SOLID WASTE SERVICES, INC., ET AL., PETITIONERS V. ELIZABETH DOLE,
SECRETARY OF LABOR

   No. 89-1569

   In the Supreme Court of the United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit

   Brief For The Respondent In Opposition

                       PARTIES TO THE PROCEEDING

   Petitioners erroneously list Ann McLaughlin, the former Secretary
of Labor, as respondent in this case.  Elizabeth Dole, the current
Secretary, was the plaintiff in the district court and appellee in the
court of appeals.  She is the respondent in this case.  Joseph
Mascaro, a defendant in the district court, Pet. App. 5a, was not a
party in the court of appeals and is not a party in this Court.

            TABLE OF CONTENTS
   Questions Presented
   Parties to the Proceeding
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The judgment order of the court of appeals (Pet. App. 3a-4a) is
unpublished, but the decision is noted at 897 F.2d 521 (Table).  The
opinion of the district court (Pet. App. 14a-102a) is reported at 733
F. Supp. 895.

                             JURISDICTION

   The judgment of the court of appeals was entered on January 29,
1990.  A petition for rehearing was denied on February 26, 1990.  Pet.
App. 1a-2a.  The petition for a writ of certiorari was filed on April
4, 1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether the district court correctly held that petitioners
waived their right to a jury trial in an action by the Secretary
seeking injunctive relief under Section 17 of the Fair Labor Standards
Act of 1938 (FLSA), 29 U.S.C. 217, and liquidated damages under
Section 16(c) of the Act, 29 U.S.C. 216(c).

   2. Whether the district court properly awarded back wages under the
FLSA to nontestifying employees based on the representative testimony
of other employees concerning hours worked.

   3. Whether the district court properly exercised its discretion in
allowing the Secretary to amend her complaint after trial to assert
back wage claims for newly discovered employees, where petitioners had
previously failed to disclose the identity of those employees,
notwithstanding a timely request by the Secretary for such disclosure.

                               STATEMENT

   1. Petitioners are four interrelated corporations and two
individuals, Michael and Pasquale (Pat) Mascaro, who (together with
Joseph Mascaro) at all relevant times owned and controlled the
corporations.  Pet. App. 19a-20a.  Under Section 3(r) of the Fair
Labor Standards Act (FLSA), 29 U.S.C. 203(r), both corporate and
individual petitioners are one "enterprise." Pet. App. 74a-75a, 97a.
As "employer(s)" under Section 3(d) of the FLSA, 29 U.S.C. 203(d),
they are jointly and severally liable for violations of the Act.  Pet.
App. 76a, 97a.

   Petitioners are engaged in the solid waste disposal industry.  Pet.
App. 18a, 19a.  Between January 1985 and February 1989, petitioners
employed over 300 individuals in three "divisions" and under at least
25 separate payroll classifications.  Ibid.  /1/ In the JPM or Mascaro
division, certain truck drivers (Classifications 200, 201, 202)
serviced routes within various Pennsylvania municipalities.  Id. at
24a-26a.  They brought their loads to a transfer station in Souderton,
Pennsylvania, where certain yard laborers (Classification 301)
assisted in transferring the loads to tractor-trailers.  See id. at
33a-34a.  Tractor-trailer drivers (Classification 203) then took the
loads to a landfill.  Id. at 28a-29a, 50a.  The Hoch Division
contained similar classifications of truck drivers and laborers, see
id. at 37a-38a, but also a separate classification (Classification
306) for drivers in the "Northern Division." Id. at 40a;  Pet. 5.  The
Lackawanna Transport Division included two groups of tractor-trailer
drivers (Classifications 103, 203) who drove between three transfer
stations (in Lower Merion, Abington, and South Philadelphia) and two
landfills or another transfer facility in Dunmore, Morrisville, and
Buckhorn, respectively.  Pet. App. 43a-44a.

