Margaret Louise Breitwieser and James J. Breitwieser v. Kms Industries, Inc., D/B/A Advo Systems , 467 F.2d 1391 ( 1972 )

THORNBERRY, Circuit Judge:

The issue in this case is whether the child labor provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 212, and the regulations promulgated pursuant thereto, create a private cause of action for damages for wrongful death. This is apparently a question of first impression.

Appellants are the parents of a sixteen-year-old boy who died when the forklift truck he was driving, while allegedly in the scope of his employment with appellee, turned over. In Order No. 7, 29 C.F.R. § 422.7, issued on the authority of 29 U.S.C.A. § 203 (Í), the Secretary of Labor declared the operation of a high lift forklift truck to be an occupation “particularly hazardous” for employees under the age of eighteen years old. The decedent’s assignment to the forklift was thus in violation of the Act.

This diversity case was originally brought in the court below as a wrongful death action based on Georgia law. The complaint was later amended to allege the FLSA as a separate basis for liability. The district court ruled on a motion to dismiss that the FLSA did not create an independent cause of action for wrongful death. He grounded his decision on statutory construction concluding that since the FLSA establishes civil remedies for certain violations but only criminal sanctions for child labor violations, Congress must not have intended private damage suits to be an available remedy under the child labor section of the Act. Subsequently, the court held on a motion for summary judgment that appellants’ wrongful death claim was barred by Georgia workmen’s compensation law, Ga.Code Ann. § 114-103. This appeal followed.

Appellants argue first that they have a right to damages based on the alleged FLSA violation and secondly that their state law wrongful death claim is not precluded by the Georgia workmen’s compensation statute. The second contention is without merit but the first requires comment.

Appellants concede that the FLSA does not provide on its face for damages as a remedy in child labor cases. Instead they rest their case on the oft-stated principle that when there is a right there is a remedy, See Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). They argue that (1) the FLSA establishes the right of sixteen year olds not to be assigned to certain hazardous work, (2) that right has been violated, and (3) the Act does not provide a remedy; therefore, they conclude, the federal courts should fashion a remedy in the form of monetary damages.

This theory of recovery has a serious flaw, namely that the FLSA does establish a remedy for contravention of its child labor provisions. Although federal courts have on occasion implied remedies for infringement of federally conferred rights, e. g., Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); J. I. Case Company v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Gomez v. Florida State Employment Service, 5th Cir. 1969, 417 F.2d 569, they have done so only when the law creating the right provided for no remedy or for a grossly inadequate remedy. The courts have thus implied relief when necessary to prevent abrogation of congressional policies. The instant case presents a very different situation in that the FLSA, rather than lacking in remedies or providing inadequate remedies, contains a comprehensive enforcement scheme, 29 U.S.C.A. §§ 215-217, including substantial criminal penalties for violations of child labor law.

Appellants rely primarily on the three cases cited, supra. In J. I. Case Company v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), the Supreme Court was faced with an alleged violation of § 14(a) of the Securities Exchange Act of 1934. § 27 of the Act gave the federal courts jurisdiction over violations but did not specify what relief might be granted. The Court held that § 27 was an adequate basis for a suit for damages. J. I. Case, although ostensibly a statutory construction decision, is a case in which the Court implied a remedy when none was specifically provided by the statute. However, whether we denominate J. I. Case a statutory construction case or an implied remedy case, it is distinguishable from the cause before us. First, the FLSA simply cannot be construed to create a private cause of action for damages in a child labor case. Secondly, taking the implied remedy tack, we note that the Securities Exchange Act and its legislative history indicated a strong congressional policy against stock fraud. The Act set out, however, no specific remedy for achieving this congressional goal. The Court was thus faced with the choice of fashioning a remedy or risking nullification of congressional intent.

We, therefore, believe that under the circumstances here it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose.

J. I. Case, supra, at 433, 84 S.Ct. at 1560. In contrast, in the instant case we do not need to leap into the legislative breach to preserve congressional goals because there is no breach. Congress has provided remedies of its own in the FLSA.

