Petition — House v. Stewart

Supreme Court, VU. &,

FILED

SEP5 1978

MICHAEL BODAK, JR., CLERK

Oh i tee

In The

Supreme Court of the United States

October Term, 1978

W. J. HOUSE, SUPT., ETC., ET AL.,

Petitioners,

V

JAMES C. STEWART, ETC., ET AL.,

Respondents.

Petition for a writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

and Appendix

William D. Caffrey

Fred T. Hamlet

Counsel for Petitioners

500 West Friendly Avenue

Greensboro, North Carolina 27402

Of Counsel:

NICHOLS, CAFFREY, HILL, EVANS & MURRELLE

500 West Friendly Avenue

Greensboro, North Carolina 27402

INDEX

Page

EE I CETTE Ee 2

a 2

EL SS 2

I I Ee 2

a ca dba case vnccscecces 3

Reasons for Allowance of Writ ................0.. 5

fe viccerccccccccce ae

III 12

Appendix A:

Opinion of the United States

Court of Appeals for the Fourth

a cs cc te ewes cen 2a

cece sc cbse sec eccee. 3a

Appendix B:

Opinion of the United States District

Court for the Middle District of

North Carolina (January 9, 1978) ............... 5a

EES eee 8a

Appendix C:

CRUE sy osc scenes se sccceese. 10a

TABLE OF AUTHORITIES

Cases:

Civil Rights Cases, 109 U.S. 3 (1883) .......... ee

Dania & Pout, 399 U.S. 256 (EF oven ve ssccnvecs 8

Fitzpatrick v. Bitzer, 427 U.S. 445,

eee ee | ere ee eee 7, 8,9

Heart of Atlanta Motel, Inc., v. U.S.,

cp BIR Se Se. | eer wren oer erred ere re 8

Howard v Ward County, (D. N.D.) 418

fo Oe Si Been ere re ere ye errr e rr errs 4

Katzenbach v McClung, 379 U.S. 294 (1964) ........ 8

Marshall v Owensboro-Daviess Hosp., et. al.,

No. 77-3069 (6 Cir., August 9, 1978)........ 6, 10

Minor 0 11.6. SRO UG. Br IIe so ia sik coos cones 8

National League of Cities v Usery,

426 U.S. 833, 49 L.Ed.2d 245 (1976) ..3, 4, 7, 8, 9

Usery v Charleston County School District

of Charleston County, South Carolina, 558

F.20 1169 4 Car, T9577). oi. ou 4, 5, 10, 2a, 6a, 7a

Usery v Owensboro-Daviess County Hospital,

(W.D. Ky.) 423 F.Supp. 843 (1976) ....... 4, 8, 10

Statutes:

pRB oer en ee er rey ee 2

A ee oa rc bee 3, 5a

Be as REE ie hcses cbevbadewsc estate samnes 3

Be OLDE. ete 4 oo nate kln (ease acrenalae snepe 3

y Bin a errr see rr rer res ye rT 3

y BIR ee Ue eer re rere ae te 3

A om of SF MePPreeTe rere Te 2, 4, 6a, 10a

2o UGA, Be OR oi slecccascceseess 2, 5a, 6a

oP UDG. Gee haa eebadbeiecvoeaeekeews 10a

SO Ue Gee 9 hah oat ep eens 3

Other Authorities:

U.S. Compiitution, Ast. L , CL 3 ...ccceecccn 3, 8

U.S. Constitution, 14th Amendment, §5 ..3, 7, 8, 9

ii

IN THE

Supreme Court of the United States

October Term, 1978

No.___

W. Jj. HOUSE, SUPT., ETC., ET AL.,

v. Petitioners,

JAMES C. STEWART, ETC., ET AL.,

Respondents.

Petition for a Writ of Certiorari to the United States

Court of Appeuls for the Fourth Circuit

To the Honorable, The Chief Justice of the United

States and the Associate Justices of the Supreme Court

of the United States:

Petitioners respectfully pray that a writ of certiorari

issue to review the judgment of the United States Court

of Appeals for the Fourth Circuit granting the

appellees-respondents’ motion of summary affirmance

of a final judgment of the United States District Court

for the Middle District of North Carolina, wherein orig-

inally the petitioners were plaintiffs and the respon-

dents were defendants.

2

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit appears as Appendix A to this peti-

tion, and is unpublished. The opinion and judgment of

the United States District Court for the Middle District

of North Carolina appear as Appendix B to this petition,

and the opinion is reported at 83 Labor Cases {33,636

(CCH Labor Law Reports).

