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In re Perez

United States Court of Appeals, Ninth Circuit

April 18, 2014

IN RE: THOMAS E. PEREZ, THOMAS E. PEREZ, Secretary, United Sates Department of Labor, Petitioner,

Argued and Submitted, Portland, Oregon March 4, 2014

Page 850

Petition for Writ of Mandamus to the United States District Court for the Western District of Washington. D.C. No. 3:08-cv-05479-BHS. Benjamin H. Settle, District Judge, Presiding.

Rachel Goldberg (argued), Senior Attorney, M. Patricia Smith, Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, Paul L. Frieden, Counsel for Appellate Litigation, United States Department of Labor, Washington, D.C., for Petitioner.

Kara A. Larsen (argued), Senior Counsel, Labor and Personnel Division, Robert W. Ferguson, Attorney General, Washington State Office of the Attorney General, Olympia, Washington, for Real Party in Interest.

Before: Alfred T. Goodwin, Stephen S. Trott, and William A. Fletcher, Circuit Judges.


Page 851

TROTT, Circuit Judge

Thomas Perez, the Secretary of the United States Department of Labor, sued the Washington State Department of Social and Health Services (" DSHS" ), alleging violations of the Fair Labor Standards Act's overtime and recordkeeping provisions. The Secretary's proof of the alleged violations comes from 400 employees' statements -- 350 of which he obtained after he had filed suit. Over the Secretary's objection, the district court held that these 350 employees are not informants whose identities are protected from discovery by the government's informants privilege. For this reason, and because it believed DSHS's defense depended upon knowing the identities of the informants, the district court ordered the Secretary to answer three interrogatories that would disclose their identities. To avoid that result, the Secretary petitioned this court for a writ of mandamus. Because we are convinced that the timing of the employees' statements does not affect their status as informants, and because knowledge of the informants' identities will not significantly aid DSHS, we grant the petition.


In 2006, the Wage and Hour Division of the Department of Labor received a complaint from Karen Patton. Patton claimed that, while employed as a social worker in DSHS's Walla Walla office, she was not paid overtime despite working on average 45-65 hours per week. An initial investigation followed, during which approximately 50 additional social workers made similar claims. These social workers were told by their supervisors that it was DSHS's policy not to authorize overtime, except in emergencies, and to " flex" their schedules to make up for the hours of overtime worked. However, the demands of the social workers' caseloads prevented them from taking " flex" time.

This initial investigation convinced the Secretary that, between 2006 and 2008, case-carrying, levels-II and -III social workers regularly worked over 40 hours per week, did not record all the hours they worked, and were not compensated for the majority of overtime they worked. The Secretary filed suit on behalf of these " affected employees," alleging that DSHS violated the Fair Labor Standards Act's (" FLSA" or " Act" ) overtime and record-keeping provisions. 29 U.S.C. § 207 (overtime); Id. § 211(c) (record keeping).

Early in the litigation, DSHS compiled and provided the Secretary with a list of all affected employees, ultimately totaling just under 2,000 social workers. The affected employees worked (and most still do) at DSHS's 42 offices spread throughout seven regions of Washington. The affected employees are all part of DSHS's Children's Administration, which is divided into three primary program areas. Social workers with Child Protective Services take and investigate claims of child abuse and, when necessary, work to place children in safe, alternative housing. Social workers with Child and Family Welfare Services " provide permanency planning and intensive treatment services for families who need help protecting or parenting children." These social workers primarily work with children who are dependents of the state and live outside of their family homes. Social workers with Family Reconciliation

Page 852

Services provide " voluntary in-home services focused on developing skills and support within families" for at-risk youths or on resolving family conflicts.

With DSHS's list in hand, the Secretary continued his investigation into the alleged violations by mailing to 1,500[1] of the affected employees a questionnaire asking the employees about their work conditions. The Secretary told the recipients that, if they responded, he would keep their names and identifying information confidential, unless they authorized its release or if a court ordered its disclosure. The Secretary received approximately 350 responses.

During the course of discovery, DSHS served the Secretary with the three interrogatories that prompted this petition.

Interrogatory No. 1: Please identify each and every person who has knowledge of the facts alleged in your Complaint or any other facts that support or refute the allegations in the Complaint and, for each such person, specify the precise facts of which they have [sic] knowledge, including but not limited to, (with respect to DSHS Employees) hours scheduled, worked, reported, or paid; days scheduled, worked, reported, or paid; overtime scheduled, worked, reported, or paid; and why hours, days, or overtime were or were not reported.
Interrogatory No. 4: For each and every DSHS Employee listed in Exhibit A to the Complaint and for each week from February 2006 to the present, please state the hours per day and per week that you allege that he or she worked.
Interrogatory No. 6: For each DSHS employee, for whom you seek overtime payment, please state the weeks for which you seek such overtime payment, the number of hours worked during each of those weeks, and the amount allegedly due for each week.

The Secretary objected to answering these interrogatories on the ground that turning over the 50 statements taken during the initial interview and the 350 returned questionnaires " requested by [DSHS] would reveal the identities of individuals who cooperated with [the Secretary's] investigation and litigation." Acting through the Deputy Administrator of the Wage and Hour Division, the Secretary " invoke[d] the Government's informant privilege to protect from disclosure the identities, and any portions of other documents which could reveal the identities, of persons who have provided information to the United States Department of Labor in the instant case."

However, the Secretary waived the privilege as to 150 affected employees who had authorized the disclosure of their identities and provided DSHS with complete copies of their statements. With respect to the 250 employees who wished to remain anonymous, the Secretary disclosed their statements, but he redacted any information that identified or tended to identify the employee. This included the employee's name; the employee's contact information; the employee's position, if it appeared to the Secretary that the employee held a unique position; the office location where the employee worked; and the employee's period of employment. These redacted statements still contained, where available, the hours, days, and overtime worked, scheduled, and paid.

Unsatisfied, DSHS filed a motion to compel the Secretary to provide the requested ...

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