Petition for Writ of Certiorari — Breitwieser v. KMS Industries, Inc.

Supreme Court, U. S.

FILED

JAN 22 1973

FILE Copy

JR.,CL

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

“72-1070

MARGARET LOUISE BREITWIESER and

JAMES J. BREITWIESER,

Petitioners,

KMS INDUSTRIES, INC., d/b/a

ADVO SYSTEMS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

WILLIAM V. GEORGE

George & George

P.O. Box 488

Forest Park, Georgia 30050

Attorney for Petitioner

Wastoat DC e@ THIEL PRESS @ 202 393.0625

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TABLE OF CONTENTS

Page

OPINIONS BELOW ...............-.-0.000 00. 2

ESI eee 2

QUESTIONS PRESENTED FOR REVIEW ............ 2

STATUTE AND REGULATION INVOLVED .......... 3

STATEMENT OF THECASE .................... 4

Point 1 — Denying a Civil Remedy for Damages

Resulting from Violation of the Child Labor

Provisions of the FLSA because the FLSA Pro-

vides Criminal Sanctions Conflicts with Previous

Decisions of this Court as to the Availability of

Civil Remedies for the Violation of Federally

a ie as a a gi Red Ko ks i & wa 6

Point II — Denial of a Civil Remedy because of the

Existence of Criminal Penalties Conflicts with

Decisions of Other Courts of Appeals ............. 8

Point III -- Whether or Not a Private Civil Remedy

Is Available for Violation of FLSA Rights Othe:

Than Minimum Wages and Overtime Compensa-

tion Is a Substantial Federal Question not Hereto-

fore Determined by thisCourt ..............-.--. 9

Point IV — This Court Should Grant Review To

Define the Criteria for Determining When a

ee are 10

i ae sk Ge as kb eee eee ee Oe Kk we 11

APPENDIX A — Opinions of the United States Court

of Appeals for the Fifth Circuit:

ci evcen so eee se ne eee es wee oe la

ee a iad ow bx Ke 8 60k oie we 8a

Denial of Motion for Rehearing ................. 1Sa

APPENDIX B — Opinions of the District Court for

the Northern District of Georgia ................ Ib, 5b

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SR ae RN Epc TU Ie OE i ELI TG EM

Beenicuns Ma AG SNF Raa

(ii)

TABLE OF AUTHORITIES

Cases:

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 1971, 403 U.S. 388, 91 S.Ct.

og ee! , ee re Serer ny ere

Burke v. Compania Mexicana de Aviacion, 9 Cir., 433

SN ge cry ais aie tue x iba eee eR

Dann v. Studebaker Packard Corp., 6 Cir., 288 F.2d

BM Lace CLRe A Eee eee ee ere eee ks Ks

Deckert: v. Independence Shares Corp., 1940, 311

be 2} tee oe Sree ee

Fagot v. Flintkote Co., USDC ED La., 1969, 305

ee keer eee err ee eee ee 9,

Fitzgerald v. Pan American World Airways, Inc., 2

ee a ee 6b eee etn eda eae ews

Fratt v. Robinson, 9 Cir. 1953, 203 F.2d627 ..........

J.1. Case Co. v. Borak, 1964, 377 U.S. 426, 84 S.Ct.

ee Be a 5G wis RAN Rae RR WER 78 eX

Mitchell v. Robert DeMario Jewelry, Inc., 1960, 361

U.S. 288, 80 S.Ct. 332, 4 LEd.2d 323 .......-----

Reitmeister v. Reitmeister, 2 Cir. 1947, 162 F.2d 691 .....

Texas and Pacific Railway Company v. Rigsby, 317

U.S. 173, 36 S.Ct. 482, 60 L.Ed. 874 ...........--

United States v. Perma Paving Co., 2 Cir. 1964, 332

+ pS rr re Tr rere eT ee ee ee

Wyandotte Transportation Co. v. U.S. 389 U.S. 191

ee ew ee ee ee eee oe

Statutes and Other Sources:

Federal Statutes:

p tik ime me. |) re eae ere ee

y oth tom Oe OS) ey rere era eee

(iii)

Communications Act of 1934, 47 U.S.C.A. Sec.

ieee e ereere ere ee ee ee 8

Fair Labor Standards Act, 29 U.S.C.A. Sec. 201 et

eer ee eee eer eee ee ee ee 5,6

SND deals cna WEs hese ee ee nen ass 3,4

SG ee eee era ree ee er 2,3,4

Occupational Safety and Health Act, 29 U.S.C.A.

ee ae re ree err ea 10

Securities Exchange Act, 15 U.S.C.A. Sec. 78ff ....... 6

Miscellaneous:

I ay ig gh gk os EEE R BRE ROO 3,4

“Note, Implying Civil Remedies from Federal

Regulatory Statutes” (1963), 77 Harv. L. Rev. Ra 10

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rae te eee there teens Rear ota Sra

WREST IE Ee FEEL TO

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No.

MARGARET LOUISE BREITWIESER and

JAMES J. BREITWIESER,

Petitioners,

KMS INDUSTRIES, INC., d/b/a

ADVO SYSTEMS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

To the Chief Justice and the Associate Justices of the

Supreme Court of the United States:

Your Petitioners, Margaret Louise Breitwieser and

James J. Breitwieser, hereby petition for a writ of

certiorari to review the decision of the United States

Court of Appeals for the Fifth Circuit denying a civil

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remedy for violation of the child labor provisions of the

Fair Labor Standards Act, 29 U.S.C.A. Section 212.

2

OPINIONS BELOW

The majority and minority opinions of the Court of

Appeals and the denial of the motion for rehearing are

not yet reported. (App. A)

The opinions of the United States District Court for

the Northern District of Georgia are not reported. (App.

B.)

pe ase

JURISDICTION |

The judgment sought to be reviewed was entered on

September 21, 1972, in accordance with the opinion of

the Court rendered on September 21, 1972. An order

denying a timely motion for rehearing was made and

entered on November 2, 1972. The statutory provision

conferring on this Court jurisdiction to review the

ete 5 ae RA EA LEI ii EEE IE SI AS

judgment is 28 U.S.C.A. Sec. 1254(1).

; QUESTIONS PRESENTED FOR REVIEW ;

i |. Whether the Fair Labor Standards Act, 29U.S.C.A.

