Petition for Writ of Certiorari — Pierce v. Department of Labor

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927 666 OCT 1 6 1997

~ OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

Wiiuiam G. Pierce, P.E.,

Petitioner,

V.

Ropert Reicu, SECRETARY OF LaBor,

Unirep States DEPARTMENT OF LaABoR,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Submitted by

William G. Pierce, P.E.

pro se

3011 Hampton Court

Maineville, Ohio 45039

(513) 677-5334

i

QUESTIONS PRESENTED FOR REVIEW

L.

Whether the Federal Rule of Civil Procedure

12(h)(3) allows a defendant to raise a post judgment

challenge of the court's subject matter jurisdiction.

Il.

Whether Sections 254 and 259 of the

Portal-to-Portal Act are jurisdictional in nature, and the

"plain language" phrases "no employer shall be subject

to any liability or punishment" and "is a bar to the

action" as stated in the statute, limits a court's subject

matter jurisdiction and precludes further proceedings

against the defendant.

Il.

Whether fraud committed by an officer of the

court is covered under Rule 60(b)(3) or 60(b)(6) of the

Federal Rules of Civil Procedure.

il

LIST OF PARTIES

The parties to the proceeding in the United States

Court of Appeals were the United States Department of

Labor and William G. Pierce, P_E..

iil

TABLE OF CONTENTS

Questions Presented for Review...........06:

RT i es eee

RII dk i ok en caycdeduesecces

Statement OF Jurisdiction ....ccccccscccccoes

Constitutional Provisions and Rules Involved....

a fe Re ore peer ror

A. Factual Background .........sse00-

B. Procedural Background............

Reasons for Granting the Writ of Certiorari:

I. Whether the Federal Rule of Civil Procedure

12(h)(3) allows a defendant to raise a post

judgment challenge of the court's subject

ey MINION. Sa ieicccbecs ceaceces

II. Whether Sections 254 and 259 of the

Portal-to-Portal Act are jurisdictional in

nature, and the "plain language" phrases "no

employer shall be subject to any liability or

punishment" and "is a bar to the action" as

stated in the statute, limits a court's subject

matter jurisdiction and precludes further

proceedings against the defendant.........

10

12

iv

TABLE OF CONTENTS -- Continued

III. Whether fraud committed by an officer of the

court is covered under Rule 60(b)(3) or

60(b)(6) of the Federal Rules of Civil

POOCOTEE,. 6.0 ca bash eb HEC CENEC AIO DO sD

CONCLUSION. 02 cicsesvevicvesceesevsnes

APPENDIX A: Decision by the United States

Court of Appeals, Sixth Circuit, Motion to

Reconssier, duty 16, 1997. osoeccsacasdasee

APPENDIX B: Decision by the United States

Court of Appeals, Sixth Circuit, May 9, 1997..

APPENDIX C: Order in a Civil Case by the

United States District Court, Southern District

of Ohio, Western Division, March 25, 1996...

Page

23

28

Al

Bl

Cl

v

TABLES OF CITATIONS

Cases Page

Basco v. Utah Power & Light Co., 495 F.2d 906

(10th Cir. 1974)... ee eevee s*eeeeeee e*eeneee 11

Blum v. Great Lakes Carbon Corp., 418 F.2d 283

PGE SO eiieickceSenukedussanes 15

Bouchard v. Regional Governing Board of Region

V Mental Retardation Services, 939 F.2d 1332 18

cade Mev PERE PCE Eo Le

Cartage Co. v. Reynolds, 166 F.2d 317 (6th Cir.

FINES ose cevnvacnes tsbebiseceielass 18,19,20,29

Carter v. Panama Canal Company, 463 F.2d 1289

NAG Ti i obec an bubkdic duals 15,28

Casio, Inc. v. SM&R Co., 755 F.2d 528 (7th Cir.

1985) eoeeeneeee eoeeeweeeeveeeeeeeee eeeee ll

Chambers v. NASCO, 501 U.S. 32, 111 S.Ct. 2123,

PRG EAU OUT CIPO Ric ooo e bubba kk bas 24

Dunton v. County of Suffolk, 729 F.2d 69 (2nd Cir.

PO 6 she MER Me Nadwe beens Cosh acces 11

Fisby v. U.S. Depat. of Housing and Urban

Development, 755 F.2d 1052 (3rd Cir. 1985). . 27

Gulf States Manufacturers, Inc., v. NLRB 579 F.2d

APE RAE, FOTN 6 ohd's5 adh hed awadns 27

Hayes v. Gulf Oil Corp., 821 F.2d 285 (5th Cir.

FOWL che hENN 4 ONS LAM wd ee oes KEK bbe 11

Hazel-Atlas Glass Co. v. Hartman - Ford - Empire

Ce 522 OS. P9F 90ND isis vv boss oo 24

Jackson v. Air Reduction Company, 402 F.2d 521,

Re NONE sd HEN ae ess bes R hows aks 15,20

vi

TABLE OF CITATIONS -- Continued

Kenner v. Commissioner of Internal Revenue, 387

F.2d 689, (7th Cir. 1968).. oeeeses

Mitchell v. Southeastern Carbon ‘lead 3 228

F.2d 934 (Sth Cir. 1955)... ccccscesccsces

Mars’.all v. Baptist Hospital, Inc. 668 F.2d 234

(6th Cir. 1981). cecvcccccesvcceccevecs

Martin v. Malcolm Pirnie, Inc. 949 F.2d 611 (2nd.

Cir. 1991) eeeeeeeee eee eeereee eee eeeee

Quinn v. New York Electronic and Gas

Corporation, 621 F.Supp. 1086 (N.D. New

York, 1965). co ccvevoresvacsesastesseces

Sadat v. Mertes, 615 F.2d 1176 (7th Cir. 1980)

United States v. Newell, 578 F.2d 827 (9th Cir.

Von Dunser v. Aronoff, 915 F.2d 1071, 1074 (6th

Cv. 1099) i da ckcccescuswttacesecesuuen

Page

24

15

17,18,29

27

il

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

Wittiam G. Pierce, P.E.,

Petitioner,

V.

Ropert Reicu, Secretary OF Lapor,

Unirep States DEPARTMENT OF Lapor,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner William G. Pierce ("Pierce") respectfully

requests that the Court grant the Petition for a Writ of

Certiorari seeking review of the decision and judgment of the

United States Court of Appeals for the Sixth Circuit. As

discussed below, a review of the issues presented in this case

is necessary to ensure the rightful application of the Federal

Rules of Civil Procedure and the Portal to Portal Act of

1947.

2

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Sixth Circuit is an unpublished decision and is set

forth in the Appendix to the Petition ("Pet.App.") A at Al.

The Final Judgment by the United States District Court for

the Western Division of the Southern District of Ohio is set

forth in Pet. App. B at Bl. The Findings of Fact,

Conclusions of Law, Decision and Order of the United States

District Court for the Western Division of the Southern

District of Ohio is set forth in Pet. App. C at C1.

JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit was entered on May 9, 1997. Pet. App.

