Taylor-Callahan-Coleman Counties District Adult Probation Department v. Elizabeth Dole, Secretary of Labor, United States Department of Labor
948 F.2d 953
5th Cir.
1991
Check Treatment

*1 “a or recovered its claim on “prevailed” & Rem. Tex.Civ.Prac. See claim.”

valid 1986)(“person 38.001(8)(West Ann. Code ... in addi- attorney’s fees ... may recover a valid amount [contractual]

tion 17.- Ann. § & Com.Code claim”); Tex.Bus. prevails (“consumer who 1987) (West

50(d) fees”). attorneys’ ... be awarded

shall CONCLUSION

III. to the applies (m) squarely

Exclusion insurance by Beaumont brought

claim Henderson's obligations

coverage of injuries were injuries, because

personal Because Mid- under LHWCA.

covered reason- coverage was denial

American’s should damages able, extra-contractual judg- Accordingly, the been awarded.

have REVERSED, court district ment in favor is RENDERED recovery to Beau- denying Mid-American every claim.

mont RENDERED. AND

REVERSED

TAYLOR-CALLAHAN-COLEMAN ADULT DISTRICT

COUNTIES DEPARTMENT, PROBATION

Plaintiff-Appellant, Labor, Secretary DOLE,

Elizabeth Labor, Department of States United Defendant-Appellee. 91-1109.

No. Appeals, States Court

United

Fifth Circuit. 18, 1991.

Dec. *2 Means, Atty.,

Randell P. Asst. U.S. Mar- Collins, Worth, Tex., Atty., vin U.S. Fort Spiller, Appellate Atty., Nathaniel I. Sr. Labor, Feldman, Dept, of Allen Steven Mandel, D.C., Washington, J. for defen- dant-appellee. CLARK, JONES, Judge,

Before Chief PARKER, Judge, Circuit Judge.* CLARK, Judge: Chief I.

The district court dismissed for lack of subject matter this action Taylor-Callahan-Coleman Counties District (the District) Department Adult Probation seeking declaratory injunc- against relief United States De- (DOL). partment of Labor alleged that the DOL violated the Adminis- Act, trative Procedures et U.S.C. 501 § (APA), seq. and the Fifth Amendment to the United States Constitution when it al- legedly promulgated interpreting rules Fair Labor Standards Act of amended, (FLSA), seq. et U.S.C. 201 § adhering without first to the notice and requirements comment of the APA or the process requirements due of the United States Constitution. Since the DOL action action, complained of is not final dismissing affirm the district court’s order jurisdiction. for lack of matter II. Statutory

