FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HILDA L. SOLIS, Secretary of 

Labor,* United States Department

of Labor, No. 08-15223 Plaintiff-Appellee,

D.C. No.

v.  CV-05-01306-GEB

JASMINE HALL CARE HOMES, INC., OPINION HALL CARE HOMES, INC., GEORGE

K. HALL, ESTELA HALL,

Defendants-Appellants. 

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, District Judge, Presiding

Argued and Submitted

September 3, 2009—San Francisco, California

Filed July 1, 2010

Before: J. Clifford Wallace, Diarmuid F. O’Scannlain, and

Andrew J. Kleinfeld, Circuit Judges.

Per Curiam Opinion

*Hilda L. Solis is substituted for her predecessor, Elaine Chao, as Secretary of Labor. Fed. R. App. P. 43(c)(2). 

9481
COUNSEL

Gregory F. Jacob, Solicitor of Labor, Steven J. Mandel, Paul

L. Frieden, Rachel Goldberg (argued), United States Department of Labor, Washington, DC, for the plaintiff-appellee.

Baldwin J. Lee (argued), Amy Wintersheimer-Findley, Jennie

L. Lee, Allen Matkins Leck Gamble Mallory & Natsis LLP,

San Francisco, California, for the defendants-appellants.

SOLIS v. JASMINE HALL CARE HOMES 9483
OPINION

PER CURIAM:

This is an appeal from a partial summary judgment. We

dismiss the appeal for lack of jurisdiction under the final decision rule.

I. Facts

Jasmine Hall Care Homes and the individually named

defendants operate residential care facilities for developmentally disabled adults in California. The Secretary of Labor

sued to enjoin violations of the Fair Labor Standards Act,

alleging that the defendants have willfully violated overtime

compensation requirements.

The Department of Labor investigator reported that Jasmine Hall’s timekeeping records were inadequate. Direct

observation showed that employees rotated shifts, sleeping at

the facility when they were supposedly off duty, but not really

being off duty at all. Although only one employee was treated

by the employer as being on duty during any eight-hour

period, “there was usually more than one employee providing

needed care or supervision to clients at almost any time of

day,” and “even in the evenings the clients seemed to require

a great deal of attention and interaction.” And the employees

were not free to leave during their five 24-hour shifts per

week, except on authorized company business. 

The investigator wrote that “Jasmine Hall live-in residential

staff members were required to share relatively small rooms

with up to 3 other staff members, often of the opposite sex.”

Staff members had bunk beds in shared rooms, or in one case,

two double beds for two married couples, with a sheet hung

between the two beds, and in another, a double bed for the

married couple and a third bed for another employee.

“[C]lients frequently knocked on the staff room door in the

9484 SOLIS v. JASMINE HALL CARE HOMES
middle of the night for all sorts of reasons, such as wanting

a shower,” and staff aides had to interrupt their supposedly

personal time for such tasks as administering medicine and

taking clients to the toilet. Yet they were only paid for eight

hours of the 24 they spent on duty. 

A Department of Labor regulation, 29 C.F.R. § 785.23,

addresses the application of the Fair Labor Standards Act to

employees who reside on company premises. The regulation

recognizes the difficulty of determining what hours are

worked, since employees may be on the premises but nevertheless have time to “engage in normal private pursuits and

thus have enough time for eating, sleeping, entertaining, and

other periods of complete freedom from all duties when he

may leave the premises for purposes of his own.” Id. The regulation therefore allows an employer in this situation to avoid

paying otherwise mandatory wages by making a “reasonable

agreement” with the employee as to which hours will be paid.

The district court held, in response to the parties’ crossmotions for summary judgment, that Jasmine Hall Care

Homes could not invoke that regulation in order to avoid

wage and hour obligations as to any employee who shares a

bedroom with another employee. 

The defendants immediately appealed the partial summary

judgment. The Department of Labor moved to dismiss for

lack of jurisdiction, on the ground that there was no final decision. The district court did not certify the appeal under 28

U.S.C. § 1292(b). Our motions panel denied the motion to

dismiss without prejudice to its being renewed in appellee’s

brief, and it has been.