   Despite previous investigations that uncovered minimum wage,
overtime, child labor, and recordkeeping violations, and despite
receiving Department of Labor advice on how to correct the violations
(Pet. App. 58a-63a), petitioners paid some of their workers (e.g., JPM
200 and Hoch 306 drivers) on an incorrectly calculated "day rate"
basis.  Id. at 24a, 40a.  /2/ They paid their tractor-trailer drivers
(JPM 203, Lackawanna 103, 203) on a "per-trip" basis.  Id. at 28a,
44a.  They purportedly paid certain JPM route drivers and yard
laborers (JPM 201, 202, 301) on an hourly basis, id. at 26a-27a,
33a-34a, but deducted a half hour per day for a lunch break -- whether
or not the employee actually took it.  Id. at 22a.  Petitioners'
supervisors frequently punched out time cards of hourly workers before
they finished working.  Id. at 27a, 33a-34a.  Petitioners kept no
records of hours worked for their tractor-trailor drivers (id. at 28a,
and either failed to record or inaccurately recorded hours worked for
other employees.  Id. at 24a, 27a, 33a-34a, 79a.  Only once did
petitioners produce what appeared to be legitimate employee time cards
(for Hoch 306 drivers).  Id. at 41a-42a.  Those cards frequently
showed more hours worked than did petitioners' payroll records;  in
other instances, it appeared that the same employee had spelled his
last name differently on different cards or that several employees had
the same handwriting.  Ibid.

   2. The Secretary of Labor brought this action against petitioners
for violations of the FLSA occurring from January 1985 through
February 1989.  Pet. App. 18a.  In paragraph 1 of the complaint, she
"invoke(d) (the district court's) equitable jurisdiction under section
17 of the Act (29 U.S.C. 217)," which authorizes district courts to
restrain violations of the statute, and in her prayer for relief, she
sought injunctive relief, including restitution of back wages, for
minimum wage, overtime, child labor, and recordkeeping violations, and
additionally an award of liquidated damages under Section 16(c) of the
statute.  Pet. App. 18a, 70a-71a.  /3/ The district court found
jurisdiction under Sections 16 and 17 (id. at 97a) and awarded
injunctive relief, back wages, and liquidated damages.  Id. at 6a-7a.

   a. The district court found that petitioners had violated the
FLSA's recordkeeping requirements by failing to keep records or by
keeping records that were inaccurate.  Pet. App. 79a.  In order to
determine the extent to which employees were underpaid, it therefore
applied this Court's decision in Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680 (1946).  Under Mt. Clemens, the court said, an employee
who proves that his employer has kept inadequate records "need only
introduce enough evidence to support a reasonable inference of hours
worked" before the burden shifts to the employer to negate this
inference.  Pet. App. 81a.  If the employer fails to do so, the court
may award damages, even though they are only approximations, based on
the employee's evidence.  Id. at 82a.

   After carefully reviewing "several feet" of documentary evidence
and hearing the testimony of 65 witnesses during an 11-day trial, the
district court determined that it had a sufficient basis for
estimating the hours that petitioners' employees had worked.  Pet.
App. 18a, 83a.  The court found that JPM 200 drivers worked an average
of 60 hours a week, based on employee testimony that work generally
began at 5:00 or 6:00 a.m. and concluded between 5:00 p.m. and
midnight without a lunch break.  Id. at 24a-25a.  /4/ It rejected
petitioners' rebuttal witness, a management employee, as not credible
(id. at 25a), while at the same time ruling that the Secretary's wage
calculations were not consistent with the evidence adduced at trial.
Id. at 26a.

   Similarly, the court credited testimony by JPM 201 and 202 drivers
that petitioners did not pay them for 1/2 hour per day of work they
did before and after their time cards were punched, and impermissibly
deducted another 1/2 hour per day for lunch breaks that the employees
did not take.  Pet. App. 26a-27a.  It rejected petitioners' rebuttal
testimony as either irrelevant or consistent with the Secretary's
evidence.  Id. at 27a, 85a.  The court awarded JPM laborers
(Classification 301) compensation for a daily average of 3 1/2 hours
worked but unpaid at the Souderton transfer station, based in part on
the "candid and credible" testimony of a laborer and in part on the
corroborating testimony of truck drivers who used the yard during the
relevant period.  Id. at 33a-35a.  Petitioners' rebuttal witnesses did
not contradict this evidence, the court explained, because they
testified about a later period.  Id. at 34a.

