Dunlop v. Saghatelian, 73-3632

• Decision Date: 01 August 1975
• Docket Number: No. 73-3632,73-3632
• Citation: 520 F.2d 788
• Parties: 22 Wage & Hour Cas. (BN 431 John T. DUNLOP, Secretary of Labor, United States Department of Labor, Appellant, v. Samuel G. SAGHATELIAN, Individually and d/b/a Valley Bakery, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 788

520 F.2d 788

22 Wage & Hour Cas. (BN 431

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

of Labor, Appellant, v. Samuel G. SAGHATELIAN, Individually and d/b/a Valley Bakery, Appellee.

No. 73-3632.

United States Court of Appeals, Ninth Circuit.

Aug. 1, 1975.

Sandra P. Bloom (argued), U. S. Dept. of Labor, Washington, D. C., for appellant.

J. W. Hedrick, Jr. (argued), U. S. Dept. of Labor, Washington, D. C., for appellee.

OPINION

On Denial of Motion for Reconsideration

Before BARNES, WRIGHT and TRASK, Circuit Judges.

PER CURIAM:

Appellants have submitted a motion to this court for reconsideration of our decision denying rehearing en banc in the instant case, in light of the recent Supreme Court decision in Albemarle Paper Co. v. Moody, --- U.S. ---, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). The Albemarle case deals in part with the extent of the court's discretion in refusing to issue a restitutionary injunction under Title VII for past racially discriminatory employment practices. We do not view our original opinion in the instant case (reported at 514 F.2d 619, 9 Cir.) as inconsistent with the principles enunciated by the court in Albemarle.

The Supreme Court in Albemarle clearly indicates that the courts do retain some discretion concerning the issuance of restitutionary injunctions:

"backpay is not an automatic or mandatory remedy; like all other remedies under the Act, it is one which the courts 'may' invoke. The scheme implicitly recognizes that there may be cases calling for one remedy but not another, and owing to the structure of the federal judiciary these choices are of course left in the first instance to the district courts. But such discretionary choices are not left to a court's 'inclination, but to its judgment; and its judgment is to be guided by sound legal principles.' United States v. Burr, 25 Fed.Cas. (No. 14,692d. pp.) 30, 35 (Marshall, C. J.)." --- U.S. at ---, 95 S.Ct. at 2370.

This equitable discretion is limited by the requirement that the "court must exercise this power 'in light of the large objectives of the Act'." (Id.):

"It is true that '(e)quity eschews mechanical rules . . . (and) depends on flexibility.' Holmberg v. Armbrecht, 327 U.S. 392, 396 (66 S.Ct. 582, 584, 90 L.Ed. 743). But when Congress invokes the Chancellor's conscience to further transcendent legislative purposes, what is required is the principled application of standards consistent with those purposes and not 'equity (which) varies like the Chancellor's foot.'

It follows that, given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination. The courts of appeals must maintain a consistent and principled application of the backpay provision, consonant with the twin statutory objectives, while at the same time recognizing that the trial court will often have the keener appreciation of those facts and circumstances peculiar to particular cases." (Id. at ---, 95 S.Ct. at 2371).

We have no dispute with the holding in Albemarle that "The District Court's decision must . . . be measured against the purposes which inform (the Statute)." Analogizing from Albemarle to the instant case, we recognize that the prophylactic objective of § 17 of the Fair Labor Standards Act is primary, and that the backpay prospect is the effective "spur" to compliance with the substantive requirements of both the Fair Labor Standards Act and the Civil Rights Act of 1964. But one does not "spur" a horse until he dies...