Petition for Writ of Certiorari — Vermilya-Brown Co. v. Connell

4

INT HE

+ Supreme Court of the Gnited States

ee Oe" TOBER 'T a:

V eeieyacHaown ComMPaNy; Inc., Necaro Company,

Inc. ‘and THE ARTHU R A. JOHNSON: Corp. .. doing

business as BermupA. Base’ Contractors, Peti-

——rtioners.

JOHN JoserH CoNNELL, EF UGENE T.. Firzratrick, Wii-

LIAM L. “FLANAGAN, JOSEPH JOHN; GILROY, JOHN

’

JosEPH MortmMer, JAMES F. McDonaup, Paci F.

Nerrer, WitniamM H. Parker, Jr. Lovrs AvGUST

Reuperc, Howary L. Suock, Jr. and, Davin Jo-

SEVPH TOWNSEND. ? é

:

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE

SECOND CIRCUIT.

° < io a ¥

STpLirz, FRENCH, FINK & M Lseki,

\ ree:

\ J. Rannanst C REEL, -

‘CHARL ES Fany,

Attorneys for Petitioners,

” ¢Purss or Byron S. ApamMs, W asuinctron. D.C. ©

<<,

a

r

INDEX. : >

e . . 5 ° . : Page

OPINION BELow ..... poe Vee ee FORT OAT TTT eee Perey nace

| JURISDICTION 0 oo eee ee SESS ne viveeseisdeus | re

QUESTION PRESENTED 2... 6.6. ees eye eee. Sore Were |

STaTt TE AND Qocuments INVOLVED SERVIC ECE RRO Dea es

STATEMENT pees tae Pees Sreore s Seer eee eee eee er corres BAe

SPECIFICATION -OF ERROR JO BE URGED ............ Ppscwthacs @2 a:

REASONS’ FOR GRANTING THE WRIT............ Peres theese By

fe POE TOT Trey Ory Coe isi cgesk eh ae

i CITATIONS et :

CASEs: MS ree ee “= # Ree

Luckenbach Stcinehig: C 0. Vv. United States, 280 US. H3.. 6°

_ Hooven & Allison Co. v. Evatt, 324 U.S. 6920......... és 8,9

_Feurteen Diamond Rings v. United States, 183 U.S 3. 176... See

‘Jones Vv. United States; 137 0.6. GOS ois coc aXeccacasjerees B

Downes ‘v. Bidwell, 182 U.S. 244... ee

Balzac v. v. Porto Rico, 258 v ee ree wWeessbhaba’ FS

Hawai v: Mankichi, 190 U.S. 197 2.2. ce ye cece cceeees :

| United States v, American Trucking, Association, 310 U. : . Sree

| Sg ere re er ere ey eee pee rryercy Siekaae -. 15

Skidmore v. Sw ift & Co., 323°U- S. 134. ery or Pane pre 16

Kirschbaum Co. vy. Walling; 316 U.S. 317 20. rey eee eee 16.

Welling" v. Jacksonville Paper 'Co., 3170. 8. Teer oe

_Srare: TES AND JOINT RESOL TIONS: pnt ee ny renames aT gem TE eee

Act of August 18, 1856, ll Stat. 719, 48 U, S.C. Sec. 1411-

1412 \ Choe aul reese e kina a pan Rabe Mae pee aa 9

‘Act of August 29, 1916, i Stat. (547, 48 U: S.C. Sec. 1003. 17

Act of March SS VOUS, BT OR EAE ie es ee cs es 7.12, 16

Defense Base Net -35 Stat. Wi eicccivccads cewsanesvaes <= ma 14

; Amended by Act of December 2, 1942, 56 Stat. 1035. . 7

Fair Labor Standards Act, approved June 25, 19: 38, a2:

, Stat. 1060, 29 UL S.C. See. 201 et seq. .o¢2, 4, 5, 6,.7,8,12,15 |

See. 3(b).. eta ews awake bayer ere VTP Orr Cae 2

“See. 3(e) ALY yg ea eae ne ras apse Wats hooey OE ps

See. 5(e), 6, as amended by Act of Jane 26, 1940,

Stat. 615-616. BO ee ope re Pe ee Ss a ak ae

See. 6 Ka? ae Ae eee ee ee ee ee tbe ce ese r seers ae ae ‘2

\ “« . “eye!

ii pe Index Continued,

Pek eee ‘ cen

‘ +m Page

See. 7 ake ORee Mabe dhe oe Seas Wakes eee < ib aoa

ee) rer Ree Y eye? ie eis ee ape | OaaeA Pe Bi 16

Jdint Resolutiou of July 7, 1398, 30 Stat, 700. .... eh iees ps pe

Joint Resolution of Mare th 4, 1925, 43 Stat. 157,48 U.

