Petition for a Writ of Certiorari — Sullivan v. Wirtz

Supreme Court brief1966

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AUG . 5. 1966

a! F. DAVIS, CLERK

IN THE ——

"SUPREME COURT OF THE UN ITED STATES

October 1 Tem, 1966. | 3

, ‘ | % ' }

‘CHARLES S. SULLIVAN and CAMP HILL LUMBER

_ COMPANY, INC.,. °°

St ay ae | “Petitioner

"versus |

W. WHAARD ‘WIRTZ, Setadaniiy at Lies United States —

Department of Labor, ;

: Renpcndeat

re Petition '& a Writ of Certiorari To The

* United States Circuit Court of Appeals.

For The Fifth Circuit = _

Ruth 8. Sullivan a Dadeville, Alabama

Counsel for Petitioners

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Pa ae eeeT yee .

} ) 3 Page

o) * Spthions Below 2 -

“Jurisdiction. , . re | |

— Questions. presented - | he | eee

Statute. Involved a Ea rhe

“Statement pe es ait ® 3 ;

Reasons for Granting Writ a ae 6

. Conclusion ‘ "I ll

Appendix R: Extracts, Menorandun,Opinion Bp es

So cae District Court ee

B: Opinion. Below: : es s. eas,

C: Opinion Below, ay 1 Pe

Wirtz.V. ~dones 5 et al. ee

cae “D: Judgments Below : ae

& “E> Order Below, Extracts _ ? Capraro

: CITATIONS. ee

Cases: an | eee

Barenblatt v. United States, 9 ee

360 U.S. 109, 79 S. Ct. 1081 — Gece : Ree

Beacon Theatres, Inc. V. .cand,10,2,6 ei

‘Westover, 359 U:S. 469, 79 S.Ct. 948 ; ; Poe

' Dairy Queen, Inc. v, Wood, 446,11 RG aa

369 v: S. 469, 82 S. Cc. 984 ' Toh sees

Ae.

-Foraythe Vv. tty of Hanmorid

" - 466 U,S. 506, a7 SS. ©. O68:

~ Hickman v. Taylor, 329 U. S. et

67.S. Ct. 385

Kossick v:. United Fruit;

365 U.S. 731; 81S. Ct. 206. :

Meeker 'v. Ambassadors,

"375 U.S. 160,84 S. Ct..273

Rice. v.. Sioux. City Cemetery

- 349.U.S; -70, 75S. Ct. 614 |

. Rogers V. Missouri_ Pacific:

Railroad-€o~, 352 U.S. 500, $24,

ATS. C. 443, 459, 478

Simler Vv. Conner, 372 U. S.

. 221, 83 8. Ct. 609 ees.

Swofford v. B & W, Inc... 2)

"336 F 2d.404

~ United States V: Zacks, et al.

375 U.S. 595. 84S. Ct. 178 -

_ Wilkerson v. United States |

*, ee ee 399; 81 S$. Ct. 567

Wirtz v. Active-City Wide

Service Co. 230 F Supp. 666

Wirtz v. “Atapaha Yellow Pine

. Products, 217 F.Supp. 465

Wirtz v. Camp Hill. Lumber. Co,

35 FRD 301:

~ Wirtz v.- English, 245 F. Supp.

ee .

Wirtz Vv. Jones, et al.

+ 340 F 2d 901.

Wirtz v. W. G. clea rt.

_ Const. Co., 230 F Supp. 823."

2,6,7,10%-

10°

| Wirtz-v< Horton; 34. FRO 535 ste SS

Wirtz v. Robert-E. Bob’ , -10-

_ Adair, 224 F.Supp. 750 ere

Wirtz v.. Thompson Packets Ceres

- 224° F. ‘Supp. 960 ae '

‘Yellin'v. United ‘States* == 9

83 S.Ct. 1828, 374 U.S. 109.

Statutes and Constitution 3,4,6,10 °).

Seventh’ Amendment ,Constitution

of the United States

. 3,4,7,8,

29 USCA 217 (Section }

- Fair Labor Standards Act, 9,10

Pub. L. 87-30;Sec. 12b, Te cay,

75, Stat. 74 os |

29 USCA 216, 75 Stat. 74 ce 2a

Rule 38, Rules of Civil Procedure “4

for United Stdtes District Courts,

Title 28, USCA, ‘Appendix.

28 USCA 1254 (1). 62°Stat. ae oe ee

Miscel taneous: | |

65 ‘Columbia e. Rev. 514 gi Fos 10°

- "Fair Labor’ Standards Act

and Trial “d dur -

= INTHE

SUPREME COURT OF THE’ UNITED. STATES

~ October Tem, 1966 %

INO. . OS. pie e a

y eae

: “CHARLES S. SULLIVAN and

CAMP HILL LUMBER COMPANY, INC.,

3 £s ; 5) 5

SA WILLARD WIRTZ, Seeeiaiy of Labor,

- United States Department of Labor

. : - Respondent

—

PETITION FOR WRIT:OF CERTIORARI

TO THE UNITED STATES COURT OF =

__ APPEALS FOR THE FIFTH CIRCUIT ~—

Ruth S. Sullivan |

: Box 332 a

Dadeville, Alabama

. Counsel for. -

Petitioners -

PETITION FOR\A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

ae STHE FIFTH CIRCUIT |

_ .. Petitioners pray that a Writ of Cert-

. iorari igsue tc review the Judgment of the

- United. States Court’. of Appeals ‘for the

Fifth: Circuit entered in the. above styled . /

‘cause on the ‘llth may of ANS seit 3

és CITATIONS To OPINTONSBELOM

te ae The ‘aieandui ‘opinion of the United .

