Petition for a Writ of Certiorari — Walling v. T. Buettner & Co.

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Opinion below_------------------------------------------"-" 1

Question presented_----------------------------------------~ 2

‘Statute involved__------------------------------------------ 2

Statement __...-------------------------------------------- 3

Reasons for granting the writ__------------------------------ 9

Conclusion aces Sh nS ch lia eign er nt ah ns ea 17

CITATIONS

Cases :

Arkansas Wholesale Grocers’ Assn. v. Federal Trade

Comm., 18 F. (2d) 866_------------------------------- 12

Chamber of Commerce v. Federal Trade Comm., 13 F.

(2a) 678_--_-__--------------------------------------- 12

Cudahy Packing Co. vy. Holland, 315 U. 8. ¢ DOR as ih dite genaaiany 14

Federal Trade Comm. vy. Goodyear Co., 304 U. 8. 27 SIRE RS 11

Fleming v. Cincinnati Union Terminal Co., 117 F. (2d)

oy oe ae ee a den eres envieneanen 10

Fleming vy. Jacksonville Paper Co., 128 F. (2d) pane one 9

Fleming v. Sta-Rite Ginnie Lou Company, 8 Wage Hour

Rept. 174.._--..---------------------------=---------- 6

Goshen Mfg. Co. v. Myers Mfg. Co., 242 U. 8. Rocks hecwalanes 14

Guarantee. Veterinary Co. v. Federal Trade Comm., 285

adi GUN. 5 Sh Se ae cep ewe dncsinneinnannns aoe ~ 12

Henderson v. Burd, (83 F. (2d) 515_--------------------- 14

Jacobs vy. Hand Knitcraft Institute, 2 Labor Cas. (C. C.

H.) 144..-.---_--------------------------------------- 6

Jacobs v. The Hump Hairpin Mfg Co., 3 Wage Hour

Rept. 18_-------------------------------------------- 6

National Labor Relations Board y. Cleveland-Cliffs Iron

Co., 183 F. (2d) 295_--------------------------------- 12

National Labor Relations Board vy. Pennsylvania Grey-

hound Lines, 308 U. S. 261--.------------------------- ll

Otis & Co. v. Securities and Exchange Comm., 106 F. (2d)

I kc cence eee enci aemaneesanninnn mamarns 12

Perma-Maid Co. v. Federal Trade Comm., 121 F. (2d) 282-- 12,13

Sears, Roebuck & Co. v. Federal Trade Comm., 258 Fed.

$07 _..-- 2. eee neo = =o =e 12, 14

i

Cases—Continued. Page

Southern Pacific Terminal Co. Vv. Interstate Commerce

Comm., 219 U. 8. 498- a cance 11

United States v. San Francisco, 310 U. 8. 16 14

United States vy. Trans-Missourt Freight Assn., 166 U. 8.

290. 11

‘ United States v. Van Wagener-Sager, Inc., 34 F. Supp. 735- 6

Walling v. Shenandoah-Dives Mining Co., 6 Wage Hour

Ment. .804___...------—----- —---------- == 11

Statutes:

Clayton Act--.------------------------ ead ms 16

Fair Labor Standards Act of 1988, 52 Stat. 1060 (29

U. S. C. 201 et seq.) :

i edhe nes eminem ren 4

Sec. 6 (a) (8)------------------------------ 0" 4

Sec. 8.------------------------ rey 4

Sec. 11 (a)------------------------------------———- 2

Sec. 16. (a)_-----—---—_---—------------------—————— 16

Sec. 16 (b) a aa iat seein 16

See. 17_.------------------ SS a neni 2,13, 15

National Labor Relations Act (29 U. S. C. 160 (e))------ 13

Securities and Exchange Act (15 U. °C 6 teh 13

Sherman Act-----~------------------- igi aR 16

Social Security Act of August 14, 1935, 49 Stat. 635 (42

U. 8. C. 901) -- ee eae Laie ah icnccdlen en oad 4

Miscellaneous :

Interpretative Bulletin No. 1, par. 7, 1940 Wage Hour ‘

Man. 129_------ oe a ar econ 5

Regulations on Records to be Kept by Employers, Octo-

ber 22, 1988, 3 F. R. 2533 ie sia % 5

Amendment, 4 F. R. 968_--------------------------- 6

Amendment, 4 F. R. 4046_-------------------------- 6

Wage-Hour Reporter:

“advisory Opinions’. _------~------------------------ 7

“Employers Questions Answered”__....------------- 7

“Official Answer to Questions” -~~~------------------- 7

Wage order for the Embroideries Industry, promulgated

4

by the Administrator, effective January 27, 1941--------

Gnthe Supreme Court of the Wnited States

OctosER TERM, 1942

No. 1019

L. MetcaLFe WALLING, ADMINISTRATOR OF THE

Wace anp Hour Division, Unirep States Dr-

PARTMENT OF LABOR, PETITIONER

v.