JURISDICTION

The decision sought to be reviewed was entered by

the United States Court of Appeals for the Fourth

Circuit on June 5, 1978, was not published, and appears

as Appendix A of this petition. The jurisdiction of this

Court to review by writ of certiorari the decision in

question is conferred by Title 28, United States Code,

§1254(1).

QUESTION PRESENTED

Did the Court of Appeals err in granting the

appellees-respondents’ motion for summary affirmance

of the final judgment entered by the District Court in

favor of the respondents holding that the petitioners,

the Superintendent of the Greensboro, North Carolina,

City Schools and the Chairman and members of the

Greensboro City Board of Education, as employers, are

subject to the equal pay provisions of the Fair Labor

Standards Act?

APPLICABLE STATUTES

The statutes applicable to this petition are 29 U.S.C.

§201, et seq., including 29 U.S.C. §206(d), and said

sections are set forth in Appendix C hereto.

3

STATEMENT OF THE CASE

This suit, instituted by the Superintendent of the

Greensboro City Schools and Chairman and members

of the Greensboro City Board of Education, involves the

application of the equal pay provisions of the Fair Labor

Standards Act to an agency of a political subdivision of

the State of North Carolina. The petitioner school board

contends that application of the equal pay provisions to

the Board and its employees (1) is not sustainable under

the Fourteenth Amendment to the United States Con-

stitution,(2) is not within the authority granted Con-

gress by the Commerce Clause, Art. 1, §8, cl. 3, of the

United States Constitution, and (3) ignores the doctrine

of stare decisis because the United States Supreme Court

held, in National League of Cities v. Usery, 426 U.S. 833,

96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), that the entire Fair

Labor Standards Act, including its equal pay provi-

sions, does not apply to the category of employers that

includes the petitioners.

On April 20, 1977, the petitioners brought this suit in

the United States District Court for the Middle District

of North Carolina against the respondents, the Secre-

tary of Labor and his authorized representatives, pur-

suant to the provisions of the Federal Declaratory

Judgment Act, 28 U.S.C. §2201, et seq., 28 U.S.C. §1331,

28 U.S.C. $1332, 28 U.S.C. §1337, 28 U.S.C. §1361, 29

U.S.C. §206(d), and 29 U.S.C. §216(b) and (c). The

amount in controversy in this action is in excess of

$10,000.00 exclusive of interests and costs. The petition-

ers sought entry of an appropriate decree that the Board

and its employees are not subject to the equal pay

provisions of the Fair Labor Standards Act, 29 U.S.C.

$201, et seq. The petitioners contended, based upon the

rationale of National League of Cities v. Usery, 426 U.S.

4

833, 96 S.Ct. 2465, 49 L.Ed.2d 245, 44 U.S.L.W. 4974

(1976) and upon the decisions reached in Howard v.

Ward County, 418 F.Supp. 494 (D.N.D. 1976), and Usery

v. Owensboro-Daviess County Hospital, 423 F.Supp. 843

(W.D. Ky. 1976), that the entire Fair Labor Standards

Act, including its equal pay provisions, does not apply

to the category of employers that includes the petition-

ers.

On or about June 16, 1977, petitioners and respon-

dents stipulated the facts and the amount of unpaid

back wages owed if it is finally ruled that petitioners are

subject to the equal pay provisions, presenting the

District Court with the sole question of whether or not

the petitioning school board and its employees are

subject to the Fair Labor Standards Act, 29 U.S.C. §201,

et seq., including its equal pay provisions, by reason of

the Board’s status as a public agency, that is, an agency

of a political subdivision of the State of North Carolina.

On June 20, 1977, the respondents filed a motion to

dismiss the petitioner’s complaint arguing that the ap-

plication of the Equal Pay Act to employees of states

and their political subdivisions is unaffected by National

League of Cities v. Usery, supra.

Thereafter, on July 25, 1977, the Fourth Circuit Court

of Appeals rendered its decision in Usery v. Charleston

County School District of Charleston County, South Caroli-

na, 558 F.2d 1169 (4 Cir. 1977). In that case, the Fourth

Circuit Court of Appeals held that state and local gov-

ernments are subject to the equal pay provisions of the

Fair Labor Standards Act.

Subsequently, on January 9, 1978, the District Court,

refusing to depart from the decision of the Court of

Appeals in the Charleston County School District case,

allowed the respondent’s motion to dismiss.

