Marshall v. Rosemont, Inc.
| Decision Date | 17 October 1978 |
| Docket Number | 76-2487,Nos. 76-2386,s. 76-2386 |
| Citation | 584 F.2d 319 |
| Parties | 23 Wage & Hour Cas. (BN 1216, 84 Lab.Cas. P 33,724 F. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. ROSEMONT, INC., a corporation, doing business as Four Seasons Nursery and Kindergarten, Defendant-Appellee. F. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. ALHAMBRA NURSERY & ACCREDITED KINDERGARTEN, INC., a corporation, and Sophia J. Bock, Individually and formerly doing business as Alhambra Nursery & Accredited Kindergarten, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Sue Ann Wolff, Atty. (argued), Dept. of Justice, Washington, D. C., for plaintiff-appellant.
Thayer C. Lindauer, Phoenix, Ariz., for defendants-appellees.
Appeal from the United States District Court for the District of Arizona.
Before KILKENNY and TRASK, Circuit Judges, and HAUK, * District Judge.
The two actions here on appeal were brought against Rosemont, Inc. (Rosemont) and Alhambra Nursery & Accredited Kindergarten, Inc. (Alhambra) under section 17 of the Fair Labor Standards Act as amended 1 to enjoin the defendants and now appellees from violating the minimum wage and overtime provisions of the Act and to require the defendants and appellees to pay back wages to certain employees. This court ordered consolidation of the two cases for purposes of briefing and oral argument. It was stipulated below that defendants-appellees are subject to the Act if they operate a "preschool" within the meaning of section 3(s)(4) 2 (now 3(s)(5)) of the Act and that if they are so subject, they are also in violation of its provisions. The district court held separate trials without a jury, finding that neither defendants operated a "preschool" within the meaning of the Act and dismissed the complaints. 409 F.Supp. 309 (D.Ariz.1976). The Secretary of Labor appeals.
In both institutions the enrolled children range from kindergarten age down to infancy. Appellant's brief states that they are divided generally as follows:
"Of the roughly 75 children at Four Seasons, about 18 to 24 are of kindergarten age (4 1/2 to 5 1/2 years old), about 30 are prekindergarten children (3 1/2 to 4 1/2 years old), about 14-15 are toddlers, and 10 are infants." Brief for Appellant at 4.
In Alhambra, out of the 35 to 55 children in regular attendance, the division of children ran much the same.
"In Alhambra, . . . four are in the first to third grades of elementary school, an average of nine are of kindergarten age, and the rest are prekindergarten children, toddlers, and infants." Brief for Appellant at 5.
While the Congress in enacting the legislation defined the meaning of the terms "elementary" and "secondary" schools, it left the definition of "preschool" undefined. Literally, it could apply from babes in arms to the first classification to be defined thereafter. The trial court interpreted the failure of Congress to speak further on the subject as a license or direction for the court to fill the void. This is also consistent with the imprecise generalization adopted by the Act:
In this particular regard, the Wage and Hour Administrator has given what appellants refer to as an "informational statement" as to the meaning of the term "preschool," as set forth in the United States Department of Labor Publication No. 1364 as follows:
(WH Publication 1364, pp. 1-2; R.R. 51-52; A.R. 59-60.)
The trial court notes, as do we, that while the administrative opinions of the Department of Labor (Department) are entitled to great weight under some circumstances, Doyon, Ltd. v. Bristol Bay Native Corp., 569 F.2d 491, 496 (9th Cir. 1978), there is no conclusive mystique in its informal publications which could be substituted for an Act of Congress. Patagonia Corp. v. Board of Governors of Federal Reserve System, 517 F.2d 803, 812 (9th Cir. 1975). Here, the responsibility in interpretation requires an examination of the language of the Congress itself, or the record made on hearing where Congress has not spoken, or by an enactment or a definition authorized by official regulation.
We note that in the legislation a "preschool" is an institution of some kind which is a part of the school system. Subsection (5) develops the particular type of institutions within the plan. Of "schools" it lists schools for "handicapped or gifted children"; it then proceeds to "a preschool, elementary or secondary school, or an institution of higher education." Under subsection 203(v) and (w), Supra, it particularizes the meaning of "elementary school" and "secondary school" as meaning those places of learning which provide an "elementary" or a "secondary education," both "as determined by State law." Nothing further defines "preschool" in the Act itself and we find no definition of the term under state law. Neither...
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...to interpret the CDA. See also id. ("agency opinion letters cannot substitute for an act of Congress" (citing Marshall v. Rosemont, 584 F.2d 319, 321 (9th Cir.1978))). 10. Section 230(e)(3) and 47 U.S.C. § 223(f)(1), another statute passed as part of the Communications Decency Act, also use......
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...notice and comment. See FLRA v. United States Dep't of Navy, 966 F.2d 747, 762 & n. 14 (3d Cir.1992) (in banc); Marshall v. Rosemont, Inc., 584 F.2d 319, 321 (9th Cir.1978). Even when we accord the Bureau's interpretation some level of deference, we must examine whether the Bureau engaged i......
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...in part because § 203(s)(5) also includes custodial care centers like hospitals and other care institutions); cf. Marshall v. Rosemont, Inc., 584 F.2d 319, 321 (9th Cir.1978) (restricting “preschool” within the FLSA to “an institution of some kind which is a part of the school system.”). Be......
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...in the informal publications of the DOL opinion letters which could be substituted for an act of Congress. See Marshall v. Rosemont, 584 F.2d 319, 321 (9th Cir.1978). In addition, Sehie can easily point to other DOL opinions supporting her position. As acknowledged by the district court, th......