A. A Motion for Reconsideration was denied by order of the

court dated July 18, 1997. The jurisdiction of this court is

invoked under 28 U.S.C. §1254(1).

CONSTITUTIONAL AMENDMENTS, STATUTE(S)

AND REGULATION(S) INVOLVED

The constitutional amendments, statutory and

regulatory provisions involved in this case are:

Federal Rules of Civil Procedure

Rules No. 12(h)(3), 60(b)(4), and 60(b)(6)

Portal to Portal Act of 1947

(29 U.S.C. §251 et seq.)

3

STATEMENT OF THE CASE

Petitioner seeks review of a decision and judgment of

the United States Court of Appeals for the Sixth Circuit that

upheld the decision by the district court when it denied

Pierce's Motion to Vacate Judgment and Dismiss for Lack of

Subject Matter Jurisdiction. The district court's decision in

this action was that Pierce's motion was untimely filed and

therefore procedurally defective. In addition to affirming the

district court's decision that the motion was untimely filed,

the 6th Circuit failed to follow precedent and also decided

that the Portal-to-Portal Act did not involve subject matter

jurisdictional issues, but was strictly a defense that was

available to Pierce.

A. Factual Background

Petitioner Pierce is the sole Owner of a thirteen year

old consulting engineering firm that had 25 employees in

three geographical areas in the mid-west region of the

country. All of the firm's work involves contracts with

private industries manufacturing consumer products and fine

chemicals. The employees in question are considered by

Pierce to be salaried employees exempt from the minimum

wage and overtime provisions of the FLSA by virtue of the

exemptions established for managerial and professional

employees. The DOL has stated that the backgrounds and

job duties of the employees meet the regulatory requirements

for such exempt status.

In addition to a complete range of company paid

benefits for the employee, spouse, and children, Pierce also

had a flextime policy to allow his employees the Opportunity

to set their own schedule to meet personal and family needs.

With the offices opened twelve hours a day for ten days in a

normal two week pay period, the employee was able to

4

establish his/her own schedule as long as it did not negatively

impact on the needs of the client or co-workers.

Each employee, for billing purposes, was required to

complete an individual time sheet in order to account for their

time. The time sheets were kept as a project record and

appropriately charged to the client. As a matter of internal

record keeping, the employees were instructed to account for

their time in one of four categories: by project; leave

(vacation, holiday, sick), miscellaneous (jury duty, military

leave, bereavement, family medical emergencies, etc.), and

"office hours" (if no project work was available.)

Inherent with the flextime policy was the expectation

that the employee would manage their time in a professional

manner and work the hours commensurate with their agreed

upon salary. Should personal and/or family needs require

time away from work, the employee did not need permission

from any manager to leave early or arrive late, nor when to

make up any time that may have been missed. If so desired,

they had the option to charge such absences to personal leave

accounts rather than make the time up at a later date or

receive a reduction in pay -- the option was the employee's.

As a matter of fairness to all the salaried exempt

employees, overtime hours worked by the employees

provided additional compensation at a rate equal to their

yearly salary divided by 2080 hours. Since overtime hours

were sporadic, dependent on specific phases of a project, and

billable to the client, the additional payments were made to

the employees so that the "wealth" was shared.

During the course of the audit and subsequent review

of the records, it was found that approximately 105 hours out

of a total of nearly 70,000 effort hours worked were

deducted from employees pay for time the employees chose

5

to leave work and not make up the time or charge to their

absences for vacation leave. The figure represents

approximately $3,100 out of a payroll that approached

$1,500,000. During the same period, Pierce provided

non-required compensation totaling over $40,000 to the same

group of salaried-exempt employees for the extra time spent

on the job, even though such compensation was not legally

required for salaried employees. The 105 hours the DOL was

of the opinion should not have been deducted, represents

0.15% of the total hours worked during the audit period,

while the $3,100 the deducted hours represented amounted to

0.21% of the approximate payroll. In comparison, the

$40,000 in extra compensation paid to the salaried employees

represented 2.7% of the approximate payroll for the same

audited period. '

B. Procedural Background

On January 10, 1989, the Secretary commenced a

lawsuit against Pierce alleging that certain employees of

Pierce, during the period from June 1, 1986, to May 30,

1988, were not exempt from the overtime provisions of the

FLSA and were therefore entitled to additional overtime

payments. The determination was based on the Department's

new interpretation of the "salary basis" test. Pierce filed a

response denying that it had violated the overtime provisions

of the Act, asserting that the employees in question were

exempt administrative and/or professional employees

pursuant to 29 U.S.C. §213 and the applicable regulations

found at 29 C.F.R. §541.

tt a

In other words, Pierce paid his employees in extra

compensation ten times the amount of money the DOL was of the

opinion should not have been deducted. even though the employee was

not willing to work when work was available, and chose not to charge

the hours to their annual leave account.

6

On March 25, 1992, the United States District Court -

for the Southern District of Ohio, Western Division, issued

"Findings of Fact, Conclusions of Law, Decision and Order",

that the employees were determined to be exempt from the

overtime payment provision of the Act subject to the

conditions that (1) Pierce reimburse the employees in

question for the deductions made, and (2) Pierce promise to

comply with the Act in the future. Magistrate Judge Sherman

found that the “window of correction" should be made

available to Pierce since deductions had never been made due

to lack of work, but only when the employees were

voluntarily absent for personal reasons, and that Pierce was

currently in compliance and had promised to comply in the

future.

On February 9, 1993, the court reversed its decision

that Pierce's employees were exempt from the overtime

provisions of the FLSA because Pierce had not complied with

the order to reimburse the employees for the deductions that

were made.” The subsequent Judgment was that Pierce's

. The ultimate reversal of the magistrate judge's decision that

Pierce's employees would be covered as exempt employees through the

“window of correction" was due solely to Pierce's inability to comply

with the order to reimburse employees for the deducted hours. In no

way did the financial situation in 1992 reflect the manner in which the

employees where treated and compensated in the June 1986 to May

1988 audited period covered by the district trial: the recession of the

early 1990's and the distraction and disruption caused by this litigation

had taken its toll.

Pierce requested additional time in order to sell his family

residence and raise the funds necessary to comply with the magistrate

judge's order to reimburse the employees for the deducted hours. In an

effort to demonstrate the inability to pay in the Fall of 1992. Pierce

offered to “open the books” to an auditor of the court to substantiate his

explanation of non-compliance. In the appeal, exhibits were filed that

included cover sheets of the foreclosure proceedings on Pierce's family

home, Cincinnati office building, eviction notice of the business's

Louisville office, and repossession of the office equipment and furniture

7

employees were not exempt from the overtime provisions of

the FLSA, and that Pierce must pay the additional overtime

amounts along with interest and court costs.

On March 9, 1993, Pierce, proceeding pro se, filed an

appeal from the District Court's Final judgment, as did the

Secretary on April 12, 1993. when the Department filed a

cross-appeal. The United States Court of Appeals for the

Sixth Circuit, issued an unpublished decision affirming the

district court's decision and rejected the arguments raised by

both Pierce and the Secretary. The court relied upon Martin

v. Malcolm Pirnie, Inc. 949 F.2d 61] (2nd. Cir. 1991),

wherein the application of the "window of correction" was

rejected along with the argument for the “plain meaning" of

the regulations.