2 Sec. 212. creates a federal right in minors under eighteen

i to be free from working on hazardous jobs and whether

: the existence of this statutorily created right implies a

remedy in damages for injury resulting from the

employer’s violation of the right.

2. Whether the criminal penalties established by the

A* constitute a remedy for the violation of the Act.

3. Whether the existence of criminal penalties pre-

cludes an implied remedy under the Act.

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4. What criteria should be used in determining

whether a remedy is implied under the Act.

STATUTE AND REGULATION INVOLVED

Fair Labor Standards Act

29 U.S ©. Section 203(1)

“(1) ‘Oppressive child labor’ means a condition of

employment under which ... any employee

between the ages of sixteen and eighteen years is

employed by an employer in any occupation which

the Secretary of Labor shall find and by order

declare to be particularly hazardous for the

employment of children between such ages or

defrimental to their health or well-being .. .”

29 U.S.C. Section 212(c)

“(c) No employer shall employ any oppressive child

labor in commerce or in the production of goods

for commerce.”

29 C.F.R. Section 422.7 (Hazardous Occupation Order

No. 7 issued by the Secretary of Labor)

“The following occupations involved in the opera-

tion of power-driven hoisting apparatus:

“(1) Work of Operating an elevator, crane

derrick, hoist, or high-lift truck. except operating

an unattended automatic operation Passenger

elevator or an electric or air-operated hoist not

exceeding | ton capacity.”

* * * * *

“The term ‘high-lift truck’ shall mean a power-

driven industrial type of truck used for laterai

transportation that is equipped with a power-

Operated lifting device usually in the form of a

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Favs

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a,

fork or platform capable of tiering loaded pallets

or skids one above the other. Instead of a fork,

or platform, the lifting device may consist of a

ram, scoop, shovel, crane, revolving fork, or

other attachments for handling specific loads.

The term shall mean and include high-lift trucks

known under such names as forklifts, fork

trucks, forklift trucks, tiering trucks, or stacking

trucks, but shall not mean low-lift trucks or

low-lift platform trucks that are designed for the

transportation of, but not the tiering of,

material.”

STATEMENT OF THE CASE

A sixteen-year-old boy was crushed to death when the

high-lift fork-lift truck which he was operating went off

the loading platform and turned over. The operation of a

high-lift fork-lift truck is an operation deciared by the

Secretary of Labor to be particularly hazardous for

employees under eighteen. The assignment of a sixteen-

year-old to such work is a violation of the Fair Labor

Standards Act. (29 U.S.C.A. Sections 203(1)and 21 2(c):

29 C.F.R. Sec. 422.7)

The complaint, as amended, brought by the peti-

tioners, the parents of the boy, alleged an action for

damages for violation of the federal right established in

minors by the Fair Labor Standards Act to be free from

working in hazardous occupations. The District Court

ruled that the FLSA did not create a cause of action for

damages resulting from such a violation.

Plaintiffs appealed on the grounds that money damages

is the remedy normally available for the violation of a

federally established right whether or not the statute so

provides.

5

In affirming the decision, the Court of Appeals for the

Fifth Circuit held that federal courts imply remedies only

when a law creating a right provides for no remedy or for

a grossly inadequate remedy and further held that the

criminal penalties of the Fair Labor Standards Act

constitute a remedy. Judge Wisdom, dissenting, would

hold that the Act creates a right and that the existence of

the right implies a remedy in damages.

The bases for federal jurisdiction in the district court

as alleged in the complaint as amended were the fact that

the complaint sought recovery directly under the Fair

Labor Standards Act (29 U.S.C.A. Sec. 201 et seq.):

general federal question jurisdiction (28 U.S.C.A. Sec.

1331); federal jurisdiction of any cause of action arising

under a statute regulating interstate commerce (28

U.S.C.A. Sec. 1337) and diversity of citizenship. (The

count of the complaint alleging a wrongful death action

based on Georgia law, for which diversity of citizenship

would have been the basis for jurisdiction, was held to be

barred by the Georgia Workmen’s Compensation Act, and

petitioners do not seek review of this ruling. They seek

review only of the holding as to the availability of a

federal remedy for the violation of a federally established

right. Jurisdiction of the count alleging this cause of

action is based on the first three grounds set out above.)

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POINT I

DENIAL OF A CIVIL REMEDY FOR DAMAGES

RESULTING FROM VIOLATION OF THE CHILD

LABOR PROVISION OF THE FLSA BECAUSE THE

ACT PROVIDES CRIMINAL SANCTIONS CON-

FLICTS WITH PREVIOUS DECISIONS OF THIS

COURT AS TO THE AVAILABILITY OF CIVIL

REMEDIES FOR THE VIOLATION OF FEDER-

ALLY ESTABLISHED RIGHTS.

Beginning in 1916 with Texas & Pacific Ry. v. Rigsby.

241 U.S. 33, 36 S.Ct. 482. 60 L.Ed. 874, a decision

under the Federal Safety Appliance Act. the decisions of

this Court consistently hold that in the absence of

congressional declaration to the contrary, where the

violation of a statute results in damage to one of the class

for whose benefit the statute was enacted, the right to

recover damages is implied. These decisions have not

confined implied remedies to statutes deficient in

criminal sanctions as is demonstrated by cases arising

under the Securities Exchange Act, which provides

heavier criminal penalties (15 U.S.C.A. 78ff) than does

the FLSA (29 U.S.C.A. 216). UL Case Co. v. Borak.

1964, 377 U.S. 426, 84 S.Ct. 1555, 12 L-Ed.2d 433:

Deckert v. Independence Shares Corp., 1940, 311 US.

282. 61 S.Ct. 229, 85 L.Ed. 189).

Although the FLSA criminal penalties applicable to

the child labor provisions are applicable also to the

wrongful discharge provision, Mitchell v. Robert De

Mario Jewelry, Inc.. 1960, 361 U.S. 288, 80 S.Ct. 332.4

L.Ed.2d 323. holds that a remedy for violation of the

wrongful discharge provision is implied. Although De

Mario was an injunction proceeding, it is significant here

because it expresses the view of the entire Court that an

employee wrongfully discharged should be compensated

emma

in money damages even though the Act does not

specifically so provide. The majority held that he could

recover in the injunction proceeding despite the proviso

against the collection of underpayment of the minimum

wage in this manner.