States District aCourt for the Middle Dis-~

trict of Alabama, (R. pg. 14) is unoffici-

ally reported’ 36 FRD - 301, ‘and is Soba :

in part,-in Appendix A hereto. Opi

of ‘the Fifth Circuit Court of Appeals “g re- ees

ported 359 Ff. 2d-—426$ and is. printed in —

Ao sebihas B hereto. The opinion of the Fifth

Cir

cuit Court of Appeals in Wirtz vs. Jones

“ etal., is reported in 340 F 2d 901, and. aS

is printed in: pertinent » ‘parts, as: ~ Appen~

dix C ete: sl bay

era aia

’ "« eal

Opinion. of the Fifth Circuit Court, of

i i Appeals was rendéred onthe Ith day “of - -

April, 1966, and Judgment of said court was

’ accordingly entered on the same date. (R.21

-23, Appendix Fj ee for Reearien

En Banc, et

, timely filed, was dented on the “uth day.

of May, 1966. (R. pgs. 24-31, Appendix F)

-. *Mandate to the United States District Court -

/ ..4 was issued on the 18th day, of May, 1966,

after which, pursuant to Agreement of Par-

| » ties to “the cause, the District Court Or-

' dered Stay of Execution pending determina-

-. . tion of Petitton for Writ.of Certiorari. ©

(Appendix E) Jurisdiction “of this Court is

ae Sorauent to 28 USCA 1254. (1).

<. 4

QUESTIONS PRESENTED

(1): “Sole issue etal: by this Petition

| is whether actions pursuant to Section

w 17, Fair Labor Standards Act,(29 USCA,

217) present issue known to cormon law. .

so as to be within the purview of jury. —

trial requirement of the Seventh Amend-

ment of the Constitution of the United

States and Rule 38 (a), (b) Federal

- Rules of Civil Procedure? ~

(2) Whether or not equitable injunction

* procedures of Section 17, Fair Labor

Standards Act (29 USCA 217) may be em- .

ployed as a statutory- device to in- -

: fringe upon employers' right to trial

‘SS by Jury, as required’ by the Seventh ~

. -Améndment to the. Constitution of the

United States, on common law issue:

~“"work and labor done" by employees?

‘2

(3)

(4).

maine a request for a finding by the

‘ Court that there are due minimum wages

or overtime ‘compensation under Section

17, Fair Labor Standards Act, (29 USCA

217) is an exercise of Jurisdiction of °

a Court of Law. So that trial by jury

is a matter of Constitutional right?

Whether Rule of Law of Beacon Theatres i

Inc. v. Westover, 359 U. S. 469, 79 S.

Ct. 948, 3. L Ed 2d. 988; Dairy Queen,

»Inc. v. Wood, 369 U. S. 469, 82°S. Ct.

894,-8 L Ed 2D 44;, Seventh Amendment,

Constitution of the United States; and

Rule 38 (a}, . (b) Federal Rules of. Ci-

a to Section 17, Fair Labor Stan-

da ig Act (29 USCA 217)?. reer

"STATUTE INVOLVED

- The Statute involved is sectiGa: 17,

Fair Labor Standards Act of 1938, as amended

May 5, 1961, Pub. L. 87-30, Section 12b

75 Stat. 74, which dibatc id

“The district. courts ,together: with the

United States. District Court for the -

District of the Canal Zone, the’ Dis-

trict Court of the Virgin Islands, and

the District Court of Guam shall have

_ jurtsdiction, for cause shown, to res-

train violations of Section 215 of

this title, including in the case of

Violations: of Section 215 (a) (2) of

this title the restraint of any with-

holding of Pinte of minimum wages or

ae)

vil Procedure,apply to proceedings pur-

o .

-overtime compensation found by the

court. to be due -to employees under

this Chapter (except sums which em-

ployees are barred from recovering

at the time of the commencement of

the action to restrain the violations

by virtue of the provisions of Sec-

_tion 255 of this title.” (29 USCA.

217) May 5, 1961, Pub. L. 87-30,Sec.

12 (b), 75 Stat. 74.

». . STATEMENT

- A Complaint was filed by W. Willard

Wirtz, Secretary of Labor, United States

Department of Labor against Charles S.