A. Background promulgated regula- the DOL tions, interpreting the ex- C.F.R. § emptions requirements of to the overtime FLSA, 213(a)(1). in 29 U.S.C. contained Bettye Gladstone, Springer, applicable B. exemptions S. Sheila to this case are Worth, Tex., Haynes Boone, executive, administrative, covering & Fort those plaintiff-appellant. professional employees.1 * Judge, exempts Chief District of the Eastern District of 1. FLSA from the overtime and mini- Texas, “(1) sitting wage requirements any employee by designation. mum em- compensa- overtime District for regula- ees adopted the the time At investigation cover- solely FLSA. related tion under note out set January 1987 to Decem- FLSA did period from employers. ed the sector private regional The 1974 di- employers. letter from A public ber 1988. apply *3 applied FLSA, first if the Dis- that to the District notified rector amendments was employers, public compliance within to into statute not come the trict did Supreme by the the the case to clared unconstitutional refer thirty days he would League National See in legal 1976. of of consideration solicitor for regional 2465, 833, 96 S.Ct. Usery, 426 U.S. Cities action. two this (1976). During 245 pay to back over- The District refused public to application of FLSA period year officers probation the for time assessed Wage and Hour Administra- employers, proba- supervisors and their [hereinafter advising the opinion issued an tor pay back over- agreed but tion officers] offi- probation party that requesting employees. to the other time exempt request were in the described cers that time from pay overtime agreed to also DOL employees. administrative as all other officers and probation forward 8, 1344, 1974. Oct. No. W.H.Op. Letter letter. by the DOL’s covered employees its reversed 1985, Supreme Court In that However, its belief it reiterated declared League, and in National exempt under were officers employ- public applicable was that FLSA responded to this conces- The DOL FLSA. Tran- Metro. Antonio v. San ers. Garcia stating: in a letter District sion 1005, 83 528, 105 S.Ct. Auth., sit into client come your has advise You District, in re- (1985). The L.Ed.2d 1016 employees respect to all compliance with letter, its treated on the liance in case. this in the issues involved un- exempt employees as probation officers der FLSA. v [*] [*] [*] [*] [*] issued two In as a basis offer accept your client’s We in requests to new response in case. We issues this resolving the that under stated the Administrator Offi- however, will, notify the Probation by the re- provided circumstances the fact rights of their supervisors their cers and officers those parties, questing action. private to a administrative, execu- as exempt not Bass, of En- Director Carl H. from Letter employees. See professional or to Sheila forcement, Division Wage Hour assigned), (no number Op. Letter W.H. (Feb. Gladstone, District attorney W.H.Op. Letter 16, 1988; DOL February 1990). 1670, April No. agreement, In with District B. The probation officers now treats District declares that employees, and nonexempt as regional by the investigation so until do it will continue con- Division Wage Hour and office of this issue. employ- resolution $51,600 due to cluded that (3) and employer; operations executive, business fide ployed a bona of discretion requires the exercise are terms whose work capacity ... as such professional C.F.R. 541.2 judgment. § time independent time to from delimited and defined and Secretary.” 29 U.S.C. (1990). regulations (1) 213(a)(1). who employee is one professional § A week; (2) (1) paid per who is employee is one whose $250 less than paid An executive week; (2) primary per knowledge whose $250 ad- require not less than primary duties (3) customar- management; learning and who are duties type of science in a field vance two or regularly the work (3) directs ily education; whose acquired advanced (1990). 541.1 employees. § 29 C.F.R. more of discre- requires exercise the consistent work (1) employee who is is one invention, An administrative imagi- requires judgment, or tion and week; (2) per whose $250 paid than not less recognized field artistic or talent nation re- work nonmanual consists primary duties (1990). 541.3 § 29 C.F.R. endeavor. general management policies or lated to the Honey- jurisdiction. Hildebrand v. See Proceedings C. well, Inc., F.2d Complaint, the Dis- Amended In its First asserts that this action The District here (1) court to declare requested trict the Fifth Amendment and arises under pro- not have to treat its does APA, is conferred jurisdiction and that nonexempt employees un- officers bation grants district 28 U.S.C. 1331 which (2) violated FLSA, find that the DOL der civil actions aris- courts of “all changing its process by APA due Constitution, laws, or treaties ing under the exempt status of position on of the United States.” comment, (3) notice and officers without rescind the the DOL to order The District must also establish *4 officers are stating letters relief sovereign immunity before waiver of (4) enjoin the exempt employes, case, granted. can this waiver be opin- with these acting in accord DOL from in the APA. Act does must be found That opinion letters issuing further ion letters subject to every agency action not make rulemaking formal prior to a on this issue judicial Chaney, review. Heckler v. procedure. 1649, 1654, 821, 828, alleged that the DOL violat- (1985)(citing 701- L.Ed.2d 714 5 U.S.C. §§ Amendment APA and the Fifth ed the 706). Act limits Section 704 of that changing its inter- rules and promulgating “[ajgency action made reviewable review to of FLSA with- pretation and enforcement agency final action statute [to] procedures re- and comment out the notice in a adequate remedy is no which there APA. The DOL moved quired by the court_” determi- 5 U.S.C. 704. Our § complaint for dismiss the first amended the letters are not final nation that for fail- jurisdiction, subject lack of matter is not agency action and that the District remedies, administrative ure to exhaust remedy adequate affirm there without by the the suit was barred and because district court and was no the immunity. The sovereign dis- doctrine of defendant was immune. the granted the DOL’s motion to trict court subject jurisdic- lack of matter dismiss for Investigation A. The 1989 timely notice of District filed a tion. The appeal. allege that The District does not agreeing improperly acted to settle DOL