The dissent reinforced its argument that damages

consisting of back pay could not be had in an injunctiori

proceeding by stating that a wrongfully discharged

employee may maintain in his own right an action at law

to recover wages lost as a result of his wrongful discharge

(361 U.S. at 303). One member of the majority con-

curred specially, expressing the opinion that the

employee could recover either at law or in equity.

Despite the provision for criminal penalties in the

Rivers and Habors Act, this Court held in Wyandotte

Transportation Co. v. U.S., 389 U.S. 191 (1967), that

there was an implied cause of action for the cost of

removal of a vessel negligently sunk.

The enforcement criterion is specifically rejected in

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 1971, 403 U.S. 388, 397, 91 S.Ct.

1999, 29 L.Ed.2d 619, 627, where this Court said that

the question was not whether the availability of money

damages was necessary to enforce the Fourth Amend-

ment but whether one injured upon violation of his

Fourth Amendment rights is entitled to redress his injury

through a “remedial mechanism normally available in

federal courts.”

Under the decisions of this Court, in the absence of an

explicit congressional declaration to the contrary, money

damages are available for the violation of a federally

established right. The dissenting opinion of Judge

Wisdom in the instant case contains a correct and simple

statement of the doctrine of implied remedies as enunci-

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POINT Il

DENIAL OF A CIVIL REMEDY BECAUSE OF THE

EXISTENCE OF CRIMINAL PENALTIES CON.

FLICTS WITH DECISIONS OF OTHER COURTS OF

APPEALS’

This decision conflicts with Fratt v. Robinson, 1953,

203 F.2d 627, in which the Ninth Circuit Court of

Appeals held that there was an implied remedy for

damages for violation of the Securities Exchange Act of

1934, and also with Burke v. Compania Mexicana de

Aviacion, 9 Cir., 433 F.2d 1031, and with Dann r.

Studebaker Packard Corp., 6 Cir., 288 F.2d 201.

It conflicts with the leading decisions on implied rem-

edies. which are decisions of the Second Circuit. Judge

Learned Hand in Reitmeister v. Reitmeister, 1947. 162

F.2d 691, stated that although the Communications Act

of 1934 (47 U.S.C.A. Sec. 151 et seq.) did not expressly

create any civil liability, it came “within the doctrine

which, in the absence of contrary implications, construes

a criminal statute, enacted for the protection of a

specified class, as creating a civil right in members of the

class, although the only express sanctions are criminal.”

(The maximum sentence provided (47 U.S.C.A. Sec. 501)

is longer than that provided by the FLSA.)

By the same reasoning a civil remedy was found.

despite the provisions for criminal sanctions, to exist

under the Federal Aviation Act in Fitzgerald v. Pan

American World Airways, Inc., 1956, 229 F.2d 499, and

under the Rivers and Harbors Act in United States '.

Perma Paving Co., 1964, 332 F.2d 754. The Court (p.

758) saw no basis for thinking that the imposition of

criminal penalties indicated a Congressional desire to

withhold a remedy.

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POINT Ill

WHETHER OR NOT A PRIVATE CIVIL REMEDY IS

AVAILABLE FOR VIOLATION OF FLSA RIGHTS

OTHER THAN MINIMUM WAGES AND OVERTIME

COMPENSATION IS A SUBSTANTIAL FEDERAL

QUESTION NOT HERETOFORE DETERMINED BY

THIS COURT.

Whether the child labor provisions of the Fair Labor

Standards Act create a private cause of action for

damages resulting from their violation is a question of

first impression. Should the decision below be allowed to

stand, enforcement of the Act is weakened in two ways.

The child labor provisions are left to be enforced by

inspection by the Department of Labor only. Unlike the

underpaid employee who has an incentive to file a

complaint to collect any underpayment of the minimum

wage, the sixteen year old assigned to a dangerous job is

not likely to complain.

Furthermore, the decision weakens the statutory

scheme for enforcing wage-hour provisions by raising

doubt as to whether an employee discharged for filing a

complaint or testifying under the Act has a private cause

of action for wages lost because of his unlawful discharge.

Partially on the basis of Mitchell v. Robert De Mario

Jewelry, Inc., 1960, 361 U.S. 288, a district court held in

Fagot v. Flintkote Co., USDC ED La., 1969, 305 F.

Supp. 407, that such a remedy does exist. Now even this

is in doubt.

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POINT IV

THIS COURT SHOULD GRANT REVIEW TO DEFINE THE

CRITERIA FOR DETERMINING WHEN A REMEDY IS IMPLIED.

Judge Wisdom stated in his dissent that under the

majority view there could never be a private right of

action in the absence of specific statutory language.

Statutes defining illegal conduct customarily provide

penalties, and to hold that a remedy is not implied if

there are penal provisions is in effect to abolish implied

remedies.

The underlying reason for the decision may have been

the employer-appellee’s argument that granting a remedy

in this case would lead to a flood of actions for violations

of the Occupational Safety and Health Act, 29 U.S.C.A.

Sec. 651 et seq. The majority was reluctant to create a

remedy in a field “that has been traditionally left to the

states.” Thus, absent criteria for determining the circum-

stances under which remedies are implied. courts are left

to make value judgments as to the use of judicial

resources.

This Court may wish to consider either the criteria set

out in “Note, Implying Civil Remedies from Federal

Regulatory Statutes,” 77 Harv. L. Rev. 285 (1963). or

those applied to the FLSA in Fagot r. Flintkote Co..

1969, 305 F. Supp. 407, 413; namely, whether a private

civil remedy would be in keeping with the statutory

policy and scheme. The policy criterion was easily met

since the FLSA was obviously intended to make the

abolition of oppressive working conditions a federal

matter. A private remedy was in keeping with the

statutory scheme also since the Act bestows rights on

employees and specifically provides that suits for collec-

7, ls

tion of underpayment of minimum wages or overtime

may be filed either by the Secretary of Labor or by

employees. The same criteria would eliminate the

possibility of a suit for damages under the Occupational

Safety and Health Act since it was not the purpose of this

Act, which also sets up a commission to study workmen’s

compensation, to remove job injuries to federal court,

and since the statutory scheme of this act leaves

enforcement entirely under the control of the Secretary

of Labor.