See. 1431. CV ORAAAMAARERSOEBASD © ONDE CMDR EC RMSE DEES eae Mw)

Joint Resolutivti of Fe bruary 20, 1929, 45 Stat: 125. aoa )

| -- -Aniended by Act of May 22, 1929, 46 Stat. 3,48 U.

Ne SO a es i ek 9

: ( Longshoremen’s and. Harbor Worker's Compensation .Act, —

3 44 Stat. pres, 33° U. S. Co See. ‘901 ef Err 7,17

«Miscrii. ANEOUS: : :

- * t

- CCH Labor Servi ice:

Par. 31,852.01(c«), General Statement on Coverage (Jaly

q 11, 1947) - Pe. Pee ee CLE Pere EP Pore Terre eee e er 15

“. Par? "32.102, etree Bulletin No. 2; » Oetober 17;

* 1938 . PE See ey es ek nee sock wae RA 15,17 ae

Cong. Ree. Vol. ‘83, ay” ee (en kty ewan wsese 16:

_ Convention signed Reta th 7, 1899, by United States;

: Great Britain and Germanyy 31 Stat. SL. gereaarap ane eye Peas “g

. Executive. Agreement-Series 235, * ‘Leased Nayal : and. Air °

ox LSEa2 Gi Bases”’ PRES OSECEAO Sew 0's Ch cnn Weeder Kak exe est 3,10

aN “ Agrosesens, dated. Mare Mi, BOON dice hiveeeceea nia 3, 5,10

Ambassador Winant, Letter dated March 27, 1941.... 11

. Exchange of Notes, dated ‘September 2, 1940. ape Oe 5, 10, 13

'-Executive Order 8623 (December 31, 1940), 6 FP. R13... 13

Federal Register, Vol. 12, p. 4583, 4584, See. 776.1(e):.2.. 13

_ Jlearings, H. R. 5096, Committee on Judiciary, House , of

. mepremmmtatives (1960) 6.65. fs ok eddie cet cbicodcccas “d4

Opinions of Attorney General, Vol. 39, 484, 485 oR a ei ak 13

_____—_—Parhanientary Debates, House of Commons, * Vol. 364 (An. |

ar Se RS ee sepaey Sepmerem 13

Parliamentary Debates, House of. Lords, Vol. 117 (Septem-’

Be ON i A ay peBea ws 14

S. Rpt. 26, 78th Cong: ist Sess.-..... Av Se ert se yy ae cor 16

Treaty of Paris, signed-December 10, 1808, “a U nited States

eee ee and Spain, 30 Stat. 1754 ..... teas ore cue catw EP ‘kik Se

9 .

INTHE

| Supreme Court of the United Sates

eae CTOE BER T KE RM, 1947.

_ WERMILYA- Brawy Come ANY, Inc., NEC alto. Compaxy,

Inc. and Ture, ArrHir A. JOHNSON, Corrs ohne

oo

a ee oe

business as Br RMUDA. BasE Contractors, Peti--

anaes nese ee

—_

5 JOHN Teniinn Cowicaa: EUGENE 7. Brrepasieg, Wi:

“LiaM L. “FLANAGAN, Joserii Joun Gitroy, Jouy

JOSEPH Mortimir, James F.. McDonaup, Paci: F.

NEITER, WiLLiaM H. Parker, JR. ‘Lovis August

~ sepH TOWNSEND.

¢

PETITION FOR WRIT OF ‘CERTIORARI TO: THE UNITED =

tioners. : a eee eels a

Renperc, Howarn L. Suock, Jr. and. Davip Jo-.-

Nis

eg?

Chis

STATES CIRCUIT COURT OF ‘APPEALS FOR THE .