Sullivan and Camp Ht11 Lumber Company,

Inc., to restrain Defendants from with-

holding payment of minimum wages and over

time compensation due certain of their

employees under the FLSA, (R. 5,11) which

employees were named. (R.8,9) Defendants

answered denying any wages and overtime

compensation were due any employees, and

in their answer stated, "The Defendants

demand a trial by jury on all issues so

triable in this action."(R.12), the Ans-

‘wer being dated November 12, 1963. Four

days after the filing of this Answer, ©

Plaintiff filed his Mction to Strike this

demand for jury trial, (R.13) which Mo-

tion-was granted by Order of the United

States District Judge, dated March 10,

1964. (R.14,15). Thereafter the cause

was tried and resulted in judgment against

the Defendants,in which they were ordered

to pay conistdevabie ‘Sums of money to em- ;

ployees named in the Complaint.

Oe Appeal was. timely taken to the Fifth

Circuit Court of Appeals, and therein on

the 11th day of April, 1966, the Order of

the District Court striking Defendants '‘de-

* mand for trial by jury was affirmed.(R.21):

_ Appendix B. The decision of the Fifth’ Cir-

cuit Court of Appeals was based upon its

prior determination on like issue of Wirtz

vs. Jones et al. & Sauls, Inc.,et al., 340

_F 2d, 901, Appendix C. Petition for Rehear- -

; iy En Banc, was. denied teed 11, 1966. pais

‘Therefore, sole '. ‘issue presented | ‘by }

this Petition for Writ of Centiorari is.

‘whether or not the interpretatioh of the -

Court of Appeals - of a Federal. Statute,

‘namely Section 17, Fair Labor Standards

Act, Supra, is a Constitutional ” interpre-

tation, or is an interpretation in viola-

tion of the Seventh Amendment to the. Con-

stitution of the United States and Rule 38 ~

(a),°(b) Federal Rules of Civil Procedure.

“REASONS FOR GRANTING

WRIT OF CERTIORARI TO THE

_ FIFTH CIRCUIT COURT OF APPEALS

(1) The’ Court of Appeals has decided aoe

Constitutional issue: trial by. jury, ina

way in conflict with applicable decisions |

~ Of this Court. Wilkerson vs. U. S.,365 U.

S. 399, 5 L Ed. 2d 633, 81 S. C. 567;_reh.

Den. 365>U. S. 890, 6 L ed. 2d 200, 81 S.

ee ee

-”

"eh 10245 Meeker vs. Ambassador, 375 U.S.

160, 84 S. Ct. 273, 11 L Ed 2d 261; Beacon

Theatres, Inc. vs. "Westover ,359 U. Ss. 500,

* 3L Ed. 2d 988, 79 S. Ct. 948; Dairy. Queen

Inc. vs. Wood,-369 U’S. 469, 82S, Ct. 894

8 L Ed. 2d A4; Stater vs. Conner, 372 U.S.

221, 9 L. Ed. 2d 691, 83 S. Ct. 609, cer.

granted, 368 U. 966, 82 S. Ct. 440, _.

Ed. 2d 395; Swofford vs. B& . Inc., 336

F. 2d 406; cer. den. 379 U. S..962, "85 ae

Ct.: 653, 13 L Ed. 2d 557.

) The Court of Appeals has rule that

the. Seventh Amendment does not apply to

actions brdught by the Secretary of Labor ©

Under Sec. 17, Fair Labor Standards Act

reasoning: (1) Congress did not say, that —

trial by Jury shall be had on issue of

- wages when Secretary brings the action and

absent such provision there is no jury

trial. (2) Public ‘interest dictates eyuit-

able action for an injunction to restrain: .

withholding of wages earned but unpaid.

(3) Statute creates action unknown to com-

/mon law. . (Wirtz vs. TaneS 340 F.2d 901,

§)

Appendix c) * i

That this language isin the teeth of"

Supreme Court de-isions, supra, can be seen .

from statements of Dairy Queen VS. Woods ,as

follows: 7

. Action otf'a debt alleged due ‘under

a “contract, it would be difficult to

- conceive of an action of a more tra-

-. ditionally legal character....Respon-

dents‘ ‘contention that this money

claim is ‘purely equitable’ is based

primarily upon the fact that their

‘ = is case in. terms of an ‘ac-

ex al

‘counting' rather than in terms of .an

action for ‘debt’ or ‘damages’: But —

‘the Constitutional right to trial by

jury cannot be made to. depend upon

the choice of words used in pleading."

| That proceedings under Section 17, FLSA,

turn on common law issue “work and labor

- done" cannot be denied. Hence the Seventh

Amendment, applies. That a Complaint cast

in equitable terms cannot be employed as a

means to-deprive. litigants of trial by

jury is settled. It is but another step to

hold that a Statute cast in equitable

_ terms cannot deprive a. litigant of his

_ right to trial by jury! United-States v.

Jepson, 90 F Supp. 983. Compare Section

216 Fair Labor Standards Act, 29 USCA 216

May 5, 1961, Pub. L. 87-30, Sec. 12A, 75

» Stat. 74, where trial by jury is not. ques-—

‘tioned on issue-"work and Tabor done". That:

Secretary's -suit is that "magic" which

transforms legal actions to equitable act- .

ions in Constitutional ly- doubtful. |

(2) The Court of Appeals has determined

an important Constitutional Question of

Law, of first impression _ appe) late

Courts, a Question of Genera blic Im-

portance, to vast numbers of itigants,

and of ‘importance to an administrative

agency of the United States, and in its.

determination has ruled that. a Constitu- |

tional Amendment does not apply to a fed-

eral Statute, a. concept new to Law of the

. United States. Therefore, Writ of Certior-

ari should be granted to -superintend and

Supervise ‘the ‘Lower Courts of -the United

States, Yellin v. United States, 83 S. Ct.

a“

~*~

1828, 374 U.S: 109, 10 L Ed. 2d 778; 75 S.