The doctrine of implied remedies has stood the test of

time, and courts should not unduly circumscribe their

power by adopting ill-considered limitations. Clarification

of the doctrine is needed.

CONCLUSION

This Court should grant certiorari, and the judgment

below should be reversed.

Respectfully submitted,

WILLIAM V. GEORGE

George & George

P.O. Box 488

Forest Park, Georgia 30050

Attornev for Petitioner

CODY QaMIiinasgn Croat is Co arse

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APPENDIX A

IN THE

United States Court of A

FOR THE FIFTH CIRCUIT

No. 71-3422

MARGARET LOUISE BREITWIESER and’/, +2 \ °° ~

JAMES J. BREITWIESER, Tost

Plaintiffs-Appellants,

versus

KMS INDUSTRIES, INC. d/b/a ADVO SYSTEMS,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Georgia

(September 21, 1972)

Before WISDOM, THORNBERRY and GODBOLD,

Circuit Judges.

THORNBERRY, Circuit Judge: The issue in this

case is whether the child labor provisions of the Fair

Labor Standards Act, 29 U.S.C.A. §212, and the regu-

lations promulgated pursuant thereto, create a private

cause of action for damages for wrongful death. This

arently a question of first impression.

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oe

Appellants are the parents of a sixteen-year-old boy

who died when the forklift truck he was driving, while

allegedly in the scope of his employment with appellee,

turned over. In Order No. 7, 29 C.F.R. §422.7, issued

on the authority of 29 U.S.C.A. §203(1), the Secretary

of Labor declared the operation of a high lift forklift

truck to be an occupation “particularly hazardous”

for employees under the age of eighteen years old.

The decedent’s assignment to the forklift was thus in

violation of the Act.

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This diversity case was originally brought in the

court below as a wrongful death action based on Geor-

. gia law. The complaint was later amended to allege

j the FLSA as a separate basis for liability. The district

: court ruled on a motion to dismiss that the FLSA did

not create an independent cause of action for wrongful

death. He grounded his decision on statutory construc-

: tion, concluding that since the FLSA establishes civil

i remedies for certain violations but only criminal sanc-

tions for child labor violations, Congress must not have

intended private damage suits to be an available reme-

dy under the child labor section of the Act. Subsequent-

: ly, the court held on a motion for summary judgment

that appellants’ wrongful death claim was barred by

Georgia workmen’s compensation law, GA. CODE

ANN. §114-103. This appeal followed.

; Appellants argue first that they have a right to dam-

ages based on the alleged FLSA violation and second-

ly that their state law wrongful death claim is not pre-

cluded by the Georgia workmen’s compensation stat-

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ute. The second contention is without merit but the

first requires comment.

Appellants concede that the FLSA does not provide

on its face for damages as a remedy in child labor

cases. Instead they rest their case on the oft-stated

principle that when there is a right there is a remedy,

See Bell v. Hood, 327 U.S. 678 (1946). They argue that

(1) the FLSA establishes the right of sixteen year olds

not to be assigned to certain hazardous work, (2) that

right has been violated, and (3 ) the Act does not pro-

vide a remedy; therefore. they conclude, the federal

courts should fashion a remedy in the form of mone-

tary damages.

This theory of recovery has a serious flaw, namely

that the FLSA does establish a remedy for contraven-

tion of its child labor provisions. Although federal

courts have on occasion implied remedies for infringe-

ment of federally conferred rights, e.g., Bivens v. Six

Unknown Named Agents of the Federal Bureau of Nar-

cotics, 403 U.S. 388 (1971); J. I. Case Company v. Borak,

377 U.S. 426 (1964); Gomez v. Florida State Employ-

ment Service, 5th Cir. 1969, 417 F.2d 569. thev have

done so only when the law creating the right provided

for no remedy or for a grossly inadequate remedy.

The courts have thus implied relief when necessary

to prevent abrogation of congressional policies. The

instant case presents a very different situation in that

the FLSA, rather than lacking in remedies or providing

inadequate remedies, contains a comprehensive en-

forcement scheme, 29 U.S.C.A. §$215-217, including

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substantial criminal penalties for violations of child

labor law.

Appellants rely primarily on the three cases cited,

supra. In J. I. Case Company v. Borak, 377 US. 426

(1964), the Supreme Court was faced with an alleged

vjolation of §14(a) of the Securities Exchange Act of

1934. §27 of the Act gave the federal courts jurisdic-

tion over violations but did not specify what relief

might be granted. The Court held that $27 was an

adequate basis for a suit for damages. J. I. Case, al-

though ostensibly a statutory con struction decision, is

a case in which the Court imp. ed a remedy when none

was specifically provided by the statute. However,

whether we denominate J. /]. Case a statutory construc-

tion case or an implied remedy case, it is distinguish-

able from the cause before us. First, the FLSA simply

cannot be construed to create a private cause of action

for damages in a child labor case. Secondly, taking

the implied remedy tack, we note that the Securities

Exchange Act and its legislative history indicated a

strong congressional policy against stock fraud. The

Act set out, however, no specific remedy for achieving

this congressional goal. The Court was thus faced with

the choice of fashioning a remedy or risking nullifica-

tion of congressional intent.

We, therefore, believe that under the circum-

stances here it is the duty of the courts to be

alert to provide such remedies as are neces-

sary to make effective the congressional pur-

pose.

Sa

J. I. Case, supra, at 433. In contrast, in the instant case

we do not need to leap into the legislative breach to

preserve congressional goals because there is no

breach. Congress has provided remedies of its own

in the FLSA.

The second case that appellants urge in support of

their position is Bivens v. Six Unknown Named Agents

of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

The plaintiff in Bivens was the victim of an allegedly

illegal search by federal agents. The Court held that

he could sue the agents for damages. The fourth a-

mendment, on which the suit was grounded, does not,

of course, set out any specific remedies for violations.

Moreover, the court-developed remedy of suppression

of evidence is useless to an innocent person. Bivens

thus presented a clear case of a federal right without

a federal remedy. The issue was whether the plaintiff

should be relegated to a tort suit based on state law.

The Court held he was not, concluding that when fed-

eral law creates a right there should be a federal rem-

edy. In the instant case there is a federal remedy for

infringement of the federal right; it is set out in the

Statute itself.