II. Analysis

[1] Congress, with some explicit exceptions, has limited

our appellate jurisdiction to “final decisions” of the district

courts. 28 U.S.C. § 1291. Interlocutory decisions generally

cannot be appealed until the cases are completed.

SOLIS v. JASMINE HALL CARE HOMES 9485
Finality as a condition of review is an historic characteristic of federal appellate procedure. It was written into the first Judiciary Act and has been departed

from only when observance of it would practically

defeat the right to any review at all. Since the right

to a judgment from more than one court is a matter

of grace and not a necessary ingredient of justice,

Congress from the very beginning has, by forbidding

piecemeal disposition on appeal of what for practical

purposes is a single controversy, set itself against

enfeebling judicial administration. Thereby is

avoided the obstruction to just claims that would

come from permitting the harassment and cost of a

succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment. 

Cobbledick v. United States, 309 U.S. 323, 324-25 (1940)

(footnotes omitted). Congress has carved out several carefully

delimited classes of interlocutory orders excepted from the

final judgment rule, see 28 U.S.C. § 1292, but none of them

are invoked and none are applicable to this case. Similarly,

the limited exception for appealability of certain collateral

orders, as discussed in Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541 (1949), has not been urged in this appeal,

and does not apply, given that the partial summary judgment

order at issue here is not collateral, but central to the merits

of the case. 

[2] Appellants argue that this court has appellate jurisdiction under the 1964 Supreme Court decision of Gillespie v.

United States Steel Corp., 379 U.S. 148 (1964), which

departed from the final judgment rule by weighing “the inconvenience and costs of piecemeal review on the one hand and

the danger of denying justice by delay on the other,” and

holding that it had jurisdiction to reach the merits of the case

where the questions on appeal were “fundamental to the further conduct of the case” and appellate jurisdiction “properly

9486 SOLIS v. JASMINE HALL CARE HOMES
implemented the same policy Congress sought to promote in

[28 U.S.C.] § 1292(b) by treating this obviously marginal case

as final and appealable under 28 U.S.C. § 1291.” 379 U.S. at

152-54 (internal quotation marks omitted). 

The Supreme Court in Coopers & Lybrand v. Livesay, 437

U.S. 463 (1978), closed the Gillespie door all but a crack. The

Court limited Gillespie in a footnote:

Respondents also suggest that the Court’s decision in

[Gillespie] supports appealability of a classdesignation order as a matter of right. We disagree.

In Gillespie, the Court upheld an exercise of appellate jurisdiction of what it considered a marginally

final order that disposed of an unsettled issue of

national significance because review of that issue

unquestionably “implemented the same policy Congress sought to promote in § 1292(b),” and the arguable finality issue had not been presented to this

Court until argument on the merits, thereby ensuring

that none of the policies of judicial economy served

by the finality requirement would be achieved were

the case sent back with the important issue undecided. In this case, in contrast, respondents sought

review of an inherently nonfinal order that tentatively resolved a question that turns on the facts of

the individual case; and, as noted above, the indiscriminate allowance of appeals from such discretionary orders is plainly inconsistent with the policies

promoted by § 1292(b). If Gillespie were extended

beyond the unique facts of that case, § 1291 would

be stripped of all significance.

Id. at 477 n.30 (citations omitted) (emphasis added).

[3] Despite this near-abrogation of Gillespie, however, the

Ninth Circuit has interpreted the Coopers & Lybrand footnote

as a list of questions to determine whether the Gillespie

SOLIS v. JASMINE HALL CARE HOMES 9487
exception to finality applies. Serv. Employees Int’l Union,

Local 102 v. County of San Diego (SEIU), 60 F.3d 1346 (9th

Cir. 1995), held that we did indeed have jurisdiction to review

a partial summary judgment addressing applicability of the

private sector “salary test” in the Fair Labor Standards Act to

the public sector. We paraphrased footnote 30 of Coopers &

Lybrand, and concluded that appellate jurisdiction would lie

if all of the four factors Coopers & Lybrand used to limit Gillespie were satisfied:

(1) the decision appealed was a marginally final

order, (2) which disposed of an unsettled issue of

national significance, (3) review implemented the

same policy Congress sought to promote in

§ 1292(b), and (4) the finality issue was not presented to the appellate court until argument on the

merits, thereby ensuring that policies of judicial

economy would not be served by remanding the case

with an important unresolved issue.

