Reply Brief — Breitwieser v. KMS Industries, Inc.

FEB 8 1973

MICHAEL ROC AK, JA_,CLES

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No. 72-1018

MARGARET LOUISE BREITWIESER

and JAMES J. BREITWIESER,

Petitioners,

KMS INDUSTRIES, INC., d/b/a

ADVO SYSTEMS,

Respondent.

RESPONSE@R KMS INDUSTRIES, INC. d/b/a

ADVO SYSTEMS TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

FERDINAND BUCKLEY

Counsel for Respondent

Of Counsel:

Thomas B. Branch III

Alfred B. Adams III

1515 Peachtree Center South

225 Peachtree Street, N.E.

Atlanta, Georgia 30303

Wasrengtos OC @ THIEL PRESS e (202) 3930625

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CONCLUSION

(i)

TABLE OF CONTENTS

PRELIMINARY STATEMENT ADOPTING POR-

TIONS OF PETITION FOR WRIT OF CER-

SE ee ee ep ree

ARGUMENT:

I. Will This Court Create by Implication, a Private,

Federal Cause of Action for Wrongful Death

from the Provisions of the Fair Labor Standards

Act, 29 U.S.C.A. Sec. 212, and Certain Regula-

tions Established by the Secretary of Labor in

Accordance with the Provisions of Said Act,

Where Effective State Remedies for the Con-

duct Proscribed by the Act Exist Not Only in

the State of Georgia But Generally Throughout

The United States of America ...........

The Criteria for Determining When a Federal

Remedy Is Implied Have Already Been Denied

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TABLE OF AUTHORITIES

Cases:

Bivins v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999:

29 L.Ed.2d 619

Jl. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555,

12 L.Ed. 423

>’

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Bitiiiaivn: PR cs nt wo en atts REA Sn Ra RAD acenlsticicD

(ii)

Moore v. Chesapeake & Ohio Railway, 291 U.S. 205,

54 S.Ct. 402, 78 L.Ed. 255 ....-- eee eee e eres

Rogers v. Ray Gardner Flying Service, Inc., 435 F.2d

1389 (Sth Cir. 1970) ...---- essere etree

Texas and Pacific Railway Company v. Rigsby, 317

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

Statutes and Other Sources:

Federal Statutes:

Fair Labor Standards Act, 29 U.S.C.A. Sec. 203(1)

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ee Eo ceed een eannsptseakeousras’

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

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State Statutes: |

Georgia Workmen’s Compensation Act, Ga. Code

Ann. Sec. 114-101, et seq. Ga. Laws 1920, p.

Se canoe sk RetCAOREDE SAKES REED EST? 6

Sec. 114-103 (Ga. Laws 1920, p. 167) ....----- 3 |

Georgia Wrongful Death Act, Ga. Code Ann. Sec.

105-1307 (Ga. Laws 1887, pp. 43, 45, as

ee Se eee oe ae 3

Miscellaneous:

Pod Se? re eee edd 4

“Note, Implying Civil Remedies from Federal Regula-

tory Statutes” (1963), 77 Harv. i) ee 5

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No. 72-1018

MARGARET LOUISE BREITWIESER

and JAMES J. BREITWIESER,

Petitioners,

Vv.

KMS INDUSTRIES, INC., d/b/a

ADVO SYSTEMS,

Respondent.

RESPONSE TO KMS INDUSTRIES, INC. d/b/a

ADVO SYSTEMS TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

PRELIMINARY STATEMENT ADOPTING PORTIONS

OF PETITION FOR WRIT OF CERTIORARI

Petitioners, Margaret Louise Breitwieser and James J.

Breitwieser, have petitioned this Court for the writ of

certiorari to review the decision of the United States

Court of Appeals for the Fifth Circuit, which had not

been reported as of the filing of the petition, but which

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appears as Appendix “A” to the petition. Respondent,

KMS Industries, Inc. d/b/a Advo Systems, hereby adopts,

and incorporates herein by reference, those portions of

the petition designated “Opinions Below” and “Jurisdic-

tion,” which appear on page 2 of the petition.

QUESTION PRESENTED FOR REVIEW

Will this Court create by implication, a private, federal

cause of action for wrongful death from the provisions of

the Fair Labor Standards Act, 29 U.S.C.A. Sec. 212, and

certain regulations established by the Secretary of Labor

in accordance with the provisions of said Act, where

effective state remedies for the conduct proscribed by the

Act exist not only in the State of Georgia but generally

throughout The United States of America?