Appellant’s third case is Gomez v. Florida State Em-

ployment Service, 5th Cir. 1969, 417 F.2d 569. In Gomez

the employers of migratory workers and certain state

officials had allegedly violated the Wagner-Peyser Na-

tional Employment System Act. The workers alleged

they had been paid inadequately and subjected to a-

bominable living conditions. The only sanction set forth

in the Act was a cut off of federal grants to the states

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for programs under the Act. The court decided that

this remedy was inadequate and held that the workers

were entitled to additional relief under the Act.

The three cases relied on by appellants involve viola-

tions of federal rights where the remedy provided by

the law creating the right was unclear, J. I. Case, non-

existent, Bivens, or grossly inadequate, Gomez. The

courts were thus faced with federal policies that were

likely to be undermined if the court did not provide

effective relief to the complainant. The instant case

is distinguishable. First, we do not have a statutory

construction problem such as existed in J. I. Case. The

FLSA clearly does not provide for damages in child

labor cases. Secondly, we do not have a right without

a remedy as in Bivens or with an inadequate remedy

as in Gomez. The FLSA explicitly provides for crim-

inal penalties of up to six months in prison and a $10.000

fine for child labor violations, 29 U.S.C.A. §216. Third-

ly, the one thread that runs through the three cases

discussed is absent here: Congress’ determination that

sixteen year olds shall not be assigned to forklifts will

not be subverted if we fail to read a civil damages

remedy irto the Act. The criminal sanctions found in

the Act are substantial enough to serve as an adequate

deterrent to violations of the Act’s child labor provi-

sions.

The Supreme Court said in Bivens that the existence

of a state remedy for violation of a federal right does

not preclude a federal court from fashioning a federal

remedy to ensure the enjoyment of that right. How-

ever, in Bivens the question was whether state relief

<a

should be the exclusive recourse since the fourth a-

mendment, which was the basis of the suit, provided

no remedy. The Court decided that it should not be

and decreed federal relief.

The question in the case before us is different. We

must decide here whether we should imply an addi-

tional federal remedy although a substantial one al-

ready exists. We are asked to order civil damages

since the FLSA provides only criminal penalties that

offer no solace to the injured party. We believe that

in this situation, where Congress has provided a reme-

dy but we are urged to formulate a more extensive

one, it is appropriate to look, as the district court did,

to appellants’ remedies under state law to determine

if additional federal relief is necessary to implement

Congress’ intent in enacting the child labor law.

We conclude that further relief is not called for. Al-

though Georgia workmen's compensation law provides

low awards to the beneficiaries of deceased workers

without dependents — $750 in this case — the State

does provide relief. We conclude that the size of the

State award does not justify a federal court’s creating

a new federal remedy based on a statute that gives

no hint of such a remedy in a field — job-related in-

juries to employees — that has traditionally been left

to the states.

In summary, we can find no indication that Congress

intended the FLSA, which was passed to deter oppres-

sive child labor and contains substantial enforcement

provisions, to form the basis for an expansion of state

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wrongful death liability. See Rogers v. Ray Gardner

Flying Service, 5th Cir. 1970, 435 F.2d 1389. Moreover,

we do not believe policy considerations call for this

Court to extend FLSA remedies to include private suits

for damages. In Bivens, supra, Justice Harlan said

[I]n suits for damages based on violations of

federal statutes lacking any express authoriza-

‘ tien of a damage remedy, this Court has

authorized such relief where, in its view, dam-

ages are necessary to effectuate the congres-

sional policy underpinning the substantive pro-

visions of the statute.

Bivens, supra, at 402 (Harlan J. concurring). This is

not such a case.

AFFIRMED

WISDOM, Circuit Judge, dissenting:

I respectfully dissent.

I would hold that the Fair Labor Standards Act creat-

ed a federal right in minors to be free from working

in hazardous employment tasks. The existence of this

statutorily created right implies a remedy in damages

for the individual who is injured by his employer's

violation of the right.

The majority find “a serious flaw” in the plaintiff's

theory of recovery in that “the FLSA does establish

a remedy for contravention of its child labor provi-

9a

sion”. (Original emphasis). This case differs, there-

fore, the Court contends, from cases involving federal

regulatory statutes which provide no remedy. The

remedy here, according to the majority, is “a compre-

hensive enforcement scheme, 29 US.CA. §§ 215-217,

including substantial criminal penalties for violation

of child labor law”.

I have conceptual difficulties in thinking of criminal

sanctions as remedial. Assuming, however, that they

are remedial in terms of inhibiting future violations

of the child labor provisions of the law, the enforce-

ment scheme is society's remedy; it is not the victim’s.

A fine and prison sentence imposed on the offender

put no money in the bank to compensate the minor

for his injury or his family for his death. The individual

minor’s right to work under safe conditions has been

violated by the employer’s breach of a statutory duty

owed to the minor as well as to society. If the majori-

ty’s view were sound, in the absence of specific statu-

tory language authorizing a suit for damages there

could never be a private right of action for conduct

newly defined by federal law as a public wrong.

We know however that in numerous situations courts

have inferred civil liability from violation of a statute

or regulation that is silent as to civil liability. See Go-

mez v. Florida State Employment Service, 5 Cir. 1969,

417 F.2d 569, 576; Note, Implying Civil Remedies From

Federal Regulatory Statutes, 77 Harv. L. Rev. 285

(1963). The most conspicuous examples are private ac-

tions for violation of the federal securities law. Sec-

tion 10(b) of the Securities Exchange Act of 1934 and

COPY BOUND CLOSE IN CENTER

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Rule 10b-5 only prohibit certain conduct; they do not

provide compensation for the parties injured by the

violations or recognize a standing to sue for recovery

of damages. Yet the courts are clogged with private

actions based on § 10(b); the courts’: problem now

is how to devise reasonable limits on the implied right

to hold offenders civilly liable. See Birnbaum v. New-

; port Steel Corp., 2 Cir. 1952, 193 F.2d 461. See also

Herpich v. Wallace, 5 Cir. 1970, 430 F.2d 792, 794.

$ As Chief Judge Brown pointed out in Gomez v. Flori-

da State Employment Service, 5 Cir. 1969, 417 F.2d

569, 576, the “implication of a private civil remedy

was first recognized by the Supreme Court in 1916 in

Texas & Pacific Ry. v. Rigsby, 241 US. 33, 36 S.Ct.

