Unpublished Disposition, 867 F.2d 613 (9th Cir. 1987)

MEMORANDUM^* 

In these consolidated appeals, appellant Jackson Helton ("Helton") appeals the district court's grant of summary judgment in favor of appellees, the United States, the United States Postal Service ("USPS"), the American Postal Workers Union and the National Association of Letter Carriers, ("NALC"), and the imposition of sanctions against Helton. We affirm.

BACKGROUND

Helton, a retired USPS worker and member of the NALC, seeks overtime compensation allegedly owed to him by the USPS for work performed as a temporary supervisor from June to December, 1978, and from January 1980 to August 1983. Such supervisors were not entitled to premium pay under USPS policy in effect from January 1980 to October 1982, although the collective bargaining agreement ("National Agreement") provided for premium pay for workers in these positions. The American Postal Workers Union challenged this policy in national arbitration and the policy was reversed in 1982. As a result of this arbitration decision, the USPS revised its Employee and Labor Relations Manual ("ELM") and added section 436.26, which stated:

Any claim made by a Postal Employee or his authorized agent or attorney for back pay must be submitted to the appropriate office within 6 full years after the date such claim first accrued.

Postal employees were notified of the arbitration decision by letter on June 7, 1982. Helton contends he became aware of the decision in October 1982, and that at that time he was told by NALC officials that he had six years to claim his back pay. He further argues he understood the six-year period to apply to the time in which he had to file a claim in court.

On August 26, 1985, Helton sent a routing slip to the USPS Director of Finance claiming compensation for back pay owed to him during the period he worked as a temporary supervisor. USPS denied this claim on October 23, 1985. Helton retired on November 30, 1985. He again requested payment in a letter dated December 26, 1985. The USPS again denied the claim on January 14, 1986, stating the accrual date ran from 1978 and therefore the six-year period had already expired. Helton disputed the accrual date in a letter dated January 20, 1986, and the USPS again denied the claim on February 25, 1986, this time stating Helton had not followed the grievance procedure set out in the National Agreement which mandated that a grievance be filed within fourteen days after the employee first became aware of a possible dispute. Helton wrote follow-up letters to both the USPS and the NALC in the spring and summer of 1986. The USPS denied Helton's claim again and reiterated that the grievance was not timely filed in a letter to Helton dated June 27, 1986.

Helton sought assistance from the NALC. The district court determined that it was undisputed that Helton claimed he first contacted the NALC regarding the USPS's denial of his claim sometime in March 1986. Helton contends he contacted the NALC in December 1986 and was told the NALC could do nothing because the back pay issue already had been adjudicated in arbitration.

On February 26, 1987, Helton filed a complaint in the district court seeking:

(1) overtime compensation allegedly owed to him under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b) (1982);

(2) damages for an alleged breach by USPS of the National Agreement between USPS and NALC, and for breach by the NALC of the duty of fair representation owed by the union to Helton, in violation of section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185 (1982);

(3) money had and received, a state law claim; and

(4) a declaratory judgment construing the accrual provisions of ELM section 436.26.

On September 3, 1987, the action against the NALC was dismissed by the court without prejudice pursuant to Fed. R. Civ. P. 41(a) after Helton moved to dismiss the action. The NALC had not been served with notice of the suit until July 30, 1987, well outside the 120-day limit imposed by Fed. R. Civ. P. 4(j), and the parties agreed to the voluntary dismissal without prejudice. On August 27, 1987, however, Helton's attorney filed a second complaint identical to the initial complaint filed on February 12, 1987.

The district court granted summary judgment in favor of all defendants in both lawsuits. The court also imposed sanctions against Helton and his attorney for filing the second lawsuit against the NALC. The court held:

(1) the FLSA action was time barred under 29 U.S.C. § 255, and additionally that an individual action for back pay under 29 U.S.C. § 216(b) was not available to Helton because the Secretary of Labor had brought suit to recover such back pay on behalf of all postal workers in Donovan v. United States Postal Service, No. 78-0602 (D.D.C. Oct. 21, 1982);

(2) the LMRA action against both the USPS and the NALC was time barred under 29 U.S.C. § 160 and DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151 (1983);

(3) the state claim was preempted by 39 U.S.C. § 1208 (1982), the analogue of section 301 of the LMRA;

(4) a ruling on the request for declaratory judgment was unnecessary; and

(5) sanctions under Fed. R. Civ. P. 11 in favor of NALC were appropriate.