' * Ct.623, | 349 U. S: 133, 99 L Ed. 942 (same

case); United States v. Aaron Zacks, et

al., 375-U. S. 59, 84:S. Ct. 178, 11 L Ed.

” 128; Kossick vs. United Fruit Co.,: 365

Ss. 731, 6 L Ed 2d-56,. 81S. Ct. 886,

veh, "d., 366 U. S. 941, 6 L Ed. 2d 852, 81

S. Ct. 1657; Hickman vs. Taylor, 329 U.S.

495, 91 L.Ed. 451, 67 S. Ct. 385; Rice ¥.

Sioux City ‘Cemetery, 349 -u. S. 70,99 L Ed...

897, 75 S. Ct. 614; Barenblatt v. United

"States, 360 U. S$. 109, 3 L Ed 2d 1115. 79

S. Ct. 1081; Forsyth v. City of Hammond,

166 U. S. 506, 41 L Ed. 1095, 17S. Ct.

665;. Rogers: v. "Missouri. Pacific Railroad.

~ Co., 352 U. S. 500, 524, 559, 1 L Ed. ed

493, ‘SI, 77'S. Ct. 443, ASS, 478. )

; The injunction of Beacon theatres, Inc.

v. Westover, that "only under the most im-

perative circumstances which we can not now

anticipate" can right to trial by jury "on

legal .issue be lost" has been -ignored by

determination of ;lower Courts. Nor have the

Courts in face of. the Seventh Amendment is-. —

sue balanced competing private and public

interests. Barenblatt v. United States. And

suggestions of Constitutional -interpreta-

tion of Section 17, FLSA, as contained in

Beacon Theatres v. Westover have been ig-

’ nored: trial -by jury on issue "wages and

hours" and injunction ‘based upon jury ver- .

dict, if Plaintiff shows cause for issue of

injunction. As this determination stands

scope of equity has been "enlarged, not re-

duced" as required by the Federal Rules of

Civil: Procedure. BE

Reported cases on Seventh “mendment

oF . :

€ ae

ana Section 17, FLSA are: Wirtz v. Robert

E. Bob Adair, 224 F Supp. 750; Wirtz v.

Alapaha Yellow Pine. Products, 217 F Supp.

465; Wirtz V. W. G. Lockhart: construction

Co., 230 F Supp. 823; Wirtz v. Active City

Wide Service. €o.,230 F Supp. 666;. Wirtz -v.

Norton, 34 FRD 535; Wirtz v. English, 245. -

F. Supp. 628; -Wirtz v. Thompson Packers ,224 ~~

FP. Supp; 960, and cases involving Petition- —

ers and the Jones: case..-Some divergence of

_ . view exists —among District Courts, but

“ _\ Jones“and Sauls determination appears ‘to

\ be view of Court of Appeals.

./, Above listed cases are not sole cau-

c ses in which the issue was raised.-For a

completer listing see WH cases. -

For a severe criticism of the holding

of the Court of Appeals below see "Fair

Labor. Standards Act and Trial by Jury", 65

Columbia Law Review 514 (March 1965), a

critique of Wirtz. v. Jones, Supra. .

_ In Summary, ruling of Court below. de-. .

ternines« that Congressional creation of |

new statutory remedy obviates considera-

tion Of statute in light of the Constitu-

tion and the Seventh. Amendment, and ig-

—nores the rule that Right to Trial by jury. .

_ %. denends .unon basic nature of the action,

traditions of the action, and context of

tne issues. Beacon Theatres, Inc. v. West-

over; supra; ‘Dairy Queen, “Inc: v. Wood,

Supra: NePinto et al. v. Provident Secur-

sity Life Ing. Co. et al., 323 . F 2d 826;

*“Leimer v. Woous; 196 F: 2d 828.‘ The Crea-

tions wipe: gs labelled. by’ Court "stat-

utory actions" could be endless and "Stat-.

‘utory" tyranny could result!

~ CONCLUSION ©-

sy ¥ . 4 Foun -

For the foregoing reasons, and upon

authorities cited, Petitioners pray that

Writ of ereigeeer be 3 puerant .*

Respectfully Submitted,

hele. nel

“Ruth S. Sullivan =

“+ Box 332°

‘Dadeville, Alabama. |

- Counsel for Petitioners

4 A ; ?

y, .

August) 3,196

re)

‘APPENDIX A

: 4

’.

(style omitted)

MEMORANDUM OPINION :

This is an action by the. Secretary

. of Labor United States Department of Labor

Suing to enjoin. the defendants from vio-

lating the provisions of Secs. 15-(A) (2)

and 15 (a).(5) of the Fair Labor Standards

» Act, as amended, and to enjoin and res-_

se.

train the Defendants from withholding the |

- payment of minimum wages and.overtime com-

| pensation in the total amount of $7, 668. 44,

REE.

