); Bonano v. E. Carib. Airline Corp., 365 F.3d 81,
83 (1st Cir. 2004). The fact that neither party has challenged
the existence of federal subject-matter jurisdiction is of no
moment: federal subject-matter jurisdiction can never be
presumed, nor can it be conferred by acquiescence or consent. See
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); Cusumano v.
Microsoft Corp., 162 F.3d 708, 712 (1st Cir. 1998). When
circumstances exist that call federal subject-matter jurisdiction
into legitimate question, "an appellate court has an unflagging
obligation to inquire sua sponte into its own jurisdiction."
Watchtower Bible & Tract Soc. of N.Y. v. Colombani, 712 F.3d 6, 10
(1st Cir. 2013) (quoting Charlesbank Equity Fund II v. Blinds to
Go, Inc., 370 F.3d 151, 155-56 (1st Cir. 2004)).
This case, though originally filed in a Massachusetts
state court, was removed to the federal district court. It is
settled beyond peradventure that a state-court action is removable
only if it "originally could have been filed in federal court."
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). We review
a district court's retention of subject-matter jurisdiction over
a removed case de novo. See BIW Deceived v. Local S6, Indus. Union
of Marine & Shipbldg. Workers of Am., 132 F.3d 824, 830 (1st Cir.
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The parties see no jurisdictional problem. They jointly
posit that this case was appropriately removed on the basis of
federal-question jurisdiction, that is, they envision that this
case arises "under the Constitution, laws, or treaties of the
United States." 28 U.S.C. § 1331. But "[t]he gates of federal
question jurisdiction are customarily patrolled by a steely-eyed
sentry — the 'well-pleaded complaint rule.'" BIW, 132 F.3d at
831. Consequently, the propriety of federal-question jurisdiction
must be assayed based on "what necessarily appears in the
plaintiff's statement of [her] own claim" in her complaint,
"unaided by anything alleged in anticipation of avoidance of
defenses which it is thought that a defendant may interpose."
Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 10
(1983) (quoting Taylor v. Anderson, 234 U.S. 74, 75-76 (1914)).
In the context of removal, "we consider the claims in the state
court [complaint] as they existed at the time of removal." Manguno
v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
2002); see Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491
F.3d 320, 330 (6th Cir. 2007).
At first blush, the parties' shared claim of
jurisdiction appears to run headlong into the well-pleaded
complaint rule. The operative pleading (the amended complaint)
contains a single cause of action claiming violations of the Wage
Act and does not refer at all to federal law. But there may be
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more here than meets the eye: the parties argue that the amended
complaint raises a colorable claim under the complete preemption
doctrine (sometimes referred to as the artful pleading doctrine).
See López-Muñoz v. Triple-S Salud, Inc., 754 F.3d 1, 5 (1st Cir.
2014) (explaining complete preemption doctrine). On reflection,
We start with the doctrine of complete preemption:
"Congress may so completely preempt a particular area that any
civil complaint raising this select group of claims is necessarily
federal in character." Metro. Life Ins. Co. v. Taylor, 481 U.S.
58, 63-64 (1987). Section 301 of the LMRA operates in this
fashion. See 29 U.S.C. § 185(a); Allis-Chalmers Corp. v. Lueck,
471 U.S. 202, 209-13 (1985). It is by now black-letter law that
"the preemptive force of [section] 301 is so powerful as to
displace entirely any state cause of action for violation of
contracts between an employer and a labor organization." BIW, 132
F.3d at 831 (quoting Franchise Tax Bd., 463 U.S. at 23). Any claim
falling under the carapace of section 301 is therefore treated as
"purely a creature of federal law, notwithstanding the fact that
state law would provide a cause of action in the absence of
[section] 301." Id. (quoting Franchise Tax Bd., 463 U.S. at 23).
Although state courts may exercise concurrent jurisdiction over
claims completely preempted under section 301, they must look to
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federal common law for the substantive rules of decision. See
United Steelworkers of Am. v. Rawson, 495 U.S. 362, 368 (1990).