482, 60 L.Ed. 874, where the Court held that an em-

ployee could recover damages under the Federal Safe-

ty Appliance Act.”* In Rigsby the Supreme Court de-

clared: “[D]isregard of the command of the statute

is a wrongful act, and where it results in damage to

one of the class for whose especial benefit the statute

was enacted, the right to recover damages from the

_ party in default is implied .. ” This doctrine has been

applied to many regulatory statutes “and is invoked

- with increasing frequency, in the federal courts”.

Note, Implying Civil Remedies from Federal Regula-

tory Statutes, 77 Harv. L. Rev. 285 (1963).

‘The FSAA is no longer held to provide a basis for an implied

cause of action. See Jacobson v. New York, N. H. & H. RR.

1 Cir. 1953, 206 F.2d 153, aff'd per curiam 347 U.S. 909 (1954);

Moore v. Chesapeake & O. Ry., 1934, 291 US. 205, S.Ct.

, LEd. _ But the safety requirements of the

FSLA set the standard of care owed to interstate railway em-

ployees under the FELA.

i

lla

A considerable portion of the majority opinion is de-

voted to attempting to distinguish three leading cases

which support the plaintiff's theory of recovery. These

cases are J. I. Case Company v. Borak, 1964, 377 U.S.

426, 84 S.Ct. 1555, 12 L.Ed.2d 433; Bivens v. Six Un-

known Named Agents of the Federal Bureau of Nar-

cotics, 1971, 403 U.S. 308, 91 S.Ct. 1999, 29 L.Ed.2d 619;

and Gomez v. Florida State Employment Service, 5

Cir. 1969, 417 F.2d 569. The majority’s effort to dis-

tinguish these cases falls short of its goal.

(1) J. I. Case. First, the Court declares that “FLSA

simply cannot be construed to create a private cause

of action”. This statement suggests that the Securities

Exchange Act can be construed to create a private

cause of action. But although private remedies are ex-

pressly provided for in certain sections of the Act (e.g.

§§ 9(e), 16(b), and 18(a) ), there is no language that

can be said to provide a private remedy under §§ 10

(b) and 14. Second, the Court argues that the Securi-

ties Exchange Act is based on a strong congressional

policy against stock frauds. This, however, is matched

by the equally strong congressional policy against the

improper use of child labor. On any scale of social

values the interests of working minors rank at least

as high as the interests of stockholders defrauded by

misleading proxies. Cf. Bivens, 403 U.S. at 410. Third,

as for the “remedy”, Congress provided as compre-

hensive a scheme of sanctions for violations of the Se-

curities Exchange Act, including substantial criminal

penalties, as it did under FLSA. 15 U.S.C. 78ff.

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(2) Bivens. The majority atternpts to Gistinguish

Bivens by reasserting the theory that, unlike the FLSA,

which has a remedy (a comprehensive scheme of en-

forcement), the Fourth Amendment has no specific

remedy for its violation. The Court overlooks the fact,

however, that there are criminal penalties for violation

dt the Fourth Amendment, 18 U.S.C. § 2236 (1970),

that the exclusionary rule, barring the use of evi-

dence unconstitutionally seized is an effective remedy

to a defendant in any criminal prosecution.*

(3) Gomez. Gomez is troublesome to the majority.

In that case, this Court concluded that cutting off fed-

eral grants to the states for programs under the Wag-

ner-Peyser National Employment System Act was an

inadequate remedy for those who suffered from the

loss — the workers. That is similar to the situation

we have here. Criminal sanctions against an employer

for violation committed in the past or injunctions a-

gainst violations in the future offer no temedy to the

minor who has suffered the injury from the employ-

er’s misconduct.

Initially the Court took the broad view that there

is no implied civil remedy under the FLSA because

the Act provides a comprehensive enforcement

scheme including criminal sanctions. In attempting to

2For a discussion of Bivens in the context of the power to infer

remedies directly from the constitution without benefit of

express congressional authority to bring a civil action see

Dellinger, Of Rights and Remedies: The Constitution as @

Sword, 85 Harv. L. Rev. 1533 (1972).

—

13a

distinguish J. I. Case, Bivens and Gomez the Court

apparently retreated to the more tenable position that

in these cases the enforcement measures were inade-

quate. Undoubtedly they were. I ask, inadequate to

whom? It seems to me that, absent the civil liability

of the offender, the SEC Act, the Fourth Amendment,

the Wagner-Peyser National Employment System Act,

and the FLSA are all inadequate for the individual

whose rights under any of those laws are violated by

the offender’s breach of duty.

In Herpich v. Wallace this Court said, citing J. I.

Case v. Borak: “The SEC deems itself unequipped to

make persons whole who have been injured by viola-

tions of Rule 10b-5; it seeks only to deter violators

of the rule by making violations unprofitable ... .

Moreover, the Commission has neither the manpower

nor the time that completely effectively enforcement

of the securities laws by it alone would require. Con-

sequently private action violative of the rule serve as

“a necessary supplement to commission action. J. I.

Case Co. v. Borak, 377 U. S. 426, 432.” Similarly, in

Gomez this Court recognized that to achieve “the pur-

pose of the regulations — the protection of migratory

farm workers” — it was necessary or appropriate to

allow a “private civil remedy ... to individuals, acting

as a private Attorney General”. 417 F.2d at 576.

This is an acceptable rationale for implication of a

civil remedy fom a federal regulatory statute. But

the same arguments for allowing private actions under

the SEC Act or the Warner-Peyser Act would allow

private actions under the FLSA in the interest of work-

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14a

ing minors. The Secretary of Labor has no way of mak-

ing whole a minor who is injured as a result of being

assigned to a hazardous task beyond his competency

to perform. Nor does the Labor Department have the

manpower or the time that complete enforcement of

the law by it alone would require. Consequently civil

Spits for violations of the FLSA serve as a necessary

or appropriate supplement in the nature of an action

by a private attorney general to effectuate congres-

sional policy in favor of protecting child labor from

an employer’s abuses.

