Barron v. Reich, 92-55522

Decision Date13 January 1994
Docket NumberNo. 92-55522,92-55522
Citation13 F.3d 1370
Parties, 127 Lab.Cas. P 33,050, 1 Wage & Hour Cas. 2d (BNA) 1329 Richard L. BARRON; Linda M. Barron, Plaintiffs-Appellants, v. Robert REICH; * Department of Labor; Robert Kelley, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

William D. Evans, Pasadena, CA, for plaintiffs-appellants.

Ford Newman, Asst. U.S. Atty., Washington, DC, for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before: FLETCHER, D.W. NELSON, Circuit Judges, and WILL, ** District Judge.

FLETCHER, Circuit Judge:

Richard L. Barron and Linda M. Barron, husband and wife, sought a writ of mandamus compelling the Secretary of Labor and the Secretary of Agriculture to bring an additional enforcement action against the Barrons' employer under the McNamara-O'Hara Service Contract Act, 41 U.S.C. Secs. 351 et seq. (SCA). The Barrons alleged that their employer had withheld overtime and holiday pay in violation of the SCA. The district court dismissed the action for failure to state a claim. The Barrons argue on appeal that the district court erred both substantively--because they stated a claim under the Mandamus and Venue Act of 1968, 28 U.S.C. Sec. 1361--and procedurally--because the court improperly considered materials outside of the pleadings. We affirm in both respects.

BACKGROUND
1. Factual and Procedural

In their complaint, the Barrons state that from 1985 until 1988, they both worked for Tridair Helicopters, Inc. under service contracts Tridair had entered into with the United States Department of Agriculture, Forest Service. The Barrons allege, and appellees do not dispute, that these contracts were covered by the SCA. The Barrons further assert that under the SCA Tridair was required to provide holiday pay and to pay them at the rate of time and one-half for overtime work, and that Tridair failed to do so.

Mr. Barron first discussed his claims for unpaid overtime and holiday pay with Douglas Daigle, president of Tridair, in late 1987 and 1988. He first brought his and his wife's claims to the attention of a government contracting officer in June 1988. In July 1989, Mr. Barron made a written complaint to Richard Willis, the Contracting Officer for the Forest Service in Albuquerque, New Mexico. In April 1990, Mr. Willis forwarded the Barrons' complaint to the Department of Labor. The District Director of the San Diego Wage and Hour Division of the Employment Standards Administration, Department of Labor, responded to Mr. Willis' letter, stating that the Department of Labor would investigate Tridair.

Two months later, the investigation was conducted: going back approximately two years from the date of investigation, the Wage and Hour Division found that Tridair had violated the overtime provisions of the SCA 1 and as a result that the company owed Mr. Barron $602.88. No violations were found with respect to Ms. Barron within the two-year period investigated. In a declaration submitted to the district court together with defendants' motion to dismiss, the Acting District Director of the San Diego office of the Wage and Hour Division explained that it is standard enforcement policy, as stated in a Field Operations Handbook, to restrict investigations to a period of two years preceding the date of their undertaking. 2

The Barrons were not satisfied with the $602.88 recovered by the Wage and Hour Division on their behalf, and they declined to endorse a check tendered in that amount. Instead, they filed a complaint for a writ of mandamus in district court, where they contended that Tridair owed them back wages of over $22,000 in excess of the amount offered by the Wage and Hour Division. The Barrons named as defendants the Secretaries and the Departments of Labor and Agriculture, the District Director of the Wage and Hour Division, and the Contracting Officer of the Southwestern Region of the Forest Service.

The district court dismissed the action against all defendants, concluding that the Barrons had failed to state a claim under the SCA, and that mandamus could not issue under Sec. 1361 because plaintiffs had not identified a ministerial, nondiscretionary duty on the part of the defendants. The district court made various allusions to materials outside the pleadings, but stated several times in the course of its oral ruling that it was not converting the motion to dismiss into a summary judgment motion.

2. Statutory Background

A brief overview of the SCA is appropriate. Section 351 of 41 U.S.C., the central provision of the SCA, states, inter alia, that contracts to provide services to the government which are in excess of $2,500 must contain minimum wage provisions, and that minimum wages are to be set by the Secretary of Labor in accordance with prevailing rates in the locality. Section 355 excludes from the calculation of overtime pay those fringe benefits which are excluded from such calculation under the Fair Labor Standards Act (FLSA), 29 U.S.C. Secs. 201 et seq.; by inference, this section also incorporates the affirmative overtime provisions of the FLSA.