, ‘The Geastion now - presented by the

. Plaintiff's motion to strike the Defend-

ants' demand for a jury trial has received

and is continuing to receive considerable

attention -by the lower’ courts. As yet,

there has been (ne appellate court deci-

sion on the question. Of the twelve de-

. Cisions called to the attention of this.

Court on the question.. ten of them have

_ determined that the Defendants have no

~ such right. Two of them have held that the

Défendants in such” instances, are entitled

to. the jury trial. ,

The defendants' ‘contention, in support

of. their demand for a jury trial, is sim-

ply that they have.a right under “the Sev-__

_enth Amendment to the Constitution of the |

United States to have a jury . determine

whether or not they owe their. employees---

or former. employees, as the case may be---

_ money as ‘earned rut uel which _has

. not been’ savas ;

ee ee ie ee

ints

The Plaintiff, in ise -this Court |

to strike the jury. trial -demand, argues

that tthe Fair Labor Standards Act estab-

lished statutory rights which -were. not.

“contractual or common law rights" within-: .

the meaning of the Seventh Amendment and —

that the Fair Labor Standards Act estab-

- lished-rémedies which were unknown to the

common. Taw. asig. aed

®»

kkk

This Court. concludés ‘that ‘the statu- 7

. tory remedy here. involved, is clearly

equitable; that’ the action is brought by

‘the Secretary of Labor in'the public “nt-

‘erest tinder specific authority from Con-~

gress and is therefore; not a common. Jaw -

cause 6f action within the meaning of the.

Seventh Amendment to the Constitution of

the United States, or Rule °38 (a), Fed-.

eral Rules«of Civil | Procedure. Since the.

Defendants have no unqualified right to a

trial by. jury and since no reason. appears

in this case for this Court to depart

from its general equitable procedure in

. injunction cases,the motion of the Plain-.. ©

_° tiff. to strike the Defendants ' jury ~ de-

mand will be granted. a ms ~

ge rae

a®

, 2 ;

a a aeles

: Pe yes Sie ‘ .

(oe at ce tiga share tpg APPENDIX’ B

| ~ + “PINION BELOW

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4 e >° 9 ; ‘

/ .

. United States Court of ay

FOR THE FIFTH CIRCUIT |

Neo. 21905 ~°

CHARLES S. SULLIVAN and CAMP HILL, LUMBER

COMPANY, INC,

; Appellants,

i versus

W. WILLARD WIRTE, Secretary of Laber, United. States

:; ae,

Appellee.

. p iS

Appeal Yrom the United States District Court for the

é Middle District of Alabama.

(April 11, 1966.)

Before TUTTLE, -Chief Judge, THORNBERRY, Circuit

: Judge, and LYNNE, District Judge.

PER CURIAM: Appellant here, makes a direct appeal

' that this céurt reverse its recent decision i in Wirtz v. Jones,

‘et al., 5 Cir., 340 F.2d 901, in which we. held that the

-. VIIth Amendment does not confer a right to a jury trial

0 | . ~

tegen

2 : Sullivan, et al. v. Wirtz

in an-action filed by the Secretary of Labor under Section

17 of the Fair‘Labor Standards Act for the restraint of a

~ withholding of wage underpayrents found by the court to -

be due’ employees under the Fair Labor Standards Act.

“(Phere having intervened no new statute. law, nor any

Supreme Court decision, this court declines to depart from

the principle of stare decisis and consider reaching = aif

_ ‘ferent result.

The judgment is AFFIRMED.

so enti: annua ernst OOP I a

PF ‘

. !

: i

s : ;

e :

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j . j |

on ae a .

EY . ae - .

| " nes

a € 3

ee APPENDIX C |

ge al ed pr aa

-* EXTRACTS:

| Wirtz v. Jones, et al. & Sauls,

~ Inc., et al., 340:F 2d 901. ~~

——oo

(style omitted)

kkk ; |

"The action. against ...Jones is some-

what less simple, “because” it concerns not

only the injunctive festraint of future .

violations, but also the restraint of the

continued withholding of: minimum wages and.

overtime compensation due to certain em-

ployees. The Defendants base their claims

to a right to a’ jury trial on several as-

sertions: that there is here .a disputed

issue of fact, i.e., whether or not alleg-

edly earned . but unpaid “wages are due to

-. certain employees by the employer; that

this is no more than a private claim be-

tween private . adversaries; that no public

right is involved; and .that the claim is

not for restitution of wages, nor paid. be-

cause of wrongful discharge, but is ‘simply

‘one for remuneration for work done. They

further argue. that because of these con-

siderations “thé:Seventh, Amendment to the

Constitution ‘of ‘the United States forbids

denial of a jury in the trial of the fact-

ual issue in an action such as. this which,

~ they say, was cognizable to the common 1 Taw,

Jin 1789. eo f° |

“The fallacy mplicit in all of the |

‘ appellees' claims is the assertion or as-

sumption that no publftc right is involved.

i" " :

KEK

.",..There is nothing in the wording ;

of Sec. 17, as amended in 1961, or in the

legislative history of Section 17, or any

“a

of its amendments, to suggest that Con-.

gress intended to provide for the trial

of factual issues arising under it by a

jury.-Had it so intended it could easily

have said so....Absent any statutory pro-

vision for jury trial, as is clearly the

case here, the Defendants have no right

to demand it... . . :

"The appellees argue that a right to

jury trial. may be inferred: from a ‘com-

parison of Section 17 and-Section 16 (b).