Withall, the doctrine of complete preemption is
"misleadingly named." Rueli v. Baystate Health, Inc., 835 F.3d
53, 57 (1st Cir. 2016) (quoting Hughes v. United Air Lines, Inc.,
634 F.3d 391, 393 (7th Cir. 2011)). Although preemption is
typically a defense to liability under state law, complete
preemption serves a different function: with respect to the
application of the well-pleaded complaint doctrine, it
transmogrifies a claim purportedly arising under state law into a
claim arising under federal law. See id.; López-Muñoz, 754 F.3d
LMRA complete preemption has broad application in
employment-related matters. See Lueck, 471 U.S. at 210-11;
Cavallaro v. UMass Mem'l Healthcare, Inc., 678 F.3d 1, 5 (1st Cir.
2012). In addition to claims that are predicated on rights created
under CBAs, the complete preemption doctrine extends to claims
that are "substantially dependent on analysis of a collectivebargaining
agreement." Caterpillar, 482 U.S. at 394 (quoting Int'l
Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 859 n.3 (1987));
see Lueck, 471 U.S. at 220 (ruling that state-law tort claim
requiring interpretation of CBA was preempted).
Even so, LMRA complete preemption has its limits. "[N]ot
every dispute concerning employment, or tangentially involving a
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provision of a collective-bargaining agreement, is preempted by
[section] 301." Lueck, 471 U.S. at 211. It follows that section
301 does not "preempt state rules that proscribe conduct, or
establish rights and obligations, independent of a labor
contract." Id. at 212. In the last analysis, state-law claims
that require "only consultation with the CBA," as opposed to
"actual interpretation" of the CBA, "should not be extinguished."
Adames v. Exec. Airlines, Inc., 258 F.3d 7, 12 (1st Cir. 2001);
see Cavallaro, 678 F.3d at 7.
The line between consultation and interpretation has
proven difficult to plot. See Livadas v. Bradshaw, 512 U.S. 107,
124 n.18 (1994) (noting judicial confusion about scope of LMRA
complete preemption); Cavallaro, 678 F.3d at 5 (remarking that
Supreme Court "has never fully integrated" LMRA complete
preemption cases into a unitary doctrine). But precise linedrawing
is not essential here: at the time of removal, this case
fell within the "interpretation" sector. We explain briefly.
A court surveying its subject-matter jurisdiction
"reviews a plaintiff's complaint not to judge the merits, but to
determine whether [it] has the authority to proceed." BIW, 132
F.3d at 832. The federal claim need not have merit in order for
the court to assume jurisdiction. See Steel Co., 523 U.S. at 89.
To the contrary, a court has jurisdiction to decide a case so long
as the plaintiff has alleged a colorable federal claim. See Bell
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v. Hood, 327 U.S. 678, 682-83 (1946); Ne. Erectors Ass'n of BTEA
v. Sec'y of Labor, 62 F.3d 37, 39 n.1 (1st Cir. 1995). A claim is
"colorable" if it is "seemingly valid or genuine," BIW, 132 F.3d
at 832 n.4 (citation omitted), as opposed to "wholly insubstantial,
immaterial, or frivolous," Boettcher v. Sec'y of HHS, 759 F.2d
719, 722 (9th Cir. 1985).
Applying these general principles to the section 301
setting, we do not focus on whether any of the plaintiff's claims
were in fact completely preempted. Instead, we focus on whether
the amended complaint, "taken in context, reveals a colorable
federal question within a field in which state law is completely
preempted." BIW, 132 F.3d at 832. Federal subject-matter
jurisdiction exists as long as — at the time of removal — there
was a seemingly valid or genuine argument that adjudication of the
plaintiff's claim would require construction of the CBA. See id.
We find this permissive standard satisfied here. The
plaintiff alleged in her original complaint that the defendant
failed to pay her PTO and ESL. There can be no doubt that the CBA
was potentially implicated in any dispute over the amounts of PTO
and ESL owed by the defendant to the plaintiff. After all, the
CBA contained provisions addressing the plaintiff's right to both
PTO and ESL.
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To be sure, the plaintiff amended her complaint prior to
removal, dropping her breach of contract claim. The amended
complaint, however, was less than pellucid as to whether the
plaintiff was still seeking to recover any additional lost wages
or was restricting her claim to penalties for failure to make
timely payments under the Wage Act.1 The fact that the plaintiff's
amended complaint contained only a Wage Act count tells us very
little in light of the fact that the Wage Act confers the right to
sue for not just penalties, but for wages too. See Mass. Gen.
Laws ch. 149, § 150.