On January 4, 1995, Pierce filed a motion for a

Rehearing En Banc. That request was denied on February

15, 1995.

On May 9, 1995, Pierce filed a Petition for a Writ of

Certiorari with the United States Supreme Court. The

request was denied on October 2, 1995.

On January 21, 1996, Pierce filed a motion with the

United States District Court for the Southern District of

Ohio, Western Division to Vacate Judgment and Dismiss for

Lack of Subject Matter Jurisdiction. The motion was filed

pursuant to Federal Rules of Civil Procedure 12(b)(1) Lack

of Subject Matter Jurisdiction, 12(h)(3) Preservation of

Certain Defenses, 60(b)(4) Relief from Judgment, 60(b)(6)

Relief for Any Other Reason. Pierce contended that the

District Court did not have the subject matter jurisdiction

from both offices, in an effort to demonstrate the inability to pay and the

financial devastation that resulted from the litigation initiated by the

Secretary.

8

over the proceedings ab initio’ due to the jurisdictional limits

placed on the courts by Congress in the Portal -to-Portal Act

of 1947, and that the original judgment must be voided.

On March 21, 1996, the court acknowledged the

Appellant's pro se status, and as such stated that "the motion

is construed liberally and in [his] favor"; yet ruled the motion

was untimely filed and therefore was procedurally defective.

Furthermore, the court ruled that had it considered the merits

of the motion, it found no justifiable grounds for voiding the

judgment due to lack of subject matter jurisdiction. Pierce

filed a motion to Reconsider on March 31, 1996 from which

the court upheld its original order.

On June 26, 1996, Pierce filed an appeal from the

District Court's Final Judgment. The United States Court of

Appeals for the Sixth Circuit issued an unpublished decision

on May 9, 1997, affirming the district court's decision and

reject the arguments raised by Pierce.

The Sixth Circuit opinion upheld the lower court's

position that a motion to dismiss under Rule 12 must be

decided before or at the time of trial. Further, the court ruled

Section 259 of the Portal Act created defenses to liability

rather than limitations on the jurisdiction of the courts as

Pierce has pleaded.

On May 21, 1997, Pierce filed a Motion to

Reconsider and cited numerous circuit decisions, including a

prior one from the Sixth Circuit, stating that post judgment

motions under Rule 12 must be given due consideration. The

: Pierce filed the motion within three months after receiving a

copy of a letter from the DOL, directed to his Congressman, in which

the Department acknowledged the bar to jurisdiction established by the

Portal-to-Portal Act of 1947, and thus conceding the court's lack of

subject matter jurisdiction.

3

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9

motion also pointed to numerous rulings addressing the

jurisdictional nature of the Portal-to-Portal Act.

The Motion to Reconsider was denied by the court on

July 18, 1997.

10

REASONS FOR GRANTING THE WRIT

7

Whether the Federal Rule of Civil Procedure

12(h)(3) allows a defendant to raise a post judgment

challenge of the court's subject matter jurisdiction.

In the lower court's original decision filed May 9,

1997, the court acknowledged that Pierce's Motion to Vacate

Judgment and Dismiss for Lack of Subject Matter Jurisdiction

was filed under Federal Rules of Civil Procedure 12(b)(1),

12(h\(3), 60(b)(4), and 60(b)(6). The court then quickly

dismissed the motion under Rule 12 by stating that: "A

motion to dismiss under Rule 12 must be decided before or at

the time of trial." In the court's decision covering Pierce's

Motion to Reconsider it was further stated that: ". . . Pierce

could not rely on Rule 12(b)(1) because his motion to vacate

had been filed after the underlying judgment." Both decisions

fail to address the provisions of Rule 12(h)(3) wherein it

states: "Whenever it appears by suggestion of the parties or

otherwise that the court lacks jurisdiction of the subject

matter, the court shall dismiss the action." (emphasis added).

The ruling of the court below is contrary to the "plain

language" of the rules of the court, a prior decision of their

own, and that of numerous circuits. In Moore's Federal

Practice the issue is discussed:

Furthermore, under subdivision (h)(3)

the defense of lack of subject matter

jurisdiction cannot be waived. A party may

always suggest that the court lacks jurisdiction

of the subject mater. The parties can not

agree to waive the defense... 2a Moore's

Federal Practice § 12.23 2nd (1978) p.

12-226 to 12-242.

ll

In a 6th Circuit decision written by Circuit Judge

Boggs’, it was stated that "whenever" includes a defendant's

post-judgment motion and that the court must entertain such

motion under Rule 12(h)(3):

Because [Defendant] raised the issue

of jurisdiction only after judgment had been

entered in the district court, the question also

arises whether this court must address the

issue at all. It appears that we must. The

general practice among federal courts has been

to permit any party to challenge (or for the

court to question sua sponte) the existence of

subject-matter jurisdiction at any time in the

proceedings. The language of Fed.R.Civ.P.

12(h)(3) suggests that courts have a positive

duty to under take the jurisdictional inquiry:

“Whenever it appears by Suggestion of the

parties or otherwise that the court lacks

jurisdiction of the subject matter, the court

shall dismiss the action." Von Dunser vy.

Aronoff, 915 F.2d 1071, 1074 (6th Cir. 1990).

(emphasis original.)

In addition to the lower court's decision in Pierce

being in conflict with its own previous rulings, the court has

also ruled in conflict with numerous other circuits. The 10th

Circuit Court of Appeals, along with others (see Dunton vy.

County of Suffolk, 729 F.2d 69 (2nd Cir. 1984), Hayes vy.

Gulf Oil Corp., 821 F.2d 285 (Sth Cir. 1987), Casio, Inc. vy.

SM&R Co., 755 F.2d 528 (7th Cir. 1985), and Sadat y.

Mertes, 615 F.2d 1176 (7th Cir. 1980)), completely agree. In

Basco v. Utah Power & Light Co., 495 F.2d 906 (10th Cir.

4

Circuit Judge Boggs was one of the judges on the panel

reviewing the district court's decision in the Pierce case.

12

1974), the court held: "[w]e are mindful that it appears unjust

to allow a defendant to make an attack on jurisdictional

grounds after a final judgment has been entered, but an

opposite result would unlawfully expand the jurisdiction of

the federal courts by judicial interpretation." /d at p. 910.

In affirming the lower court's judgment, the position

taken by the lower court was: "A motion to dismiss under

Rule 12 must be decided before or at the time of trial. . . .

Therefore, we construe Pierce's motion solely as a motion for

relief from judgment under Rule 60(b)." The 6th Circuit's

prior decision in Von Dunser v. Aronoff and similar decisions

made by the numerous circuits listed above certainly point to

the fact the lower court's affirmation of the district court's

ruling in the Pierce case is in error and that Pierce's motion

must be considered under Fed. R. Civ. P. 12(h)(3) - lack of

subject matter jurisdiction.

Il.