STATUTES AND REGULATIONS INVOLVED

Federal Statutes

Fair Labor Standards Act, 29 U.SC., Section 201 et

seq. Section 216, Section 217

Occupational Safety and Health Act, 28 USC.

Section 651, et seq. Section 651(11), Section 666,

Section 676

Statutes of the State of Georgia

Georgia Code Annotated Section 114101 (Ga. Laws

1920, p. 167)

Georgia Code Annotated Section 114-103 (Ga. Laws

1920, p. 167)

Georgia Code Annotated Section 114-104 (Ga. Laws

1920, p. 177)

3

Georgia Code Annotated Section 114-107 (Ga. Laws

1920, p. 177, as amended)

Georgia Code Annotated Section 114-404 (Ga. Laws

1920, pp. 167, 190, as amended)

Georgia Code Annotated Section 114-413 (Ga. Laws

1920, pp. 187, 188, as amended)

Georgia Code Annotated Section 105-1301 (Ga. Laws

1887, pp. 43, 45)

Georgia Code Annotated Section 105-1307 (Ga. Laws

1887, pp. 43, 45; 1952, p. 54).

Pertinent portions of each of the above cited statutes are

set out verbatim in Appendix “A” attached hereto.

STATEMENT OF THE CASE

The statement of the case set out in the Petition for

writ of certiorari is essentially correct, but requires minor

amplification.

The amended complaint amounts to nothing more

than an action for wrongful death, as established by

Georgia Code Annotated Section 105-1307. Alleged

violation by defendant of the Fair Labor Standards Act

(29 U.S.C.A. Sections 203(1) and 212 (c)) was originally

charged by petitioners merely to show a measurement of

the standard of care required of defendant as the

employer of petitioner’s decedent. When respondent’s

motion for summary judgment pointed out the bar of the

Georgia Workmen’s Compensation Act (Georgia Code

Annotated Section 114103) to the cause of action

asserted, petitioners amended their complaint in an effort

to assert a cause of action based directly upon the Fair

Labor Standards Act. The opinions of the Courts below

al.

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(Appendices “A” and “B” of the petition) denied the

existence of any such cause of action.

In bringing their petition for certiorari, petitioners

have expressly waived their previous contention that the

Georgia Workmen’s Compensation Act did not bar a

cause of action for wrongful death under Georgia Law in

the instant case. However, the fact that petitioners now

seek review only of the holding of the Courts below as to

the availability of an implied federal remedy, only serves

to increase the importance of a consideration by this

Court of the available Georgia remedies. Therefore, both

the Georgia Wrongful Death Act and the Georgia Work-

men’s Compensation Act have been quoted at some

length in Appendix “A”.

ARGUMENT

L

WILL THIS COURT CREATE BY IMPLICATION, A

PRIVATE, FEDERAL CAUSE OF ACTION FOR

WRONGFUL DEATH FROM THE PROVISIONS OF

THE FAIR LABOR STANDARDS ACT, 29 U.SC.A.

ACT, WHERE EFFECTIVE STATE REMEDIES FOR

THE CONDUCT PROSCRIBED BY THE ACT, EXIST

NOT ONLY IN THE STATE OF GEORGIA, BUT

GENERALLY THROUGHOUT THE UNITED

STATES OF AMERICA?

Petitioners readily admit that neither the Fair Labor

Standards Act (29 U.S.C.A. 216) nor the regulations

promulgated thereunder by the Secretary of Labor (29

C.F.R. 422.7) expressly create a cause of action for

$

isi on the implication of Private remedies from

way v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874

(1916), through Bivins v. Six Unknown Named Agents of

Federal Buress of Narcotics, 403 U.S. 388, 91 S.Ct.

1999, 29 L.Ed 2d 619 (1971); and J. Case Co. ». Borak,

377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed. 423 (1964), is

that new, Private causes of action will not be implied

from federal statutes where state remedies exist.

Petitioners have called the Court’s attention to “Note,

implying Civil Remedies From Federal Regulatory

77 Harv. L. Rev. 285 (1963), which sets out

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or no reason to imply a federal cause of action where

state remedies already exist. Moreover, all states provide

extensive systems of trial courts for the implementation

of state created remedies, eliminating the need for federal

courts as forums for such litigation. In considering

whether to imply a federal remedy under such circum-

stances, the adequacy or inadequacy of a particular

state’s remedies is not controlling, since the Court’s

consideration must take into account the application of

its decision throughout all of the States.