We review the grant of summary judgment de novo, examining the record in the light most favorable to the nonmoving party to determine whether there are any genuine issues of material fact and whether the district court properly applied the law. Moore v. Bechtel Power Corp., 840 F.2d 634, 636 (9th Cir. 1988).

ANALYSIS

An employee may bring an action in federal district court seeking payment of wages due under the minimum wage provisions of the FLSA. 29 U.S.C. § 216(b); Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 745 (1981). This action exists separate and apart from any relief which may be gained under the provisions of a collective bargaining agreement. Barrentine, 450 U.S. at 745. There are no exhaustion requirements or procedural barriers which must be met prior to bringing suit. Barrentine, 450 U.S. at 740. There is, however, a statute of limitations, set out at 29 U.S.C. § 255. An action alleging willful violation of the FLSA must be brought within three years after the cause of action accrued; allegations of non-willful violations must be filed within two years. 29 U.S.C. § 255(a) (1982); Hickman v. United States, 10 Cl.Ct. 550, 552 (1986).

The district court properly found that any cause of action under the FLSA accruing more than three years prior to the time Helton filed his initial complaint was barred by the statute of limitations. Helton's last term of employment as a supervisor occurred in August 1983, he discovered he had a claim for back pay in October 1982, and he filed his complaint on February 26, 1987. Thus, the statute of limitations had run on Helton's FLSA claim.

Helton argues the statute of limitations should be tolled by the provisions of ELM 436.26, which allow six years in which to file a claim for compensation allegedly due. This argument is without merit in view of the express language of ELM 436.26, which clearly addresses claims made to the USPS and not claims filed separately in district court.

Neither is Helton's claim subject to equitable tolling. Equitable tolling requires that Helton be "excusably ignorant" of the FLSA statute of limitations. Stallcop v. Kaiser Found. Hospitals, 820 F.2d 1044, 1050 (9th Cir.), cert. denied, --- U.S. ----, 108 S. Ct. 504 (1987). There is nothing in the record to indicate Helton ever attempted to ascertain what statute of limitations controlled his FLSA action. Helton argues a NALC member told him in October 1982 that he had six years to file his claim, and that he understood this to mean "in court." This contention might supply one of the components for equitable estoppel against the NALC in an action against it, cf. Stallcop, 820 F.2d at 1050, but Helton's FLSA action can only be construed as an action against the USPS, not the union. 29 U.S.C. § 216(b). Moreover, " [e]quitable estoppel focuses on the defendant's actions. There must be evidence of an improper purpose by the defendant, or of the defendant's actual or constructive knowledge that its conduct was deceptive." Id. (citation omitted). Helton did not make any showing of any improper purpose or deception by any of the defendants.

2. Claims for Breach of National Agreement and Duty of Fair Representation

Helton alleges the USPS breached the National Agreement by denying his claims for back pay, and the NALC breached its duty of fair representation in failing to pursue those claims.¹  These claims brought by Helton are "hybrid" section 301/fair representation claims governed by the six-month statute of limitations set out in section 10(b) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(b) (1982). DelCostello, 462 U.S. at 155; Stallcop, 820 F.2d at 1049; Conley v. Int'l Bhd. of Elec. Workers, 810 F.2d 913, 915 (9th Cir. 1987).

a. Claim for Breach by USPS of the National Agreement

Helton filed his claim with the USPS on August 26, 1985, and reiterated the claim several times in subsequent letters, the last one dated April 19, 1986. The USPS denied the claims, initially on October 23, 1985, and finally on June 27, 1986. The initial complaint was filed February 26, 1987. The court therefore properly ruled that the action against USPS was time barred; the complaint naming it as a defendant was filed more than six months after Helton became aware he had a grievance with USPS over his back pay claim.

The court also found Helton's complaint against the USPS barred for failure to exhaust contractual remedies under the National Agreement. Clayton v. UAW, 451 U.S. 679, 686 (1981); Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965). Because we hold that Helton's claim against the USPS for breach of the National Agreement is time barred by the six-month statute of limitations contained in 29 U.S.C. § 160(b) (1982), we do not reach the issue whether this claim is also barred by Helton's failure to follow the remedial provisions of the National Agreement.