T. BUETTNER AND COMPANY

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE SEVENTH

CIRCUIT

The Solicitor General, on behalf of the Admin-

istrator of the Wage and Hour Division, prays

that a writ of certiorari issue to review the judg-

ment of the United States Circuit Court of Ap-

peals for the Seventh Circuit, entered February

11, 1943, reversing a judgment of the United

States District Court for the Northern District

of Illinois, Eastern Division, and directing the

dismissal of the complaint.

OPINION BELOW

The opinion of the District Court (R. 441-451)

is reported in 5 Wage Hour Rept. 279 (1942).

(1)

The opinion of the Cireuit Court of Appeals

(R. 514-516) is reported in 133 F. (2d) 306.

QUESTION PRESENTED

Whether the discontinuance of violations under

official pressure requires denial of injunctive relief

against an employer under Section 17 of the Fair

Labor Standards Act of 1938, where there is proof

of substantial violations over a long period of

time and the employer continues to assert the

legality of such past practices.

STATUTE INVOLVED

The statute involved is the Fair Labor Stand-

ards Act of 1938, 52 Stat. 1060, 29 U. S. C.

201 et seq. The provisions directly pertinent

are:

Section 11 (a):

* °* * the Administrator shall bring |

all actions under section 17 to restrain vio-

lations of this Act.

Section 17:

The district courts of the United States

and the United States courts of the Terri-

tories and possessions shall have jurisdic-

tion, for cause shown, and subject to the

provisions of section 20 (relating to notice

to opposite party) of the Act entitled **An

Act to supplement existing laws against un-

lawful restraints and monopolies, and for

other purposes’, approved October 15,

1914, as amended (U.S. C., 1934 edition,

—

3

title 28, sec. 381), to restrain violations of

section 15.

STATEMENT

Respondent, an Illinois corporation, with its

principal office and factory in Chicago, has long

been engaged in the wholesale distribution of

patterns for various kinds of needlework and

threads for use in completing the patterns (R. 24-

25, 451-452). To facilitate the sale of these pat-

terns, models with the embroidery completed are

sold to retailers so that the appearance of the pat-

tern when completed may be observed (R. 25-26,

452). Approximately 87 percent of these models

are sold to retailers outside of the State of Illinois

(R. 26, 452).

Approximately 200 home workers performed

the embroidery work to complete the stamped pat-

terns (R. 454). This work was performed under

detailed instructions from respondent, which also

supplied the thread for the work (R. 31, 47, 50,

58, 62, 63). Respondent, by time tests made with

expert needleworkers at its plant (R. 291-294),

calculated the compensation to be paid the home

workers so that it would approximate ten cents

per hour (R. 294-295, 399). The District Court

found that, in fact, the majority of the home

workers earned an average of ten cents an hour

for their work (R. 453-454). The lowest hourly

i.

—

+

rate permitted under the statute at any time dur-

ing the period in suit was 25 cents per hour.’

Shortly before the effective date of the Fair

Labor Standards Act respondent sought and ob-

tained the advice of its attorneys that these home

workers were ‘independent contractors’’ and not

subject to the provisions of the Fair Labor Stand- |

ards Act (R. 449). In 1936, shortly after the

enactment of the Federal Social Security Act

(Aug. 14, 1935, 49 Stat. 635, 42 U. S. ©. 901),

respondent adopted the practice of imprinting

upon memoranda included with the bundles of

,materials sent to the home workers a stamped

statement to the effect that the work was ac-

cepted by the home worker as an independent

contractor and not as an employee, and that the

respondent was not subject to the Federal or any

State social security, unemployment insurance,

old age pension, or workmen’s compensation laws.