5

An appeal was taken from that District Court opinion

because the petitioners believe that the District Court

erred in following the Charleston County School District

finding that the application of the equal pay provisions

to the Board and its employees “is clearly sustainable

without reference to the commerce power.” Charleston

County School District, supra, at 1170, n. 9. On or about

March 15, 1978, the appellee-respondents submitted in

the Court of Appeals a motion to dismiss the appeal or,

alternatively, to summarily affirm the judgment of the

District Court. Petitioners responded in opposition to

that motion on March 22, 1978.

Appellant-petitioners then submitted their Brief and

Appendix on March 28, 1978. Subsequently, on April

28, 1978, respondents moved to defer their brief as

appellees which motion appellants-petitioners opposed

on May 2, 1978. On May 3, 1978, the Fourth Circuit

Court of Appeals granted appellees-respondents’ mo-

tion to defer briefing by appellees.

Thereafter on June 5, 1978, the United States Court of

Appeals for the Fourth Circuit granted appellees-

respondents’ motion for summary affirmance.

REASONS FOR ALLOWANCE OF WRIT

There are two reasons why the Court should grant

this petition. The first reason is that the Fourth Circuit

decided this important issue of federal law in a way in

conflict with applicable decisions of this Court. This

conflict is irreconcilable and involves a fundamental

principle of constitutional law established by this Court

in the Civil Rights Cases, 109 U.S. 3 (1883), to wit, that

when Congress exercises or uses its legislative power

under one constitutional authority, then this Court will

not uphold that legislation under another constitutional

basis. The second reason is that the ruling of the Fourth

6

Circuit in the present cause is of far-reaching impor-

tance to all state and local governments. If that ruling is

allowed to stand then numerous state and local gov-

ernmental bodies and millions of tax dollars will be

adversely affected. Already, another case involving this

identical issue and many thousands of tax dollars has

been adversely influenced by the ruling of the Fourth

Circuit in this cause. Marshall v. Owensboro-Daviess

Hosp., et al., No. 77-3069 (6 Cir., August 9, 1978), p. 7.

Petitioners submit that this issue has been allowed to

percolate among the Circuit Courts of Appeal for too

long and, in order to secure uniformity of judgments,

this Court must grant this writ.

Congress enacted the equal pay provisions of the Fair

Labor Standards Act and all the amendments thereto in

a stated exercise of its powers under the Commerce

Clause. Congress did not exercise or use any of its Four-

teenth Amendment power in enacting the equal pay

provisions of the Fair Labor Standards Act and in ex-

tending those provisions to the states and their political

subdivisions. Petitioners do not contend that Congress

must state the source of its power to legislate, but when

congressional intent is to exercise a given power and

where Congress specifically states its sole constitutional

basis, then, petitioners submit, the Courts can look no

further for congressional authority. In the Court below,

the Court of Appeals reasoned that, despite the fact that

Congress expressly exercised its Commerce Power in

extending equal pay coverage over the states and their

political subdivisions, the Congress “could have” ex-

tended the equal pay provisions against state and local

governments by exercising its power under the Four-

teenth Amendment. To quote a phrase used by the

Court of Appeals, if Congress “has the power, it has the

power” and, the reasoning goes, it is irrelevant whether

Congress chose to exercise that particular power. The

Court of Appeals in the present cause did precisely that

which this Court refused to do in National League of Cities

v. Usery, supra, i.e., uphold the equal pay provisions

against state and local governments by reading in con-

gressional constitutional authority neither mentioned

nor relied upon by Congress at the time of passage.

Congress did not base the enactment and extension of

either the Fair Labor Standards Act or its equal pay

provisions on Section 5 of the Fourteenth Amendment.

Congress grounded these provisions in the Commerce

Clause and the equal pay provisions must stand or fall,

as the minimum wage and overtime provisions have,

upon a test of their constitutionality under the Com-

merce Clause.

In the Civil Rights Cases, 109 U.S. 3 (1883), this Court

refused to look at the Commerce Clause as a possible

source of authority for the statutes under attack in that

case because the legislative history showed that Con-

gress had relied on the Civil Rights Amendments in

enacting the legislation in question. That case stands for

the proposition that when Congress refers to a source of

constitutional power in legislating the Courts will not uphold

the Act on another constitutional basis. When the constitu-

tionality of an act of Congress is in question, the courts

will not look beyond the constitutional powers under

which Congress explicitly acted to find constitutional

authority for the enactment.