b. Claim for Breach by NALC of the Duty of Fair Representation

Helton contends the NALC breached its duty of fair representation in failing to pursue his claim against the USPS. The district court determined that it was an uncontroverted fact that Helton learned in March 1986 that the union would not assist him in pursuing his claim for back pay against the USPS. Helton filed his initial complaint on February 16, 1987, more than six months later. The six-month statute of limitations begins to run when an employee knows of or should know of an alleged breach of the duty of fair representation. Zuniga v. United Can Co., 812 F.2d 443, 449 (9th Cir. 1987). Helton argues, however, that he did not learn of the NALC's refusal to grieve his dispute until December 1986. If this is so, then Helton's complaint which he filed February 26, 1987, was filed within the six-month limitations period. This complaint, however, was dismissed without prejudice as to the NALC upon Helton's motion for voluntary dismissal. Helton had failed to serve the NALC with notice of the suit within 120 days of filing as required by Fed. R. Civ. P. Rule 4(j); and the NALC's counsel had advised Helton that the suit against the NALC was subject to dismissal for improper service, and that he could be subject to sanctions under Fed. R. Civ. P. 11 if he proceeded further with the case. After being advised of this, but before the district court's dismissal as to the NALC, Helton filed a second, identical complaint on August 27, 1987. The dismissal of the original complaint as to the NALC "without prejudice" did not toll the statute of limitations. Humphreys v. United States, 272 F.2d 411, 412 (9th Cir. 1959); see also Townsel v. County of Contra Costa, 820 F.2d 319, 321 (9th Cir. 1987); United States ex rel. DeLoss v. Kenner, Inc., 764 F.2d 707, 709 (9th Cir. 1985). With the first complaint dismissed, and the second complaint not filed until August 27, 1987, the suit against the NALC was time barred by the six-month statute of limitations.

Helton also argues for equitable tolling of the statute of limitations in his claim against the NALC. He bases this contention on the NALC's representation to him in October 1982 that he had six years to file his claim for back pay. Because this statement was correct as it applied to the filing of a claim against USPS, however, it does not equitably toll the statute of limitations relating to an action against the NALC. And, as we have previously noted in analyzing Helton's claim against the USPS, equitable estoppel does not apply because Helton made no showing of any improper purpose or deception by any of the defendants.

The court properly ruled that Helton's state claims are preempted by 39 U.S.C. § 1208, the analogue to section 301 of the LMRA. See Beriault v. Local 40, Super Cargoes & Checkers of Int'l Longshoremen's and Warehousemen's Union, 501 F.2d 258, 261 (9th Cir. 1974); Vaca v. Sipes, 386 U.S. 171, 179 (1967).

Helton appeals the district court's dismissal of his action for declaratory relief to determine when the six-year time period set out in ELM 436.26 begins to run. Helton argues it should run from the time an employee learned back pay may be owing, while the USPS stated in at least one piece of correspondence that it would run from the first instance when an employee actually accrued back pay.

The district court dismissed the action as a request for an advisory opinion unnecessary to decide the case. We agree. The outcome of the case is the same under either construction.

The district court awarded sanctions pursuant to Fed. R. Civ. P. 11 in favor of the NALC and against Helton based on Helton's filing of the second complaint. Sanctions are to be awarded if an attorney, after reasonable inquiry, cannot conclude that there is a good faith argument for the view presented of what the law is, or should be. MIR v. Little Co. of Mary Hosp., 844 F.2d 646, 652 (9th Cir. 1988). Reasonable inquiry is defined as "that amount of examination into the facts and legal research which is reasonable under the circumstances of the case." Id., quoting Zaldivar v. City of Los Angeles, 780 F.2d 823, 831 (9th Cir. 1986).

Ninth Circuit and Supreme Court cases clearly indicate the second complaint filed against NALC was time barred. The district court determined that Helton's counsel had been informed of these cases at the time he filed the second complaint. We affirm the district court's award of sanctions and conclude that they were not unreasonable in amount.

6. Request for Rule 38 Attorney Fees and Costs on Appeal

The NALC requests an award of double costs and attorney fees for defending this appeal, pursuant to Fed. R. App. P. 38. This rule provides in pertinent part:

If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to appellee.

We have affirmed the district court's sanctions against Helton under Fed. R. Civ. P. 11. The second complaint filed against the NALC was meritless, and there is no plausible argument on appeal that the complaint had any merit or that the sanctions imposed by the district court were inappropriate. Helton's appeal of the summary judgment, and sanction award, in favor of the NALC is entirely without merit and we award double costs and attorney fees to the NALC for defending the appeal. Mir v. Little Company of Mary Hospital, 844 F.2d 646, 653-54 (9th Cir. 1988); Grimes v. Commissioner, 806 F.2d 1451, 1454 (9th Cir. 1986) (per curiam).

AFFIRMED with an award of double costs and attorney fees to the NALC pursuant to Fed. R. App. P. 38.