Whether Sections 254 and 259 of the

Portal-to-Portal Act are jurisdictional in nature, and the

"plain language" phrases "no employer shall be subject

to any liability or punishment" and "is a bar to the

action" as stated in the statute, limits a court's subject

matter jurisdiction and precludes further proceedings

against the defendant.

In the affirming the district court's decision and in

denying the Motion for Reconsideration, the lower court

takes the position that 29 U.S.C. §§ 254 and 259 are merely

defenses and are not jurisdictional limitations. The position is

in conflict with the "plain language" of the statute and its own

prior decisions, as well as those of other circuits.

13

The stated purpose of Congress, while writing and

enacting the Portal-to-Portal Act ( hereinafter the Act), was:

(b) It is hereby declared to be the

policy of the Congress in order to meet the

existing emergency and to correct existing

evils (1) to relieve and protect interstate

commerce from the practices which burden

and obstruct it; ... and (3) to define and limit

the jurisdiction of the courts. (emphasis

added).

Section 259 of the Act defines specific activities that are to be

exempt from the overtime compensation requirements of the

Fair Labor Standards Act (hereinafter the FLSA) and

addresses the courts’ responsibilities. It states in part:

[Njo employer shall be subject to any

liability or punishment under the Fair Labor

Standards Act of 1938 ... on account of the

failure of such employer ... to pay an employee

Overtime compensation, for or on account of

any of the following activities of such

employee --

(2) activities which are

preliminary to or postliminary to said

principal activity or activities, which occur

either prior to the time on any particular

workday at which such employee commences,

or subsequent to the time on any particular

workday at which he ceases, such principal

activity or activities. 29 U.S.C. 25] Part III

Future Claims - Section 4 (emphasis added)

(and)

14

(d) In the application of the minimum

wage and overtime compensation provisions

of the Fair Labor Standards Act of 1938, as

amended, ... in determining the time for

which an employer employs an employee

with respect to walking, riding, traveling, or

other preliminary or postliminary activities

described in subsection (a) of this section,

there shall be counted all the time, but o

that time, during which the employee

engages in any such activity which is

compensable within the meaning of

subsections (b) and (c) of this section’.

(emphasis added)

The claim against Pierce, in this action, involves time

when Pierces employees left work on their own accord and

were engaged in the pursuits of playing golf, flying model

airplanes, fishing, and in a few instances involved in personal

family matters. Pierce has always maintained that such

activities were "preliminary/postliminary" activities and did

: Subsection (b) and (c) provide:

(b) Liability of employer

... aN activity which was compensable by either --

(1) an express provision of a written or nonwritten contract in effect, at

the time of such activity, between such employee, his agent. or

collective-bargining representative and his employer; or (2) a custom or

practice in effect, at the time of such activity, at the establishment or

other place where such employee was employed, covering such activity,

not inconsistent with a written or nonwritten contract, in effect at the

time of such activity, between such employee, his agent. or

collective-bargaining representative and his employer.

(c) Compensable activity

For the purposes of subsection (a) of this section, an activity shall be

considered as compensable under such contract provision or such

custom or practice only when it was engaged in during the portion of the

day with respect to which it was so made compensable.

15

not represent the employees’ "principal activities.° Counsel

for the Secretary has agreed:

In fact, the activities for which the

defendants now seek to avoid liability were

performed away from and are totally unrelated

to the employee's principle work. (PI.

Memorandum p.5, to the district court dated

February 20, 1996)

The D.C. Court of Appeals ruled that the Act's §254

would "preclude" an employers wage "liability and

punishment" for compensation covering time when an

employee was walking from the front gate of his/her

employer to an assignment board and then to his work

location. (see Carter v. Panama Canal Company, 463 F.2d

1289, 1294 (DC Cir. 1972)). Notice the court's decision was

not that it would defeat the appellant's suit but rather

preclude it in the first place by taking the position that

locomotive operators were not engaged in "principal

7 Interpretive case law, including an opinion by the 6th Circuit,

has defined “preliminary and postliminary activities" as those

"predominantly ... spent in [employees] own interest." See Jackson v.

Air Reduction Co., 402 F.2d 521, 523 (6th Cir. 1968). "No benefit may

inure to the company." Blum v. Great Lakes Carbon Corp., 418 F.2d

283, 287 (Sth Cir. 1969). The activities must be undertaken "for

[employees] own convenience, not being required by the employer and

not being necessary for the performance of their duties for the

employer." Mitchell v. Southeastern Carbon Company, 228 F.2d 934

(Sth Cir. 1955) On the other hand, in a DOL Interpretive Bulletin, the

Secretary states that "[t]he ‘principle’ activities referred to in the statute

are activities which the employee is ‘employed to perform’ ... the

legislative history ... indicates that Congress intended the words

‘principle activities’ to be construed liberally in light of the foregoing

principles to include any work of consequence performed for an

employer ...." 29 C_F.R. $790.8(a).

16

activities" while checking assignment boards and walking to

their respective locomotives. If the locomotive operators,

who were even on the employer's premises, were not engaged

in "principal activities"; how can Pierce's employees, who

were on the fairway playing golf or by the lake side fishing

-- and certainly not on the premises -- be engaged in anything

remotely associated with their "principal activities"?

It is not disputed §254 "precludes" a complaint for

activities not involving "principal activities". For if, as the

statute mandates, "no employer shall be subject to any

liability or punishment" there are no further decisions to be

made by the court. The Act does not allow for a "degree" of

liability and/or punishment to be determined by the court.

Rather it emphatically states "no ... liability or punishment"

and thus removes the cause of action for which relief is

presented, and no relief may be granted for compensation

covering non-principal activities. Therefore, the court has

lost the subject matter and has no further jurisdiction.

Section 259 of the Act also relates to "Future Claims"

and establishes specific limitations in actions which involve

the "good faith" by the employer. The statute reads as

follows:

(a) [NJo employer shall be subject to

any liability or punishment for or on account

of the failure of the employer to pay ...

overtime compensation under the Fair Labor

Standards Act of 1938 ... if he pleads and

proves that the act or omission complained of

was in good faith conformity with and in

reliance on any written administrative

regulation, ... any administrative practice,

or enforcement policy .... Such a defense, if

17

established, shall be a bar to the action or

proceeding .... 29 U.S.C. 251 Part III Future

Claims - Section 10 (emphasis added)

In the Secretary's complaint a cause of action for

which relief was sought was identified. Pierce answered with

a plea of "good faith" as one of his defenses, and established

it when the district court found:

[T]he employer intended to pay his

employees on a "salary basis," intended to

operate within the spirit and the letter of the

Act, and sought to treat and pay his employees

in a manner that was professional, considerate

and equitable. Findings of Fact, Conclusions

of Law, Decision and Order by Magistrate

Judge Jack Sherman, Jr. on March 25, 1992.

