The Federal Enclave Doctrine – A Practical Guide to its Application

If you ask me anything I don’t know, I’m not going to answer.

--Yogi Berra

Some federal contracts are performed only on federal lands where the state has receded from jurisdiction. Those lands are known as federal enclaves.  The federal enclave doctrine has emerged and precludes the application of state laws to those contracts, including state wage and hour laws. We blogged on this rarely covered subject before. See https://www.awrcounsel.com/blog/2018/12/12/federal-enclave-doctrine-sometimes-state-wage-and-hour-claims-are-barred?rq=enclave. Now we visit the subject again.

As a general principle, state wage and hour laws are not preempted by the federal laws.  Of course, some federal wage laws like the Davis-Bacon Act (“DBA”) or the Service Contract Act (“SCA”)  are said to constitute an exclusive enforcement scheme vested in the U.S. Department of Labor and are not generally amendable to private causes of action. However, that does not necessarily preclude causes of action specifically based on state law. But even such cleverly pleaded state claims must fail if the state law does not apply in the jurisdiction.

The federal enclave doctrine, if applicable, would preclude state regulation of the federal lands. That would presumably bar the state or local government from applying its regulatory rules. It would bar taxation. And it would preclude application of the state and local wage laws. This latter aspect would thus preclude state wage and hour suits.

So how do you determine whether you are working in a federal enclave? Sometimes that is easier said than done. The application of the doctrine is often unclear. I had a client once who said that we jumped into that rabbit hole and never found our way out. The case involved a dispute at 29 Palms, CA, a Marine Corps facility out in the desert. There is a court ruling that 29 Palms was a federal enclave, but if you peal back the onion the ruling was based on a stipulation to that effect by the plaintiffs. Outside of that ruling there is a series of very confusing land history regarding 29 Palms. The State of California takes the position that it is not an enclave since it was created after World War II, and there have been no new enclaves created after the war. However, at least some of the land that ultimately became 29 palms was deeded to the US Government prior to World War II. We never figured out definitively whether or not the land where our client was working is a federal enclave.

From that experience, I developed some guidelines as to how to hunt for enclaves. I will distill those guidelines here:

1.     To figure out whether a piece of federal property is an enclave, I start with a google search. Can you find any evidence of prior rulings, communications, letters, documents, etc. suggesting that the land is or is not an enclave?

2.     Figure out what date the federal lands were acquired from the state. If it is after 1945, and the lands have no prior federal history, you can safely assume it is not an enclave.

3.     Then do a Westlaw or Lexis search for any federal or state case law establishing whether an enclave exists. As for secondary resources, Westlaw has the Government Contracts Briefing Papers, including the one by Leonora M. Schloss, The Federal Enclave Doctrine, Briefing Papers (Federal Pub. 2000). And there are law review articles on this subject which can be examined, and which usually discuss numerous case cites.

4.     Review any federal government resources you can find. For example, there is a GSA List of Federally Owned or Leased Buildings with some helpful notations as to the acquisition status of various federal properties, and that may be a good starting point for the examination of the enclave doctrine. https://catalog.data.gov/dataset/inventory-of-owned-and-leased-properties.    

5.     If the government lands are a military facility consult with the local Judge Advocate General (JAG) Corps of base lawyers to see what they think. It is probable that they have encountered the subject when it comes to the application of both civil and criminal law jurisdiction on the lands.

6.     Consult with pertinent state authorities on the subject of enclave jurisdiction. California, for example, has a State Lands Commission. See https://www.slc.ca.gov/. In the past, the Commission has issued letters setting forth its position on the existence of an enclave. If possible, seek a written opinion from the state.

7.     Finally, go look at the local land records in the relevant local court or government Office of Deeds and do a title search to see how the Federal Government got possession of the laws. You may also need to review the state legislative enactments to see if the state formally receded from jurisdiction in its agreement to transfer title to the Federal Government. That may require some legislative history. If you are working in a place like Puerto Rico, as I once did, either examination means you need a lawyer who is competent in Spanish in order to review the records.

The frustrating thing is when you do all of the above, sometimes you are no more enlightened than when you started. Generally, without proof of an enclave, you need to assume that state and local wage and hour law applies. In the Government contracts world, that means you need to consider whether the state or local minimum wage exceeds the wages required by the DBA, SCA, the President’s Contractor Minimum Wage Executive Order, or the Fair Labor Standards Act. In places like California, Washington State, Washington, DC, and other states and local governments with $18 an hour or higher minimum or living wages, this is particularly important. In places like the People’s Republic of California, you need to review the application of all kinds of state wage laws, from meal breaks, travel time, daily overtime, final paycheck, and other requirements.

As you can see this can be a very complicated and nuanced process. It could be worthwhile to engage counsel with experience doing these kinds of examinations. AWR (this law firm) has examined nearly 100 federal facilities nationwide and may have prior research records we can consult to shorten the process and control the cost.

NOTE: This is an slight update and reprint of a blog we previously posted which we think is significant and worth some more attention.