   On the basis of employee testimony that all Division employees
worked approximately the same 9 to 11 hours on short days, up to 16
hours on long days, and 8 hours on Saturday, the district court found
that the Hoch "Northern Division" (Classification 306) employees
worked an average of 70 hours a week.  Pet. App. 40a-41a, 43a.  It
rejected the time cards petitioners submitted in rebuttal as "at
worst, blatant forgeries, visible to an untrained eye, or, at best,
wholly unreliable." Id. at 42a.  The court separately calculated the
hours of the Lackawanna tractor-trailer drivers, based on testimony
from these and other drivers about the average time required to drive
between the relevant transfer stations and landfills, together with
waiting time at these locations.  Id. at 43a-48a.

   b. After trial and pursuant to Fed. R. Civ. P. 15(b), the court
granted the Secretary's motion to amend her complaint to add
Lackawanna as a defendant and to include Lackawanna employees among
those entitled to back wages.  Pet. App. 65a-70a.  /5/ The court
concluded that the amendment alleged the same violations as the
original complaint, and was necessary because petitioners' failure to
disclose information about Lackawanna had prevented the Secretary from
learning of Lackawanna's existence until the first day of trial.  Id.
at 67a-68a.  The court found that petitioners had adequate time to
prepare a defense after the Secretary notified the parties of the
intended amendment on the first day of trial, and it noted that
although the court repeatedly had granted continuances on other
occasions, petitioners had never sought a continuance to meet the
Secretary's new evidence.  Id. at 69a.

   c. The court also rejected petitioners' argument that it had no
authority to award liquidated damages.  The court recognized that such
damages are available under Section 16(c) of the FLSA and that
employers have a right to a jury trial under that Section.  Pet. App.
71a.  /6/ It also recognized that the Secretary could be precluded
from seeking liquidated damages if she failed to invoke the court's
jurisdiction under Section 16(c), "whether or not (the Secretary's)
complaint could be viewed as seeking liquidated damages under section
16." Pet. App. 72a (quoting Brock v. Superior Care, Inc., 840 F.2d
1054, 1064 (2d Cir. 1988)).  But in the present case, the court held,
"the complaint plainly cites section 16(c) of the Act," and
petitioners chose to defend against liquidated damages on the merits,
"without noting their right to a jury trial" until the close of the
Secretary's case.  Pet. App. 72a-73a.  The court observed that
petitioners had failed to make a timely demand for a jury as of right
under Fed. R. Civ. P. 38(a) and had failed to make a motion addressed
to the court's discretion under Fed. R. Civ. P. 39(b).  Pet. App.
73a-74a.  Accordingly, the court found jurisdiction under both
Sections 16 and 17 and awarded liquidated damages under Section 16(c)
without a jury trial.  Pet. App. 97a, 101a-102a.  /7/ The court of
appeals, without opinion, affirmed.  Id. at 3a-4a.

                               ARGUMENT

   The court of appeals' judgment order, which affirmed a detailed and
factbound district court decision, is correct and does not conflict
with any decision of this Court or of any other court of appeals.
Further review is therefore unwarranted.

   1. In awarding liquidated damages under Section 16(c) without a
jury trial (see note 6, supra), the district court correctly applied
the well established principle that a party must demand a jury trial
in a timely manner, or the right will be waived.  Fed. R. Civ. P.
38(d);  United States v. Moore, 340 U.S. 616, 621 (1951).  While this
demand must be made within ten days of service of the last pleading
directed to the issue on which a jury trial is available (Fed. R. Civ.
P. 38(b)), a district court has discretion, upon motion, to order a
jury trial at a later point.  Fed. R. Civ. P. 39(b).  In the present
case, no such motion was made.  Rather, as the district court noted
(Pet. App. 72a-73a), petitioners did not raise the jury trial issue
until their motion for a directed verdict at the close of the
Secretary's evidence.

   Thus, the district court correctly concluded that petitioners had
waived any right to a jury with regard to the Secretary's claim for
liquidated damages.  Petitioners plainly knew before trial that
liquidated damages were at issue;  the Secretary had requested such
relief in her complaint, and petitioners' pretrial brief had asserted
a substantive defense to liquidated damages (but not a demand for
trial by jury).  Pet. App. 72a-73a.  And petitioners were on notice
that a jury trial might be available to them upon the issuance, a year
before trial in this case, of the decision in Superior Care -- the
case on which they principally rely.  See 840 F.2d at 1063-1064;  Pet.
App. 18a n.1;  see also McLaughlin v. Owens Plastering Co., 841 F.2d
299 (9th Cir. 1988).