The lower court rejected Pierce's claim that Section

259 established a limit to the jurisdiction of the district court

in light of the finding of Pierce's "good faith" actions. Rather

the court below affirmed the district court's ruling that

Section 259 was merely a defense and not jurisdictional in

nature. The 6th Circuit's decision in this action is contrary to

previous rulings of the court and other circuits. In Marshall

v. Baptist Hospital, Inc. 668 F.2d 234 (6th Cir. 1981) the

court’ stated:

The District Court was correct in its

observation that "(w)here the defense is

established it acts to deprive the court of any

Circuit pe Merritt and Kennedy were the judges on the

Marshall case as well as on the panel reviewing the district court's

decision in the Pierce case. Moreover, \arshall is neither factually nor

legally distinguishable from the Pierce case.

7

18

further jurisdiction, as is evidenced both by the

language of section 259 itself, stating that the

defense shall be a bar, and by the declared

policy of the Portal to Portal Act to define and

limit the jurisdiction of the courts. 29 U.S.C.

s251(b)(3)." 473 F. Supp at 477.

Id at p. 239.

Other circuits, in citing the Marshall decision, have

supported the jurisdictional limitations established by Section

259 of the Act. In Bouchard v. Regional Governing Board

of Region V Mental Retardation Services, 939 F.2d 1332

(8th Cir. 1991), while citing the 6th Circuits decision in

Marshall, supra, the court decided:

The § 259 defense is "jurisdictional in nature."

... Our conclusion that [Appellants] established

the defense as to each category of [employees]

ends our inquiry. /d at p. 1334

And, the Marshall decision was cited again in Quinn v. New

York Electronic and Gas Corporation, 621 F.Supp. 1086

(N.D. New York, 1985) when the court stated: "[a]t least one

court has held that, once a Portal-to-Portal Act defense has

been established, a court is deprived of any further

jurisdiction .... The Marshall court based its ruling on the

language of the statute itself, which states that, 'Such a

defense, if established, shall be a bar to the action or

proceeding.... Jdatp. 1092.

Section 259 is a “bar to the action" and, once

established, the complaint is precluded as a matter of law.

The preclusive effect was also recognized by the 6th Circuit

in the Rogers Cartage Co. v. Reynolds, 166 F.2d 317,

320-321 (6th Cir. 1948.)

19

Section 11 of the Portal-to-Portal Act

clothes the court with discretionary control

over the item of liquidated damages; but §9 is

mandatory and much broader in scope than

§11. It provides that an employer shall not be

"subject to any liability or punishment" for

omission to comply with §207 of the Fair

Labor Standards Act of 1938, as amended, if

he pleads and proves that his omission was in

good faith in conformity with and in reliance

on any administrative regulation or ruling of

any agency of the United States. It was

pleaded and proved here that the appellant

relied on the fact that it was subject to the

jurisdiction of the Interstate Commerce

Commission and that its omissions to comply

with §207 of the Fair Labor Standards Act

was in reliance upon the regulations, orders

and rulings of the Interstate Commerce

Commission.

These circumstances, which were not

controverted, were categorically found by the

District Court. The defense being established,

under the statute it was a bar to the action. . .

. The ruling that the action is barred by the

Portal-to-Portal Act compels reversal of the

judgment below... {italicize —_ original,

underlined added)

The Pierce case parallels the Rogers Cartage Co. v. Reynolds

case in that the "good faith" defense was pleaded, and as

found by the magistrate judge below, established. Thus

“under the statute it was a bar to the action." For without an

action, the court has no subject matter over which to have

20

jurisdiction, and as said in Rogers Cartage Co. v. Reynolds

the "Portal-to-Portal Act compels reversal of the judgment

below... ."

The lower court also recognized the "good faith" bar

to “liability and punishment" in Jackson v. Air Reduction

Company, 402 F.2d 521, (6th Cir. 1968), in which it stated:

[I]t would be inequitable as well as

contrary to the law to have the employer

agree to adopt a change in its work schedule

for the accommodation and _ personal

convenience of its employees, and then permit

the employees to force the company to pay a

penalty for accommodating them .... /d at p.

524 (emphasis added).

The flextime work schedule that Pierce had adopted for his

employees falls clearly within the parameters of Air

Reduction Company as no benefit was derived for the

company, other than happier employees. Flying model

airplanes, playing golf, and going fishing were activities

engaged in strictly for and by the personal convenience of the

employees and their families.

The Pierce case is a classical example of the need of

the Portal-to-Portal Act more than forty years after its

enactment as the DOL is now attempting to usurp the power

of Congress and in effect write legislation governing the Fair

Labor Standards Act in a manner contrary to the

Congressional plan. Two very pertinent quotes are found in

the debate of the Act, as recorded in the Congressional

Record, to provide a profound glimpse of congressional

intentions with regard to the Act. The first explains the need

21

for the passage of the legislation, while the second expresses

fear of the outcome should the courts not comply. During

the Senate debate, Senator Hawkes stated:

[U]nless he knows what his obligations are, no

one can operate a business. In the absence of

such knowledge I defy anyone on earth to tell

me that he can conduct a business, maintain it,

and keep it functioning for the benefit of the

employees, the owners, and the general public.

The very heart of the successful conduct of a

business is knowledge of what one's

obligations are, and success can not follow if a

multitude of imaginary items may be brought

forward at a late hour, when the owner or

manager of a business thinks he is solvent,

only to find, if he is legally bound under newly

suggested obligations, that he is insolvent and

out of business. That is not the United States

of America.

Congressional Record - Senate, March 18, 1947, p.2179.

The action taken by the Secretary against Pierce involves the

"imaginary items" of wage liability for the employees taking

time off from work in order to play golf, fly model airplanes,

and go fishing. The “late hour" involves a new interpretation

of a fifty year old phrase for which the DOL can not

demonstrate any "enforcement policy or practice" prior to, or

for four years subsequent to, the audit of Pierce's business

operations. And finally, ".. he is insolvent and out of

business ..." is a prophetic view of precisely what has befallen

Pierce due to the years of unnecessary litigation.

22

In the House debate, Congressman Vorys expressed

his expectations, but tempered his remarks with a very

noteworthy concern:

If this bill is interpreted by the courts

according to recognized principles of

American jurisprudence, the threat of portal to

portal suits to our economy will be over;

businessmen can face their future problems

knowing that no unforeseen liability will be

created for past wages ....

One danger remains. Will the courts that

created this situation through invasion of the

legislative field, construe this law as it should,

or will the Supreme Court once more attempt

to usurp the powers of Congress by rewritting

the new law? At this time we can only hope

that the courts will return once more to the

judicial process that won them the respect of

our people. If the courts once more throw

this situation into turmoil, we will be facing

not only a threat to our economy but to

constitutional government. If such a threat

should arise, we still have the machinery under

our Constitution to protect the independence

of the three branches of government in our

Republic. I have faith, however, that the

Gwynne bill will be interpreted in such a way

that it will mark the end of the assault on our

economy and the lawmaking power of

Congress which is_ involved in_ the

portal-to-portal cases.

Congressional Record - House, February 27,

1947, p. 1514.

23

The two quotations clearly provide a_ historical

understanding of Congressional intents and purposes when

debating and enacting the Portal-to-Portal Act

IIT.

Whether fraud committed by an officer of the

court is covered under Rule 60(b)(3) or 60(b)(6) of the

Federal Rules of Civil Procedure.