Georgia law does provide a remedy for the wrong

complained of by petitioners in their complaint. This

remedy is a claim under the Georgia Workmen’s Compen-

sation Act (Georgia Code Annotated Section 114-101 et

seq., Ga. Laws 1920, p. 167, as amended). Moreover,

similar remedies for on the job injuries and deaths are

provided generally by the laws of all of the states, and

there is simply no need to imply a federal cause of action.

As in Rogers v. Ray Gardner Flying Service, Inc., 435

F.2d 1389 (Sth Cir. 1970), cert. den. 401 U.S. 1010

(1971), a case similar in principle to the one at bar, this

Court should recognize that tort law has historically been

left to the states, and should deny the writ of certiorari.

Il.

THE CRITERIA FOR DETERMINING WHEN A

FEDERAL REMEDY IS IMPLIED HAVE ALREADY

BEEN DEFINED.

In Point IV of their argument, petitioners suggest that

this Court should grant the writ of certiorari to define the

criteria for determining when a remedy should be implied

by a federal court under circumstances similar to those in.

the case at bar. However, such criteria have already been

7

more than adequately spelled out by this Court. Suc-

cinctly stated, private federal remedies will be implied

only where necessary to effectuate the Congressional

policy underpinning the substantive provisions of the

statute, and where effective State remedies for the

conduct proscribed by the federal statute are not

generally available throughout The United States. Bivins

y. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619

(1971); Moore v. Chesapeake & Ohio Railway, 291 U.S.

205, 54 S.Ct., 402, 78 L.Ed. 255 (1934); Texas and

Pacific Railway Company v. Rigsby, 317 U.S. 173, 36

S.Ct. 482, 60 L.Ed. 874 (1916); See generally “Note,

implying Civil Remedies From Federal Regulatory

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

Petitioners have suggested that a reason for the

decision in the Court below may have been respondent’s

argument that implication of a federal remedy in the case

at bar “would lead to a flood of actions for violations of

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

Section 651 et seq.” (Petition for writ of certiorari, p.

10). Indeed, respondents do contend that implication of

a remedy here would convert virtually every on-the-job

accident into a federal cause of action, but the problems

inherent in the implication would not stop there. It is

readily apparent that there would be a duplication of

remedies in almost every instance, since, as previously

pointed out, all on-the-job accidents would be covered

either by state workmen’s compensation acts or tort

actions. Should an employee be permitted both a claim

under his state’s workmen’s compensation act and a

federally implied cause of action against his employer

because of some allegedly unsafe condition on the job?

What of the generally prevalent provision of state

a,

7

ny Ta = eS ae af,

workmen’s compensation acts that the remedy provided

thereby is exclusive? How would venue, damages and

statute of limitations questions be determined? This is

not to suggest that the existence of such problems

should, standing alone, defeat the implication of a federal

cause of action if necessary to fill a vacuum, but it does

highlight the wisdom of first looking to state remedies

before implying a federal cause of action where none

would otherwise exist.

CONCLUSION

For the reasons stated, it is respectfully submitted that

the writ of certiorari should be denied.

Respectfully submitted,

FERDINAND BUCKLEY

Attorney for Respondent

Of Counsel:

THOMAS B. BRANCH Iil

ALFRED B. ADAMS Ill

a

la

APPENDIX A

29 U.S.C., Section et seq., Section 216

“(a) Any person who willfully violates any of the

provisions of section 215 of this title shall upon

conviction thereof be subject to a fine of not more

than $10,000, or to imprisonment for not more

than six months, or both. No person shall be

imprisoned under this subsection except for a prior

offense under this subsection.

“(b) Any employer who violates the provisions

of section 206 or section 207 of this title shall be

liable to the employee or employees affected in the

amount of their unpaid minimum wages, or their

unpaid overtime compensation, as the case may be,

and in an additional equal amount as liquidated

damages. Action to recover such liability may be

maintained in any court of competent jurisdiction

by any one or more employees for and in behalf of

himself or themselves and other employees similarly

situated. No employee shall be a party plaintiff to

any such action unless he gives his consent in writing

to become such a party and such consent is filed in

the court in which such action is brought. The court

in such action shall, in addition to any judgment

awarded to the plaintiff or plaintiffs, allow a

reasonable attorney’s fee to be paid by the defend-

ant, and costs of the action. The right provided by

this subsection-to bring an action by or on behalf of

any employee, and the right of any emplogee to

become a party plaintiff to any such actigh, shall

terminate upon the filing of a complaint by the

Secretary of Labor in an action under section 217 of

this title in which restraint is sought of any further

delay in the payment of unpaid minimum wages, or

the amount of unpaid overtime compensation, as

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the case may be, owing to such employee under

section 206 or section 207 of this title by an

employer liable therefor under the provisions of this

subsection.