   Petitioners attempt to avoid the district court's waiver ruling by
arguing that the court impermissibly awarded Section 16(c) liquidated
damages as an incident to an equitable action under Section 17.  Pet.
7-9.  But the district court found jurisdiction proper under both
Sections 16 and 17 (Pet. App. 97a), thus correcting any defective
allegation of jursidction contained in the Secretary's pleadings.  See
28 U.S.C. 1653;  Schlesinger v. Councilman, 420 U.S. 738, 742 n.5, 744
n.9 (1975);  see also Fed. R. Civ. P. 15(b).  Having found
jurisdiction under both of these sections, the court had the authority
to award liquidated damages under Section 16(c).  See Pet. App. 97a.
/8/

   Petitioners also contend that they did not waive their right to a
jury trial because they "assumed that no jury trial could be had" on
the Section 17 issues.  Pet. 11 (citing Superior Care, 840 F.2d at
1064).  As the district court recognized (Pet. App. 72a), however, the
complaint in this case, unlike the complaint in Superior Care,
specifically invoked Section 16(c).  Additionally, unlike the employer
in Superior Care, petitioners failed to ask the district court before
trial to exclude any evidence pertaining to liquidated damages.  Pet.
App. 72a.

   Finally, petitioners assert (Pet. 7, 13) that the court of appeals'
decision is in conflict with the decisions of other courts of appeals.
 The cases petitioners cite, however, are easily distinguishable.  For
example, in Superior Care, the Second Circuit held that a district
court could not award liquidated damages in a Section 17 action.  The
court did not decide whether a district court, as in this case, could
assert jurisdiction and award relief under both Sections 16(c) and 17
without a jury trial, when the employer had notice of the provisions
on which the Secretary was basing her claims, and yet the employer did
not timely request a jury trial.  And none of the other cases cited by
petitioners (Pet. 7-12) held that a district court lacks authority to
find a waiver of jury trial rights, or is precluded from awarding
complete relief without a jury trial under Sections 16(c) and 17.
See, e.g., EEOC v. Gilbarco, Inc., 615 F.2d 985, 990-991 (4th Cir.
1980) (affirming a denial of liquidated damages after accepting the
Secretary's view that, despite a request for liquidated damages, the
Secretary had brought the action only under Section 17);  Donovan v.
Brown Equip. & Serv. Tools, Inc., 666 F.2d 148, 156 (5th Cir. 1982)
(reversing denial of back wages under Section 17 and stating in dicta
that courts cannot award liquidated damages under that Section).

   2. Petitioners' challenge (Pet. 13-19) to the district court's
application of Mt. Clemens is also meritless.  The district court
reasonably calculated the extent of petitioners' wage violations -- by
carefully considering representative employee testimony that
petitioners failed credibly to rebut.

   In Mt. Clemens, this Court held that if an employer has failed to
keep proper records of wages and hours as required by law, an employee
seeking to prove a violation of the FLSA need only "prove() that he
has in fact performed work for which he was improperly compensated"
and "produce() sufficient evidence to show the amount and extent of
that work as a matter of just and reasonable inference." 328 U.S. at
687.  Thereafter, the burden shifts to the employer "to come forward
with evidence of the precise amount of work performed or with evidence
to negative the reasonableness of the inference to be drawn from the
employee's evidence." Id. at 687-688.  If the employer fails to meet
that burden, damages may be awarded "even though the result be only
approximate." Id. at 688.  That allocation of the burden of proof
"proper(ly) and fair(ly)" avoids penalizing employees by "plac(ing) a
premium on an employer's failure to keep proper records in conformity
with his statutory duty." Id. at 687.

