entitled to that immunity just because it's a subdivision of the state but the law is also clear that any public entity that acts as an arm of the state can be subject to immunity and in this case this qif pacifically targets the states i program directly attacks the implementation of a groundbreaking overtime rule and ask this court and ultimately possibly a judge or a jury to overrule or amendment i'm unity to a county not aware of a case that has done that but this court in st and i live the county sheriff's department in the specific role of a minister in the county jails because in the arm of the state doctrine there is no per se preclus if you look at what the governmental actor is engaging in and you analyze that under the eleventh amendment jurisprudence now here they sued the state of california but under album be made in maine they were forced to do that and so now the county is left with all of the plaintiffs i are focused on the county the district court acknowledged the unfairness here the county does not control the people function i e to assess program is dictated from the top down the welfare code and regulations and c directives tell the counties how to perform their limited localized role the payroll functions and this is an f l s a k so we are focused on payroll is controlled by the state the state sends them time sheets the providers and their time sheets to the state contractor the state them process the time cards and the treasury issues a payment so the court hears knowledge that unfairness counsel there's no dispute there's nothing in the record which that would suggest that a judgment against the county would be actually paid by the state correct yes and i and so even though i understand that you're saying mitchell controls we should overrule mitchell we should look at other cases i mean even if you got to that point and were correct when i look at cases like for example has the supreme court very specifically says the biggest factor here is the effect on the state treasury and you don't have that factor go after that say is that you cannot keep giving that factor predominantly because it's too narrow it's doing violence to the policy underlying eleventh amendment immunity if you look at seminal trial the supreme court said injunctive release triggers immunity you know coffers at stake there if you look at the doe case where the supreme court reversed the ninth circuit they said it doesn't matter if at the end of the day the state is not going to feel a financial impact what matters is that there the  in the federal maritime commission just putting a state actor through the process of an administrative hearing even if there isn't going to be a monetary judgment subject to collection impugn the integrity  sovereignty of that and the the four factors and has the pope live here would wait a sidedly in the counties favor first of all this is clearly a state program it's dictated by the welfare code the district court agreed even under the mitchell test which i believe has been overruled that that factor weighed in favor of the county the second factor is control and that's what's missing under mitchell mitchell focusing on on three of the status of the energy under the state law and yes that's still a factor on the house but the reason that control has to be part of the eleventh amendment inquiry is because when you are suing and eddie whose conduct at issue in the case is controlled by the state that energy is a proxy for the state and it's attacking the integrity and the sovereignty of the state and you don't need to take my word for it the district judge said in his october twelfth order the state of california department of social service has issued a statement on november fourth providing that the state would start paying overtime wages in the control factor which under the supreme court's decisions are important to analyze are we going to be using a federal proceeding to attack a state actor and this case is all about the state's decision making if you look at the cross appeal what they're saying is that station has started voluntarily paying overtime while the proceedings were in the d c circuit the state moved too slowly even if the issued a directive within a week of the mandate from this d c circuit and announced february first they were going to do this groundbreaking shift in this program that hundreds of thousands of people are paid by the state on your council like the district court i'm sympathetic to the county but it strikes me that in this regard your beef is with sacramento not the plaintiffs know it's the eleventh amendment doctrine that acknowledges arm of the state and that the courts have said that there's no public entity that isn't subject to that inquiry in the appropriate case and here what when there are factors that go a couple of different ways here i think we win the state function we win the control factor we are we don't have the state on the hook for the judgment that the rabbi means it's just not an agency of the state the issue with their background checks and the sheriff's policy on background checks were a product of county policy not state dictate here the state told the counties and everyone in the eye of the thumb how this was going to work the welfare code directed c v s s not the county not anyone else c d s on how to implement this rule and the county couldn't have paid i mean the argument here is that we were supposed to construct a payroll system that we don't have that we don't address you look at whether the allowing this case to go forward will impede in pune the integrity and the sovereignty of the state for them to prevail they are literally going to be attacking every state decision along the way because the county in the words of the district court couldn't do it unilaterally couldn't disobey directives in order to disrupt what was an implementation plan and we're talking about a state program where the even just the basic that any actor in a circumstance where the case is targeting conduct its outside their control can invoke eleventh amendment immunity when the factors show on balance that the policy is violated if that action proceeds regulation became effective irrespective of what the district court in the district of columbia did why would that affect the effect of state regulation was vacated before it ever became affect it district court in period of non prosecution to its effective date so by saying we're not we have a thirty day non prosecution policy and saying that thirty gave a lapse of ember of twelve the department labor was saying that october thirteenth was the effective date for for purposes of the regulation you're saying they changed the actual terms of the regulation without going through any formal process to amend it never became effective because it was vacated before its effect date so the department of labor recognise that recognise