I would take a simple approach to this case, one

that need not rely on the fiction that the plaintiff is

a private attorney general. The effect of the Act is

to impose on employers the duty of assigning minors

only to non-hazardous tasks. Correlatively, working

minors have a right to be free from assignment to

hazardous tasks. An employer’s violation of his statu-

tory duty imposes civil liability in this as in any other

case where the violation of a duty causes injury to

an individual to whom the duty is owed. For every

-right there is a remedy. If the right is created by 2

federal statute, the federal courts have the power to

fashion an appropriate remedy. As Mr. Justice Black

said in Bell v. Hood, , 327 U.S. at 694, a statement

Mr. Justice Brennan quoted for the majority in Bivens:

“where federally protected rights have been invaded, —

it has been the rule from the beginning that courts

will be alert to adjust their remedies so as to grant

the necessary relief”.

ee ee

4 1Sa

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT |

No. 71-3422

MARGARET LOUISE BREITWIESER and

JAMES J. BREITWIESER,

Plaintiffs-Appellants,

versus

KMS INDUSTRIES, INC. d/b/a ADVO SYSTEMS,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Georgia

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion Sept. 21, 1972, 5 Cir., 197_, ___ F.2d __).

(November 2, 1972)

Before WISDOM, THORNBERRY and GODBOLD,

Circuit Judges.

PER CURIAM: The Petition for Rehearing is DE-

NIED and no member of this panel nor Judge in regu-

lar active service on the Court having requested that

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the Court be polled on rehearing en banc, (Rule 35

Federal Rules of Appellate Procedure; Local Fifth Cir-

cuit Rule 12) the Petition for Rehearing En Banc is

DENIED. .

WISDOM, Circuit J udge, dissents from the petition for

rehearing.

lb

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MARGARET LOUISE BREITWIESER _ )

and JAMES J. BREITWIESER ‘Saree

: ) Civil Action

Fil 14

KMS INDUSTRIES, INC. d/b/a on oeee

ADVO SYSTEM

ORDER

The plaintiffs initiated this action to recover for the

wrongful death of their son Larry D. Breitwieser, age 16.

Plaintiffs named as defendants KMS Industries, Inc.

(hereinafter KMS), a Delaware corporation, and _ its

General Manager in Atlanta, Fred Forkers, a Georgia

resident. In response, the defendants filed a motion to

dismiss the Complaint alleging the following grounds for

dismissal: (1) this Court’s lack of jurisdiction; (2) failure

of the Complaint to state a cause of action; (3) failure of

the Complaint to state a cause of action not barred by

the provisions of the Workmen’s Compensation laws of

Georgia.

After the filing of the defendant’s motion, the plain-

tiffs filed an amendment to their Complaint striking the

individual defendant Forkers. Subsequently, the plaintiffs

filed a second amendment further setting out their claim.

In their second amended Complaint, the plaintiffs con-

tended that KMS had violated the Fair Labor Standards

Act by negligently allowing a child sixteen years of age to

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\ ae

2b

perform duties’ declared to be hazardous for persons

under the age of eighteen. They therefore sought to set

5 forth a separate cause of action arising under the Fair

5 Labor Standards Act.

In an Order denying the defendant’s motion for

: dismissal, this Court held that: (1) it had jurisdiction over

é the matter; (2) the Complaint was sufficient to state a

} cause of action; and (3) the Complaint did not appear on

its face to be barred by the provisions of the Workmen’s

4 Compensation Law of the State of Georgia. This Court

also determined that the plaintiffs’ second amendment

3 merely clarified their claim of negligence rather than

5 presenting a claim based on a right created by the Fair

3 Labor Standards Act.

‘ The plaintiffs now move this Court to reconsider that

part of its earlier Order which held that their second

amended Complaint only clarified their claim of negli-

d gence. This motion is based on the plaintiffs’ contention

j that the Fair Labor Standards Act creates a federally

4 enforceable right and remedy for violation of that Act.

Also before this Court, is a motion by the defendant

KMS for summary judgment in its favor. Defendant

: contends that the wrongful death action is barred by the

4 provisions of the Georgia Workmen’s Compensation Act,

; Ga. Code Ann. § 114-103. The defendant further claims

that if the Court refuses to reconsider its earlier Order

denying the existence of a separate right of action under

the Fair Labor Standards Act, no genuine issue as to any

E material fact exists, and therefore, that summary judg-

; ment should be granted in its favor.

y pariaieteraaeiess:

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3b

MOTION TO RECONSIDER

The Court has studied carefully the provisions of the

Fair Labor Standards Act to determine if a private civil

remedy exists for a violation of the type alleged by these

plaintiffs. The Act as a whole deals with wage and hour

regulation as well as with the regulation of child labor.

Explicit remedies are set out in sections 216 and 217 of

the Act. The latter section provides injunctive relief to

restrain the violation of the wage and hour provisions.

Section 216 provides a civil remedy for minimum wage

and hour violations but sets out only criminal sanctions

for violations of the oppressive child labor provisions. It

is into this gap that the plaintiffs wish the Court to place

a civil remedy. The Court is of the Opinion that the

express authorization of both a civil and criminal remedy

for any wage and hour violation with no mention of a

corresponding civil remedy for a child labor violation

strongly suggests that the Congress did not intend for a

civil remedy to exist in that area. Had the Congress

intended that such a remedy exist, it would have so

provided.

In making this decision, the Court takes note of the

fact that an adequate remedy at state law exists in most

states to provide for child labor violations which result in

the death of the child. That remedy is in the form of

state wrongful death actions and/or Workmen’s Compen-

sation claims. This Court feels that the existence of these

slate remedies further suggests that no federal remedy

should be implied.

For these reasons, this Court upholds its earlier

decision whereby it held that the plaintiffs’ allegation of

a Fair Labor Standards Act violation is merely eviden-

tiary, going only to the weight of the proof in deter-

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ee et

4b

mining whether there was negligence or not. No private

civil remedy will be implied by this Court for a violation

of the oppressive child labor provisions of the Fair Labor

Standards Act. Therefore, the plaintiffs’ motion for

reconsideration is hereby DENIED and Count II is

MOTION FOR SUMMARY JUDGMENT

The defendant moves this Court to dismiss the

plaintiffs’ wrongful death claim (Count I) on the grounds

that plaintiffs’ action is barred by Georgia’s Workmen's

Compensation Law § 114-103 Ga. Code Ann. That law

provides that the rights and remedies granted an

employee under the Workmen’s Compensation Act “shall

exclude all other rights and remedies of such employee.

his personal representative, parents, dependents or next

of kin at common law or otherwise, on account of such

injury, loss of service or death.” Section 114-103 Ga.