Under Sec. 16 (b) the employees may sue

the employer for back pay, and under Sec.

'- 16 (c) the Secretary, upon the written

. request of the employees, may bring the

action. Such cases are analogous to act-

ions at law, e. g. debt or assumpsit and

on proper demand, are triable before a

"The appellees protest that the fail-

ure by Congress to provide fér jury trial

contravenes their rights under the Sev-

enth Amendment to the Federal Constitu-

“ion. They identify the present case. with

decisions by the Supreme Court and. by

this Court where there is a blending of

legal and equitable issues and demands

for relief and in which the Courts have

held that neither the association of the —

legal issues with those which are equit-

able nor the seeking of equitable relief

can deprive a party of his rights to a

jury trial .on the legal issues. Dairy

‘ Queen, Inc. v. Wood, 369 U.S. 469; Beacon

Theatres v. Westover,359 U.°S. 500 Thermo-

Stitch Inc. v. Wis ious Processing Corp.

* 294 F 2d 486. . ee

“tke Peis sa0 a he:

| } read

"In the ‘instant case, however, the -

purpose of the injunction to restrain the

withholding of wages due is not to collect

a debt owed by an employer to’ his employee

but to correct a continuing offense again-

st. the public interest..

The order to pay withheld but © earned re-

~muneration- is to- redress ee: wrong being

done to the public good."

‘>.

APPENDIX © D

, JUDGMENTS “BELOW

(style omitted) —

Am ‘ 3

® +

. , , : 2

Pa . ; a i

= nt Sapper aD

- (style omitted) |

JUDGMENTS BELOW

Before - Tuttle, Chief Judge, Thorviberry.

Circuit Judge, and Lynne, District Judge.

aa JUDGMENT:

This cause came on to be heard on the

transcript of the -record from the United

States ‘Distrigt Court for the Middle Dis-

trict of Alabama, and was. argued by coun-

ah, : ~ | |

on consideration whereof, it is now

here ordered and adjudged by this Court

that the Judgment of said District Court

in this cause be, and the ° sdme is here-

by affirmed. | Me

Were ta, 1M ee a

JUDGMENT

‘ (May 11, 1966)

Before Tuttle, Chief Judge, Thornberry, -

; Circuit Judge, and Lynne, District Judge.

Per, Curiam’

It is ORDERED that the Petition for

Rehearing filed in the above styled and

= numbered cause be and sei same is hereby

~ denied.

\ APPENDIX E

ORDER BELOW.

(style omitted)

ate 5 ‘

> ‘

(styleomitted)

PROER oles

: a

2 ; gs

2 Vs

Defendants, the stipulation of the parties

and the amendment to. the Supersedeas bond.

each having been presented to his Court

on ‘this date, :

wiek

it is . ORDERED that execution upon the judg-

' ment of this Court made and entered herein

be and the same is hereby stayed pending

the Defendants' appeal to the Supreme

- Court of the United States.

¢ A

Done this the 20th day of dune, 1966.

” &B

CERTIFICATION OF SERVICE = jw

I, the undersigned Counsel for Peti-. —~—

tioners, hereby certify that a copy of oY

_ within Petition for Certiorari in the Sup- .° - |

* reme Court of the United States, has been

mailed, Air Mail, postage prepaid, as re- .

_ quired by Rule 33, Rules of the Supreme

_ Court of the United States,to the respect-

_ ive post office addresses of the follow-

ing: ee, | cma

States., Hon. Thurgood Marshall

Hon. ‘Charles Donahue, Solicitor

"of Labor -

Hon. Robert. E. Nagle, Office of

Solicitor of Labo fea °.

Hon. Bessie Margolin, Associate | :

Solicitor of Labor _ | ‘a

_ Hon. Beverley R. Worrell, Re-

~ gional. Attorney, Department of

Labor eke . rot

‘Hon. G. Floyd Ansley, Department

of Labor, Attorney |

Certified, at’ Dadeville, Alabama, this

the Fey of Gage = 11968.

= hA4GS. Gels, 2

Counsel for Petitioners

In the Supreme Court of the United States

OCTOBER TERM, 1966

No. 420 -

CHARLES S. SULLIVAN AND Camp HILL LUMBER

*"e CoMPANY, INC., PETITIONERS

Vv.

W. WILLARD WIRTZ, SECRETARY OF LABOR, °

UNITED STATES DEPARTMENT OF LABOR

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR 7—e

; FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

‘OPINION S pELOW

The opinion of the court of soneals (Pet. App. B)

is reported at‘359 F.2d 426. The memorandum opin-

ion of the district court on, the issue presented herein

(reprinted in part in Pet. App. A) is reported at 35

_F.R.D. 301. The district court’s findings and conclu-

‘sions are not officially reported but appear at 16 WH

Cases 554 and 50 Lab. Cases { 31,604.