The court dismissed Pierce's argument that Counsel

for the Secretary committed fraud upon the court during the

proceedings of this case and are the "exceptional

circumstances" that are recognized by Rule 60(b)(6), by

stating that the allegation of "fraud" must be raised under

Rule 60(b)(3) and must be filed within one year of the

underlying judgment. The court has overlooked the fact that

Rule 60(b)(3) covers fraud or other misconduct of a party;

whereas, Rule 60(b)(6) involves the allegation of fraud

committed specifically by "an officer of the court" for the

purpose of "subverting the integrity of the court" or "so that

the judicial machinery cannot perform in its impartial task of

adjudging cases that are presented for adjudication."

The inclusion of "fraud on the court" in Rule 60(b)(6),

is well documented within Wright and Miller's Federal

Practice and Procedure §2870 at pp. 409 & 414. in which it

states:

The power to vacate a judgment that

has been obtained by fraud upon the court is

inherent in courts. Indeed even the Tax

Court, which has a strong statutory policy of

finality of judgments recognizes this inherent

power, on the theory that "a decision

24

produced by fraud on the court is not in

essence a decision at all and never becomes

final See, Kenner v. Commissioner of

Internal Revenue, 387 F.2d 689, (7th Cir.

1968).

Since the power to vacate a judgment

for fraud on the court is so great, and so free

from procedural limitations, it is important to

know what kind of conduct falls into this

category. A number of courts have accepted

the suggestion of a distinguished commentator

that "fraud upon the court" is fraud that "does

or attempts to, subvert the integrity of the

court itself,’ or that is "perpetrated by officers

of the court so that the judicial machinery

cannot perform in its impartial task of

adjudging cases that are presented for

adjudication." (Emphasis added.)

and,

The landmark decision with regard to the issue of

"fraud upon the court" was Hazel-Atlas Glass Co. v.

Hartman - Ford - Empire Co., 322 U.S. 997 (1944), when

nine years after a judgment was entered, this Court vacated

the original judgment. In the decision, the Court stated:

"[f]rom the beginning there has existed along side the term

rule a rule of equity to the effect that under certain

circumstances, one of which is after-discovered fraud, relief

will be granted against judgments regardless of the term of

their entry." /d at p.1000.

In Chambers v. NASCO, 501 U.S. 32, 111 S.Ct.

2123, 115 L.Ed .2d 27 (1991), the Court ruled that the

Federal Judiciary has inherent power to vacate its own

judgment upon proof that fraud has been perpetrated upon

the court. The decision also established some criteria as to

25

what may constitute "fraud upon the court," which included,

"... (2) filed false and frivolous pleadings, and (3) attempted,

by other tactics of delay, oppression, harassment and massive

expense to reduce [Appellant] to exhausted compliance." Id

at p. 2126.

The "false" pleadings in this action involve the

insistence of "willful and purposeful" violations in the

complaint and all court ordered meetings and hearings, along

with the knowledge that the hours involved in the conflict

were not "principal activities" covered by the FLSA due to

the exemptions outlined in the Portal-to-Portal Acct.

Furthermore, counsel for the Secretary had knowledge from

the beginning that no written or non-written agreement, or

industry practice, covered compensation for time spent by

employees flying model airplanes, golf, and/or fishing prior to

the start, or upon the conclusion, of their "principal

activities."

After maintaining throughout the entire procedural

history of this case that the actions involved in the complaint

where covered by various sections of the FLSA, the

Secretary finally acknowledged in a memorandum to the

court (while responding to Pierces Motion to Vacate the

Judgment and Dismiss for Lack of Subject Matter

Jurisdiction) that the time in question was for employees

pursuit of recreational activities and “totally unrelated to their

principal activities." All the while knowing that a prior

acknowledgment in the district court or subsequent appeals

would have been fatal to the complaint and have caused the

case to be dismissed due to the limitations set forth in the

Portal-to-Portal Act.

The "frivolous" pleadings and the "harassment" in this

action are contained in the complaint filed by the Secretary

which claimed that Pierces actions were a "willful and

26

purposeful" violation of the FLSA and warranted the award

of liquidated damages. The claim was made in spite of the

facts of the case wherein the Secretary charged that Pierce

had improperly withheld approximately $3500 in

compensation, yet acknowledged that the same employees

had received overpayments of nearly $40,000 during the same

time frame when none were required. The Secretary

maintained the claim of "willful and purposeful" violations

throughout the three years leading up to the trial and during

the court ordered mediation hearings in order to unduly

influence and prejudice the court, and harass Pierce*. Only

immediately prior to the opening statements at the trial did

the Secretary withdraw the “willful and purposeful" violation

claim which he knew could not be supported’.

Further "fraud upon the court" was committed by

counsel for the Secretary, an officer of the court, when during

the audit of Pierces operations and for four years subsequent

to the filing of the complaint, including mediation hearings

and trial, the Secretary had knowledge of the fact that the

Department of Labor's own compensation practices towards

its own compliance officers were in violation with regard to

the precise "salary basis" test within the regulation for which

he was attempting to hold Pierce accountable. The internal

agency practice was in spite of the 1974 Amendment which

brought all government employees (with the exception of

. It should be noted that on three occasions during court ordered

mediation hearings and other proceedings, Pierce offered to pay the

$3500 to settle the case, but the Secretary refused to accept the offer and

continued the demand of “liquidated damages" for “willful and

ful" violations.

The magnitude of the harassment was the continual demand for

liquidated damages due to the claimed “willful and purposeful"

violations, which raised the “liability and punishment" to nearly $50,000

for approximately 105 hours, amounting to $3500 when a select few

employees took time to pursue recreational activities.

27

Congressional staff members) under the umbrella of the

protection of the FLSA with the expectation that no

distinction would be made between public and private sector

employees'’®. As stated in Pierce's appeal briefs to the court

below, and the district court, many circuits have taken a dim

view of the "do as I say, not as I do" practices of federal

agencies, and some have rendered some polices void due to

the agency's actions".

The Secretary's admission in the memorandum to the

lower court last year, nearly five years after the trial, that the

time covered by the complaint was for time spent "totally

unrelated to the — ate activities” constitutes his

The hhitowiog passage was sainned in the Federal Resian by

the Department of Labor while explaining the legislative history of the

FLSA application to public sector employees:

In 1974, Congress extended coverage to all public

sector employees, exempting only elected officials and

their immediate staffs. It did so with the stated intent

to cover virtually all public sector employees... .

Federal Register, August 19, 1992, Vol. 57, No. 161,

p.37667.

° Numerous circuits have held that an agency's enforcement

against others of regulations it itself is in violation of is rendered

invalid. See, e.g., Gulf States Manufacturers, Inc., v. NLRB 579 F.2d

1298, 1308 (Sth Cir. 1978)("It is well settled that an Executive Agency

of the Government is bound by its own regulations, and have the force

and effect of law, and failure of an agency to follow its regulations

renders its decision invalid."); United States v. Newell, 578 F.2d 827,

834 (9th Cir. 1978)("... federal courts will require federal agencies to

abide by the agency's own regulations, even where the regulations are

more generous than required by law. The purpose of this rule is to

prevent unjust discrimination and denial of adequate notice of

procedures by the agency in violation of due process."); Fishy v. U.S.