Because the CBA addressed the plaintiff's rights to PTO
and ESL, it was plausible at the time of removal that the district
court would be required to interpret the CBA in order to determine
what amounts, if any, were owed as lost wages. Cf. Cavallaro, 678
F.3d at 8 (finding Wage Act claim preempted when "determining what
(if anything) is owed" was an "inevitable issue" and would
"depend at least arguably on interpretations and applications of
the CBA"); Flibotte v. Pa. Truck Lines, Inc., 131 F.3d 21, 26 (1st
Cir. 1997) (similar). Since there was a genuine question about
whether the plaintiff's entitlement to relief under her Wage Act
1 For example, the amended complaint alleged that the
plaintiff had earned $20,354.44 in PTO prior to her discharge. At
the same time, it acknowledged the defendant's March 10 payment of
$12,754.33. These averments left some uncertainty as to whether
the plaintiff was seeking to recover the difference.
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claim would require construction of the CBA, her amended complaint
There is a wrinkle. The plaintiff testified, during her
pretrial deposition, that she had been paid her PTO and ESL in
full, prior to the date on which her action was removed to the
federal court. The effect of this testimony was to concede that
her only remaining claim was for penalties under the Wage Act.
For aught that appears, the claim for penalties — unlike the claim
for lost wages — was based on an independent obligation under the
Wage Act and did not brook any interpretation of the CBA. See
Livadas, 512 U.S. at 124-25. Thus, any prospect for preemption
vanished by the time that the plaintiff's deposition ended (well
before the district court entered summary judgment).
This circumstance, though, did not deprive the district
court of jurisdiction. See 28 U.S.C. § 1367. After all, it is
common ground that when a federal court may validly exercise
federal-question jurisdiction over at least one claim, it may also
exercise supplemental jurisdiction over pendent state-law claims.
See Cavallaro, 678 F.3d at 5, 9; BIW, 132 F.3d at 833. And once
2 The fact that the amended complaint did not explicitly refer
to the CBA is not fatal to this analysis. See BIW, 132 F.3d at
831. A federal question may exist under the complete preemption
doctrine, even if that question is absent from the four corners of
the operative complaint. See Cavallaro, 678 F.3d at 5. In this
case, the defendant sufficiently articulated in its notice of
removal why the CBA, the existence of which the plaintiff did not
dispute, was plausibly implicated.
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such supplemental jurisdiction has attached, the mere fact that
the anchoring federal claim subsequently goes up in smoke does
not, without more, doom all pendent state-law claims. See
Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir.
1995); see also 28 U.S.C. § 1367(a), (c).
This is such a case. Because the plaintiff's claim for
penalties under the Wage Act arose from the same nucleus of
operative facts as her potentially preempted claim for lost wages,
the district court had supplemental jurisdiction over the former
claim. See BIW, 132 F.3d at 833. The mere fact that any prospect
of complete preemption had dissipated by the time that the crossmotions
for summary judgment were filed did not deprive the
district court of its supplemental jurisdiction over the Wage Act
claim. See Rodriguez, 57 F.3d at 1177.
Of course, the fact that the district court had
discretion to hear and determine the plaintiff's Wage Act claim
does not mean that its implicit exercise of that discretion was
appropriate. When any and all federal claims have been dismissed
prior to trial, "the balance of factors to be considered under the
pendent jurisdiction doctrine — judicial economy, convenience,
fairness, and comity" often will counsel in favor of declining
jurisdiction over any remaining state-law claim. Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Where, as here,
the only federal claim has vanished before trial and the remaining
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state-law claim raises a knotty and unresolved question of state
law, dismissal without prejudice typically will be a prudent
option. See Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d
178, 192 (1st Cir. 1999).
Here, however, the circumstances are not typical. After
the plaintiff clarified the extent of her case through her
deposition testimony, neither party objected to the district
court's retention of jurisdiction over what was obviously a claim
arising under state law. Unlike an objection to federal subjectmatter
jurisdiction, which is unwaivable, an objection to the
district court's exercise of supplemental jurisdiction over a
pendent state-law claim may be waived. See Acri v. Varian Assocs.,
114 F.3d 999, 1000-01 (9th Cir. 1997) (en banc); Doe by Fein v.
District of Columbia, 93 F.3d 861, 871 (D.C. Cir. 1996) (per
curiam). Here, the parties never challenged the district court's
continuing exercise of supplemental jurisdiction,3 so they have
waived any such challenge. See Powers v. United States, 783 F.3d
570, 576-77 (5th Cir. 2015).