Code Ann. Minors “even though working in violation of

any child labor law or other similar statute,” are to be

included in the term “employee” as used in this Act. See

§ 114-101 Ga. Code Ann. The defendant has submitted

the affidavit of the Production Manager of the Atlanta

Branch of ADVO Systems, Division of KMS Industries.

Inc., to show that the defendant was an “employer”

within the meaning of the Act and that Larry D.

Breitwieser was, at the time of his death, an “employee”

within the meaning of the Act, and that none of the

exclusions of the Act operated to remove this case from

the effect of § 114-103 Ga. Code Ann.

The defendant is correct in pointing out that the

Georgia Workmen's Compensation Statute provides for

alternative remedies. One may not seek to recover under

both the Georgia Workmen’s Compensation Statute and

the Georgia Wrongful Death provisions. It is not a matter

mee

Sb

for this Court to determine the merits of this statutory

system but only to follow it as it is set out. Therefore,

since the instant situation appears to be covered by the

Workmen’s Compensation Statute, plaintiffs’ wrongful

death action is precluded by that statute. For this reason,

the defendant's motion for summary judgment is hereby

GRANTED.

IT IS SO ORDERED this 29th day of September,

1971.

/s/ William C. O’ Kelley

WILLIAM C. O’KELLEY

United States District Judge

ORDER ON MOTION TO DISMISS

The plaintiffs, mother and father of Larry D. Breit-

wieser, age 16, bring this action for the wrongful death of

their son. The action was brought against the corporate

defendant, a Delaware corporation, and its General

Manager in Atlanta, an individual resident of the state of

Georgia.

The defendants filed a motion to dismiss on the

grounds that (1) the court lacks jurisdiction, (2) the

complaint fails to state a cause of action, (3) the

complaint shows on its face that it is barred by the

provisions of the Workman's Compensation Laws of

Georgia.

Following the filing of that motion, the plaintiff filed

an amendment striking the individual defendant. Sub-

sequent to that time the plaintiff filed a second amend-

ment elucidating on the claims of negligence. The

plaintiff claims that the employer was negligent by

allowing a child of 16 years of age to perform duties

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aie

6b

declared by the Secretary of Labor to be hazardous for

persons below 18 years of age and thus constituting

Dealing first with the question of jurisdiction of this

court wherein the defendant argues that the complaint

does not present a federal question since it is clear that

the plaintiffs are attempting to set out a claim under the

Georgia Wrongful Death Statute. We are of the opinion

that the case of Suggs v. Brotherhood of Locomotive

Firemen, etc., 217 F. Supp. 770 (D.C., Ga., 1960),

correctly outlined the law in this regard when it held:

“In order for this Court to have jurisdiction of

this action, it must be an action ‘arising under any

Act of Congress’ (28 U.S.C. § 1337) or one which

‘arises under the Constitution, laws or treaties of the

United States.” 28 U.S.C. §1331.... The test as

above indicated is whether the matter in contro

versy, the civil action or proceeding, ‘arises under’

the Constitution, laws or treaties of the United

States. Language used frequently and imprecisely by

courts and lawyers would, at first blush, incorrectly

indicate an equation of that test with whether the

action involves a federal question.”

The Court further stated:

“Many cases involve federal questions, however,

without having federal law as the basis of the suit.

Not every question of federal law emerging in a suit

is proof that a federal law is the basis of the suit.

Gully v. First National Bank, 299 U.S. 109, 115, 57

S.Ct. 96, 99, 81 L.Ed. 70, 73 (1936).”

This case involves the Fair Labor Standards Act (29

U.S.C. §201, et seq.) and Order No. 7 issued by the

Secretary of Labor pursuant to that section. However.

that Act does not create a cause of action for wrongful

death, conversely, it is controlled by the law of Georgia.

ee

7b

“A case arises under the Constitution or laws of the

United States whenever its correct decision depends upon

the construction of either or when the title or rights set

up by the party may be defeated or sustained by a

particular construction of the Constitution or law.”

Citing Gully, supra. Fountain v. New Orleans Public

Service, Inc., 387 F.2d 343 (C.A., Sth Cir., 1967).

The statute and order are alleged to be the basis of

jurisdiction, but they are merely evidentiary and go to

the weight of the proof in determining whether there was

negligence or not. The complaint does not allege a

requirement for interpretation or construction of the

statute in question: it prima facie is one alleging

negligence. Violation of the statute or order would be

The defendant has further argued that there was not a

complete diversity of citizenship imasmuch as the

individually-named defendant was a resident of the state

of Georgia. Plaintiffs first amendment having been

allowed without any objection having been made, this

jurisdictional question is cured. See Moore’s Federal

Practice, Vol. 3 €15.15[3], wherein Professor Moore

states in part as follows:

“An amendment which changes the jurisdictional

basis of an action will also relate back. the factual

situation alleged otherwise reme2ining unaltered.

Even though parties must be dropped to perfect

diversity jurisdiction, if they were not indispensable

parties the amendment will relate back to allow for

entry of judgment on the original verdict where this

is not prejudicial to the remaining parties. Similarly,

although there may not be complete diversity when

the action is brought, filing the complaint tolls the

statute of limitations and an amendment dropping

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non-indispensable parties to cure the jurisdictional

defect will relate back. In allowing relation back in

these situations, courts have emphasized the lack of

prejudice to the remaining defendants.”

Secondly, dealing with the defendant's contention that

the complaint does not state a cause of action, it is

sufficient here to state that the plaintiff has alleged more

than is necessary to comply with the requirements of

notice pleading.

Thirdly, the defendant has contended that the com-

plaint shows on its face that it is barred by the provisions

of the Workman’s Compensation Law of the State of

Georgia. A review of the pleadings do not reflect any

allegations concerning the number of employees of the

defendant corporation or any claim for benefits under

the provisions of the Workman’s Compensation Law, or

any other facts that would affirmatively show such

coverage.

Without precluding defendant's right to raise, at a

subsequent time, the defense of election under the

Workman’s Compensation Laws, the defendant’s motion

to dismiss plaintiff's complaint is denied.

This 23rd day of December, 1970.

/s/ William C. O’ Kelley

WILLIAM C. O’KELLEY

United States District Judge