Dept. of Housing & Urban Development, 755 F.2d 1052, 1055 (3rd Cir.

1985) ("Failure on the part of the agency to act in compliance with its

own regulations is fatal to such action.")

28

fraud upon the court in that he knew that an earlier

acknowledgment would be fatal to his complaint.

Furthermore, the published accounts of the DOL being in

violation of their own regulations to which all other

employers were being held, certainly points to a situation

where an officer of the court was prosecuting one class of

employers while "looking in the other direction" as his own

employer acted in the same fashion even though both were to

be held to the same standards.

The lower courts decision that Pierce's claim of fraud

is untimely raised, as it is not within the one year limitation

established by Rule 60(b)(3), is in conflict with this Court's

rulings and the Federal Rules of Civil Procedure. The actions

of the Secretary's counsel meet each and every one of the

criteria of "fraud upon the court" as outlined by this Court in

Chambers v. NASCO, supra; and furthermore, the fraud

committed by "an officer of the court" as defined by Wright

and Miller's Federal Procedure. All of which has been

established by this Court to fall within the purview of Federal

Rules of Civil Procedure 60(b)(6).

CONCLUSION

The Portal-to-Portal Act provides a "bar to the

action" with regard to the Appellee's suit against Pierce for

"[golf, fishing, and flying model airplane] activities .. . [that]

were performed away from and are totally unrelated to the

employee's principle work", just as the appellant's suit was

precluded in Carter v. Panama Canal Company when the

employees activities of checking the assignment board and

walking to their respective locomotives were determined to

be “preliminary / postliminary" activities rather than the

"principal activities" for which they were to receive

compensation. Along with the Portal-to-Portal Act, justice

29

demands that an employer should not be "subject to any

liability or punishment" for time in which an employee

voluntarily absents him/herself for recreational pursuits during

the course of the work day.

Justice further "compels" this court to vacate the

judgment against Pierce just as this court was compelled to

reverse the judgment in Cartage v. Reynolds, supra when it

was determined that the Portal-to-Portal Act was a bar to an

action against an employer acting in "good faith", and in

Marshall v. Baptist Hospital, Inc., supra when the lower

court stated that once a "good faith" defense is established

the court any further jurisdiction. For if the Act says the

pleading and establishment of "good faith" is a "bar to the

action or proceeding" it must be exactly that - a bar which

removes the cause of action and thereby removes the subject

matter over which the court would have any jurisdiction at

all. Once the "good faith" defense is pleaded and established,

and the action or proceeding is barred by the Portal-to-Portal

Act, what subject matter remains for the court to have

jurisdiction over and deliver a ruling?

Accordingly, Pierce prays that the court will

recognize that a grave injustice has occurred and that legal

precedent exists for it to be righted. Otherwise an employer

will have pleaded a defense of "good faith," established "good

faith" actions through a ruling of a magistrate judge in the

court below who said "[Pierce] intended to operate within the

spirit and the letter of the Act, and sought to pay and treat his

employees in a manner that was professional, considerate,

and equitable", yet still be faced with a judgment against him,

solely because the negative affects of the litigation had

destroyed his business and personal financial status. The

judgment subjecting him to "liability [and] punishment" which

is in direct conflict with the "good faith" mandate handed

30

down by Congress in the Portal-to-Portal Act and supported

through decisions of the 6th Circuit.

Justice will not be served if an employer can be

operating in "good faith" with an agency's written regulations,

administrative practices, and enforcement _ policies,

unnecessarily compensating his employees for more than ten

times the amount the agency says is due them, and providing

them with a flexible work schedule so they could individually

pursue personal recreational and family needs, yet still be

faced with a judgment against him.

Pierce requests the Court issue a Writ of Certiorari to

address the conflict within the 6th Circuit and others as to the

intent of Congress in enacting the jurisdictional limits

established in the Portal-to-Portal Act. And to distinguish the

attributes of fraud "in general" and fraud committed by "an

officer of the court" and whether such action fall under

Federal Rule 60(b)(4) or 60(b)(6). Finally, Pierce prays that

the Court will grant the Writ of Certiorari to resolve the

conflict as to the courts’ responsibilities in reviewing a post

judgment challenge to the court's subject matter jurisdiction

under Civil, Rule 12(h)(3).

Respectfully submitted,

William G. Pierce, P.E.

pro se

3011 Hampton Court

Maineville, Ohio 45039

(513) 677-5334

APPENDIX A:

APPENDIX B:

APPENDIX C:

31

APPENDICES

Decision by the United States Court of

Appeals, Sixth Circuit, Motion to

Reconsider, July 18, 1997.

Decision by the United States Court of

Appeals, Sixth Circuit, May 9, 1997.

Order in a Civil Case by United States

District Court, Southern District of Ohio,

Western Division, March 25, 1996

Al

APPENDIX A

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

No. 96-3408

UNITED STATES DEPARTMENT OF LABOR,

Plaintiff-Appellee,

We

PIERCE PROCESSING, INC.,

Defendant,

WILLIAM PIERCE,

Defendant-Appellant.

Decided July 18, 1997

BEFORE: MERRITT, KENNEDY, and BOGGS

Circuit Judges

William Pierce moves for reconsideration of this

court's decision affirming a district court judgment that

denied his "Motion to Vacate Judgment and Dismiss for Lack

of Jurisdiction" filed under Fed. R. Civ. P. 12(b)(1) and

60(b)(4).

Pierce sought to vacate a judgment that had been

rendered against him in 1993, for failing to pay overtime

compensation to his employees as required by the Fair Labor

Standards Act ("FLSA"). He filed his motion in 1996,

arguing that the underlying judgment was void because the

Portal-to-Portal Act of 1947 had deprived the district court

of jurisdiction over the FLSA case. The district court denied

his motion on March 25, 1996.

A2

In affirming this judgment, we found that Pierce could

not rely on Rule 12(b)(1) because his motion to vacate had

been filed after the underlying judgment. We also found that

the motion was properly denied under Rule 60(b)(4), as the

jurisdictional limitations of the Portal-to-Portal Act only

apply to FLSA claims that arose prior to May 14, 1947. See

29 U.S.C. § 252.

Pierce continues to argue that the district court lacked

jurisdiction under §§ 254 and 259 of the Portal-to-Portal Act.

In pertinent part, § 254 relieves an employer from liability if

he shows that compensation has been sought for activities

which were preliminary or postliminary to his employees

principal activities. Section 259 relieves an employer from

liability if he pleads and proves that he acted in good faith

reliance on certain types of written information issued by the

Wage and Hour Division. These sections do not provide a

basis for relief under Rule 60(b)(4), because they do not limit

the district court's jurisdiction to consider FLSA claims.

Instead, they provide potential defenses to liability that are

only available to an employer after the court exercises its

jurisdiction and makes a determination that the claims involve

excepted activities under § 254 or that the employer has acted

in good faith under § 259.