3 The fact that the district court exercised its discretion
to allow the case to proceed under supplemental jurisdiction
implicitly rather than explicitly does not invalidate its
determination. A district court is not obliged to make findings
about the propriety of supplemental jurisdiction under section
1367(c) sua sponte. See Acri, 114 F.3d at 1000-01. We caution,
though, that the decision about whether to retain supplemental
jurisdiction is a weighty one, and the due administration of
justice often will be better served by an express determination
(including a brief explication of the court's rationale).
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To sum up, the district court properly exercised
jurisdiction over the plaintiff's complaint at the time of removal.
At that point, jurisdiction was premised on a colorable federal
question. When, thereafter, that colorable federal question
evaporated during pretrial discovery, the district court opted,
albeit implicitly, to retain supplemental jurisdiction over the
remaining Wage Act claim. In the absence of any objection, that
discretionary exercise of supplemental jurisdiction was sufficient
to keep the Wage Act claim within the jurisdictional reach of the
federal court. Hence, we have jurisdiction to review the district
court's adjudication of the Wage Act claim.
III. THE MERITS
We begin our appraisal of the merits by rehearsing the
familiar summary judgment standard. Summary judgment is warranted
if the record, construed in the light most flattering to the
nonmovant, "presents no genuine issue as to any material fact and
reflects the movant's entitlement to judgment as a matter of law."
McKenney v. Mangino, 873 F.3d 75, 80 (1st Cir. 2017), cert. denied,
138 S. Ct. 1311 (2018); see Fed. R. Civ. P. 56(a). Where, as here,
the parties cross-move for summary judgment, the court must assay
each motion "separately, drawing inferences against each movant in
turn." EEOC v. Steamship Clerks Union, 48 F.3d 594, 603 n.8 (1st
Cir. 1995). We review a grant of summary judgment de novo. See
McKenney, 873 F.3d at 80. In carrying out such a review, we are
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not wed to the district court's rationale but, rather, "may affirm
on any independent ground made evident by the record." González-
Droz v. González-Colón, 660 F.3d 1, 9 (1st Cir. 2011).
Since the district court adjudicated the state-law claim
under supplemental jurisdiction, federal law supplies the
applicable procedural rules and state law supplies the substantive
rules of decision. See Perry v. Blum, 629 F.3d 1, 8 (1st Cir.
2010). In this instance, Massachusetts is the source of that state
law. Absent controlling Massachusetts authority on a particular
point, "we must make an 'informed prophecy' as to how the state's
highest court — the Supreme Judicial Court (SJC) — would rule if
faced with the issue." Sanders v. Phoenix Ins. Co., 843 F.3d 37,
42 (1st Cir. 2016) (quoting Ambrose v. New Eng. Ass'n of Schs. &
Colls., 252 F.3d 488, 498 (1st Cir. 2001)). To arrive at this
informed prophecy, we may look to "analogous decisions, considered
dicta, scholarly works, and any other reliable data tending
convincingly to show how the [SJC] would decide the issue at hand."
N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 38 (1st Cir.
2001) (quoting Gibson v. City of Cranston, 37 F.3d 731, 736 (1st
The focal point of this appeal is the plaintiff's claim
under the Wage Act, Mass. Gen. Laws ch. 149, §§ 148, 150. First
enacted in 1879, the Wage Act was intended "to protect employees
and their right to wages." Elec. Data Sys. Corp. v. Attorney
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General, 907 N.E.2d 635, 641 (Mass. 2009). Of particular
pertinence for present purposes, the Wage Act requires an employer
to pay an employee "in full" by the date of discharge. Mass. Gen.
Laws ch. 149, § 148. This provision "impose[s] strict liability
on employers," who must "suffer the consequences" of noncompliance
regardless of their intent. Dixon v. City of Malden,
984 N.E.2d 261, 265 (Mass. 2013) (quoting Somers v. Converged
Access, Inc., 911 N.E.2d 739, 749 (Mass. 2009)).
The Wage Act establishes a two-track system of
enforcement. One track is rooted in the criminal law: section
150 "authorizes, but does not require" the Attorney General of
Massachusetts to charge violators criminally. Depianti v. Jan-
Pro Franchising Int'l, Inc., 990 N.E.2d 1054, 1060 (Mass. 2013).