The answer to this “could have” argument has been

teletyped to the Courts by Mr. Justice Rehnquist in both

National League of Cities, supra, and Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) and is a position which was firmly

adhered to by the late Mr. Justice Black during his

tenure on the Court. This answer, indeed a dispositive

one, is that: “We are not here concerned with what the

8

Congress might have done or might yet do in the

future. We are concerned in this case with what the

Congress did.” Minor v. U. S., 396 U.S. 87 (1969) (Black,

Douglas, J., dissenting); Daniel v. Paul, 395 U.S. 298

(1969) (Black, J., dissenting); Heart of Atlanta Motel v.

U.S., 379 U.S. 241 (1964); Katzenbach v. McClung, 379

U.S. 294 (1964) (Black, Douglas, J. J., concurring).

Indeed, Mr. Justice Rehnquist answered this “could

have” argument twice in the span of seven days in 1976.

National League of Cities, at 852, n. 17; Fitzpatrick v. Bitzer,

44 L.W. at 5122, n. 9. In fact, Mr. Justice Rehnquist felt

compelled to begin the majority opinion in Fitzpatrick,

supra, by expressly finding that Congress was “acting”

under the Fourteenth Amendment in 1972 when Title

VII was extended against the States. As District Judge

Gordon stated, in Owensboro- Daviess, supra, the Solicitor

“offers no reason why a District Court should reach out

for the Fourteenth Amendment in construing these

amendments or the Act itself when the Supreme Court

specifically refused to do this in the League case.” 423

F.Supp. at 846.

The respondents would urge this Court to uphold the

equal pay provisions based on power Congress could

have relied upon but did not. The Supreme Court speci-

fically declined to adopt this course in League:

“We express no view as to whether different

results might obtain if Congress seeks to affect

integral operations of state governments by

exercising authority granted it under other sec-

tions of the Constitution such as the Spending

Power, Art. I, §8, cl. 1 or §5 of the Fourteenth

Amendment.” 49 L.Ed.2d, at 258, n. 17 (Em-

phasis Supplied.)

In Fitzpatrick v, Bitzer, 49 L.Ed.2d at 620, n. 9, this

Court suggests that the outcome where Congress was

——&EOrOo eee ee

9

explicitly acting under §5 of the Fourteenth Amend-

ment would not have been the same had Congress been

acting under its Commerce Power as it was in League.

Neither Bitzer nor League will support a conclusion that

Congress may accidentally implement the Fourteenth

Amendment as suggested by the respondents.

The second reason for granting this writ is that the

question of the applicability of the equal pay provisions

of the Fair Labor Standards Act to state and local

governments is of far-reaching importance to all state

and local governments. The equal pay provisions, as

applied to the states qua States, operate to displace

directly the states’ freedom to structure integral opera-

tions in areas of traditional governmental functions.

National League of Cities, supra, 96 S.Ct. at 2474 (1976).

“Equal pay for equal work,” to a degree much more

dramatically than the somewhat pedestrian minimum

wage and overtime provisions of the Fair Labor Stan-

dards Act, puts states and municipalities to the hard

choice of either raising taxes or curtailing services, or

otherwise reordering their priorities. The respondents

remain unconcerned that petitioners may be forced to

curtail embryonic athletic programs or reduce custodial

services. Yet, this is precisely that which this Court

held, in National League of Cities, supra, that the states

were not required to do in areas of traditional gov-

ernmental functions.

This Court, in National League of Cities, supra, recog-

nized the significant impact of the provisions of the Fair

Labor Standards Act upon state and local governmental

bodies not only in terms of increased costs in dollars but

also in terms of forced relinquishment of important

governmental activities. Petitioners submit that, if the

minimum wage and overtime provisions of that Act are

intrusive, then the equal pay provisions are doubly

intrusive.

10

Further, the United States District Court for the

Western District of Kentucky, in Usery v. Owensboro-

Daviess County Hospital, 423 F.Supp. 843, 845-846 (1976),

found that the application of the equal pay provisions to

state and local governments would

“lead to, and apparently is leading to, chaos,

not harmony, in the implementation of the Act

as it now exists... The Department of Labor

will apparently have power to order equal pay

compliance by certain employers yet have no

power to order minimum wage compliance to

those same employers — even though both

provisions arise from the same Act. Such dis-

harmony was obviously not intended either by

Congress or the Supreme Court.” 423 F.Supp.

at 845-846. we

The United States Court of Appeals for the Sixth

Circuit, citing the Fourth Circuit opinion in Charleston

County School Dist., supra, disagreed in reversing that

District Court on August 9, 1978. Marshall v.