that it was that and sort of the d c circuit that employers can't be expected to comply with a regulation that doesn't exist and so that's why that mandate was expects but i did and that's why the department of labor and now it's in its own regulation what the thirty day hold period would be tied to not a hypothetical effect of date that never happened but the mandate and also it extended the prosecution just question ari period to the end of the year because this was such a ground shift for a system that they knew was primarily a state governed process i mean didn't the state of california basically take a chance that the district court ruling was going to be upheld on appeal by the d c circuit there was nothing that prevented the state from deciding we're going to pay now and not risk losing i don't know your honor but that's my point under the eleventh amendment those are state decisions in the county shouldn't have to answer them in court subject to liability under a federal statute that the court already said and all the main the state has unity from a federal and state court for private actions so i imagine the crazy loophole we're creating here you can't sue the entity that runs the program dictates the payroll makes a decision on when and if and how to implement new rules you can just go through the backdoor into the energy that's told what to do at every step of the payroll system  program in the county is very different the county does not employ the providers the state pays the providers the recipient dictates the level and nature of the services and the county's role is primarily a social service role to it constituents who are the recipients good morning in may it please the court matthew howland of nichols caster for the plaintiff the pollies reversing the district court's sovereign immunity finding would be an extraordinary result for at least two reasons first it would require overturning thirty year old precedent that has been cited by literally hundreds of cases based on a supreme court case that itself is twenty four years old and second it would mark the first time that any circuit court has extended sovereign immunity to a county i think the court understands our position on the sovereign immunity arguments and so i just have one point that i want to raise that gets to the joint employment issue we shouldn't blur the lines here between sovereign immunity and employer status those are two different inquiries sovereign immunity requires a bright line the middle test provides the bright line and an important aspect of mental test is whether they can the state will be liable there's no question here that the state will not be liable on a judgment the issues about whether the even the county should be held responsible for what happened and go to whether the county is an employer under the f a let's say and if the county has an employer and if you have a less say than it had an obligation to pay overtime is that a live issue in the case it when a court of appeal reverses a district court just record opinion is wiped from existence as if it never happened and the appellate decision applies to all pending cases and all other events the repeated challenges to the effect of it on this particular regulation are somewhat ironic i would submit because the department of labor took such great pains to provide advance notice of the regulation and give the regulator community fifteen months to prepare for the effective date those employers that the relied on the court challenge did so at their own peril as you were as you recognize starts bennett with the full knowledge that that challenge my proven successful i simply asked a question i think is a very intelligent question your honor the administrative procedures act contemplates a comment took place in this alleged change of the effective date and it did not and so absentia notice and comment will make ing a request under seven or five of the administration administrative procedures act the department of labor could not change the effective date well but how about the argument that there was that thirty day hold and then making it in forcible on november twelfth essentially did change the date well there's a very important aspect of the thirty day hold the thirty day hold was a notice by the department of labor it was going to exercises prosecute the prosecutorial discretion to not bring agency enforcement actions against employers during that thirty day period it says nothing as to private right of action which also exists under the f l s say in fact the thirty and one of the federal register passages where the department announces the thirty day hold it says it will not violate any it will not prosecute any violations of the regulation during this period and there could be no violations of the regulation if the regulation was not in effect so all the department of labor was doing was trying to regulate it community enforcement and a private right of action is very important throughout the federal register the department of labor recognized that the entire regulated community was relying on this effective date and it repeatedly said that it was not delaying the effective date even though it was exercising stis question not to prosecute as an agency and i have nothing further to say all right thank you counsel i would give you a couple minutes to respond prosecute at all it's not discretionary just a mandatory hold for that thirty day period and if you look back at the history of the statute they always contemplated there would be a significant gap between the effective date and when anyone would have  to take place when the agency charged with enforcing the regulation does not have the ability to prosecute the same claim they can't because again in skidmore the supreme court said those issues should go hand in hand when they thought the regulation would become effective in january there was going to be a six month period of whole from the outset all of those dates came and went during the d c proceeding so when the department of labor said november twelfth is the first day we can prosecute that is also the first da of a private right of action was the district court rightly concluded the discretionary period was after that it went from november twelfth to december thirty first of twenty fifteen so those distinctions are and are not to be blurred although i think the plaintiffs would have you do so with regard to the joint employer defense the county does have that the fence and it will be able to contest those issues but the point here is that they are being forced to the answer to decisions they didn't make and they had no control and that is what implicates the eleventh amendment and the mitchell test is just too myopic we focused on the coffers and not the integrity and the sovereignty of the state and its conduct that's going to be subject to a litigation process