The other track is civil. In 1993, the Massachusetts legislature
dramatically extended the statute's reach by creating a private
right of action allowing aggrieved employees to sue for lost wages,
treble damages, attorneys' fees, and costs. See 1993 Mass. Acts
681-82; see also Melia v. Zenhire, Inc., 967 N.E.2d 580, 588 n.8
(Mass. 2012). Although the 1993 amendment required a plaintiff to
prove that an employer's conduct was outrageous in order to recover
treble damages, a 2008 amendment, applicable to this case,
dispensed with that prerequisite and mandated the trebling of any
award of lost wages under the Wage Act. See 2008 Mass. Acts 71;
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see also George v. Nat'l Water Main Cleaning Co., 77 N.E.3d 858,
862 (Mass. 2017).
In an effort to ensure that the Wage Act's dual
enforcement mechanisms work harmoniously, the statute requires
that an aggrieved employee file a "complaint" with the Attorney
General, notifying her of a claimed violation. See Depianti, 990
N.E.2d at 1061. The employee may bring a private suit either
"ninety days after filing a complaint with the Attorney General,
or sooner if the Attorney General assents to such suit." Id. at
In the case at hand, the plaintiff plainly failed to
comply with the first alternative method for satisfying this notice
requirement: she did not wait ninety days between filing her
complaint with the Attorney General and commencing her action in
state court. Instead, she filed both her administrative complaint
and her state-court complaint on the same day. The plaintiff
argues, however, that she did comply with the second alternative
for satisfying the notice requirement: she obtained the Attorney
General's assent to her suit, albeit several days after her suit
was commenced. In her view, the fact that her action was already
pending when the Attorney General assented was of no moment.
The defendant demurs. It insists that the plaintiff's
action is foreclosed because she was paid in full before receiving
the Attorney General's letter of assent. In other words, the
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defendant invites us to construe the alternative notice
requirement as creating a grace period: it posits that an employer
is exempt from liability in a suit brought under the Wage Act until
one of two things happens — either the Attorney General assents or
the 90-day period expires.
In resolving this interpretive dispute, our journey
starts with the statutory text. When statutory terms are "'plain
and unambiguous' in their meaning, we view them as 'conclusive as
to legislative intent.'" Dorrian v. LVNV Funding, LLC, 94 N.E.3d
370, 375 (Mass. 2018) (quoting Water Dep't of Fairhaven v. Dep't
of Envtl. Prot., 920 N.E.2d 33, 37 (Mass. 2010)). If, however,
the meaning of a statute is not readily apparent from its language,
"[w]e look to the intent of the Legislature 'ascertained from all
its words . . . considered in connection with the cause of [the
statute's] enactment, the mischief or imperfection to be remedied
and the main object to be accomplished, to the end that the purpose
of its framers may be effectuated.'" Id. (quoting DiFiore v. Am.
Airlines, Inc., 910 N.E.2d 889, 893 (Mass. 2009)).
Here, the plain language of the Wage Act provides a
convincing rebuttal to the defendant's argument. Section 148
directs that an employee "shall be paid in full on the day of [her]
discharge." We think that language says what it means and means
what it says — and that conclusion is reinforced by the
legislature's use of the word "shall." It is apodictic that, in
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the drafting of statutes, such usage customarily connotes a
"mandatory or imperative obligation." Commonwealth v. Guzman, 14
N.E.3d 946, 951 (Mass. 2014) (quoting Hashimi v. Kalil, 446 N.E.2d
1387, 1389 (Mass. 1983)). So viewed, the Wage Act establishes a
mandatory obligation to pay an employee any accrued "wages" by the
day of her discharge. An employee who does not receive her due
wages by that date — even an employee who is paid in full a day
later — suffers a cognizable injury within the purview of the
statute. See Mass. Gen. Laws ch. 149, §§ 148, 150.
The defendant resists this interpretation but does not
point to any provision in the Wage Act that immunizes a dilatory
employer based on the timing of the Attorney General's assent.
Massachusetts courts generally "will not add language to a statute
where the Legislature itself has not done so," Mui v. Mass. Port
Auth., 89 N.E.3d 460, 462 (Mass. 2018), and we see no reason to
depart from this salutary praxis here. What language there is in
the Wage Act points in the opposite direction. For instance,
section 150 provides that a "defendant shall not set up as a
defence [sic] a payment of wages after the bringing of the
complaint." Mass. Gen. Laws ch. 149, § 150. Fairly read, this
provision indicates that an employer may not avoid liability under
the Wage Act when — as in this case — it belatedly pays an employee
after the filing of the "complaint." While there is admittedly an
ambiguity as to whether the term "complaint" refers to what is
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filed with the Attorney General or what is filed in court — section
150 appears to use the term interchangeably to mean both things —
we need not resolve that ambiguity here. In point of fact, the
defendant's tardy payment occurred after the plaintiff had filed
complaints both with the Attorney General and in court.