Owensboro-Daviess Hosp., et. al, No. 77-3069 (6 Cir.,

August 9, 1978). Petitioners cannot believe that either

the Congress or this Court intended this disharmony in

the implementation of the Fair Labor Standards Act and

the disruption of governmental services that will con-

tinue if the ruling of the Fourth Circuit in the present

cause is allowed to stand.

11

CONCLUSION

For the reasons set forth in this petition, we respect-

fully submit that certiorari should be granted.

Respectfully submitted,

William D. Caffrey

Counsel for Petitioner

500 West Friendly Avenue

Greensboro, North Carolina 27402

Fred T. Hamlet

Counsel for Petitioner

500 West Friendly Avenue

Greensboro, North Carolina 27402

Of Counsel:

NICHOLS, CAFFREY, HILL, EVANS & MURRELLE

500 West Friendly Avenue

Greensboro, North Carolina 27402

12

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Petition was served

on the defendants-respondents by depositing three

copies in the United States mail, with air-mail postage

prepaid, addressed to the Solicitor General, Depart-

ment of Justice, Washington, D. C., 20530, and by

depositing three copies in the United States mail, with

air-mail postage prepaid, addressed to Donald S. Shire,

Esq., U. S. Department of Labor, Room N 2620-A, 200

Constitution Avenue, Washington, D. C. 20210.

This the lst day of September, 1978.

attic THantlat

Fred T. Hamlet

Counsel for Petitioner

500 West Friendly Avenue

Greensboro, North Carolina 27402

la

Appendix A

United States Court of Appeals

FOR THE FOURTH CIRCUIT

No. 78-1089

W. J. HOUSE, SUPERINTENDENT

OF THE GREENSBORO CITY SCHOOLS;

WALTER T. JOHNSON, JR., CARSON BAIN,

LACY G. BAYNES, JAMES E. BETTS,

JOANNE BLUETHENTHAL, REVEREND CHARLES F.

KLOTZBERGER AND REVEREND OTIS HAIRSTON,

CHAIRMAN AND MEMBERS, RESPECTIVELY,

OF THE GREENSBORO CITY BOARD

OF EDUCATION, Appellants,

Vv.

JAMES C. STEWART, ASSISTANT

AREA DIRECTOR, GREENSBORO AREA

OFFICE, WAGE AND HOUR DIVISION,

U. S. DEPARTMENT OF LABOR;

HUGH B. CAMPBELL, ACTING AREA

DIRECTOR, GREENSBORO AREA OFFICE,

WAGE AND HOUR DIVISION,

U. S. DEPARTMENT OF LABOR;

AND F. RAY MARSHALL, SECRETARY

OF LABOR, UNITED STATES

DEPARTMENT OF LABOR, Appellees.

Appeal from the United States District Court for the

Middle District of North Carolina, at Greensboro.

Eugene A. Gordon, District Judge.

Submitted: May 8, 1978 Decided: June 5, 1978

2a

Before RUSScLL, WIDENER, and HALL,

Circuit Judges

(William D. Caffrey and Fred T. Hamlet, Jo-dan,

Wright, Nichols, Caffrey & Hill, on brief for the Appel-

lants. H. M. Michaux, United States Attorney, and

Donald S. Shire, United States Department of Labor,

for the Appellees.)

PER CURIAM:

Appellants, the Superintendent of the Greensboro,

North Carolina, City Schools and the Chairman and

members of the Greensboro City Board of Education,

petitioned the United States District Court for the Mid-

dle District of North Carolina for a declaratory judg-

ment that they as employers were not subject to the

equal pay provisions of the Fair Labor Standards Act, 29

U.S.C. § 201, et seq. The district court denied relief, and

this appeal is before us on the appellees’ motion for

summary affirmance.

In Usery v. Charleston County School Dist., 558 F.2d

1169 (4th Cir. 1977), we held that the equal pay provi-

sions of the Fair Labor Standards Act were constitution-

ally valid exercises of Congress’ power under the Four-

teenth Amendment. As the instant appeal presents no

other issues for consideration, we rely on Charleston

County and, accordingly, grant the appellees’ motion for

summary affirmance.