At about the time the Fair Labor Standards Act

1 The minimum rate prescribed by Section 6 of the Act be-

tween October 24, 1938, the effective date of the statute, and

October 23, 1939, was 25 cents per hour. A minimum rate of

30 cents per hour is prescribed by the section for the period

between October 24, 1939, and October 23, 1945, when it is to

become 40 cents. Section 6 (a) (3) provides for the payment

of a rate between 30 and 40 cents per hour prescribed in an

order of the Administrator issued under Section 8 of the

statute. A wage order for the Embroideries Industry was

promulgated by the Administrator and became effective on

January 27, 1941, thus increasing the rate applicable to the

respondent’s employees from 30 cents to 3714 cents per hour.

5

went into effect, this stamp was amended to in-

clude the Wage and Hour Law among those to

which respondent stated it was not subject.

Checks made out to the home workers contained

the same stamp. In April, 1939, a ‘‘memoran-

dum of agreement’’ was substituted for the pre-

vious memorandum, also reciting that the home

worker was an independent contractor. The home

workers were requested to sign this memorandum

in order to obtain their compensation. (R. 455-

456). During the period in which the home

workers were designated independent contractors

they continued to receive compensation at the rate

of approximately ten cents per hour (R. 501-504).

On October 12, 1938, almost two weeks before

the effective date of the Act, the Administrator,

in a widely distributed interpretative bulletin, an-

nounced that ‘‘Since the Act contains no prescrip-

tion as to the place where the employee must

work, it is evident that employees otherwise com-

ing within the terms of the Act are entitled to its

benefits whether they perform their work at home,

in the factory, or elsewhere.”’ [Italics supplied. ]

Interpretative Bulletin No. 1, par. 7, 1940 Wage

Hour Man. 129, 131. Another statement of the

Administrator’s position that the Act applied to

such home workers was contained in the ‘Regu-

lations on Records to be Kept by Employers,”’

6

published as early as October 22, 1938, in the Fed-

eral Register (3 F. R. 2533). Amendments to

these Regulations, providing specific instructions

for the keeping of wage and hour records for in-

dustrial home workers, were published in the

February 18, 1939 and September 26, 1939 issues

of the Federal Register (4 F. R. 968, 4046).

Long prior to the institution of the instant ac-

tion, numerous civil actions and a number of

criminal eases involving industrial home workers

had been instituted, some of which are reported,

and others of which were against employers in

the vicinity of respondent’s plant. See Jacobs v.

The Hump Hairpin Mfg. Co., located in Chicago,

Illinois, 3 Wage Hour Rept. 13 (N. D. Tl!) (con-

sent judgment entered December 29, 1939));

Fleming v. Sta-Rite Ginnie Lou Company, 3

Wage Hour Rept. 174, 180 (E. D. Ill.) (consent

judgment entered April 30, 1940) ) ; Jacobs v. Hand

Knitcraft Institute, 2 Labor Cas. (C. C. H.) 144

(S. D. N. Y. 1989); United States v. Van Wag-

enen-Sager, Inc., 34 F. Supp. 735 and 736 (N. D.

Me Sake

?The following provision was included in these regula-

tions:“* * * the required records shall be made and pre-

served by the employer for ‘industrial homeworkers’ or other

employees who produce goods for the employer from mate-

rial furnished by him or who are compensated for such em-

ployment at piece rates, wherever such employees actually

perform their work.”

’ Thus the statement of the court below that the Adminis-

trator had “taken no position by regulation or otherwise on

this relationship (R. 515)” is accurate only in the very limited

7

The Wage and Hour Division commenced an in-

spection of the respondent’s compensation prac-

tices on April 16, 1941, about two and one-half

years after the effective date of the Act. On

April 23, 1941, the respondent discontinued send-

ing work to its home workers and thereafter

caused the work formerly sent out to home work-

ers to be performed by employees at its plant in

Chicago (R. 393, 397, 456-457). Prior to that

time, respondent had employed a few needlework-

ers (called ‘‘sample workers’’) at its plant to em-

broider the original models under the supervision

of the designers (R. 306-307). About ten addi-

tional needleworkers were brought into the plant

when home work was discontinued (R. 318), and

the volume of production was apparently curtailed

(R. 397-398). There is evidence indicating that

home work was discontinued to await the outcome

of this litigation. On October 20, 1941, the super-

visor of respondent’s display model department

sense that no explicit opinion was issued directly to defend-

ant. It does not appear that defendant ever requested the

Administrator for such an opinion. In view of the numer-

ous widely publicized opinions issued by the Administrator

in individual cases, upon request (see sections entitled “Ad-

visory Opinions on Fair Labor Standards Act,” “Employers

Questions Answered,” “Official Answers to Questions,” and

similar headings in practically every issue of the Wage-Hour

Reporter, from October 31, 1938, to the present time), in ad-

dition to the more general and formal interpretative bul-

letins, defendant in all probability knew he could have

secured an opinion as to his individual situation, had he

cared to inquire.

