Brock v. Shirk, 860 F.2d 1545 (9th Cir. 1988)
860 F.2d 1545
US-DOC-331162
locator
Case details
Citation
860 F.2d 1545
Full caption
William E. BROCK, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. Joann SHIRK, individually and doing business as Oregon Meat Cutting School; Frank B. Shirk, individually and doing business as Oregon Meat Cutting School, Defendants-Appellees.
Country
United States
Jurisdiction
Federal
Court
9th Cir.
Decided
Nov. 17, 1988
Disposition
Remanded
No. 86-4121.
Nov. 17, 1988.
Before WRIGHT, WALLACE and PREGERSON, Circuit Judges.
ORDER
The Supreme Court granted a petition for writ of certiorari, — U.S. -, 109 S.Ct. 38, 102 L.Ed.2d 18, it vacated our judgment of December 8, 1987, Brock v. Shirk, 833 F.2d 1326 (9th Cir.1987), and remanded the case to this court for further consideration in light of McLaughlin v. Richland Shoe Co., 486 U.S. -, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988).
In Section II of our opinion, we followed the controlling precedent of this circuit in determining the meaning of the word “willful” in 29 U.S.C. § 255. We relied upon Marshall v. Union Pac. Motor Freight Co., 650 F.2d 1085, 1092 (9th Cir.1981), and EEOC v. First Citizens Bank of Billings, 758 F.2d 397 (9th Cir.1985).
Our footnote 2 observed prophetically: We recognize that other circuits have questioned that definition of willful, and that the Supreme Court will likely resolve the existing conflict among the circuits. See Brock v. Richland Shoe, 799 F.2d 80 (3d Cir.1986), cert. granted [— U.S. -, 108 S.Ct. 63, 98 L.Ed.2d 27] (1987). First Citizens is still the law of this circuit. It controls here.
The Court has indeed resolved the matter in McLaughlin v. Richland Shoe Co. We now remand the cause to the district court for appropriate reconsideration in light of that opinion.