TO: Fred T. Hamlet, Esq.

William D. Caffrey, Esq.

H. M. Michaux, Jr., Esq.

Donald S. Shire, Esq.

3a

CLERK’S MEMORANDUM

In compliance with Rules 36 and 45(c) of the Federal

Rules of Appellate Procedure, you are advised that the

judgment in case No. 78-1089 was entered this date. A

copy of the court’s opinion, and a blank bill of costs

(omitted in criminal cases) is enclosed.

I would invite your particular attention to Rules 39(c),

pan and 41(b) of the Federal Rules of Appella*2 Proce-

ure.

Please be advised that the policy of this court requires

that petitions for rehearing, regardless whether the case

was fee paid or in forma pauperis, be filed in fifteen

copies.

When it has been determined that a stay of the

mandate is an appropriate course of action, then an

original petition only (no copies) to stay the mandate

need be filed.

William K. Slate, II

Clerk

4a

Appendix B

ass

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF

NORTH CAROLINA

GREENSBORO DIVISION

W. J. HOUSE, SUPERINTENDENT OF

THE GREENSBORO CITY SCHOOLS;

WALTER T. JOHNSON, JR., CARSON

BAIN, LACY G. BAYNES, JAMES E.

BETTS, JOANNE BLUETHENTHAL,

REVEREND CHARLES F.

KLOTZBERGER AND REVEREND

OTIS HAIRSTON, CHAIRMAN AND

MEMBERS, RESPECTIVELY, OF THE

GREENSBORO CITY BOARD OF

EDUCATION,

V.

Plaintiffs

JAMES C. STEWART, ASSISTANT

AREA DIRECTOR, GREENSBORO

AREA OFFICE, WAGE AND HOUR

DIVISION, U. S. DEPARTMENT

LABOR; HUGH B. CAMPBELL,

ACTING AREA DIRECTOR,

OF

GREENSBORO AREA OFFICE, WAGE

AND HOUR DIVISION, U. S.

DEPARTMENT OF LABOR; AND F.

RAY MARSHALL, SECRETARY OF

LABOR, UNITED STATES

DEPARTMENT OF LABOR,

Defendants

ee A ae ee ee

No. C-77-181-G

Nee eee eee Oe ee Oe

5a

MEMORANDUM OPINION

GORDON, Chief Judge

This matter is before the Court for a determination of

the defendants’ motion to dismiss. For the reasons

which follow, the Court concludes that the motion to

dismiss should be allowed.

On April 20, 1977, the plaintiffs, the Superintendent

of the Greensboro City Schools and Chairman and

members of the Greensboro City Board of Education,

instituted this action against the defendants pursuant to

the provisions of the Federal Declaratory Judgment Act,

28 U.S.C. § 2201, et seq. In substance, the plaintiffs

allege that the defendants, the Secretary of Labor and

his authorized representatives, have asserted and are

continuing to assert that the Greensboro City Board of

Education has violated the Equal Pay Act with respect

to the compensation paid to certain of its female custo-

diaTemployees and athletic letic coaches. 29 U.S.C. § 206(d).

The plaintiffs, fearful of the imminent institution of

legal proceedings against them for their alleged viola-

tions of the equal pay provisions of the Fair Labor

Standards Act of 1938, assert that they are entitled to

the entry of an appropriate decree declaring that they

are not subject to the equal pay provisions contained in

the Fair Labor Standards Act. On June 20, 1977, the

defendants filed a motion to dismiss the plaintiffs’ com-

plaint on the ground that the complaint shows on its

face that the plaintiffs are not entitled as a matter of law

to the relief sought in the complaint. Accordingly, this

matter is now before the Court for an appropriate

disposition of the defendants’ motion to dismiss.

Prior to the filing of the defendants’ motion to dis-

miss, the parties to this action entered into a stipulation

setting forth the narrow issue to be resolved by the

6a

Court in this action. Accordingly, pursuant to the com-

plaint and stipulations filed in this cause, the Court

must now determine whether the plaintiff school board

and its employees are subject to the equal pay provi-

sions of the Fair Labor Standards Act. 29 U.S.C. § 201,

et seq. In this regard, the plaintiffs assert that by reason

of their status as an agency of a political subdivision of

the State of North Carolina, that they are immune to the

equal pay provisions of the Fair Labor Standards Act. 29

U.S.C. § 206(d). On the other hand, the defendants

contend that the plaintiffs are subject to the equal pay

provisions of the Fair Labor Standards Act.