526764—43——2

8

wrote one of the home workers stating that ‘‘we

are not yet sending out any work. T shall be more

than happy when (and if) the time comes when I

can write you to say we are again sending it out.

In the meantime we will all just have to be pa-

tient, and hope for the best. * * * I hope to

be able to have better news at some future date,

but please do not count on it for some time to

come.”’ (R. 422.)

On July 14, 1941, the Administrator brought

suit for an injunction (R. 2-8). Respondent de-

fended on the, grounds that the home workers

were not its employees and that, in any event, it

had ceased violating before the commencement of

suit (R. 20-23). The district court concluded

that the home workers were employees within

the, meaning of, the Act and, therefore, subject to

its provisions, and that cause had been shown for

the issuance of an injunction (R. 441-451). The

court rejected respondent’s contention that no

injunction should issue because it had acted in

‘“‘good faith’? in assuming, on the advice of its

attorneys, that the home workers were inde-

pendent contractors, and because it had discon-

tinued the violations before the institution of this

action. Stating that ‘‘the defendant was insist-

ing that it was within its legal rights’? and had

violated the Act “with respect to a large number

of persons,”’ the court held that the circumstances

warranted the issuance of an injunction (R. 451).

9

On appeal, the respondent continued its insist-

ence that the home workers were independent con-

tractors and therefore not subject to the Act,

though also contending that no injunction should

issue in any event since it had discontinued home

work. The court below reversed the judgment of

the district court and directed dismissal of the

complaint. The circumstances regarded by the

Cireuit Court of Appeals as controlling were that

respondent had acted ‘‘in good faith,’’ upon advice

of counsel that the workers were independent

contractors; that after the Government investi-

gators inspected respondent’s records, the distri-

bution of work to home workers was discontinued ;

and that respondent’s officers testified that they

had no intention of resuming this practice (R.

515). The court did not decide whether the home

workers were employees under the Act, but held

that the district court ‘‘was not authorized to

grant an injunction”’ under the circumstances.

REASONS FOR GRANTING THE WRIT

1. The decision of the court below is in conflict

with the decisions of two other Circuit Courts of

Appeals. In Fleming v. Jacksonville Paper Co.,

128 F. (2d) 395, it was claimed that violations of

the Act had ceased after the commencement of an

inspection by the Administrator. Although the

contention was made there, as in the instant case,

ae

10

that this defeated the Administrator’s right to an

injunction, the Circuit Court of Appeals for the

Fifth Circuit held (p. 399) that “it is clear there had

been recent violations, and there was still contention

and this was enough to ground the grant of in-

junction upon.”’ The cessation of violations as

“the result of recent official pressure’’ was, there-

fore, held an insufficient basis for denying an

injunction to the Administrator. Despite the

presence of both ‘recent violations”’ discontinued

only under official pressure, and continued ‘‘con-

tention’? in the instant case, the court below

held that this was not sufficient ground for an

injunction.

The decision of the Circuit Court of Appeals

for the Sixth Circuit in the case of Fleming V.

Cincinnati Union Terminal Co., 117 F. (2d) 1012,

is also in conflict with the decision below. There

the District Court had dismissed an action by the

Administrator for injunctive relief on the ground

that defendant had altered its plan of compen-

sating its employees after the filing of suit. Al-

though the Administrator did not challenge the

legality of the new method of payment, the Court

of Appeals reversed the dismissal, holding the

denial by an employer that it had violated the

Act, as charged by the Administrator, presented

‘‘justiciable issues which [the Administrator] has

a right to have determined,’’ notwithstanding dis-

continuance of the illegal practices. Compare,

ares eR rt

11

contra, Walling v. Shenandoah-Dives Mining Co.,

6 Wage Hour Rept. 304 (C. C. A. 10).

2. The court below has decided an important

Federal question in probable conflict with prin-

ciples established in decisions of this Court and

of other Circuit Courts of Appeals in cases arising

under other statutes. This Court approved the

enforcement of an order to cease and desist in

National Labor Relations Board v. Pennsylvania

Greyhound Lines, 303 U.S. 261, 271, and denied that

its enforcement was improper ‘‘because it is

obeyed or because changing circumstances indi-

eated that the need for it may be less than when

made.’’ Likewise, it was this Court’s conclusion

in Federal Trade Comm. v. Goodyear Co., 304 U.S.