“(c) The Secretary of Labor is authorized to

supervise the payment of the unpaid minimum

wages or the unpaid overtime compensation owing

to any employee or employees under section 206 or

section 207 of this title, and the agreement of any

employee to accept such payment shall upon pay-

ment in full constitute a waiver by such employee of

any right he may have under subsection (b) of this

section to such unpaid minimum wages OF unpaid

overtime compensation and an additional equal

amount as liquidated damages. When a written

request is filed by any employee with the Secretary

of Labor claiming unpaid minimum wages or unpaid

overtime compensation under section 206 or section

207 of this title, the Secretary of Labor may bring

an action in any court of competent jurisdiction to

recover the amount of such claim: Provided, That

this authority to sue shall not be used by the

Secretary of Labor in any case involving an issue of

law which has not been settled finally by the courts,

and in any such case no court shall have jurisdiction

over such action or proceeding initiated or brought

by the Secretary of Labor if it does involve any issue

of law not so finally settled. The consent of any

employee to the bringing of any such action by the

Secretary of Labor, unless such action is dismissed

without prejudice on motion of the Secretary of

Labor, shall constitute a waiver by such employee of

any right of action he may have under subsection

(b) of this section for such unpaid minimum wages

or unpaid overtime compensation and an additional

equal amount as liquidated damages. Any sums thus

recovered by the Secretary of Labor on behalf of an

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employee pursuant to this subsection shall be held

in a special deposit account and shall be paid, on

order of the Secretary of Labor, directly to the

employee or employees affected. Any such sums not

paid to an employee because of inability to do so

within a period of three years shall be covered into

the Treasury of the United States as miscellaneous

receipts. In determining when an action is com-

menced by the Secretary of Labor under this

subsection for the purposes of the two-year statute

of limitations provided in section 255(a) of this title

it shall be considered to be commenced in the case

of any individual claimant on the date when the

complaint is filed if he is specifically named as a

party plaintiff in the complaint, or if his name did

not so appear, on the subsequent date on which his

name is added as a party plaintiff in such action. . .”

29 U.S.C., Section 201 et seq., Section 217

“The district courts, together with the United

States District Court for the District of the Canal

Zone, the District Court of the Virgin Islands, and

the District Court of Guam shall have jurisdiction,

for cause shown, to restrain 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

withholding of payment of minimum wages or

overtime compensation found by the court to be

due to employees under this chapter (except sums

which employees are barred from recovering, at the

time of the commencement of the action to restrain

the violations, by virtue of the provisions of section

255 of this title. . .”

29 U.S.C. Section 651 et seq.

“The Congress finds that personal injuries and

illness arising out of work situations impose a

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substantial burden upon, and are a hindrance to,

interstate commerce in terms of lost production,

wage loss, medical expenses, and disability compen-

sation payments.

“(b) The Congress declares it to be its purpose

and policy, through the exercise of its powers to

regulate commerce among the several States and

with foreign nations and to provide for the general

welfare to assure so far as possible every working

man and woman in the Nation safe and healthful

working conditions and to preserve our human

”

resources. . .

29 U.S.C. Section 651(11)

“ _. by encouraging the States to assume the

fullest responsibility for the administration and

enforcement of their occupational safety and health

laws by providing grants to the States to assist in

identifying their needs and responsibilities in the

area of occupational safety and health, to develop

plans in accordance with the provisions of this

chapter, to improve the administration and enforce-

ment of State occupational safety and health laws,

and to conduct experimental and demonstration

projects in connection therewith. . it

29 U.S.C. Section 666

« __ (e) Any employer who willfully violates any

standard, rule, or order promulgated pursuant to

section 655 of this title, or of any regulations

prescribed pursuant to this chapter, and that viola-

tion caused death to any employee, shall, upon

conviction, be punished by a fine of not more than

$10,000 or by imprisonment for not more six

months, or by both; except that if the conviction is

for a violation committed after a first conviction of

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such person, punishment shall be by a fine of not

more than $20,000 or by imprisonment for not

more than one year, or by both. . .”

“... (k) Civil penalties owed under this chapter

shall be paid to the Secretary for deposit into the

Treasury of the United States and shall accrue to the

United States and may be recovered in a civil action

in the name of the United States brought in the

United States district court for the district where

the violation is alleged to have occurred or where

the employer has its principal office.”

