# Petition for Writ of Certiorari — Breitwieser v. KMS Industries, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1818%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 410 U.S. 969 ## Text 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 ee Cte eee EERE ERE wee a (i) 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 COPY BOUND CLOSE IN CENTER Sabtaatedd ~ 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 COPY BOUND CLOSE IN CENTER 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 COPY BOUND CLOSE IN CENTER 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. 3G woman ier Tak : F a , é — 3 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 COPY BOUND CLOSE IN CENTER Favs RRO ele Pie oy SE LEIURD tra Hare dh eae ee eee ge ey Se —_" 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.) COPY BOUND CLOSE IN CENTER er eee ot OL Fae Bye Busawes a Cee Eee | 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- COPY BOUND CLOSE IN CENTER a eee shin senate Md el Be a | Poth ashy «RM anne 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. BA ie BIE « rr | 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. COPY BOUND CLOSE IN CENTER ee | oy sam no tnedtoast ee * APU ae Ot EE PALIN ah ORO 146 Pe See Sree ae 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 COPY BOUND CLOSE TO EDGE i 5 id RD OA tA OBE PANTIE: | BI Re BD PO i AD | la 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. COPY BOUND CLOSE IN CENTER 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. : % ‘ : Fa 2 a = 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- Bodine LI lew he Se er eee a — 3a 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 COPY BOUND CLOSE IN CENTER reee OR Se pore stn ee | rE agate tiAcicS PS pete Bi Ni RE Rt Sao PS RPS NCEE SA BRR Aut a AEH Sites Ditties fers Re leh i —— 4a 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 COPY BOUND CLOSE IN CENTER © wie OF hee: TARE A et ae ee Sa Rene din 8 nde AP we Mae aw dlp ek Lh a ed > so hte willy ._ oo" 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 ee bi Khel ae i te et a nT al 1, Le tabi tale bh fr eretioiees cei pine ate arenas tees bs 8b 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1818%3A1. Public record. Not legal advice.