Id. at 1350 (internal quotation marks and brackets omitted).

The case before fails to meet the fourth requirement, so we

need not decide whether it meets the other three.

[4] The fourth element of the SEIU test is that “the finality

issue was not presented to the appellate court until argument

on the merits.” That test, which is meant to encourage parties

to alert us to a jurisdictional issue before the parties and the

court waste time analyzing merits, has no application here.

The Secretary of Labor raised the jurisdictional defect by a

motion to dismiss shortly after this appeal was docketed and

before the briefs were filed. Where a well-taken motion to

dismiss for lack of jurisdiction is filed before the briefs are

filed, we are unable to imagine how the fourth SEIU requirement could be satisfied.

Jasmine Hall Care Homes argues that our decision in Smith

v. Eggar, 655 F.2d 181 (9th Cir. 1981), expanded the scope

9488 SOLIS v. JASMINE HALL CARE HOMES
of jurisdiction available under Gillespie. But Smith held that

the order appealed from, while not a final order, was “sufficiently injunctive in nature to justify our taking jurisdiction

under [28 U.S.C. § ] 1292(a)(1),” because it commanded

compliance with the terms of an agreement negotiated by the

parties during the litigation. 655 F.2d at 184. Section

1292(a)(1) provides appellate jurisdiction over district court

orders granting, continuing, modifying, refusing, or dissolving

injunctions. Jasmine Hall does not argue that the partial summary judgment was in any way injunctive. 

Smith did state in the alternative that “[e]ven if this were

not so, on the facts of this particular case we would be

inclined to view the order as so fundamental to the litigation

that both policy and common sense would dictate that we

assume jurisdiction under the rule of Gillespie,” 655 F.2d at

184-85, but that pronouncement was dicta. Ninth Circuit cases

relying on Smith focus on the “sufficiently injunctive” language. See, e.g., United States v. Gila Valley Irrigation Dist.,

31 F.3d 1428, 1441-42 (9th Cir. 1994); Thompson v. Enomoto, 815 F.2d 1323, 1326 (9th Cir. 1987). And we are not

free to interpret Gillespie broadly.

In addition to the four factors we quoted in SEIU, we are

bound by Coopers & Lybrand’s use of the word “unique.”

437 U.S. at 477 n.30. The word the Court chose to use,

“unique,” means “being the only one of its kind.” American

Heritage Dictionary 1322 (2d College ed. 1985) (defining

“unique” as “1. Being the only one of its kind; sole. 2. Being

without an equal or equivalent; unparalleled.”). In light of

SEIU, we have to read “unique” as overstatement, meaning

something like “exceedingly rare” rather than literally

“unique.” But that is as far as we can go in stretching the

word that the Supreme Court used. The language SEIU used

is not simply a “four-part test” where if the court can articulate some good reason under each part, then the Congressional

restriction of appeals to “final decisions” can be avoided. As

we held in In re Subpoena, Gillespie “must be sparingly

SOLIS v. JASMINE HALL CARE HOMES 9489
used,” because “[t]o extend the doctrine beyond the facts of

Gillespie would render the section 1291 finality requirement

useless.” In re Subpoena Served on the Cal. Pub. Utils.

Comm’n, 813 F.2d 1473, 1479-80 (9th Cir. 1987). Footnote

30 of Coopers & Lybrand compels that restrictive interpretation. Even where all four factors are satisfied, ordinarily interlocutory appeal is barred.

[5] Where there really is very strong reason for interlocutory correction of a district court error, even though the case

falls within no exception from the final judgment rule, we can

use mandamus. Beyond that, it is a rare district court case

indeed that can be interrupted by an appeal if it does not fall

within a statutory exception to the statutory final decision

rule. The interlocutory appeal in this case is not the albino

black bear that Gillespie excepts from the “final decision”

requirement, so this interlocutory appeal must be dismissed

for lack of jurisdiction.

APPEAL DISMISSED.

9490 SOLIS v. JASMINE HALL CARE HOMES