(1)

oe oa |

JURISDICTION ,

The judgment of the court of appeals was entered

on April 11, 1966. A petition for. rehearing en banc

was denied on May 11, 1966. The petition for a writ

of certiorari was filed on August 5, 1966. The juris-

diction of this’ Court is avon under: 28 U.S.C.

1254(1):

QUESTION eee

Whether the inclusion; in a complaint filed by the

Secretary of Labor under Section 17 of the Fair La-- |

bor Standards Act, of a prayer for the “restraint of

any withholding” ‘of wage underpayments found by

the court to be due to employees under the Act, con-

verts the action into an action at law with | a constitu-

tional right toa jury _—

STATUTE IN VOLVED

Section 17 of the Fair tater Standards Act of.

1938, 52 Stat. 1060, as amended by the Fair Labor

Standards Amendments of 1961 . 6 Stat. 65), 29

U.S.C. 201, 217, provides: |

The district: courts, together: with the United ow

States District - Court. for thé District of the

' Canal Zone, the District Court of the Virgin.Is-

lands, and the District Court of Guam shall have —

jurisdiction, for cause shown, to restrain viola-

tions of section 15, including in the case of vio-

lations of section 15(a¥ (2) the restraint of any |’

withholding of payment of minimum wages or

overtime compensation found by the court to be

due to employees under this Act (except sums

SO EE ce

. Y

which employees are barred from recovering, ‘at

_ the time of the commencement of the action to re-

strain the violations, by virtue of the provisions

of section 6 of the Portal-to-Portal Act of aah ).

STATEMEN T

The Secretary of Labor brought this action under :

Section 17 of the Fair Labor Standards Act request-

ing the court to restrain petitioners from continuing

to violate the minimum wage, overtime and record-

| keeping provisions of the Act, and from continuing to

withhold payment of minimum wages and overtime

compensation due certain of the employees under the

Act. Petitioners, denying violations of the Act’s pro-

* visions, filed a demand for trial by jury. Respond-

ent’s motion to strike this demand was upheld by the

- district court on the ground that this was “not a com-

-mon law éause of action within the meaning of the

Seventh Amendment to the Constitution of the United.

States, or Rule 38(a), Federal Rules of Civil Proce-

dure,” but. was “brought by the Secretary of Labor in

the public interest under specific authority from:the — |

Congress”—such authority being “designed and in-

tended by Congress to be included as a part of ‘the

general equity. jurisdiction of the courts’ ” (35 F.R. D.

at 303- 304). Accordingly, the caséwas tried by the .

_district court, which concluded that the defendants

' had been violating the Act in the respects‘ alleged. The

court thereupon enjoined further such violations as .

well as the continued withholding of a total of

$5716.53 due under the Act to. 24 employees.

The court of appeals affirmed the denial of the de-

mand for jury trial, adhering to its earlier decision in

Wirtz v. Jones, 340 F.2d 901, in which it shad reached

the same conclusion.

s >».

"ARGUMENT

The decision below vias no conflict with any

relevant decisions ' ‘and further review in this saan

is not warranted.

_ As the Fifth Circuit pointed out in Wirtz v. Jones,

supra, unlike an action for back wages under Section

16(b) or 16(c) of the Fair Labor Standards Act, the.

purpose of restraining the withholding of wages due

under the Act “is not to collect a debt owed by an.

‘ employer to his employee but to correct a continuing

offense against the public interest,” and this remedy

“is simply a part ofa reasonable. and effective

means which Congress, after trial and error, found it

necessary to adopt to bring about general compliance”

(340 F.2d at 904). As the court further pointed out,

when Congress in 1961 “restored the full equity pow-

ers of the courts in exercising the jurisdiction granted a

- 1 While no other court of appeals has yet ruled on the issue

"+. presented here, each of the district courts outside the Fifth

Circuit which has doné so has reached the. same conclusion

as the courts below. Of the many such decisions, those

which have been reported are: Wirtz.v. Active City Wide

Service Co., 230 F.Supp. 666 (N.D. IIll.); Wirtz v: Robert E.

Bob Adair, Inc., 224 F.Supp.. 750 (W.D. Ark.); Wirtz v.

. Tinker’s Bigg & Littel: Stores, 16 WH Cases 657, 50 Labor

Cases {31,622 (N.D. Cal., not officially reported); Goldberg

v. Thompson, 15 WH Cases 883, 47 Labor Cases { 31,410

(S.D. Cal., not officially reported) ; Wirtz V. Wheaton Glass

Co., 253 F.Supp. 93° (D. N.J.).

—-

ys .