Section 352 deals with violations of the Act. Subsection (a) allows the government to withhold from an employer who has violated the requirements of Sec. 351 such payments due on the contract as are necessary to compensate employees who have been underpaid. Subsection (b) provides that both the Secretary of Labor and the head of the contracting agency may carry out the provisions of subsection (a). Section 354(b) provides that if the accrued payments withheld are insufficient to compensate underpaid employees, the government may sue the employer or its sureties.

Given this statutory structure, this court held over a decade ago that employees have no private right of action against their employers under the SCA. In Miscellaneous Serv. Workers v. Philco-Ford Corp. (MSW ), 661 F.2d 776 (9th Cir.1981), this court, following the four-part test of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1972), concluded that "it would be flatly inconsistent with the express provision of a limited governmental cause of action to imply a wide ranging private right of action as an alternative to a government suit," and that "plaintiffs' grievances l[ie] with the Secretary and not in the courts." 661 F.2d at 780-81. MSW has subsequently been followed with noteworthy approval by the Eleventh and the D.C. Circuits. District Lodge No. 166, Int'l Ass'n of Machinists v. TWA Servs., Inc., 731 F.2d 711, 714-16 (11th Cir.1984), cert. denied, 469 U.S. 1209, 105 S.Ct. 1175, 84 L.Ed.2d 324 (1985); Danielsen v. Burnside-Ott Aviation Training Ctr., Inc., 941 F.2d 1220, 1226-29 (D.C.Cir.1991).

The parties to this action are thus in complete agreement that the Barrons could not

have sued Tridair directly under the SCA. The conclusions they draw from that fact, however, are directly conflicting: the Barrons argue that it is precisely because they cannot sue Tridair that they must be allowed to proceed against the federal officials under the mandamus statute, while appellees suggest that the rule of MSW would be circumvented if the Barrons were allowed to do indirectly--via mandamus--what they clearly cannot do directly--through a suit against their employer.

DISCUSSION

Jurisdiction below was proper under 28 U.S.C. Sec. 1361, which states that "the district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Appellate jurisdiction is proper under 28 U.S.C. Sec. 1291. Notice of appeal was timely filed.

1. Failure to state a claim under Sec. 1361

We review de novo the district court's dismissal of the action for failure to state a claim. Klarfeld v. United States, 944 F.2d 583, 585 (9th Cir.1991), reh'g en banc denied, 962 F.2d 866 (9th Cir.1992). In evaluating a Rule 12(b)(6) motion, we accept all material allegations in the complaint as true, and construe them in the light most favorable to plaintiff. Id. Only if plaintiff " 'can prove no set of facts in support of his claim which would entitle him to relief' " is dismissal warranted. Id. (quoting Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987)).

Mandamus is an extraordinary remedy. Stang v. IRS, 788 F.2d 564, 565 (9th Cir.1986). A writ of mandamus is appropriately issued only when (1) the plaintiff's claim is "clear and certain"; (2) the defendant official's duty to act is ministerial, and "so plainly prescribed as to be free from doubt"; and (3) no other adequate remedy is available. Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir.1986) (internal citations omitted).

a. Appellants' claim

In District Lodge v. TWA, the decision most closely on point, the Eleventh Circuit held, after concluding that no private cause of action was available under the SCA, that for precisely that reason plaintiff had failed to meet the first prong of the three-part mandamus test--a clear right to the relief sought. The Eleventh Circuit explained that

[i]t is obvious that plaintiff seeks relief by way of mandamus from the federal defendants solely as a means of obtaining back wages from [the employer]. Lacking such a right directly under the statute, it urges the court to compel the defendants to undertake actions which would indirectly result in the same back wages from [the employer] that it is precluded from seeking directly. We refuse to blind ourselves to the inequity of granting plaintiff relief which is not an end in itself but is merely a means to an end which plaintiff could not obtain except by this end run.

731 F.2d at 717. The absence of a private cause of action in the underlying statute, to the Eleventh Circuit, spelled the failure of plaintiff's...

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