Henthorn v. Department of Navy

• Decision Date: 14 September 1994
• Docket Number: No. 92-5382,92-5382
• Parties: , 63 USLW 2148, 129 Lab.Cas. P 33,154, 29 Fed.R.Serv.3d 1007, 2 Wage & Hour Cas.2d (BNA) 289 Donald Gene HENTHORN, Appellant, v. DEPARTMENT OF NAVY, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 682

29 F.3d 682

308 U.S.App.D.C. 36, 63 USLW 2148,

129 Lab.Cas. P 33,154,

29 Fed.R.Serv.3d 1007,

2 Wage & Hour Cas.2d (BNA) 289

Donald Gene HENTHORN, Appellant, v. DEPARTMENT OF NAVY, et al., Appellees.

No. 92-5382.

United States Court of Appeals, District of Columbia Circuit.

Argued March 15, 1994.

Decided July 22, 1994.

Rehearing and Suggestion for Rehearing

In Banc Denied Sept. 14, 1994. ^*

Appeal from the United States District Court for the District of Columbia. (91cv03149)

Jack L. Goldsmith, III, Charlottesville, VA (appointed by the Court) argued the cause and filed the briefs for appellant.

Sally M. Rider, Asst. U.S. Atty., Washington, DC, argued the cause for appellees. With her on the briefs were Eric H. Holder, Jr., U.S. Atty., and John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, DC.

Before WILLIAMS, GINSBURG, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Donald Henthorn appeals an order of the district court dismissing his complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Henthorn's pro se complaint alleged that the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Sec. 201, et seq. (1988), entitled him to minimum wage compensation for work he performed at the U.S. Naval Air Station, Millington, Tennessee while incarcerated in the Federal Prison Camp (FPC), Millington. We hold that Henthorn's complaint failed to state a claim upon which relief could be granted and that the trial court therefore properly dismissed his complaint.

I. BACKGROUND

For purposes of this appeal, we accept as true the following allegations of fact set forth in Henthorn's complaint. See Kowal v. MCI Communications Corp., 16 F.3d 1271, 1273 (D.C.Cir.1994). At the time his complaint was filed, Donald Henthorn was an inmate at the FPC, Millington, Tennessee, which is located at the Millington Naval Air Station. ¹ During his incarceration, the Bureau of Prisons ("BOP") assigned Henthorn to work on the grounds of the Naval Air Station. There he performed a variety of janitorial, maintenance, groundskeeping and "ranchhand" chores. The BOP, which set his wage, paid him only $.12 per hour for this work. The Department of the Navy paid him nothing. Henthorn complained that he should have been paid the federal minimum wage for his labor and sought relief under the FLSA. He named as defendants the Department of the Navy, the Bureau of Prisons, the Department of Labor, ² and the United States.

Defendants-appellees moved to dismiss for lack of jurisdiction and for failure to state a claim. Henthorn filed a brief in opposition to this motion, which he now argues raised another claim for relief under 18 U.S.C. Sec. 4082, which allows the Attorney General to authorize a prisoner, in certain circumstances, to work in the community. The district court granted appellees' 12(b)(6) motion on the ground that Henthorn was not an "employee" within the meaning of the FLSA. We affirm.

II. DISCUSSION

We review de novo the trial court's dismissal of Henthorn's complaint for failure to state a claim under Rule 12(b)(6). Dismissal of Henthorn's claim at the 12(b)(6) stage was proper only if, after construing the complaint liberally in Henthorn's favor and granting Henthorn the benefit of all reasonable inferences to be derived from the facts alleged, he could prove no set of facts in support of his claim that would entitle him to relief. Kowal, 16 F.3d at 1276. We also note that Henthorn's complaint was filed pro se. Pro se complaints are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). Nonetheless, "[a] pro se complaint, like any other, must present a claim upon which relief can be granted by the court." Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir.1981). And, liberal as these pleading standards may be, the district court "need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal, 16 F.3d at 1276. With these standards in mind, we examine the sufficiency of Henthorn's claim for relief under the Fair Labor Standards Act.