SECOND: ‘CIRCUIT.

et

- Petitioners, Vermilya- Siow Company, Ine., Necaro

Company, Tne. and The Arthur A. Johnson Corp., do-

ing: business as Berniuda Base Contractors, respect-

fully. pray that a writ of certiorari issue to review. the

judgme nt entered in.the above .entitled cause bv the

United States Circuit Court of Appeals for the Second.

Circuit, re versing the judgment entered by fhe U nited

e »

a ;

©

States District Courtfor the Southie rn ‘Disthie eof" New |

Yy ork. pote ..

OPINIONS BELOW

?

The opinion of the United States District Court for

_the Southern District of New York (R. 78-81) is re----~

*. ported at 73 F. Supp: 860. The opinion of the-E hited

* States Circuit Court of Appeals for, the Second Cir-

t

cuit CR. Se-ORY: is unreported: aan, o

ee JURISDICTION

os

~ ‘The judgment of the United States Cire ‘uit Court of

Appeals for.the Second Cirenit was enter ‘ed on Noveni-

her 28, 1947 ¢R, 96). The jurisdiction of this Court is.

invoked under the provisions of Section - 240(a) of the -

Judicial Code, as amended, :

§

QUESTION PRESENTED

W hether the naval and air base loc ated 1 in the C rown

Colony of Bermuda aud-held by the .U nited States tn-

der lease from the British. Government for the. pur-

poses specified therem and in the Notes exchanged be-

tween the two governments on September 2, 1940, with

the rights, powers and authority and on the terms and

conditions contained inthe Agree ment be ‘tween the two

xovernments signed March 27, 1941, is ‘a “Territory or |

possession of the United States” . With the consequence

that the Fair Labor: St: undaris Act of 1938 applies

thereto.

STATUTE ‘AND DOCUMENTS | INVOLVED.

The Fair Labow Standards Act of 1938 (Act of Bune.

23, 1938, $2 Stat. 1060, 29 LUS.C. See. 201 ef. seq. \ ap- -

«plies, with certain exceptions; to.any employee who ts:

.

“engaged in commerce or in.the prodnetion of goods

for commerce’. See.6, 7

. oY —

. . 2 - _

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Section (bh) defines Seoantiierce™ to mean—

‘*, . « trader commerce, transportation, transmis-

: <i or Communic ‘ation among the several Stites or.

—_trom.any State te any pli we-ontside thereof?”

° : ‘

“‘» ¢ rs ‘.

Scie tion 3(c) ) detines “state” to mean—

‘any State of the U nited States or the District of

Columbia or ax Territory or possession of: the

United States’’.

The Exchange of Notes. Leasé and Agreement be-

tween the United States and His Majesty’s*Govern-

“ment in the United Kingdom are set forth in. the

printed document separately tiled with this petition for _

the convenience of ‘the Court, entitled ** Executive ~

Agreement Series 235, Leased Naval and Atr Bases”

(G.P.0O. 1942). : ve

pie at STATEMENT | :

tes.

©, Petitioners were jointly engaged: in the construction

éf an Outlvinig Defense Base known as Fort Bell and

Kindley Field in. Bermuda, a Avritish Crown Colony:

Petitioners were so, engaged. under-a_cost- plus-a-i ‘xed-

fee contract with the Corps of Engineers, U nited States

“Army (R, 14- 18): The construction work: and the ser-

yvices of ‘the employees here involved were performed

- exclusively in the area, called the ‘Leased Area, held by

_ the United States under ninety- -nine vear lease from the

British Government; pursuant to the Exe hange of

ior hetween the two goverpments dated September

> 1940, and an Agreement between the two govern-

niente signed-.at London March 27,: 1941, hereinafter

more fully disciissed. Suit was initiated in the District

Court of the United States for the Southern District *

of New York by eleven emplovees engaged. by petition-

gn *@

-davits and depos

* motion (R. 20-77). The District Court granted stim-

mary judgment for the petitioners, holding that the

i 4 . os Ps

ers to perform the duties of policemen and fire-patrol-

men -protecting original construction work (R. 5-7).