_ ee

in § 17”, it gave no indication that factual is-

sues arising in such an action were to Ve tried by a

_ jury; on the céntrary the language used “is -couched

In traditional equitable termS6f ‘restraining’ a%on-

tinuing wrong” and the “equitab ion authorized

in relation to withholding is si emphasifed*as a

part of the jurisdiction # restraip: violations general-

ly” (340 F.2d at 903-904). --

* These circumstantes plainly distinguish this case

from the Gecisions of this Court upon which petition-

ers rely. Each of those cases dealt with private ‘

_ causes of action which ‘involved not onl# equitable is-

sues but also claims whfh had Paditionally been re-

garded as “legal”—either bgcause they were of com-

-mon law origin or bécause they had been left by stat-

ute to enforcement tlgough common-law actions. : See

Beacon Theatres, Inc. v.° Westover, 359 U.S. 500

(treble-damage claim under the anti-trust statutes) ;

Dairy Queen, Inc. v. Wood, 369 U.S. 469 (action for

money based on: alleged breach of contract and in-

fringement of trademark); Simler v. Conner, 372

_ US. 221 (action between client and lawyer over the

amount of fee due under a contingtnt fee contract) ;

and Meeker. vy. Ambassador Oil Corp., 375 U.S. 160

(action involving determination of the ownership of

an overriding royalty interest under a gas and -oil

lease).? In the instant case, oh the other hand, not

*The court of appeals decisions relied on by petitioners

are similarly distinguishable since, in addition to the “equi-

table” issues presented, they also involved claims which were

clearly “legal” in nature: Swofford v. B & W, Incorporated,

336 F.2d 406 (C.A. 5), certiorari denied, 379 U.S. 962 (dam<

6°

only has Congress created the rights and liabilities

which are at issue, but it Has deliberately provided in

Section. 17 for their enforcement by .a proceeding -

which is “one unknown to the common law”; accord-__

ingly, “[t]he cotention under the Seventh Amend- °

ment is without merit.” Labor Board v. Jones &

Laughlin, 301 U.S. 1, 48-49.

The correctness of the decisions below is confirmed

by this Court’s holdings both under this Act (Mitchell:

vy, DeMario Jewelry, 361 U.S. 288), and in an analo-

gous statutory “context under the Emergency Price

\ Control Act (Porter v. Warner Co., 328 As 395),

that: even a general provision for enjoining illegal

practices under a statute carries with it the power

“to ‘provide complete relief in light of the statu-

tory purposes”—including the awarding of monetary

restitution—and that such relief is simply an exercise

of the equitable jurisdiction of the court (see De-

‘Mario, 361 U.S. at 291-292; Porter, 328 U.S. at 400--

403).5 - - While neither the DeMario nor Porter deci-

- ages claimed for ahbeit sihaigetinths ;-DePinto v. Hrevidinr

‘ Security Life Ins. Co., 323 F.2d 826 (C.A. 9). (action on Be-

half of corporation for damages resulting from negligence

and breach of fiduciary duty). In Leimer v. Woods, 196 -

F.2d 828 (C.A. 8), also relied-on by petitioners, the right to

jury trial was upheld because a “legal” claim for treble

damages under Section 205 (e) of the Emergency’ Price ‘Con-

trol Act was raised; the court recognized, however, that the

additional claim for injunction and restitution was purely

. . equitable in nature—a distinction which this Court had pre-

viously: drawn in Porter v. Warner Co., 328 U. S. 395.

’ The DeMario case was decided prior ‘to the 1961 Amend-

ments to the Act, “when there was in effect a proviso, added

to. section 17 in 1949, specifically prohibiting — court from’

Head

Bions’ dealt medteale with the question jury

trial,‘ both these decisions were récently cited by this

Court” in Katchen v:: - Landy, 382 U.S. 328, 338, in

holding that there is no right to a jury. trial in an

- equitable-type proceeding under the Bankruptcy Act .

involving the recovery of a preference, even. though

_ such preference could also have been recovered in an’

.. action at law to which the Seventh Amendment. would

_haye applied. In there distinguishing the Beacon The-

atres and Dairy Queen decisions, this Court ruled

that where Congress has provided an equitable rem-

edy as part of “a specific statutory scheme,” the Sev-

enth Amendment does not require the courts to “dis-

member a scheme ‘which Congress has prescribed”.

simply because there also exists an alternative remedy

at law (382 U.S. at 339). This conclusion is equally

applicable with ee to the —— naeears

awarding restitution of eeait minimum wages or overtime

compensation in an action brought to restrain violations of °

the Act. That proviso was repealed in 1961 and the language

expressly authorizing such awards was added. The DeMario

; decision held that the’ 1949 proviso did not ‘preclude the

awarding, as part. of equitable relief, of reimbursement ‘of

lost wages to employees who had been discriminatorily dis-

charged iny violation of Section 15(a) (3) of the Act.

7 In- De ario, “ibe sd the dissenting justices expressly

| rec Zed that the majority decision had reference to equi-

table jurisdiction not subject to the right of jury. trial, for

they stated their view that the 1949 proviso precluded, the

award of-any: restitution in an injunction action; and allowed .

recovery of wages “at the instance of the Secretary only in

an action at law, brought. under, *-* *-[§ 16(c)], and tria-

ble by a jury,” or in tife employee’ s “own right an action

_ at law, triable.by a jury;: ‘under either § 16(b) or me com-

mon law” (361 U.S. at 308, emphasis ~—

—~ Py Eun.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.