257, 260, that compliance with the Commission’s

order pending recourse to the court did not de-

prive ‘“‘the Commission of its right to have its

order maintained if validly made’’ or remove the

legal issues from the court’s determination. This

Court in United States v. Trans-Missouri Freight

Assn., 166 U. 8. 290, 309-310, sustained the right

of the Government “‘as a substantial trustee for the

public under the act of Congress * * rece

bring before the court and obtain its judgment’’

on the question of legality of trade practices, not-

withstanding the abandonment of the challenged

practices by the defendant. See also Southern

Pacific Terminal Co. v. Interstate Commerce

Comm., 219 U.S. 498.

12

The same principles have been applied in de-

cisions by numerous Circuit Courts of Appeals

which have held that discontinuance of violations,

combined with a statement of intention not to re-

sume them, does not justify denial of judicial

enforcement. Otis & Co. v. Securities and Ez-

change Comm., 106 F, (2d) 579 (C. ©. A. 6);

Perma-Maid Co. v. Federal Trade Comm., 121 F.

(2d) 282 (C. OC. A. 6); National Labor Relations

Board v. Cleveland-Cliffs Iron Co., 133 F. (2d)

295 (C. OC. A. 6); Arkansas Wholesale Grocers’

Assn. v. Federal Trade Comm., 18 F. (2d) 866

(C. CO, A. 8); Chamber of Commerce v. Federal

Trade Comm., 13 F. (2d) 673 (C. C. A. 8) ; Guar-

antee Veterinary Co. v. Federal Trade Comm., 285

Fed. 853 (©. ©. A. 2); Sears, Roebuck & Co. Vv.

Federal Trade Comm., 258 Fed. 307 (C. C. A. 7).

These decisions hold that the Government agency

is not obliged to assume that such practices will

not be resumed,’ or to accept the assurances of

one who continues to assert the legality of the

challenged practices,’ and that the Government

official’s duty is not discharged by abandoning

4 Arkansas Wholesale Grocers’ Assn. v. Federal Trade

Comm., 18 F. (2d) 866, 871 (C. C. A. 8) ; National Labor Re-

lations Board v. Cleveland-Cliffs Iron Co., 133 F. (2d) 295

(C.C.A.6).

5 Otis & Co. v. Securities & Exchange Comm., 106 F. (2d)

579, 584 (C. C. A. 6) ; Sears, Roebuck & Co. v. Federal Trade

Comm., 258 Fed. 307, 310 (C.C. A.7).

13

the complaint on a showing that the unlawful

practices have been discontinued.’

These cases involved a variety of statutes, some

providing for resort to the court to enforce an

administrative order and others providing for

application to the court for injunctive relief

without a prior administrative hearing or order.

The language of Section 17 does not differ mate-

rially from the provisions in these statutes pre-

scribing the enforcement powers of the courts.

The comparable provision of the Securities and

Exchange Act, for example, is that “upon a

proper showing a permanent or temporary in-

junction or restraining order shall be granted.”’

[Italics supplied.] (15 U.S. C. 78 (u).) Under

the National Labor Relations Act the court ‘‘shall

have power’’ to enter a decree enforcing, modify-

ing or setting aside the order of the Board (29

U. S. C. 160 (e)). There is thus no occasion

for construing the -language ‘‘cause shown’’ in

Section 17 of the Fair Labor Standards Act as

meaning something different from a showing

which would warrant judicial enforcement under

these other acts. The purpose of providing for

judicial enforcement is the same with respect to

all of the statutes, that is, to insure adequate

enforcement by providing the effective restraint

° Perma-Maid Co. v. Federal Trade Comm., 121 F. (2d)

282, 284-285 (C. C. A. 6).

14

afforded by judicial sanction. The application of

the remedy in Section 17 of the present Act does

not ‘“‘call for a balancing of equities or for the

invoeation of the generalities of judicial maxims.”

United States v. San Francisco, 310 U. S. 16, 30.

‘(Where an injunction is authorized by statute

it is enough if the statutory conditions are satis-

fied.”’ Henderson v. Burd, 133 F. (2d 515, 517

(C. C, A. 2).