They sued under the provisions of the Fair Labor

Standards Act of. 1938 for overtime - compensation,

liquidated damages ‘and attorneys’ fees (R. 9-11). - Pe-

titionea’s dtnied the pertinent allegations of the eom-

_ plaint. (R. 12), pleaded as a separate defense that the —

. plaintiffs were not covered hy the Act (R. 12-13), and’.

moved for suf) judgineng (R. 19)s ‘Various affi-

ns were filed by the parties on this

Act ‘“‘had no appli¢ation, to the employment of the

plaintiffs in the Leased: Areas of Bermnda’’, beeause’ |

none of these areas was a Territory or possession of the

United States within the neaning of the Fair Labor

Standards Act. ‘The Dist#ict Court. noted that it was

99

not contended that the area is a ‘Territery’’ of the

United States, and rejected the contention that it is#

a-** possession” (R. 78 et seq.). On appeal the Chrenit

Court of Appeals for the Second Cireuit reversed. It

stated the question as follows: ‘The District Court

ruled that none of the leased areas of Bermuda w here

the construction work of the de fendants was being per-

“formed was a ‘Terr itory or possession of the United

States’ within the meaning of -the Act. Our question

is therefore as to the correctness of this. ruling and spe-

oc cifieally whether or not the leased area is a ‘possession’

within.the statutory meaning” CR. 89). The Court held

_ that it was, and remanded the case to the Distri ict Comt.

« @

‘SPECIFICATION OF ERROR TO BE URGED

The Cireuit © ourt of Appeals erred in holding that

the naval and gir hase j in Jermuda leasod to the U nited -

?

ant a

4 : 27 > ed

~~ . 8 ‘. ° -

- , 3 ‘ :

< ‘ %

“States by the British Government under and: in. ac :

cordance, with the terms ai the Lease, tht Exe hinge at

Notes dated Se ‘ptember 2, 1940, aind the Agreement \

cg Mareh- 27, 1941, -be ei en the two governme its, is

‘possession of the U nited States’ and, therefoxe,

waits thescover age of i the Fair Labor Standards : ‘Act:

"REASONS FOR GRANTING THE WRIT

Coons s

The decision of the Cirenit: Court of Appeals pre-

sents an aggregate of important questions w hich have’

not been but should be decided by this Court.

(a) The decision. rests upon the interpret ation of.

important international arrangements between the’

United States and the British Government for haval

and air hases i in Bermutl i, ar rahgements which are in-

‘distinguis hi thle for presen purposes from. those made

simultaneously. for like bases in Newfoundland, St.

Lueia, Antigua,.Jamaiea; ‘Trinidad and British Guiana,

Three basic international papers are involved in-each

instance,—the Exchange of Notes, the’ Agreement, and

the Lease. - These’ must be interpreted in teims of the

national and jnte miational teaming, in both a legal and

political gense, of a. “possession of the United States”.

The saine question has already arisen regarding the

status of; military outposts in Greenland, Ir an, Brazil

and Canada (R.°95), which are among other areas

leased for defense purposes; under varving terms and

conditions, in at least 25 foreign countries, é

(b) -The.decision below r aises an independe athe Ame .

portant, question in that it gives novel scope to. and:

scope beyond the fair intendinent of the Fair Labor

Standards Act.--Notwithstanding the great amount of

. ® -? eS rat, a

anne

>

construction work alre: udy pe formed by the govern-

ment at these naval and air bases, the Act las. not heen

has-been earried forward on an‘assuimpticon that the

Act did not apply. The decision affects not merely the.

respondents but, as We-are we Tl advised, iInany other.c tii °

‘ployees native and Ameri¢anu—, nume rous contracts

ors, aud alarge sium of public fiuards, due to the cost-

isa finced- fee method: of contacting wlie ly. has | re-

‘|

vaile d,.

(é) Not only ‘is there in iolved the scope of the Fair

ee Standards Act, an important matter standing —

calone, but. the lgisis of the decision brings into opera-

tion in the areas affected other statutes and powers of

~

“ddministratively’ appHed to-them; and, the work done”.

and pores vespousibilitics: upon the United States _

Whieh Congress has not eXWLESSLY extended to nor if-

tended fo assuine in those areas. In-using the’ terni

‘possession of the United: States’’, Congress did =

vive it by definition ar enameration a meaning “re;

“stricted to the purposes of this particular, Act.! The im-

plications of the. guling below therefore may not be

limited to the confines ‘of the, particular ‘statute, but

bring to the bases all that the concept of ja “*posses-

sion of the United. States’? means under our Constitu-

tion and statutes and under the law of nations.

ieee nee see waa

Ht is submitted that the decision of the court below is

erroneous. The Fair Labor Standards Act became law

in 1988. -The naval and-air bases were not leased from

Sener waren e al ° s.* : 4 .

