(iii) Seventeen Year Old Plaintiff
The remaining plaintiff, Miriam Beckford, is currently seventeen years old and unemployed. Nevertheless, as a student who has held down an after-school job and asserts an interest in gaining future employment during high school, she is an intended beneficiary of the contested provision and has a real and personal stake in the outcome of this litigation. The possibility of obtaining another job is not sufficiently speculative to rob Beckford of standing, and regardless of whether plaintiff's next job in fact subjects her to excessive or late night hours, she would undoubtedly benefit from rules inhibiting an employer from requiring sixteen and seventeen year olds to work hours that would interfere with schooling. Moreover, because Beckford's right to petition the DOL to conduct rulemaking on this issue depends upon the interpretation of § 203(l), the relief she ultimately seeks will be materially advanced by a favorable ruling here. Accordingly, we reject any suggestion by the government that Beckford's requested relief is too speculative to confer standing. The government contends, however, that plaintiff cannot establish that her injury is "fairly . . . traceable to the challenged action of the defendant." Lujan v. Defenders of Wildlife, 112 S. Ct. at 2136, quoting Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (1976). To be sure, the record is barren of any affidavit or other evidence substantiating Beckford's allegation that her grades have suffered due to late night and excessive work hours.
However, the Seventh Circuit has held that well-pleaded allegations are sufficient to withstand an attack on standing even at the summary judgment stage. Harris v. City of Zion, 927 F.2d 1401 (7th Cir. 1991).
Having adequately pleaded its elements, then, we find that Beckford has standing to pursue this action.
Having resolved questions of standing, we next assess whether the action at hand presents a justiciable controversy. Specifically, we must determine whether the DOL's interpretation of § 203(l) constitutes final agency action and whether this controversy is ripe for review.
In Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S. Ct. 3177, 3185, 111 L. Ed. 2d 695 (1990), the Supreme Court observed that when, as here, review [of agency action or inaction] is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the 'agency action' in question must be 'final agency action.'" Id. (citing 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.")). Here, plaintiff does indeed seek review of the Secretary's interpretation of the FLSA pursuant to the general review provisions of the APA, 5 U.S.C. § 704, thus we must determine whether there has been final agency action. See Complaint at P 13.
As a matter of policy, the final agency action requirement ensures that courts will not intercede in agency processes prematurely. When agency action is merely tentative, rather than definitive, it is sensible and desirable to afford the agency, with its greater expertise, an opportunity to correct, alter, or amend its views before submitting the matter to judicial review.
In light of their silence on the issue, it would seem the parties agree that the Secretary's interpretation of § 203(l) is final. Although more may exist, the only direct evidence presented to the Court of the Secretary's alleged interpretation of § 203(l) lies in a letter from then-Secretary of Labor Lynn Martin to Congressman Larry J. Hopkins in response to an inquiry made on behalf of one of the Congressman's constituents. Secretary Martin informed Representative Hopkins that
under FLSA, there are no hours limitations or time restrictions for individuals who are 16 years of age and older. Any change to FLSA to provide for such restrictions would require legislative action on the part of Congress.
Appendix to Def. Memorandum in Support at 5.
There is no question that an agency may articulate a final position in a letter. See, e.g., Her Majesty the Queen in Right of Ontario v. EPA, 286 U.S. App. D.C. 171, 912 F.2d 1525 (D.C. Cir. 1990). Looking beyond the form in which agency action appears, courts take a "flexible and pragmatic" approach in applying the finality requirement, evaluating the definitiveness of the action and its impact on the day-to-day conduct of the parties involved. Id. at 1531 (citing Ciba-Geigy Corp. v. United States E.P.A., 255 U.S. App. D.C. 216, 801 F.2d 430, 435 (D.C. Cir. 1986). In her letter, the Secretary flatly explains the DOL's understanding of its authority under the FLSA to regulate work hours of sixteen and seventeen year olds. Although we might wish for a more expansive elocution of the Secretary's position, the tenor of the letter, along with the Secretary's open acknowledgement of this interpretation, strongly suggests that the DOL has, in fact, reached a definitive conclusion regarding the interpretation of the FLSA's application to sixteen and seventeen year olds. As such, it does not appear that judicial review would prematurely interrupt the evolution of agency policy.