29 U.S.C. Section 676

“(1) The Congress hereby finds and declares that

“*... (B) in recent years serious questions have

been raised concerning the fairness and adequacy

of present workmen’s compensation laws in the

light of the growth of the economy, the changing

nature of the labor force, increases in medical

knowledge, changes in the hazards associated with

various types of employment, new technology

creating new risks to health and safety, and

increases in the general level of wages and the cost

of living.

“(2) The purpose of this section is to authorize

an effective study and objective evaluation of State

workmen’s compensation laws in order to determine

if such laws provide an adequate prompt, and

equitable system of compensation for injury or

death arising out of or in the course of employment.

Ga. Code Ann. Section 114-101 (Ga. Laws 1920, p. 167)

““Employer’ and ‘employee’ defined.... ‘Em-

ployee shall include every person in the service of

another under any contract of hire or apprentice-

ship, written or implied, except one whose employ-

ment is not in the usual course of the trade,

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business, occupation or profession of the einployer

and, except as hereinafter provided, minors are

included even though working in violation of any

child labor law or other similar statute: Provided,

that nothing herein contained shall be construed as

repealing or altering any such law or statute. Any

reference to any employee who has been injured

shall, when the employee is dead, include also his

legal representatives, dependents and other person

to whom compensation may be payable, pursuant to

the provisions of this law. . “ti

Ga. Code Ann. Section 114-103 (Ga. Laws 1920, p. 167)

“The rights and remedies herein granted to an

employee where he and his employer have accepted

the provisions of this Title, agreeing respectively to

accept and pay compensation on account of per-

sonal injury or death by accident, shall include 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.”

Ga. Code Ann. Section 114-104 (Ga. Laws 1920, p. 177)

“Nothing in this Title shall be construed to relieve

any employer or employee from any penalty for

failure or neglect to perform any statutory duty.”

Ga. Code Ann. Section 114-107 (Ga. Laws 1920, p. 177,

as amended)

“This Title shall not apply to common carriers,

the motive power of which is steam and which are

engaged in intrastate trade or commerce, nor shall

this Title be construed to lessen the liability of such

common carriers or take away or diminish any right

that any employee, or in case of his death, the

personal representative of such employee, of such

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common carrier, may have under the laws of this

State; nor to employees whose employment is not in

the usual course of trade, business, occupation or

profession of the employer or not incidental there-

to; nor to farm laborers or domestic servants; not to

employees of institutions maintained and operated

as public charities; nor to employers of such

employees; nor to any persons, firm, or private

corporation, including any public service corpora-

tion, that has regularly in service less than 10

employees in the same business within this State,

unless such employees and their employers volun-

tarily elect to be bound.”

Ga. Code Ann. Section 114-404 (Ga. Laws 1920, p. 167,

190, as amended)

“When the incapacity to work resulting from an

injury is total, the employer shall pay or cause to be

paid, as hereinafter provided for. to the employee

during such total incapacity a weekly compensation

equal to 60 per cent of hes sverage wages. but not

more than $50 per week mor bess than $15 per week,

except when the weekly wage = teow $15 then the

regular wages on the date off the secudemt shall be

the weekly amount paad smi on mo cone shall the

period covered by sah commpemsstuom be greater

than 400 weeks. now shall the total amount of

compensation exceed $14.000 ~ *

Ga. Code Ann. Section 114-413 (Ga Laws 1920. p 187.

188, as amended)

“When an employee is entitled to compensation

under this Title for an injury received, and death

ensues from any cause not resulting from the injury

for which he was entitled the compensation, pay-

ments of the unpaid balance for such injury shall

cease and all liability therefor shall terminate.

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“If death results instantly from an accident

arising out of and in the course of employment, or if

during the period of disability causes by an accident

death results proximately therefrom, the compensa-

tion under this Title shall be as follows:

expenses not to exceed $750. If the employee

leaves no dependents, this shall be the only

compensation.

‘(b) The employer shall pay the dependents of

the deceased employee, wholly dependent on his

earnings for support at the time of the injury, a

weekly compensation equal to 85 per cent, of the

compensation which is provided for in section

Respondents: This would typically amount to a

total amount of compensation of about

$16,000), for a period not exceeding 400 weeks

from date of injury. ..””

Ga. Code Ann. Section 105-1301 (Ga. Laws 1887, pp.

43, 45)

“The word ‘homicide’ as used in this Chapter

shall include all cases where the death of a human

being results from a crime or from criminal or other

Ga. Code Ann. Section 105-1307 (Ga. Laws 1887, pp.

43, 45; 1952, p. 54)

child. The mother or father shall be entitled to

f the life of such child. In

illegitimacy of the child

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