' Compare | certain statutes affecting the Panama Canal Zone,

set’ forth in Luekenbach Steamship Co. vy. United States, 280 U S

Li3, 180-181, , | |

87 ae

- the British Goverminont uatil 1940-1941. The question

for review is hot Whether ‘ONLTESS thas the- power to

extend the coveragesof the Att tq fiese bases for the

duration yf the leaSes, but rather whethe y the Act as

‘it how stands should bs construed as applic ible to them.

The position of pe titione esis simply that the Bermuda

hase is not act Territory or possession of the & nited |

Stafes) and that Congress has not-made the Fair La-

hor Standards Act applicable to it by the use of those

terms. Congress, by amendatory legish: ition extended

the Longshorenren’s and Harbor Workers’ Compe nsa-

tio Aet (44 Stat. 1424) to employment on any **mili-

tary, air or naval. base aequire ed after January 1, 1940

from any foreign government’’, And did so in a context

plainly excluding such bases from the concept of ;

“© Territor ¥ or possession outside the continental U nited

States’=? Tn the seven vears which have elapsed since’

>The Defense Base Act, 55 Stat. 622 (1941) provided as fol-

lews: . . 24° That except as herein moditied, the provisions of the.

Act entitled ‘Longshoremeni's ia Harbor Workers” Cotapensa-

tion Act’, approved March 4, 1937 (44°Stat. 1424), as, amended,

e and as the same may be amended hereafter. shall apply in respect

to the injury.or death of any employee engaged’ in any employ-

nentat any niilitary, air or naval base acqired after January |,

140. by the. United States from any foreigii government.or any

lands occupied or used by the United States for nilitary. or naval

plirposes in.any Terr itory or possession outside -the ‘continental.

United States, ineluding Maska, Guantanamo, and the Philippine

Islands, but exehiding the Canal Zone, irrespective of the place

where the injury or death occurs”. : /

his section was aimended.div 56. Stat. 1028, 1035 (1942), to ap-

ply fo the injury or death of any employee engaged in any p-em-

ployment—" —- Soe ,

(7) at any military, air, or naval base acquired after January

7 1940, hy the United States from-any foreien government : «

© **(2)—ttpon any lands oecupied-or ted by the United States os

ait

S

the leases were signed, however, Congress has not ex-

tended the Fair. Labor Standards Act to such base .

areas,after ample opportunity to consider the eireum-

stances Incide ‘nt to the basés, , :

(a) The opinion below rests in sibetumtial part upon

the erroneous belief expressed by the. court that. the:

Leased Areas are subject-to “fully as complete control

by the United States” as obtains in other areas Lone

known as ‘possessions of the,United States’? CR. 91).

On the contrary. Guam, the Philippine. Islands (now

independent) and Puerto Rieo were céded outright to

the U nited States by treaty with Spain, with the com-

plete authority vested in a sove reign-owner. 30 St: it.

1754, 1755: see HMooien & Allison Co. v. Evatt, 324

U.S. 602, 673-4; Fourteen Diamond Rings v. U nited

States, 185 U.S. 176, 178. Likewise, by statute based.

on international Jaw, guano islands which were. appro-

priately discovered and oce upied, and found not within

the “lawful jurisdiction’ of any other sovernpent, are.

