               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 97-31328
                         Summary Calendar



HENDERSON FORD,

                                         Plaintiff-Appellant,

versus

STEPHEN TROYER, d/b/a/ Troyer Enterprises


                                         Defendant-Appellee.

                         - - - - - - - - - -
           Appeal from the United States District Court
               for the Eastern District of Louisiana
                        USDC No. 97-CV-890-G
                         - - - - - - - - - -
                            August 3, 1998
Before EMILIO M. GARZA, DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Henderson Ford appeals the dismissal of his complaint

pursuant to Fed. R. Civ. P. 12(b)(1) against Troyer Enterprises.

Ford alleged that Troyer violated the Fair Labor Standards Act of

1938 (FLSA), as amended, 29 U.S.C. § 201, et seq., because from

December 1995 to January 30, 1997, Troyer failed to pay him

overtime and to keep adequate records.   The district court




     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                           No. 97-31328
                                -2-

concluded that Ford’s claims were res judicata in view of a prior

suit by the Secretary of Labor against Troyer.

     Ford argues that he should not be barred from receiving

overtime compensation due to him based on the prior litigation

because the prior suit did not name him specifically.   He asserts

that the district court should have accepted as true his

allegation in his complaint that he worked for Troyer from

December 1995 to January 1997 and that he was not paid overtime

compensation during that time.   He asserts that the Secretary of

Labor informed him that he was not covered by the time period of

the prior litigation.

     When reviewing a dismissal pursuant to Fed. R. Civ. P.

12(b), this court accepts as true all the allegations of the

complaint, considering them in the light most favorable to the

plaintiff.   Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

This court upholds the dismissal only if it appears certain that

the plaintiff cannot prove any set of facts in support of his

claim that would entitle him to relief.    Home Capital Collateral,

Inc. v. F.D.I.C., 96 F.3d 760, 764 (5th Cir. 1996).

     The Secretary of Labor may bring suits for unpaid minimum

wages and overtime compensation under 29 U.S.C. § 216(c) and for

injunctive relief under 29 U.S.C. § 217.   Donovan v. University

of Texas at El Paso, 643 F.2d 1201 (5th Cir. 1981) 1204.     Section

216 allows the Secretary to recover back wages and liquidated

damages on behalf of employees specifically named in the
                               No. 97-31328
                                    -3-

complaint.    Id.    Once the Secretary files suit, the claims of all

employees who had not already initiated private actions are

consolidated.       Id. at 1207; see § 216(b).    The right of an

affected employee to commence or become a party plaintiff in a

private action terminates unless the Secretary moves to dismiss

the action without prejudice.       Id.; see § 216(c) (West Supp.

1998).   Previously filed private ligation by employees is not

affected.    Id.    Section 216(c) further provides that an action is

considered commenced for § 216 purposes vis-a-vis an individual

claimant on the date when the complaint is filed if he is

specifically named as a party plaintiff, or if his name did not

appear in the complaint, on the subsequent date on which his name

is added as a party plaintiff.      (West Supp. 1998).    Section 217

allows the Secretary “to seek broad injunctive relief as well as

back wages for all affected employees without any requirement

that they be specifically named in the complaint.”        643 F.2d at

1204.

     Troyer did not furnish the district court with a copy of the

complaint filed by the Secretary.      Therefore, whether the

Secretary named Ford as an employee entitled to collect for

unpaid overtime cannot be determined.         Moreover, Ford alleged in

the district court that he was unaware of the Secretary’s

litigation and that the time period covered by the Secretary’s

suit did not include him.      This court must accept Ford’s

allegations as true.       Baker, 75 F.3d at 196.    Because whether
                           No. 97-31328
                                -4-

Ford is entitled to relief cannot be determined on the basis of

the pleadings alone, the district court’s dismissal under Rule

12(b) was an abuse of discretion.

     Accordingly, the district court’s order of dismissal is

VACATED and the case is REMANDED to the district court for

further proceedings.   Troyer’s motion for sanctions against Ford

for filing the instant complaint is DENIED.