III. investigation the 1989 of the District's policy. Although the District con- overtime limit Federal courts are courts of forgo tends that the DOL will enforcement right challenge jur The jurisdiction. ed only if the District remains in Although be waived. isdiction cannot FLSA, no such threat has been made not state the reasons for with did district court only acquiesced in action decision, subject by DOL. It has the issue of matter its by promised by the District and stated plenary review jurisdiction is officers in- Williamsport Area would advise Bender v. this court. 534, 541, they may individuals. Dist., volved that act as 475 U.S. S.Ct. School (1986); not final acquiescence This and advice is L.Ed.2d 501 Mocklin Dist., contemplated by APA. agency action 877 F.2d 428 n. Levee Orleans agreement The District’s to treat nonexempt employees officers as for fu- complaint, the first amended In its not make it so. payment ture overtime does alleged jurisdiction under the Fifth District investiga- focusing Rather than on the of the United States Constitu Amendment settlement, APA, 702-03, tion, and tion and the District asserts 5 U.S.C. §§ seq. its 1988 letters as bind- FLSA, 201 et None of DOL treats 29 U.S.C. § parties and that this jurisdiction. ing precedent The for all confer these authorities particular specific jurisdic treatment makes those to cite a District’s failure not defeat final action. grant complaint tional in its does rights Letters which fixed Opinion The B. legal of the District. After substantial argument The crux of District’s public changes occurred in the area of had changed pre-Gama posi- its changed employment, the Administrator in a 1974 tion set out opinions previously. he had held opinion letters in lieu issuing public issued 1974 letter was not after no- fol- rulemaking after conducting a formal tice and comment. 1988 letters re- pro- lowing notice and comment public procedure. quired such no APA Fifth required cedures action, In an the Portal-to- enforcement con- process. Amendment due Act, Pay seq., Portal 29 U.S.C. 251 et § letters are tends the 1988 good defense reliance on allows the faith treats because the DOL agency action “any regulation, or- written probation depart- binding on all them der, ruling, approval, interpretation,” disagree. including the District. We ments the DOL. 29 U.S.C. 259. Such gauge requires that we Precedent action, fense is a bar the enforcement pragmatic finality change if to later even Co., v. Standard Oil FTC way. *5 position in the announced 232, 239, 488, 493, 416 101 S.Ct. order, regulation, ruling, approval, or inter- Dept. Texas v. United States (1980); of 259(a). regula- pretation. 29 U.S.C. § cert. (5th Cir.), 278, Energy, 764 F.2d tions, however, explain that reliance on an denied, 1008, 531, any period is opinion letter not valid for (1985). L.Ed.2d 463 has after the Administrator announced a 790.17(h)-(i) change policy. 29 C.F.R. § by has begin noting the DOL We Thus, (1990). opinion only letters have an the and authoritatively addressed function subject which is amend- interim function to let finality place opinion it will on by ment or the Administrator. withdrawal ters. interpretations by Advisory announced All of the letters involved here are ex- Wage the the Administrator pressly [of limited to the factual situation only to indicate the Hour serve requesting party. presented by Division] the “[Y]ou guide of the which will construction law job descrip- that on are advised based the performance of the Administrator in the submitted, officers] [the he is di- his administrative duties unless exemp- meet the conditions for would rul- by rected otherwise the authoritative 1344, W.H.Op. No. tion. ...” DOL Letter he courts, shall ing of the or unless “Therefore, opinion it our Oct. 1974. is in- subsequently prior decide that his you provide of the information on basis terpretation is incorrect. employees qualify_” ... cannot that 1670, April 12, W.H.Op. No. DOL Letter Advisory interpretations by the announced “Therefore, on opinion 1988. it is our (1990) Administrator, 775.1 C.F.R. § you provide, information that basis of the added). rul- are (emphasis Opinion letters qualify ... ...” employees cannot DOL consequence a ings agency “made an ‘as (no W.H.Op. assigned), Letter number Feb- rulings par- requests upon individual ” ruary 1988. 790.17(d) questions.’ 29 C.F.R. ticular (1990). opinion requested has In- Wage any part of its own situation. opinions as to