   In applying Mt. Clemens, the lower courts have uniformly held that
the Secretary may offer representative testimony on behalf of an
entire class of employees.  See, e.g., McLaughlin v. Ho Fat Seto, 850
F.2d 586 (9th Cir. 1988), cert. denied, 488 U.S. 1040 (1989);  Brock
v. Tony & Susan Alamo Found., 842 F.2d 1018, 1019-1020 (8th Cir.
1988);  Donovan v. Bel-Loc Diner, Inc., 780 F.2d 1113, 1116 (4th Cir.
1985).  /9/ The obvious pragmatic basis for permitting reliance on
such representative testimony is to avoid burdening the trial courts
with a parade of cumulative witnesses.  /10/ Moreover, there is no
merit to petitioners' assertion (Pet. 15) that a court may accept
representative testimony only if the employees -- testifying and
non-testifying -- spend all of their working time together.  /11/
Common sense shows that there are many ways to reach a "just and
reasonable inference," Mt. Clemens, 328 U.S. at 587, of hours worked;
indeed, imposing a requirement that all of the employees work together
all the time would be impractical, because the nature of employees'
work often requires them to work separately from one another.
Finally, there is no requirement that testifying employees have
"personal knowledge" of work performed by those who do not testify.
Beliz v. W.H. McLeod & Sons Packing Co., 765 F.2d 1317, 1331 (5th Cir.
1985), on which petitioners rely (Pet. 16-17), holds no such thing,
indeed, the Fifth Circuit has long recognized that personal knowledge
is not necessary.  See Brennan v. General Motors Acceptance Corp., 482
F.2d 825, 827 (1973) (affirming award of back pay to 26 employees who
worked "long and irregular hours in the field * * * on their own,"
when only 15 of these employees testified).  /12/

   3. In allowing the Secretary to amend her complaint, the district
court correctly applied Fed. R. Civ. P. 15(b), which allows such
amendments "freely" to further presentation of the merits of an
action, unless the party opposing the amendment shows prejudice to its
defense on the merits.  /13/ The court concluded that the requested
amendment -- adding Lackawanna as a defendant, and including
Lackawanna employees among those entitled to back wages -- was well
within the scope of the Secretary's original complaint.  Pet. App.
66a-67a.  Moreover, the court explained, the Secretary's failure to
amend her complaint earlier was the result of petitioners' failure to
disclose Lackawanna's existence -- despite the Secretary's timely
request for relevant documents during discovery.  Id. at 67a-68a.  In
addition, the court found no prejudice to petitioners, noting that the
claims for the additional employees were identical to those already at
issue, and that petitioners had sufficient time to prepare a defense.
Id. at 69a-70a.  Under those circumstances, the court acted well
within its discretion in allowing the amendment.

   Petitioners contend, however, that the Secretary's amendment was
governed not by Rule 15(b), but rather by Rule 16(e), which allows
modification of pretrial orders "only to prevent manifest injustice."
Pet. 19-21.  Petitioners did not present that contention to the
district court and they have therefore waived it.  In any event,
petitioners have not shown that Rule 16(e), if applicable, would
foreclose the amendment in this case.  Because the district court
deemed petitioners' failure to disclose information about Lackawanna
"perilously close to bad faith conduct," Pet. App. 68a n.13, there is
little question that the amendment would have satisfied even the
"manifest injustice" standard under Rule 16(e).  See Hodgson v.
Colonnades, Inc., 472 F.2d 42 (5th Cir. 1973) (finding an abuse of
discretion in refusing to allow an amendment adding employees to an
FLSA complaint seeking back wages).  /14/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT P. DAVIS

      Solicitor of Labor

   ALLEN H. FELDMAN

      Associate Solicitor

   STEVEN J. MANDEL

      Deputy Associate Solicitor

   EDWARD D. SIEGER

      Attorney Department of Labor

   JUNE 1990

   /1/ The three divisions are J.P. Mascaro & Sons (Mascaro or JPM),
Hoch Sanitation, and Lackawanna Transport Company.  Pet. App. 19a-20a.
 On January 1, 1987, the individual petitioners created Solid Waste
Services, Inc. to be the parent corporation of these divisions, which
continue to function as operating arms of the parent.  Id. at 20a.

   /2/ The FLSA requires payment of a minimum wage, currently $3.80 an
hour for most workers, Fair Labor Standards Amendments of 1989, Pub.
L. No. 101-157, Section 2, 103 Stat. 938 (to be codified at 29 U.S.C.
206(a)(1)), and overtime pay, at 1 1/2 times the employee's regular
rate, after a workweek longer than 40 hours.  29 U.S.C. 207(a)(1).
The Act also requires employers to keep accurate records of wages and
hours.  29 U.S.C. 211(c).

   /3/ Section 16(c), 29 U.S.C. 216(c), authorizes the Secretary to
sue in "any court of competent jurisdiction" for back wages and "an
equal amount as liquidated damages."