3 TE ie se.

military or naval: purposes in any Territory or possession out-

side the continental United States (including Alaska; the Philip-

pine Islands; the United States Naval Operating Base, (ruan-

1 preoncosnt Bay, Cuba; and the ¢ ‘anal Zove); or. ec

(3) upon any public. work in \any Territory Or. possession omt-

side the continental United States (inchiding Alaska; the Philip- |

pine Islands; the United States . Naval Operating ‘Base, Guan-

ee Bay, Cuba; and the Canal Zone) . ere hel --

**(4) under a contract entered into with the United State or any

exec utive department, independent establishment or . agency

thereof (including any corporate instrumentality of. the -United

States}, or any subcontraet, or suhotdinate contract owith respect

to such. contract, where such contract is to be performed outside .

the continerital. United States and at pl: CES, not within the areas

described in subparagraphs (1). (2), and (3) of this subdivision,

for the purpose of engaging in any publie work .. ;’’

o

ae.

9

considered as ‘appertaining to’? the United States (11

Stat. Li9, 45 BU. S.C. Secs 1411-112) t that is, they: are -

not ‘part ot . but are appurtenant to and under the

sovereiznty of the: United States, in the same scénse as

our other insular dependencies. See Jones. V. git

States, TUS. D)2.- 212; Downes v. * Bidwell, is2U,

244, 277 cf seq.; Balzac v. P urto Rico, 258 U.S. =

4-2 : Hoore nc. Allison Cory. Evatt, supra, 324 UL S

at 673-5. “AS for ‘Tutuila, Manna and_other erent

Saino: an islands, Germany.and Great Britain renounced

all theif “rights and: claims over and in respect to”

those islands, in favor of the United States as ‘sov-

ereign power’, 31 Stat. I78, 1572, and the native chiefs

likewise ceded “absolutely and without reserve to the

U nited States of America all rights of-sovercignty”

therein. 45 Stat. 1253. The cession was accepted, rati-

tied and confirmed by Congress (id., amended by 46

Stat. 3.48 ULS.Cy Sec: I45la), as was done i the ease

of the Hawaiian Islands. 30 Stat. 750: see Hawaii-v.

Maukichi, 190 U.S. 197, 209.) By joint resolution, Con-

— gress extended the sovereignty of, the United States

cover Swains Island and:placed it’ under the jurisdic~

tion of the administrative and judicial authorities of

the government established in American Samoa by the

President of the United States. 43 Stat. 1357, 48°

U.S.C. See, 1431. Notwithsignding varving forms-of?

local autonomy granted by the United States: each of.

the foregoing, variously called a ‘possession’, insular

possession’” or **dependeney *- embraces an area over

which. the sovereignty of the United States is complete

and undisputed, in all seamen ea political and mili-

fary. ; oe

(hb ‘Tn contrast, ‘the bases here in question are solely

inifitary outposts on foreign soil, leased to the United

10 \

.

States only for security ‘and’ defense purposes. This is

made ainply clear by the Exchaneve of Notes, the, Leases,

and the “Agrecine mt. NO more Was sought.; No more

should be held to hav@ been granted or acquired. There

“Was no surrender of sovereignty by the British Crown

or aeqiusition of sovere ivnty hiv the United States.- No >

"reservoir of author itv owing from sovereignty As avail-

able for the exere ise of -control; the terms of the ar-

angements alone supply the basis for all authority ex-

ercised by the United Sti ates.

When the detailed terms and-¢ conditions of the Agre e-

ment are rez ead as they must Je sin: the light of the de-

ernment’s interest ‘tin the national security ef the United States’

and their desire-‘‘to.strengthen the ability of the United States to

cooperate effectively with the otlier nations of fhe Americas in fhe

defense of the Western Hemisphere’’. Accordingly flis Majesty ’s

: Cad Lothian’s. Note of September 2, 1940, expressed his Gov-'

“+

Government will secure the grant to the Governanent of the .-

United States, fre ely and without, consideration, of the le: ase for

bumediate establishment and use of Naval and Air bases and faeili-

ties for entrance thereto. and the operation and ‘protection -

thereof’’. -Exeeutive Agreement ‘Series 235, Leased Naval and

Air’ part s, pp. 14-15." In replying on belialf of the United States,

Mr. Hull referred to the generous actions of His Majesty ’s Govern- |

ment*which are destined to enhaice the: national security of the

United States and creatly to strengthen its ability to cooperate

effectively with the other nations of the Americas in the defense of

the Western ‘Hemisphere. —It- therefore’ gladly accepts the pro-

posals’’. The nete of Mr. Hull added that the United States ‘will

_ immediately transfer to Tfis Majesty’s Government fiffy—Haited

f States Navy Destroyers .. 27° Td. » pp. 15-16. The leases recite the

undertaking of the note ‘‘to secure the grant’ to the United States

of the lease of certain Naval and. Air Bases and’ facilities’’; and

the United States ‘‘agrees that it will not during the term hereby

er anted nse the Leased Area nor permit the nse thereof.exc “opt for

the purposes speeified The . \creement. of Mareh 27, 1941, in-

corporated in each lease be reference, stresses the same fundamental

approach of the two Governments. 7d:, p. 1.