Even if the DOL has taken final agency action, the government asserts that this matter is not ripe for review because plaintiff has not exhausted her administrative remedies. To determine ripeness, courts consider "both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S. Ct. 1507, 1515, 18 L. Ed. 2d 681 (1967). At the outset of this inquiry, we distinguish between the various actions (and inactions) that the plaintiffs challenge in their complaint. First, plaintiff contests the DOL's interpretation of § 203(l). Additionally, plaintiff seeks to enjoin the Secretary to investigate the need to regulate older students' hours and to promulgate rulemaking to that effect.
(a) Interpretation of the FLSA
The Secretary's statutory interpretation of § 203(l) appears to be ripe for judicial evaluation. An agency action is fit for review if (1) the issue presented is purely legal, (2) consideration of the issue would not benefit from a more concrete setting, and (3) the agency's action is final. Her Majesty the Queen, 912 F.2d at 1532 Because the present dispute revolves around an issue of statutory interpretation, the first two elements are easily met. As for the third, we have already concluded that the Secretary's construction of § 203(l) constitutes final agency action. With fitness established, we need inquire no further into the ripeness of this matter. Id. at 1533 quoting National Recycling Coalition, Inc. and Environmental Defense Fund, Inc. v. Reilly, 280 U.S. App. D.C. 221, 884 F.2d 1431, 1434 (D.C. Cir. 1989) ("'Where the first prong of the [Abbott Laboratories] ripeness test is met and Congress has emphatically declared a preference for immediate review . . . no purpose is served by proceeding to the second prong [hardship to the parties].'")
(b) Injunction to Force the Secretary to Conduct Rulemaking
Given our ruling below, we need not reach the question of whether plaintiff's request for an injunction is ripe for review. Nevertheless, we note that such ripeness would likely be found lacking. Defendant challenges the ripeness of the plaintiff's appeal for an injunction, contending that "if this Court were to find that the Secretary has the authority to issue the regulations plaintiffs seek, plaintiffs have available to them an administrative process pursuant to the APA in which to suggest the changes they request for the Department of Labor and offer evidence which supports their views." Def. Memorandum in Support at 32. To be sure, under the APA "each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule." 5 U.S.C. § 553(e).
To date, plaintiff has not petitioned the Secretary to conduct rulemaking, although presumably to do so would have been futile. However, even plaintiff concedes, that "if this Court clarifies the Secretary's authority to act, there is no reason to believe that the Secretary will fail to act." Pl. Reply at 9. Clearly, then, any court involvement in the agency's decision to conduct rulemaking would be premature where, as here, the agency has not yet had the opportunity to pass upon the merits of initiating rulemaking. See Renegotiation Board v. Bannercraft Co., 415 U.S. 1, 24, 94 S. Ct. 1028, 39 L. Ed. 2d 123 (1974) (until plaintiffs petition an agency for rulemaking, the courts may not intervene in agency workings).
C. The Proper Interpretation of the FLSA
The parties dispute the proper interpretation of the term "oppressive child labor" as it pertains to sixteen and seventeen year old students. The language at the heart of the controversy is this:
"Oppressive child labor" means a condition of employment under which . . . (2) any employee between the ages of sixteen and eighteen years is employed by an employer in any occupation which the Secretary of Labor shall find and by order declare to be particularly hazardous for the employment of children between such ages or detrimental to their health or well-being.
29 U.S.C. § 203(l). Section 203(l) goes on to state that
the Secretary of Labor shall provide by regulation or by order that the employment of employees between the ages of fourteen and sixteen years in occupations other than manufacturing and mining shall not be deemed to constitute oppressive child labor if and to the extent that the Secretary of Labor determines that such employment is confined to periods which will not interfere with their schooling and to conditions which will not interfere with their health and well-being.