Advisory issued stead, request would claims that such guide Administrator are to it and Hour policy of Adminis- They neither futile because the operations. are be most defined in the two re- binding employ- is well employers nor or trator ignores This opinion letters. claim expressly sub- cent Rather are issued ees. contention that the Administra- change by Administrator. The their own ject to interpreta- prior agency change to opinion not final tor decided letter was positions 1974 and 1988 rights tion. If the fixed the action which legal and the situ- identical are not conditions were The 1988 letters officers. so that the Administra- tion of the effect of DOL the same ation was change, logically rulings. free In he is would conflict with these make tor did first, constituting Rather than change again. Laundry National Automatic to definitive, broadly Shultz, which is F.2d 689 agency Cleaning action Council v. demanding (D.C.Cir.1971), applicable and the District of Columbia Cir- officers, the let- employers all cuit held that an letter issued only they re- here state stating ters involved the Administrator to an association inquiries. Since the spond particularized coin-operated dry- launderettes and guide DOL offi- opinions are intended cleaning “engaged in laun- services were situations, they surely are cials in similar dering cleaning clothing with- fabrics carefully Nevertheless is the reasoned. act,” meaning in the Id. at letters, regulations, not agency review. rights. fix opin- Id. at 702. The court found that the ion letter constituted Gardner, Laboratories v. Abbott response because it was in to an actual 136, 87 S.Ct. 18 L.Ed.2d 681 Wage situation and the and Hour Division (1967), Supreme Court reviewed several intended the letter to abe “deliberative significant in deter factors it found be position agency’s determination of the at First, mining finality action. highest question on a available level challenged action is defini whether importance in- ...” that affected an entire position; agency’s statement of the dustry group. at Id. court second, the actions have the status whether ruling also decided that the of the head of noncompliance; penalties of laws with final, presumptively is absent third, impact plaintiff on the whether the *6 ruling evidence on the face of the that it is immediate; fourth, direct and whether tentative. Id. The court also held that compliance expected. was at immediate Id. opinion “expected letter rose to the level of 150-152, 87 S.Ct. at 1516-1517. When the conformity” applied to the business- Supreme applied these four factors agency personnel. man and at 702. Id. (FTC) Trade Commission com to a Federal alleged on its “reason to plaint based be distinguishable Laundry National is occurred, had it held lieve” that a violation First, grounds. opinion several letter it unreviewable because was not action plaintiff in that case was issued to the agency action. v. FTC Standard Oil opinion in whereas the letters this case Co., S.Ct. Second, were not issued to the District. (1980). The FTC’s “reason to believe” the addressee was a national trade associa- a threshold determination and merely was request respond- tion and its was made and carry the force of law. Id. at 240- did not significant portion ed to on of a behalf at 493-94. industry, simply employees an some Third, employer. opinion one letter Similarly, Ninth Circuit held that an coin-oper- determined that all standardized by sent interpretive letter Chief Coun dry-cleaning ated launderettes or services Federal Aviation Administration sel of the enterprises meaning were within the (FAA) action was not because requesting opinion The letter FLSA. not a definitive statement of the letter was typical pre- set forth three fact situations did it policy FAA nor have status of vailing coin-operated in laundry busi- specific by requiring be taken law ness. The Administrator’s was recipient. Air United California in all these situations the launderettes Dept. of Transp., 654 F.2d 619- States wholly A would be covered FLSA. dif- ferent situation confronts this court in to- principally The District relies on two day’s case. support its contention that cases to letters are final action. Since both The letters cited the District distinguishable general applicability are on their facts need did not have to ma- chinery industry, nor did not determine here whether our construc- used specific inquiries responding to fol- ters conformity to be expected create have departments do not probation departments other by other lowed is still effect on the District. It is- such an of the Each by the DOL. inquiry by opinion letter and is seek its own to a discreet free to response sued with department challenge any opinion issued employer or free to one oper- personnel continuing described treatment of its to its own it respect with is correct. employees ations. believes that: recognized today’s Circuit The D.C. letters involved declaratory judg- threshold determinations. are akin to permit case suits [t]o informal, advisory, ad- give specific entities the Administra- upon They ment mere discour- might governing regula- well opinion as to opinions tor’s how ministrative opinions, giving such practice age the affect officers proportions greater They of far no request. a net set out loss with scribed any possible average They citizen than policy. statement of definitive accrue. gain which would penalties the status of law with do not have They do not have noncompliance. Products Co. v. (quoting Helco at 699 Id. impact on the District. or immediate direct (D.C.Cir. McNutt, 137 F.2d 683-84 require They do not immediate acknowledged the 1943)). court also That They are not final by the District. in the advisory letters for informal need review. at 699. Id. of FLSA. administration anot “de- here were The letters involved Declaratory C. Relief po- agency’s