WY

pita

. {

Tae

clared? purpose, cach provition is - entirely consistent:

with the limited military character of the rights ac-

quired by the United States, and mime rous provisions

are iiconsiste nt With and hegare a epant ot ay, other |

or broader character.’ Although the United States: ac-

quired large powers to effectuate the military objective,

the combination of the geriegal over-all limitations te

that purpose With the specific limitations respecting all

matters unrelated to that spears serve graphically to

* For example. the diaited Ufting of existing immigration laws

(Art. XILL) ; the limited exe iption from, customs and duties (Art,

XIV); the iattea character of the postal facilities whieh might be

established by the United States, ( a XVI; and see par, 3, letter .

_ by Ambassador Winant, dated Mar. 27, 1941, Exectitive Agreeme ‘ut

Series 235, supra, p. 41); “the prohibition agdimst engaging in any

business or professional activity, except such business as post er-

changes and the like (Art. XVILE), against reselling food admitted

free of eustoms: (Art. NUIV(4), and avainst establishing a wire-

less station or laniling JA submarine cable iii a Leased Area other-

wise than for military purposes (Art. XV). Jurisdiction vested: in

the United States is limited. te offences of a military naturesor re-

lated to protecting the secutity and property of the base (Art. IV).

Minerals and antiquities: are reserved to the United Kingdom or

local government, and the United States agrees to pegmit the exer-

cise of fishing privileges within the Leased Areas “insofar as may

he—found compatible with: military requirements’”. CArt. 2 > ELEY i,

Only those laws of the local cove rnment which ““derogate. from or

prejudice any of the rights conferred an the United States”? are in- ,

applieable (Art. XXIN)- (italies supplied). Provision is male.

for modification ofthe terms of the Agreement after a rensonable .

time (Art. NNNVAID). The United States cis not obliged to exer-

ecise any right, power or authority granted (Art. TLD), but agrees

- not to “assien. or underlet or part with the possession of the’ whole - |

.or any part of any fieased Area’? (Art. XNIID). The Vhited .

States may abandon. any Leased Area ‘or part thereof ‘without ob.

“ligation, presumably when the military necess ity therefor is deemed

passed; and, on the expiration of ane notice, the area abandone d

‘shall revert to-the Lessor’? (Art. XNT). 7

12

emphasize the special character of the arrangenients

and to oxelude the status of sovereigniy heretofore ul-

derstood hy the term ** possession of the “Uniteél

States’ ® dn the Pair Labor Standards Met Congress

Was exercising its sovereign legislative power, | The

power of the United States over the Leased Areas does

not arise from sovereignty over them but from the

terms of the international arrangements. It would

seem Clear therefore that the power thus far exercised

by Congress in the Fair Labor Standards Act may not:

préperty be econstrued_as covering areas not enrbraced -

withiny the power exereiged, nor ean a contrary inten-

tion be imputed to Congress. ee ;

The court below jn other respects (R. 90-91) miscon-

stiued the powers of contro? vested in the United States

by failing to take account of both the general and

specihe limitations ef the arrangements, Its reference

to the provision that a Leased Area is “not a.part of

the fervitory of the United’ States for the purpose of

* coastwise shipping, laws’? (Art. XI(4)) (RR. 91). gives

happlopriate weight to’mere evidence of the natural

desire fa great maritime nation to avpid any, question

that, the a uthority granted the U nited States might be

; dee tned to ¢ <elude British vessels from trade hetween “7

the U nited. States and the Leased Areas. No more

meaning can properly be read into the specitie: exenp-

. tien of coastwise shipping laws. On the contrary, in ae

later statute extending Navy courts-martial jurisdic

tion, Congress denominated Leased Areas generally as

heing “without the, territorial jurisdiction’ of | the

Mhited Stat< 57 St: at. 4) approved Mareh 22. 1942.