Pierce also argues that he was entitled to relief under

Fed. R. Civ. P. 60(b)(6), because the appellee committed a

fraud upon the court by litigating the FLSA action against

him when it knew that he was not liable because of these

defenses. This argument is unavailing because an allegation

of fraud must be raised under Rule 60(b)(3), rather than Rule

60(b)(6), and a Rule 60(b)(3) motion must be filed within one

year of the underlying judgment.

A3

Pierce has cited no misapprehension of law or fact

that would alter our original decision. See Fed. R. App. P.

40(a)

Accordingly, the motion for reconsideration is denied.

ENTERED BY ORDER OF THE COURT

/s/ Clerk

Bl

APPENDIX B

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

No. 96-3408

UNITED STATES DEPARTMENT OF LABOR,

Plaintiff- Appellee,

V.

PIERCE PROCESSING, INC.,

Defendant,

WILLIAM PIERCE,

Defendant-Appellant.

Decided May 09, 1997

BEFORE: MERRITT, KENNEDY, and BOGGS

Circuit Judges

William Pierce appeals pro se from a district court

order that denied his "Motion to Vacate Judgment and

Dismiss for Lack of Jurisdiction," filed under Fed. R. Civ. P.

12(b){(1), 12(h)(3) and 60(b)(4). His appeal has been referred

to a panel of this court pursuant to Rule 9(a), Rules of the

Sixth Circuit. Upon examination, the panel unanimously

agrees that oral argument is not needed in this case. Fed.R.

App.P. 34(a).

Pierce sought to vacate a judgment that had been

rendered against him for violating the overtime compensation

provisions of the Fair Labor Standards Act of 1938

("FLSA"), 29 U.S.C. § 207(a)(1). He argued that the district

court lacked jurisdiction over the underlying case, pursuant

EE Ee

B2

top the Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-262.

The court denied Pierce's motion to vacate on March 25,

1996, and he now appeals.

A motion to dismiss under Rule 12 must be decided

before or at the time of trial. See Fed. R. Civ.2(d) Therefore,

we construe Pierce's motion solely as a motion for relief from

judgment under Rule 60(b). An appeal from denial of such a

motion does not bring the underlying judgment up for review.

United States v. Grable, 25 F.3d 298, 301-02 (6th Circuit.

1994).

Pierce specifically relied on Rule(b)(4), which

provides relief when the underlying judgment is void. A

judgment is void if the court that rendered it lacked subject

matter jurisdiction. Antoine v. Atlas Turner, Inc., 66 F.3d

105, 108 (6th Cir. 1995).

The Portal-to-Portal Act does limit the courts’

jurisdiction over FLSA claims. However, that jurisdictional

limitation applies only to certain claims that are based on an

employer's failure "to pay an employee minimum wages, or to

pay an employee overtime compensation, for or on account

of any activity of an employee engaged in prior to May 14,

1947." 29 U.S.C. § 252 (emphasis added). This limitation

does not apply here because the claims in the underlying case

involved activities that Pierce's employees had engaged in

after May 1, 1986.

Pierce also argued that the court lacked jurisdiction

under Sections 254 and 259 of the Portal-to-Portal Act.

These sections are applicable to claims that arose after May

14, 1947. However, the disputed sections merely create

defenses to liability, rather than limitations on the jurisdiction

of the courts. the district court clearly had jurisdiction to

CC

B3

consider the Secretary's FLSA claims under 29 U.S.C. §§

216(c) and 217.

Pierce now argues that his motion should be

construed under Rule 60(b)(6), which allows the district

court to grant such a motion for "any other reason justifying

relief from the operation of the judgment." The present case

does not involve the kind of exceptional circumstances that

mandate relief under Rule 60(b)(6), as it is based on no more

than alleged mistakes of law that could have been raised

under Rule 60(b)(1). See Hopper v. Euclid Manor Nursing

Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989).

Accordingly, the district court's judgment is affirmed.

Rule 9(b)(3), Rules of the Sixth Circuit.

ENTERED BY ORDER OF THE COURT

/s/ Clerk

Cl

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Civil Action No. C-1-89-15

ROBERT B. REICH, Secretary of Labor

UNITED STATES DEPARTMENT OF LABOR

Plaintiff

VS.

PIERCE PROCESSING, INC. et al

Defendants.

[Filed March 25, 1996]

Order in a Civil Case

This is a consent case for which the Court entered

judgment in favor of the Secretary, and against defendants,

on February 9, 1993. Docs. 38,39. On appeal, the Court's

decision was affirmed by the Sixth Circuit. Doc. 48.

Certiorari, in the United States Supreme Court, was denied

thereafter. Doc. 50. Now, three years after conclusion of the

district court proceedings, defendants have filed a motion to

vacate the judgment against them, or dismiss this action. See

docs. 51 (motion), 52 (Secretary's opposition memorandum),

53 (defendants' reply). Because defendants appear pro se’,

the motion is construed liberally and in their favor. Williams

v. Browman, 981 F.2d 901, 903 (6th Cir. 1992) (per curiam).

When first appearing before this Court, i.e., prior to their Sixth

Circuit appeal, defendants were represented by counsel. See, e.g., doc. 3

(answer filed by counsel).

C2

Even when so construed, there is little question that

the motion is untimely filed, and thus procedurally defective.

For example, the time deadlines for filing Rule 59(e) motions

to alter or amend a judgment, and Rule 60(b) motions for

relief from judgment, have both long since passed. See Fed.

R. Civ. P. 59(e) (establishing a ten-day post-judgment filing

deadline); Fed.R. Civ. P. 60(b) (requiring the filing be made

within a "reasonable" time and/or one year of entry of

judgment). Also passed is the dispositive motions deadline.

Pursuant to that deadline, defendants had until July 6, 1991 -

or approximately two-and-a-half years after the January 1989

complaint filing, a more than reasonable time - in which to

raise their dismissal arguments. Doc. 12. No motion to

dismiss was filed, however.’

In the alternative, even if the Court assumes,

arguendo, that it is required, for some reason, to reach the

merits of defendants’ motion, the Court finds, after careful

consideration, no justifiable grounds for the relief requested

there.

Defendants’ motion to vacate or dismiss is therefore

DENIED.

: As a pro se litigant, defendant William G. Pierce may represent

just his own legal interests, and not also those of the corporate

co-defendant, Pierce Processing, Inc. See doc 48 (Sixth Circuit slip

opinion) at 3 n.1 (citing Doherty v. American Motors Corp.. 728 F.2d

334, 340 (6th Cir. 1984)). Thus, the only arguments before the Court

are those made by Pierce himself. Id.

. In so noting, the Court is not suggesting that defendants’

counsel erred by not filing a motion to dismiss. In fact, quite the

opposite is true, defendants were well represented here, as reflected by

the fact that, earlier in the litigation, judgment was conditionally entered

in their favor. Doc. 29 at 10.

i

IT IS SO ORDERED.

/s/ Jack Sherman, Jr.

Jack Sherman, Jr.

United States Magistrate Judge