determination liberative no ade level on a it had District asserts highest available at sition They declaratory remedy at 701. than this importance.” Id. other question quate advisory, In a is incorrect. more than individualized action. This no action, modifi- subject to whether opinions, FLSA enforcement DOL, change. officers or the by probation brought cation may on the basis defend the District cites In the District second case coverage. exempt from are the officers and Ware Longshoremen’s *7 ternational 213, District 258-59. The 29 U.S.C. See §§ Meese, 1374 891 F.2d v. Union housemen’s option is not viable be that this contends the Ninth Circuit de There it a law enforcement cause as Natural Immigration and that an termined engage civil disobedience. in should not advisory opinion was (INS) Service ization if it to that ceases also asserts administra union had “no because final probation officers to its pay overtime advisory opin remedy to overturn which it de ensues an enforcement The court Id. statement.” policy ion success, would the violation fends without however, by acting found, that also it is aware because as willful construed be the INS de advisory opinion, through an regarding the Dis position of the DOL’s protec members of union prived the holding that Our probation officers. trict’s Labor Rela the National afforded tions not opinion letters are Id. at procedure. Board certification a provides District binds the action which 1379. to these concerns. answer substantial ILWU, INS court held the In any advisory opinion no issue While we opera- Kingcome’s crane stating that may later of willfulness question be- crewmen” “alien tors to that the answer arise, hold do that by union mem- in the loss it resulted cause ascribing any bind cannot turn on question compete to opportunity of their bers opinion letters. ing to force longshore- traditional long jobs considered provide the id., but did not positions, men Rulemaking D. Such any remedy. Id. at with union contends opinion letters with the situation is not rulemaking process APA bypassed opinion let- The DOL’s District. Auth., 528, utilizing case-by- Metropolitan Transit letters and issuing opinion 1005, (1985), 83 L.Ed.2d 1016 ab- against probation actions 105 S.Ct. enforcement case in rogates any no time has the District notion of federalism a situa- At departments. rulemaking, pursu- integral operation in implicating tion “an the DOL petitioned (1990) government func- 541.6 5 U.S.C. areas traditional 29 C.F.R. ant to Garcia, 530, says petition a 469 U.S. at 553(e). The District tion[ ].” Citing perceived judicial re- because the DOL has at 1007. a inabili- be futile would large public ty parameters from em- to fashion of “traditional petitions ceived such functions,” Garcia yet propose governmental to declined groups, but has ployer rejected peti- flexing muscle in If the DOL had to check the federal new rule. government. tion, be final and the domain of state and local this action would WWHT, Federalism, review. See Inc. Id. at at 1007. S.Ct. to (D.C.Cir.1981). concluded, FCC, adequately But the Court is ex- 656 F.2d published pressed through not. restraints exercised have proposed rulemaking political officials. notice of elected federal an advance on the need to alter and received comments However, noted, as the Garcia dissent duties, responsibilities salary tests politicians possess “an underdevel- federal 47,696 Fed.Reg. 541.101. 50 of 29 C.F.R. § oped capacity for self-restraint” in en- 2,525 (1986). (1985), Fed.Reg. The DOL Id. at croaching upon sovereignty. state anticipate making a determination does (O’Connor, J., 105 S.Ct. at dis- rulemaking procedure a new as to whether only senting). One need consider the tenu- until March 1992. 56 Fed. is warranted precipice upon ous constitutional 17,530 (1991) (DOL Agen- Reg. Semiannual Metropolitan Garcia v. San Antonio The fact that rulemak- Regulations). da of rests, Authority Transit as well as notable pace ing proceeding at too slow suit Court, changes membership in this matter does not make the District recognize may now be dis- sloth final such bureaucratic posed “again assume its constitutional here. the facts shown under Id. responsibility.” at at S.Ct. assertion that the DOL has The District’s (O’Connor, J., Id. at dissenting); binding impermissibly made final rules J., (Rehnquist, 105 S.Ct. at 1033 dissent- allowing opinion letters without through ing). rulemaking and comment which notice though question But even we cannot now is also answered our process provides Department position of Labor’s based opinion letters are without ruling that the Amendment, directly on the Tenth it re- binding effect on the District. The DOL mains worthwhile observe what a *8 pro- notice comment no such and followed quandary placed these counties have been required and was not to do so cess in 1974 Department’s chosen means of when it issued the 1988 letters. Department FLSA enforcement. The has straightforward path not taken the of rule- IV. making, which would have facilitated com- of the district court dis- The negotiations ment and between the federal missing the action for lack of Instead, sovereigns. and local it has cho- AFFIRMED. sen to use individual enforcement actions interpretive and letters that are non-bind- JONES, Judge, EDITH H. Circuit ing parties, leaving scope on third both concurring: consistency policy in and of federal doubt. opin Department’s Although majority I concur method also raises the ion, Department spectre non-complying probation I of am concerned that the that a position, partment has shifted with the could be held liable for extra Labor’s damages. Compare League Dybach v. Us National Cities tides of “willfulness” Corrections, ery, Dep’t v. Florida 942 F.2d (1976), and Garcia v. San Antonio process This mocks taxpayers, local disserves federalism budget claims know the