3. The question involved is one of large impor-

tance in the administration of the Fair Labor

Standards Act. Its significance is measured by

the importance of the injunction to the effective

enforcement of the Act. The Act is a statute of

general and very wide application. ‘‘The prob-

lem of enforcement is intricate and exacting.’

Cudahy Packing Co. v. Holland, 315 U. S. 357,

dissenting opinion of Mr. Justice Douglas at p.

368. In a task of such magnitude the additional

assurance of compliance that is afforded by an

injunction is of special value. Without an in-

junction there is no assurance that a violator

‘“‘would not continue its former course,”’ ‘‘if it could

shake [the Administrator’s] * * * hand from

its shoulder.’’ Sears, Roebuck & Co. v. Federal

Trade Comm., 258 Fed. 307, 310 (C. C. A. 7).

The added measure of security afforded by judi-

7 Even in ordinary equity suits between private parties, an

injunction may be granted although violations have ceased

prior to the institution of suit. Goshen Mfg. Co. v. Myers

Mfg. Co., 242 U.S. 202.

15

cial restraint is of particular importance because

of the effect of violations upon competitive condi-

tions. A violator can secure such immediate and

substantial competitive advantage by noncompli-

ance, even for only occasional short periods, that

the promise of compliance by a past offender does

not inspire confidence. Competitors, lacking con-

fidence in such promises, may be impelled to seek

the same advantages of noncompliance, with the

consequent possibility of a general break-down of

enforcement.

The Administrator believes that the injunctive

remedy has been the most effective single measure

in securing widespread compliance with the Act.

If this remedy can be frustrated by mere discon-

tinuance of illegal conduct when the violator is

discovered, the civil enforcement remedy becomes

virtually meaningless. One of the most impor-

tant enforcement measures which has been made

available by Section 17 is the consent decree, which

assures comparatively inexpensive and expedi-

tious compliance. The consent decrees, of course,

greatly outnumber the injunctions issued in liti-

gated cases, and they are responsible for a very

substantial part of the successful enforcement of

the Act. Such decrees will be unobtainable, of

course, if the violator feels he need only give his

promise not to resume violations.

Furthermore, the ruling of the court below that

proof of substantial past violations is insufficient

to warrant an injunction imposes an almost im-

16

possible burden on the Administrator. Respon-

sible administrative action cannot be taken

instantaneously upon the termination of an inves-

tigation. The impracticability of conducting a

continuous investigation until the date suit is in-

stituted or the trial is held precludes his securing

such proof as the court below deemed essential.

Proof of the likelihood of resumption of viola-

tions is equally difficult if evidence of substantial

past violations over a long period of time and con-

tinued contention by the employer do not estab-

lish reason to anticipate future violations.

The injunctive remedy is the only civil en-

forcement remedy provided for the Administra-

tor. It is particularly appropriate for the deter-

8 Section 16 (a) provides criminal penalties for wilful vio-

lations. Adequate determination of interpretative questions

in criminal cases is not feasible (1) because of the more strin-

gent requirements of proof, and (2) because such questions

usually arise on the pleadings by way of a motion to quash

or ademurrer. Many of the complicated interpretative ques-

tions that arise under the Fair Labor Standards Act cannot

be properly decided merely upon pleadings. The difficulties

inherent in attempting to obtain general compliance with this

type of statute through criminal prosecution has been recog-

nized by Congress in numerous instances. The Securities and

Exchange Act, the Sherman Act, the Clayton Act, and others,

make provision for civil restraining orders and injunctions

as well as for criminal penalties. :

Section 16 (b) of the Act, providing for employee suits, is

likewise inadequate for interpretative purposes. Employees

do not have the broad investigatory powers of the Adminis-

trator nor the general public interest or responsibility to make

adequate presentation of the facts and considerations bearing

on interpretative questions.

17

mination of disputed questions of statutory con-

struction. As demonstrated in the instant case,

no authoritative determination of controversial

interpretative issues can be secured if the injunc-

tion is denied merely because the respondent has

ceased violating under official pressure.

CONCLUSION

We respectfully submit that this petition for

a writ of certiorari to review the judgment of

the Circuit Court of Appeals for the Seventh Cir-

cuit should be granted.

CHARLES FAHY,

Solicitor General.

Irvine J. Levy,

Acting Solicitor,

United States Department of Labor.

May 1943.

U, S. GOVERNMENT PRINTING OFFICE: 1943