Striving to derail this reasoning, the defendant argues
that a plain-language construction of the statutory text would
divest the notice requirement of any real meaning. We agree with
the premise on which this argument rests: courts should try to
avoid interpretations that render statutory language mere
surplusage. See Narragansett Indian Tribe v. Rhode Island, 449
F.3d 16, 26 (1st Cir. 2006) (en banc); Ropes & Gray LLP v. Jalbert,
910 N.E.2d 330, 336 (Mass. 2009). But the conclusion that the
defendant would have us draw does not follow from this
uncontroversial premise. A plain-language construction of the
applicable Wage Act provision does not offend the "surplusage"
canon. When a plaintiff files a civil action before receiving the
Attorney General's assent and before the closing of the 90-day
window, she runs the risk that the Attorney General's assent will
not be forthcoming. In that event, the plaintiff's suit would
become a dead letter.
Shifting gears, the defendant notes that, in 2014, the
legislature amended the Wage Act to provide for tolling its threeyear
statute of limitations upon the filing of a complaint with
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the Attorney General. See Mass. Gen. Laws ch. 149, § 150. The
defendant suggests that this amendment shines a new (and
unfavorable) light on the proposed plain-language construction of
the statute, since there would be no need for tolling if a party
could file a civil action before receiving the Attorney General's
assent. This suggestion is unpersuasive: simply because the
legislature contemplated that certain aggrieved employees might
wait for either the Attorney General's assent or the passage of 90
days before filing suit does not mean that the legislature intended
to require all aggrieved employees to do so.
The defendant also suggests that we should be guided by
the SJC's construction of similar language in the Massachusetts
anti-discrimination statute. See, e.g., Commonwealth v. Hamilton,
945 N.E.2d 877, 882 & n.8 (Mass. 2011) (affording equivalent
constructions to similarly phrased provisions appearing in
different sections of code); see also Mass. Gen. Laws ch. 151B,
§ 9 (authorizing anti-discrimination suits "at the expiration of
ninety days after the filing of a complaint with the [Massachusetts
Commission Against Discrimination (MCAD)], or sooner if a
commissioner assents in writing"). Under the anti-discrimination
statute, as construed, a plaintiff must file an administrative
grievance with the MCAD before bringing a civil action. See
Depianti, 990 N.E.2d at 1061. But statutory language must be
construed in light of the statutory purpose, see Bos. Police
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Patrolmen's Ass'n v. City of Bos., 761 N.E.2d 479, 480 (Mass.
2002), and the SJC has explained that the two notice provisions,
though worded similarly, serve distinctly different purposes, see
Depianti, 990 N.E.2d at 1061.
The filing of a complaint with the MCAD triggers a
"prompt investigation" by the Commission, id. (quoting Mass. Gen.
Laws ch. 151B, § 5), which determines whether there is "probable
cause to credit the allegations" and, in appropriate cases, allows
the Commission to engage in conciliation, conduct administrative
proceedings, and order relief, id. This elaborate grievance
process affords the MCAD the opportunity to "resolve such claims
with greater flexibility and efficiency than may be had in a
judicial forum," thus saving all parties from the burdens of fulldress
The Wage Act contains nothing that even remotely
resembles this elaborate process. It "does not provide a
comprehensive remedial scheme to resolve claims outside a judicial
forum." Id. at 1061-62. Its filing requirement is "intended
simply to ensure that the Attorney General receives notice of the
alleged violations, so that she may investigate and prosecute such
violations at her discretion." Id. at 1061. To safeguard the
Attorney General's prerogative, the Wage Act stipulates that a
plaintiff cannot obtain a favorable judgment without first having
notified the Attorney General and received her permission to
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proceed. See Mass. Gen. Laws ch. 149, § 150. Given the Attorney
General's limited role, a defendant in a Wage Act case (unlike a
defendant in a discrimination case) cannot conceivably claim
prejudice from the initiation of a lawsuit before the filing of an
The short of it is that the defendant is attempting to
compare plums to pomegranates. With respect to the operation of
the statutory notice requirements and the timing of suits, the
anti-discrimination statute and the Wage Act — despite their
linguistic similarities — are not fair congeners.