A. When can prisoners be "employees" under the FLSA?

The FLSA provides that "[e]very employer shall pay to each of his employees ... not less than" the minimum wage. See 29 U.S.C. Sec. 206(a)(1) (Supp.IV 1992). The Act provides generally unhelpful definitions of its critical terms. It defines "employee" as "any individual employed by an employer." 29 U.S.C. Sec. 203(e)(1). The term "employer" "includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency." Id. Sec. 203(d). An "individual employed by a public agency" includes, inter alia, "any individual employed by the Government of the United States ... as a civilian in the military departments (as defined by section 102 of Title 5), ... [or] in a nonappropriated fund instrumentality under the jurisdiction of the Armed Forces." Id. Sec. 203(e)(2)(A)(i) & (iv). Finally the term "employ" means "to suffer or permit to work." Id. Sec. 203(g).

Perhaps because these definitions are so unhelpful, the Supreme Court in Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961), announced that " 'economic reality' rather than 'technical concepts' is to be the test of employment" for purposes of the FLSA. 366 U.S. at 33, 81 S.Ct. at 936. Obedient to this direction from the Supreme Court, some lower federal courts have articulated a four-factor "economic reality" test for determining whether an individual is an "employee" covered by the FLSA. This test considers the extent to which typical employer prerogatives govern the relationship between the putative employer and employee. The test asks: "whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." See Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir.1983) (internal quotations omitted). Although this Court has not explicitly adopted the economic reality test, the district court for the District of Columbia recently employed the test in determining whether a group of prisoners supervised by a prison foreman were "employees" under the FLSA, so that it could in turn determine whether the foreman was an "executive" within the meaning of the Act. See Wilks v. District of Columbia, 721 F.Supp. 1383, 1384 (D.D.C.1989).

Courts applying the economic reality test to prisoner-laborers have generally held that the prisoners are not "employees" entitled to minimum wage under the FLSA. See, e.g., Franks v. Oklahoma State Indus., 7 F.3d 971 (10th Cir.1993); Hale v. Arizona, 993 F.2d 1387 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 114 S.Ct. 386, 126 L.Ed.2d 335 (1993); Vanskike v. Peters, 974 F.2d 806 (7th Cir.1992), cert. denied,--- U.S. ----, 113 S.Ct. 1303, 122 L.Ed.2d 692 (1993); Miller v. Dukakis, 961 F.2d 7 (1st Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 666, 121 L.Ed.2d 590 (1992). However, in at least two cases, courts have found that particular prisoner employment situations were covered by the minimum wage provisions of the FLSA. See, e.g., Watson v. Graves, 909 F.2d 1549 (5th Cir.1990); Carter v. Dutchess Community College, 735 F.2d 8 (2d Cir.1984). Furthermore, most courts refuse to hold that prisoners are categorically barred from ever being "employees" within the meaning of the FLSA merely because of their prisoner status. See Vanskike, 974 F.2d at 808; Hale, 993 F.2d at 1393. Our task is to construct a test that can identify cognizable prisoner claims for minimum wage under the FLSA.

Cases that have held that prisoner-laborers were not "employees" under the FLSA have generally involved inmates working for prison authorities or for private employers within the prison compound. See Franks, 7 F.3d at 973 (FLSA does not apply to prisoners working inside prison); Hale, 993 F.2d at 1389 (prisoners working in prison programs structured pursuant to Arizona law requiring prisoners to work at hard labor are not "employees" for FLSA purposes); Vanskike, 974 F.2d at 808 (prisoner assigned to "forced labor" within prison is not "employee" under FLSA). In contrast, cases in which courts have found that the FLSA does govern inmate labor have involved prisoners working outside the prison for private employers. See Watson, 909 F.2d at 1553-54 (prisoners working for construction company outside the prison on work release program were "employees" of company governed by the FLSA); Carter, 735 F.2d at 13-14 (prisoner working as a teaching assistant at community college which paid him his wages directly could be FLSA "employee").

Based on the facts of these cases, Henthorn suggests that we adopt an inside/outside-the-prison distinction as the critical factor in determining the economic reality of a prisoner's working situation. Thus, in a case such as Henthorn's, where the prisoner performs his work "off the prison compound," Henthorn argues that this factor should cut strongly toward a finding that the FLSA applies. In contrast, the government argues that the public/private employer distinction in the above cases is the factor that carries more weight. Thus, the government argues that Watson and Carter, which found that the FLSA applied to prisoner workers, can be distinguished from Henthorn's case because "in both Carter and Watson, the inmates worked for private, outside employers." Government's Br. at 18.

In practice, each of these distinctions raises some difficult questions. For example, should a prisoner working for a private...