The second case that appellants urge in support of their position is Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The plaintiff in Bivens was the victim of an allegedly illegal search by federal agents. The Court held that he could sue the agents for damages. The fourth amendment, on which the suit was grounded, does not, of course, set out any specific remedies for violations. Moreover, the court-developed remedy of suppression of evidence is useless to an innocent person. Bivens thus presented a clear case of a federal right without a federal remedy. The issue was whether the plaintiff should be relegated to a tort suit based on state law. The Court held he was not, concluding that when federal law creates a right there should be a federal remedy. In the instant case there is a federal remedy for infringement of the federal right; it is set out in the statute itself.

Appellant’s third case is Gomez v. Florida State Employment Service, 5th Cir. 1969, 417 F.2d 569. In Gomez the employers of migratory workers and certain state officials had allegedly violated the Wagner-Peyser National Employment System Act. The workers alleged they had been paid inadequately and subjected to abominable living conditions. The only sanction set forth in the Act was a cut off of federal grants to the states for programs under the Act. The court decided that this remedy was inadequate and held that the workers were entitled to additional relief under the Act.

The three cases relied on by appellants involve violations of federal rights where the remedy provided by the law creating the right was unclear, J. I. Case, nonexistent, Bivens, or grossly inadequate, Gomez. The courts were thus faced with federal policies that were likely to be undermined if the court did not provide effective relief to the complainant. The instant case is distinguishable. First, we do not have a statutory construction problem such as existed in J. I. Case. The FLSA clearly does not provide for damages in child labor cases. Secondly, we do not have a right without a remedy as in Bivens or with an inadequate remedy as in Gomez. The FLSA explicitly provides for criminal penalties of up to six months in prison and a $10,000 fine for child labor violations, 29 U.S.C.A. § 216. Thirdly, the one thread that runs through the three cases discussed is absent here: Congress’ determination that sixteen year olds shall not be assigned to forklifts will not be subverted if we fail to read a civil damages remedy into the Act. The criminal sanctions found in the Act are substantial enough to serve as an adequate deterrent to violations of the Act’s child labor provisions.

The Supreme Court said in Bivens that the existence of a state remedy for violation of a federal right does not preclude a federal court from fashioning a federal remedy to ensure the enjoyment of that right. However, in Bivens the question was whether state relief should be the exclusive recourse since the fourth amendment, which was the basis of the suit, provided no remedy. The Court decided that it should not be and decreed federal relief.

The question in the case before us is different. We must decide here whether we should imply an additional federal remedy although a substantial one already exists. We are asked to order civil damages since the FLSA provides only criminal penalties that offer no solace to the injured party. We believe that in this situation, where Congress has provided a remedy but we are urged to formulate a more extensive one, it is appropriate to look, as the district court did, to appellants' remedies under state law to determine if additional federal relief is necessary to implement Congress’ intent in enacting the child labor law.

We conclude that further relief is not called for. Although Georgia workmen’s compensation law provides low awards to the beneficiaries of deceased workers without dependents — $750 in this case —the State does provide relief. We conclude that the size of the state award does not justify a federal court’s creating a new federal remedy based on a statute that gives no hint of such a remedy in a field — job-related injuries to employees — that has traditionally been left to the states.

In summary, we can find no indication that Congress intended the FLSA, which was passed to deter oppressive child labor and contains substantial enforcement provisions, to form the basis for an expansion of state wrongful death liability. See Rogers v. Ray Gardner Flying Service, Inc., 5th Cir. 1970, 435 F.2d 1389. Moreover, we do not believe policy considerations call for this Court to extend FLSA remedies to include private suits for damages. In Bivens, supra, Justice Harlan said

[I]n suits for damages based on violations of federal statutes lacking any express authorization of a damage remedy, this Court has authorized such relief where, in its view, damages are necessary to effectuate the congressional policy underpinning the substantive provisions of the statute.

Bivens, supra, 403 U.S. at 402, 91 S.Ct. at 2008 (Harlan J. concurring). This is not such a case.

Affirmed.