who deserve agencies. governmental local

against their its author- exercise should Department and local against state judiciously more

ity

governments. Petitioner, CHIKE,

John Chike, pro se. John Gen., Dept, of Thornburgh, Atty. Richard AND IMMIGRATION Ciolino, King, Justice, Alice M. Joseph F. SERVICE, NATURALIZATION Director, Bombough, Of- Attys., Robert L. Respondent. Div., Litigation, Civ. Immigration fice No. 91-4325 D.C., respondent. Washington, Summary Calendar. Director, I.N.S., Parra, Dist., G. Ronald Tex., Dist. Di- Houston, Caplinger, Appeals, John States Court United Orleans, La., rector, I.N.S., for other New Fifth Circuit. parties. interested Dec. WIENER, DUHÉ, JONES,

Before Judges. Circuit DUHÉ, Judge. Circuit Chike, Petitioner, is a native John United entered the Nigeria who citizen nonimmigrant stu- May States and Naturalization Immigration dent. he deportable, but him has found Service he this Court before argues Because law. process due accorded sig- deprived of a Petitioner was find pro- due without liberty interest *9 nificant cess, and remand. we reverse immigration November On deportable under found Petitioner judge 1251(a)(ll) convicted alien U.S.C. § Petitioner, proceeding offense. a narcotics Immigra- Board of se, to the pro appealed appeal to the His notice Appeal. tion alleged four briefly explained Board con- Government of error. The grounds of an administrative that because cedes