Searching for more hospitable terrain, the defendant
attacks the plain-language construction of the Wage Act on policy
grounds. This attack features a parade of horribles. For example,
the defendant complains that a refusal to recognize a grace period
furnishes an unwholesome incentive for "employees to run to the
courts immediately to assert claims under the Wage Act upon the
slightest delay in payment." Similarly, the defendant laments
that "[a] mere payroll glitch, coupled with a fast-acting
plaintiff's lawyer waiting at the courthouse steps, would be enough
to impose treble damages (and attorneys' fees) on an unwitting
Hyperbole is not a reliable tool for statutory
construction, and it is not for us to say whether (or to what
extent) the defendant's fears are overblown. As a federal court,
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our task is "to apply state law, not rewrite it." Bonney v. Can.
Nat'l Ry., 800 F.2d 274, 280 (1st Cir. 1986). In the due
performance of this task, we conclude that the statutory text and
the reasoning in prior decisions of the SJC compel us to interpret
the disputed provisions of the Wage Act according to their plain,
unvarnished language. Read in that light, liability attaches upon
late payment. This conclusion fits seamlessly with the purpose of
the Wage Act, which aims to ensure the timely payment of wages.
See Bos. Police Patrolmen's Ass'n, 761 N.E.2d at 481. To
effectuate this purpose, the legislature chose to hold employers
strictly liable for dilatory payment. See Dixon, 984 N.E.2d at
265. When — as in this instance — the legislature has enacted a
statute with a clear remedial purpose, a court should be reluctant
to imply a limitation on recovery that is not compelled by the
plain statutory language. See Depianti, 990 N.E.2d at 1067. We
see no justification for such an implication here.
There is one loose end. In its reply brief, the
defendant calls attention to the SJC's recent holding that ESL
payments are not "wages" within the meaning of the Wage Act. See
Mui, 89 N.E.3d at 461. Building on this foundation, the defendant
urges that we reverse that portion of the district court's judgment
awarding treble damages based on belated ESL payments.
We reject this exhortation. In the district court, the
defendant never argued that ESL payments were outside the ambit of
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the Wage Act. Nor did it make this argument in its opening brief
in this court. Consequently, the argument is doubly defaulted:
once by the defendant's failure to raise it below, see Teamsters,
Chauffeurs, Warehousemen & Helpers Union v. Superline Transp. Co.,
953 F.2d 17, 21 (1st Cir. 1992) ("If any principle is settled in
this circuit, it is that, absent the most extraordinary
circumstances, legal theories not raised squarely in the lower
court cannot be broached for the first time on appeal."), and once
by the defendant's failure to raise it in its opening brief, see
Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990)
(holding argument not advanced in appellant's opening brief but
raised only in reply brief, to be waived).
Although there may be extraordinary circumstances that
would warrant the relaxation of such procedural defaults, we
discern none here. After all, a party generally may not "raise an
entirely new argument that could have been articulated below or in
the party's opening brief." Learmonth v. Sears, Roebuck & Co.,
710 F.3d 249, 256 (5th Cir. 2013). Here, the applicability of the
Wage Act to ESL was an unresolved issue at the time of the
plaintiff's firing, and several Massachusetts courts had
anticipated the SJC's decision. See, e.g., Berry v. Greenery
Rehab. & Skilled Nursing Ctr., No. CA923189, 1993 WL 818564, at *3
n.4 (Mass. Super. Oct. 29, 1993). Because the defendant could
- 27 -
have raised this defense all along but did not do so, there is not
the slightest basis for relieving it of its procedural default.
We summarize succinctly. To prevail in a civil action,
an employee aggrieved by a violation of the Wage Act must either
wait 90 days after providing notice to the Attorney General or
receive the Attorney General's assent. An employee who initiates
such an action within the 90-day period and before the Attorney
General has assented may still recover under the Wage Act as long
as the Attorney General assents to the suit prior to the entry of
judgment. Because the plaintiff received the Attorney General's
assent while her suit was pending and well before the entry of
judgment, we hold — as did the district court — that she was
entitled to summary judgment.
Outcome: We need go no further. For the reasons elucidated above,
the judgment is Affirmed.