783 F.2d 151
27 Wage & Hour Cas. (BN 934, 104 Lab.Cas. P 34,754
In re DON HAMILTON OIL CO., et al., Petitioners.
No. 86-1108.
United States Court of Appeals,
Eighth Circuit.
Submitted Jan. 30, 1986.
Decided Feb. 12, 1986.
Ben Core, Daily, West, Core, Coffman & Canfield, Fort Smith, Ark., for petitioners.
Robert A. Fitz, Office of the Solicitor, U.S. Dept. of Labor, Dallas, Tex., for the U.S.
Before HEANEY, ROSS and BOWMAN, Circuit Judges.
PER CURIAM.
Petitioner Don Hamilton Oil Co. seeks a writ of mandamus to compel the District Court to grant its demand for a jury trial in an action by the Secretary of Labor under the Fair Labor Standards Act, 29 U.S.C. Sec. 217, to secure compliance with the Act and to restrain the continued withholding of payment of minimum wages and overtime compensation (in excess of $80,000) allegedly due certain former employees of Hamilton Oil. Hamilton Oil contends that it has a federal constitutional right (under the Seventh Amendment) to a jury trial on the back wages issue since the Secretary is, in essence, seeking money damages. We deny the petition.
The remedy of mandamus is a drastic one and is to be invoked only in those extraordinary situations "amounting to a judicial usurpation of power." In re Ford Motor Co., 751 F.2d 274, 275 (8th Cir.1984). The petitioner has the burden of demonstrating that his right to issuance of the writ is "clear and indisputable." Id. Issuance of the writ is in large part a matter of discretion. Id.
Every court to consider the issue, with one exception later overruled, has held that there is no constitutional right to a jury trial in a Sec. 217 action. See, e.g., Wirtz v. Jones, 340 F.2d 901 (5th Cir.1965); Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658 (4th Cir.1969); Paradise Valley Investigation & Patrol Services, Inc. v. United States District Court, 521 F.2d 1342 (9th Cir.1975); Wirtz v. Robert E. Bob Adair, Inc., 224 F. Supp. 750 (W.D.Ark.1963). Contra Wirtz v. Thompson Packers, Inc., 224 F. Supp. 960 (E.D.La.1963), overruled in Wirtz v. Jones, 340 F.2d 901 (5th Cir.1965). In view of these decisions and of the questionable nature of the legal issue presented, we deny the petition. Our action, however, is without prejudice to the right of Hamilton Oil to raise this issue on appeal from the final judgment or order entered by the District Court.
Petition for writ of mandamus denied.