The parties have filed extensive briefs on the point of

law presently before the Court. However, subsequent

to the time of the filing of the defendants’ brief in

support of their motion to dismiss, yet prior to the time

the plaintiffs filed their brief in opposition to the mo-

tion, the Fourth Circuit Court of Appeals rendered its

decision in a case involving the identical issue pre-

sented in the plaintiffs’ complaint and raised by the

defendants’ motion to dismiss. Usery v. Charleston

County School District of Charleston County, South Caroli-

na, 558 F.2d 1169 (4th Cir. 1977). The sole question

presented in the Charleston County School District dea-

sion was whether the provisons of the Equal Pay Act

could be applied to state and local governments. In

considering this issue, the Court stated that ”... there

is no doubt that the application of its provisions to state

and local governments is a valid exercise of Congress’

constitutional authority.” Charleston County School Dis-

trict, supra at 1170-1171. Following, the Fourth Circuit

Court of Appeals held that state and local governments

were subject to the provisions of the Equal Pay Act.

Charleston County School District, supra at 1172.

7a

Absent some compelling reason to the contrary, this

Court must follow the law as stated by the Fourth

Circuit in resolving the controversy in the present case.

Finding no sufficient reason to depart from the court’s

decision in the Charleston County School District case, the

Court finds that the plaintiffs are subject to the provi-

sions of the Equal Pay Act and, therefore, the Court

concludes that the defendants’ motion to dismiss

should be allowed.

Accordingly, an order will be entered.

| United States District Judge

January 6, ae

8a 9a

IN THE UNITED STATES DISTRICT COURT © For the reasons set forth in an Opinion filed contem-

FOR THE MIDDLE DISTRICT OF poraneously herewith, it is

NORTH CAROLINA

GREENSBORO DIVISION ORDERED that the defendants’ motion to dismiss be,

and the same is hereby, allowed.

W. J. HOUSE, SUPERINTENDENT OF United States District Judge

THE GREENSBORO CITY SCHOOLS;

WALTER T. JOHNSON, JR., CARSON

BAIN, LACY G. BAYNES, JAMES E.

BETTS, JOANNE BLUETHENTHAL,

REVEREND CHARLES F.

KLOTZBERGER AND REVEREND

OTIS HAIRSTON, CHAIRMAN AND

MEMBERS, RESPECTIVELY, OF THE

GREENSBORO CITY BOARD OF

EDUCATION,

January 6, 1977

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Plaintiffs No. C-77-181-G

v. ORDER

JAMES C. STEWART, ASSISTANT

AREA DIRECTOR, GREENSBORO

AREA OFFICE, WAGE AND HOUR

DIVISION, U. S. DEPARTMENT OF

LABOR; HUGH B. CAMPBELL,

ACTING AREA DIRECTOR,

GREENSBORO AREA OFFICE, WAGE

AND HOUR DIVISION, U. S.

DEPARTMENT OF LABOR; AND F.

RAY MARSHALL, SECRETARY OF

LABOR, UNITED STATES

DEPARTMENT OF LABOR,

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Defendants

10a

Appendix C

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° APPLICABLE STATUTES

The Equal Pay Act of 1963 (EPA), Pub. L. No. 88-38

§3, 77 Stat. 56, 29 U.S.C. §206(d)(1), provides:

“(d)(1) No employer having employees sub-

ject to any provisions of this section shall dis-

criminate, within any establishment in which

such employees are employed, between

employees on the basis of sex by paying wages

to employees in such establishment at a rate

less than the rate at which he pays wages to

employees of the opposite sex in such estab-

lishment for equal work on jobs the perfor-

mance of which requires equal skill, effort, and

responsibility, and which are performed under

similar working conditions, except where such

payment is made pursuant to (i) a seniority

system; (ii) a merit system; (iii) a system which

measures earnings by quantity or quality of

production; or (iv) a differential based on any

other factor other than sex: Provided, That an

employer who is paying a wage rate differen-

tial in violation of this subsection shall not, in

order to comply with the provisions of this

subsection, reduce the wage rate of any

employee.”

In the “Declaration of Purpose” of Section 2 of the

Equal Pay Act of 1963, P.L. 88-38, 77 Stat. 56, it states:

“(b) It is hereby declared to be the policy of

this Act, through exercise by Congress of its

power to regulate commerce... to correct

[these] conditions... in such industries.”