John Busker, on behalf of himself and all others similarly situated and the general public, Plaintiff-Appellant,
Wabtec Corporation, a Pennsylvania corporation; Mark Martin, an individual; Does, 1 through 100, Defendants-Appellees.
Before: Richard R. Clifton and Consuelo M. Callahan, Circuit
Judges, and Kenneth M. Hoyt, [*] District Judge.
Question to California Supreme Court
case involving the Southern California Regional Rail
Authority ("Metrolink") and a federally-mandated
comprehensive communications network known as Positive Train
Control ("PTC"), the panel certified the following
question of state law to the Supreme Court of California:
Whether work installing electrical equipment on locomotives
and rail cars (i.e., the "onboard work" for
Metrolink's PTC project) falls within the definition of
"public works" under California Labor Code §
1720(a)(1) either (a) as constituting
"construction" or "installation" under
the statute or (b) as being integral to other work performed
for the PTC project on the wayside (i.e., the "field
respectfully ask the Supreme Court of California to exercise
its discretion to decide the certified question set forth in
Part II of this Order, below. See Cal. R. Ct. 8.548.
The answer to this question of California law will be
dispositive of the appeal before us, and no clear controlling
California precedent exists. Id. Moreover, because
the question that we certify is of great importance to many
employees in California, considerations of comity and
federalism suggest that the court of last resort in
California, rather than our court, should have the
opportunity to answer the question in the first instance.
See Kilby v. CVS Pharmacy, Inc., 739 F.3d 1192,
1196-97 (9th Cir. 2013); Klein v. United States, 537
F.3d 1027, 1028 (9th Cir. 2008).
provide the following information as required by California
Rule of Court 8.548(b)(1):
The title of this case is: JOHN BUSKER, on behalf of himself
and all others similarly situated and the general public,
Plaintiff-Appellant v. WABTEC CORPORATION, a Pennsylvania
corporation, and MARK MARTIN, an individual,
case number in our court is 17-55165.
names and addresses of counsel are:
For Plaintiff-Appellant: Richard E. Donahoo, Donahoo &
Associates, Tustin, California; Thomas G. Foley, Jr., Kevin
D. Gamarni, Foley, Bezek, Behle & Curtis, LLP, Santa
Barbara, California; Tiffany J. Gates, Law Offices of Tiffany
J. Gates, Santa Rosa, California; Stuart B. Esner, Holly N.
Boyer, Shea S. Murphy, Esner, Chang & Boyer, Pasadena,
For Defendants-Appellees: Patrick Madden, Todd L. Nunn,
K&L Gates LLP, Seattle, Washington.
designate John Busker as the petitioner if our request for a
decision is granted. He is the appellant before our court,
and he moved for an order requesting a decision from the