Brock v. Ing, 86-2006

• Citation: 827 F.2d 1426
• Decision Date: 02 September 1987
• Docket Number: No. 86-2006,86-2006
• Parties: 28 Wage & Hour Cas. (BN 566, 107 Lab.Cas. P 34,951 William E. BROCK, Secretary of Labor, Plaintiff-Appellant, v. George and Ann ING, d/b/a Mandarin Garden and La Paloma Garden, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1426

827 F.2d 1426

28 Wage & Hour Cas. (BN 566, 107 Lab.Cas. P 34,951

William E. BROCK, Secretary of Labor, Plaintiff-Appellant, v. George and Ann ING, d/b/a Mandarin Garden and La Paloma Garden, Defendants-Appellees.

No. 86-2006.

United States Court of Appeals Tenth Circuit.

Sept. 2, 1987.

Douglas Letter, Appellate Litigation Counsel, Appellate Staff, Civ. Div., Dept. of Justice (Richard K. Willard, Asst. Atty. Gen., and William S. Price, U.S. Atty., with him on the brief), Washington, D.C., for plaintiff-appellant.

Peter T. Van Dyke of Lytle Soule & Curlee, Oklahoma City, Okl. (John L. Clifton Shawnee, Okl., with him on the brief), for defendants-appellees.

Before McKAY and McWILLIAMS, Circuit Judges, and BROWN, District Judge. ^*

McWILLIAMS, Circuit Judge.

On September 22, 1982, the Secretary of Labor filed the present complaint in the United States District Court for the Western District of Oklahoma against George and Ann Ing, doing business as the Mandarin Garden and the La Paloma Garden, two restaurants located in Shawnee, Oklahoma. The complaint set forth alleged violations by the Ings of the Fair Labor Standards Act. 29 U.S.C. Secs. 206, 207, and 215(a)(2). The Secretary in his complaint alleged that the Ings paid their restaurant employees less than the minimum wage to which restaurant employees were entitled, and that they had also failed to properly compensate their employees for overtime, i.e., hours in excess of 40 hours per week require time and one-half pay. The complaint further stated that the Ings had failed to make and maintain employee wage and hour records as required by 29 U.S.C. Secs. 211(c) and 215(a)(5). The Secretary asked for injunctive relief and such further relief as was necessary and appropriate, including an award of back wages and overtime owed to Ings' employees, together with interest thereon.

A four-day non-jury trial was held about nine months later, in June, 1983. At the conclusion thereof, the district court took the matter under advisement and permitted the parties to file post-trial briefs and proposed findings and conclusion.

About two years later, on March 6, 1985, the district court made general findings of fact in verbal form from the bench. The district court found that the Ings had willfully violated the Fair Labor Standards Act by failing to pay their employees the applicable minimum wages and overtime. The district court further found that the Ings had not kept and maintained records as required by the Act.

At this point, there were approximately 52 employees who claimed monies due from the Ings. At the hearing on March 6, 1985, the district court urged counsel to agree on the amounts due the individual employees, and that particular hearing ended with an admonition from the district court that counsel report back within 30 days concerning the progress made towards settlement.

Sometime in early 1986, it became apparent that the parties were unable to effect any settlement. In this setting, the district court, on April 25, 1986, entered an order referring the case to a Special Master. Specifically, the district court determined that "exceptional conditions exist involving matters of detailed and complex accounting which require the assistance of a Special Master." The Special Master was both a lawyer and an accountant.

The part of the referral order which really triggers the present dispute reads as follows:

The Special Master shall be paid a fee to be fixed, and paid by the parties, as the Court will direct. A "Master's Reimbursement Fund" shall be established within the Court Clerk's office. Each party shall initially contribute $1,500.00 to this fund by May 10, 1986.

The Secretary filed objections to the referral order, specifically objecting to that part of the order which required the Secretary to pay by May 10, 1986, the sum of $1,500 into the "Master's Reimbursement Fund." A hearing was held on the Secretary's objections on May 12, 1986, at which time the Secretary renewed his objections to the referral order and stated that he "does not feel that the Secretary may be compelled to pay for a Master." The district judge stated that he did not know if he could compel the Secretary to make any payment, and that, in his view of the matter, he was simply giving the Secretary an option, i.e., pay the $1,500 or have the case dismissed. Upon being advised that the Secretary could not, and would not, pay the $1,500, the district court dismissed the entire action. The Secretary appeals the dismissal. We reverse.

The Secretary's primary position is that the district court erred in ordering him to pay $1,500 to reimburse the Master for his services, and that the ensuing dismissal of his case constitutes error. One ground urged in support of this argument is that this was not a proper case for referral to a Master. Fed.R.Civ.P. 53 relates to the appointment of Masters, and states, in so many words, that a...