521 F.2d 1342 (9th Cir. 1975), 75-1584, Paradise Valley Investigation and Patrol Services, Inc. v. United States Dist. Court, Dist. of Arizona

• Docket Nº: 75-1584.
• Citation: 521 F.2d 1342
• Party Name: PARADISE VALLEY INVESTIGATION AND PATROL SERVICES, INC., a corporation, Petitioner, v. UNITED STATES DISTRICT COURT, DISTRICT OF ARIZONA, Respondent, John T. DUNLOP, Secretary of Labor, United States Department of Labor, Real Party in Interest.
• Case Date: August 14, 1975
• Court: United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1342

521 F.2d 1342 (9th Cir. 1975)

PARADISE VALLEY INVESTIGATION AND PATROL SERVICES, INC., a

corporation, Petitioner,

v.

UNITED STATES DISTRICT COURT, DISTRICT OF ARIZONA, Respondent,

John T. DUNLOP, Secretary of Labor, United States Department

of Labor, Real Party in Interest.

No. 75-1584.

United States Court of Appeals, Ninth Circuit

August 14, 1975

Louis G. Jekel (argued), Scottsdale, Ariz., for petitioner.

Ann Galzani, Atty. (argued), U.S. Dept. of Labor, Washington, D. C., for respondent.

Before KILKENNY, CHOY, and GOODWIN, Circuit Judges.

ALFRED T. GOODWIN, Circuit Judge:

Paradise Valley Investigation and Patrol Services, Inc., an employer defending an action brought by the Secretary of Labor, seeks by way of mandamus in this court to compel the district court to grant a trial by jury. The writ is denied.

The Secretary of Labor is proceeding against Paradise Valley under § 17 of the Fair Labor Standards Act of 1938, 29 U.S.C. § 217. ¹ The Secretary seeks to enjoin noncompliance with the overtime pay provisions of 29 U.S.C. § 207. Specifically, the Secretary prays for mandatory relief compelling Paradise to (1) disgorge illegally withheld overtime wages,

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and (2) refrain from violating the Act's overtime provisions in the future.

In the district court, Paradise made a timely demand for a jury trial. The Secretary, asserting that the action was wholly equitable, moved successfully to strike the jury demand.

Paradise asserts that the back-pay demand is an action at law, and, consequently, that a jury is required under the Seventh Amendment to the United States Constitution.

In Wirtz v. Jones, 340 F.2d 901 (5th Cir. 1965), the Fifth Circuit held that the Secretary's § 17 action to enjoin future overtime violations and to compel employers to disburse illegally-held back pay was equitable, and denied the employers a jury trial on the back-pay issue. The purpose of § 17's injunction restraining the withholding of back wages "is not to collect a debt owed by an employer to his employee but to correct a continuing offense against the public interest * * *." 340 F.2d at 904.

This circuit has recognized that § 17's back-pay remedy is intended "to vindicate a public, rather than a private, right, and that the withholding of money due is considered a 'continuing public offense.' Wirtz v. Jones, * * *."...