Richard L. Barron Linda M. Barron v. Robert Reich Department of Labor Robert Kelley

Citations: 13 F.3d 1370; 1994 WL 6619Docket: 92-55522

Court: Court of Appeals for the Ninth Circuit; January 13, 1994; Federal Appellate Court

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Richard L. Barron and Linda M. Barron appealed a district court’s dismissal of their writ of mandamus, which sought to compel the Secretaries of Labor and Agriculture to initiate further action against their employer, Tridair Helicopters, Inc., for violations of the McNamara-O'Hara Service Contract Act (SCA). The Barrons claimed that Tridair had unlawfully withheld overtime and holiday pay during their employment from 1985 to 1988 under service contracts with the U.S. Department of Agriculture.

The district court dismissed their case for failure to state a claim, asserting that the Barrons had not adequately invoked the Mandamus and Venue Act of 1968, and that it improperly considered evidence outside the pleadings. The Ninth Circuit affirmed this dismissal. The Barrons had first raised their pay concerns to Tridair's president in late 1987, and subsequently filed a formal complaint with a government contracting officer in June 1988, which was later forwarded to the Department of Labor. An investigation revealed that Tridair owed Mr. Barron $602.88 for past overtime violations, but no violations were found regarding Ms. Barron. The Barrons, dissatisfied with this resolution, sought over $22,000 in back wages, leading to the legal action against multiple government officials and agencies.

The district court dismissed the action against all defendants due to the Barrons’ failure to state a claim under the Service Contract Act (SCA) and determined that mandamus relief under 28 U.S.C. § 1361 was not available because the plaintiffs did not identify a ministerial duty owed by the defendants. Although the court referenced materials outside the pleadings, it clarified that the motion to dismiss would not be treated as a summary judgment motion.

The SCA, particularly 41 U.S.C. § 351, requires government service contracts over $2,500 to include minimum wage provisions set by the Secretary of Labor, while § 355 excludes certain fringe benefits from overtime calculations as defined by the Fair Labor Standards Act (FLSA). Violations of the SCA, as outlined in § 352, allow the government to withhold payments from non-compliant employers to compensate underpaid employees, with provisions for legal action if withheld payments are insufficient.

Previous case law, specifically Miscellaneous Serv. Workers v. Philco-Ford Corp., established that employees lack a private right of action against employers under the SCA, emphasizing that grievances should be directed to the Secretary of Labor, not the courts. The Barrons acknowledge they cannot sue Tridair directly under the SCA. Their argument for mandamus relief conflicts with the appellees' stance that such an action would undermine the established rulings.

Jurisdiction was confirmed under 28 U.S.C. § 1361, which allows district courts to compel federal officers to perform duties owed to the plaintiff, and appellate jurisdiction was established under 28 U.S.C. § 1291, with a timely notice of appeal filed.

The appellate review of the district court's dismissal for failure to state a claim follows a de novo standard, accepting all allegations as true and assessing whether any set of facts could support the Barrons' claims. Dismissal is only warranted if the plaintiffs can prove no viable claims for relief.

Mandamus is characterized as an extraordinary remedy, applicable under specific conditions: the plaintiff must demonstrate a 'clear and certain' claim, the defendant's duty to act must be ministerial and unambiguous, and there must be no other adequate remedy available. In *District Lodge v. TWA*, the Eleventh Circuit ruled that the absence of a private cause of action under the SCA meant the plaintiff could not satisfy the first criterion for mandamus relief, as their request was essentially an indirect means to obtain back wages from an employer. The court refused to grant relief that was not a direct right under the statute.

Conversely, the Barrons argued that lacking a private recourse against their employer necessitated a writ against federal officials, a position not widely supported by case law. However, in *Carpet, Linoleum, Resilient Tile Layers, Local Union No. 419 v. Brown*, the Tenth Circuit reversed a dismissal of a mandamus claim without addressing the private cause of action issue. 

The Ninth Circuit, in *Soler v. Scott*, acknowledged the absence of a cause of action under the pertinent statute but still deemed mandamus appropriate, allowing claims under the APA or the Mandamus Act to proceed independently. However, this case was later vacated by the Supreme Court, rendering it unreliable as precedent. Other circuits, such as the Eighth and Seventh, have concluded that the lack of a private cause of action precludes mandamus relief, while the Fifth Circuit affirmed a dismissal based on the claimant not being within the 'zone of interests' protected by the statute.

The court addresses whether a plaintiff without a private right of action under a specific statute can establish a clear right to relief under the Mandamus Act. It concludes that, based on the facts of this case, the plaintiffs’ claim lacks clarity. The district court determined that the duty of the defendant officials regarding the investigation of Tridair's alleged misconduct was discretionary, not mandatory. The statute in question, 41 U.S.C. § 352(a), does not obligate the Secretary of Labor to investigate every claim of underpayment or to act against employers upon finding a violation. Instead, it allows the government to take action under certain conditions, indicating a permissive rather than mandatory duty. 

Additionally, while mandamus cannot be used to override an official’s legitimate discretion, it may apply if statutory or regulatory standards are ignored. However, the appellants failed to identify any standards violated by the defendants or demonstrate a complete failure by the Secretary to fulfill her statutory duties, distinguishing their situation from cases where courts intervened due to non-compliance with mandatory directives.

The district court noted that the Department of Labor's two-year investigation policy may help conserve resources, potentially aligning with the statutory purposes of the SCA. Despite recognizing the Barrons' challenging situation, where the SCA prevents them from suing their employer and the Department of Labor’s policy limits effective relief, the court found that it could not issue a writ of mandamus due to the absence of a clearly defined ministerial duty imposed on the defendants by Congress.

The Barrons argued for a six-year statute of limitations for SCA actions, citing case law and Labor Department regulations, claiming a breach by the Department for not adhering to this period. However, the court rejected this argument, clarifying that a statute of limitations does not create a mandatory enforcement duty. 

Regarding the district court's use of materials outside the pleadings in granting a Rule 12(b)(6) motion, the court referenced the two-year limit policy of the Wage and Hour Division as outlined in the Department of Labor Field Operations Handbook. This reliance was deemed appropriate, as courts can take judicial notice of such administrative records. While the Barrons contested the court's reference to their delay in making written demands, the court's acknowledgment of this fact did not constitute error, despite inconsistencies in the dates provided by the Barrons.

The significance of the date of the Barrons' first written demand is questioned, with the district court not addressing any notion of forfeiture regarding rights against Tridair. The court referenced this date to dismiss arguments about the Wage and Hour Division's obligation to consider earlier complaints, a duty the Barrons do not contest on appeal nor provide supporting authority for. Consequently, references to this date are deemed insignificant to the case's outcome, and the district court's dismissal of the complaint is upheld as neither procedurally nor substantively flawed. 

Additionally, the document notes a potential error regarding the Barrons' claims of violations under the Contract Work Hours and Safety Standards Act (CWHSSA), as they only alleged violations of the Service Contract Act (SCA). The Barrons misinterpreted the two-year limit for investigations as a misapplication of the statute of limitations, which the appellees clarify pertains to the Fair Labor Standards Act (FLSA) and not the SCA, emphasizing that SCA remedies are exclusively administrative. 

The excerpt also highlights the discretionary nature of agency enforcement decisions, referencing Supreme Court precedent that underscores the complexities involved in determining enforcement priorities. Without evidence that the appellees failed to fulfill a mandatory duty or acted beyond their discretion, the court concludes that further analysis of alternative relief options is unnecessary. The appeal is affirmed, with Robert Reich now serving as Secretary of the Department of Labor.