   /4/ The court found overwhelming credible evidence that petitioners
actively discouraged employees from taking lunch breaks.  Pet. App.
23a.  The court also credited specific, nearly uniform testimony that
employees could not take lunch breaks and still complete work
requirements.  Id. at 78a-79a.

   /5/ The district court applied the third sentence of Fed. R. Civ.
P. 15(b), which directs courts freely to allow amendments to conform
to the evidence when presentation of the merits would be served
thereby and the objecting party fails to show prejudice.

   /6/ A party has a right to a jury trial under Section 16(c) on the
issue of an employer's underlying liability for back wages, while the
court determines the additional amount of liquidated damages under
that Section.  See 29 U.S.C. 260;  Brock v. Superior Care, Inc., 840
F.2d 1054, 1063 (2d Cir. 1988).  Back wages under Section 17, on the
other hand, are part of a restitutionary remedy available without a
jury trial.  See Superior Care, 840 F.2d at 1063.

   /7/ The district court concluded that liquidated damages were
appropriate in this case, in light of petitioners' "flagrant
disregard" for the FLSA's recordkeeping requirements and other
evidence "which hints at an intent to violate the Act." Pet. App. 94a.
 The petition does not dispute that finding.

   /8/ Petitioners erroneously assert (Pet. 9) that once a trial court
enjoins the withholding of back wages under Section 17 "it lacks the
power to award liquidated damages." In fact, the court lacks such
power only if it acts solely under Section 17.  It certainly has the
power to act under both Sections 16(c) and 17 and to award relief
under both sections.  See Owens Plastering, 841 F.2d at 301;  Superior
Care, 840 F.2d at 1064.

   /9/ Indeed, Mt. Clemens itself was a suit by a local union and
seven of its members on behalf of some 300 similarly situated
employees, only eight of whom testified at trial.  See Mt. Clemens
Pottery Co. v. Anderson, 149 F.2d 461, 461-462 (6th Cir. 1945), rev'd
328 U.S. 680 (1946).

   /10/ See, e.g., Donovan v. Burger King Corp., 672 F.2d 221, 225
(1st Cir. 1982) (significantly limiting the number of witnesses in an
FLSA case was within the trial court's discretion under Fed. R. Evid.
403, because it prevents the "needless presentation of cumulative
evidence");  Bel-Loc Diner, 780 F.2d at 1116 (awards to non-testifying
employees based on testimony by a "small percentage" of employees are
permissible so long as the testimony is "fairly representational").

   /11/ Marshall v. R & M Erectors, Inc., 429 F. Supp. 771, 777 (D.
Del. 1977), on which petitioners exclusively rely (Pet. 15), does not
hold to the contrary.  In that case, the district court held that when
employees "leave a central location together at the beginning of a
work day, work together during the day, and report back to the central
location at the end of the day," representative testimony "can" make
out a prima facie case that all the employees worked the same number
of hours.  The court did not hold, however, that representative
testimony is inappropriate in other circumstances.

   /12/ Petitioner's remaining complaints about the amount of their
back pay liability are simply factbound disagreements with the
findings of the district court.  For example, petitioners erroneously
assert (Pet. 16) that the district court relied on the testimony of
only one four-month laborer in awarding back wages to 90 JPM 301
laborers.  In fact, the district court identified substantial
corroboration for that testimony (Pet. App. 33a, 78a-79a), and it
noted the absence of any rebuttal testimony for the relevant time
periods (id. at 34a).  In any event, petitioners "cannot be heard to
complain" if the back wage award lacks "precision of measurement," Mt.
Clemens, 328 U.S. at 688, because their own recordkeeping violations
(which may have included "blatant forgeries," Pet. App. 42a) created
the imprecision.

   /13/ Although the district court granted the motion after trial, it
noted that the Secretary had "made clear her intent to include
Lackawanna as a defendant on the first day of trial." Pet. App. 69a.
See also id. at 65a.

   /14/ Petitioner's reliance on Ford v. Sharp, 758 F.2d 1018 (5th
Cir. 1985), is misplaced.  There, unlike here, the district court
disallowed an amendment to an FLSA complaint because it found that the
Secretary had the relevant records two years before trial and that the
employer had no chance to prepare a defense.  Id. at 1025.