(¢) Even if the question were more donbtful, it is

submitted: that the. Cireuit Court of Appeals sheild

‘hive affirmed the judgment of the District Court, whieh .

was in harmony, with the position. ®f the ¢xeeutive

braneli of the Goverunicnt, ‘the President himself, far

from claiming the Leased Areas as possessions of the

United States, described them oflicially as ** Army and -

Navy bases in British possessions in’ the Atlantic

Ocean”. Executive Order 8623 (Dee. 31, 1940), 6 FER.

% The Attorney General’s opinion published with

the Exchange of Notes and upholding the ‘President's *

authority te consummate the arrangement, specifically

referred -to” the: “sovereignty retained . by Great.

‘ Britain’ in the Leased Areas. 39 Op. Atty. Gen, 484,

485. The re prespntatives of the British oe

S Thi Tete ( Winston: Churchills . ** President Roose:

velt has recently made it clear that he would-like to-discuss with

us, and with the Dominion of Janada’ and with Newfoundland,

the deve topment of American naval and air. facilities in Newfonml—— _——

land and in the. West'Imties— |

any ‘transference of soveréignty that has never been suggested

rere os, af coTrse, no question of <2

or of any action being taken, withottt the scomsent or “against thie,

wishes of the ,various Colouies conrned, but for our part, His

Majesty ‘S governihent are entirely willing to accord defence facili.

‘ties to the United States on a ninety-nine year leasehold basis. and

we feel sure that our interést no less than theirs, anil the interests

‘of the ¢ ‘alonies themselves and of Canada and Newfoundland, will

he served thereby’) 364 Parliame nitary Debates, House of Com:

mous (Aug. 20,1940) pp. 1170-1171, ae )

- The Seer tary of State for Fore ign Al airs ( Vise aunt Haliy

“The fact that the leases are to be for a period of ninety-nine

years ensures that this Agreement, concluded as Th: ive said for the

advantage of both parties, shall not he of a merely passing “0:

yphemeral kind, No. question of any transference of sovereignty

arises, and the Governors. of the territories in which concessions:

care being na 'e, as alwo His Majesty ‘s government in Canada, have

heen consulted at every stage and have fully coneurres) ino what

“has been done. LT think it is also trie to say that from all the re-

ports reac hing me, the Ayree mont’ has been’ received with warm’

approval my. cordiality hiv the ‘peoples directly COD ate" rhed. Cor.

ae eyecare Se

and ‘the | “hited States “in the=negeitiations expressly

yg. recognized that-ne xVereignty Was transferred. —

7 No executive agenev of the United Stat(s lias con

te ‘nded the contr ary. The Acting Legal Adviser éf the

“Department of State has stated that “this dovermment ©

haguot made any claim that the bases in Bermuda are

territories: OP possessians | of the United States” CR.

Lo Seal

©

tainly it is true tliat this Agreement tail in singular contrast, to-

thé more tortuous processes by which the totalitarian’ powers, seek

to enlarge thei wT sphe re of domination at the a lise of wag

ma Parliamentary Debates, Hotise of Lords (Sept. ; 140), 367.

* Hearings’ on iH. R. 5006 companion ta S. iar Au.

gust 16, ELE 8 aes oo Stat. 622, supra note 2]. Committee on the Jndi-

- clary, House of Representatives, 77th Cong. Ist Sens. (Sule 24,-

1 W alter [Presiding membes, ‘of the Committee, and in.

2 charge of the Inlli. ** Before oing ay. further on that point, ;

you were being careful te avoid the’ implic ation. that there

sy

“~

Was a trans! fer of sovereienty ye

oat ns “Fahy | Assistant Sodicitor General. and. civilian’ Uintted®

States representative. in the nevotiationst.. ‘* Yes: fe acclauh

of a transfer of sovereignty: The opinion of the Attorney, Gen:

_ eral, on the basis of whieh the President Was convineed that

he had the right to make the arrangéwents, Sdicdk that’ stv.

ereignty Was not transferred, and Nts Churchill when he

agreed ta the arratigements .and epiorted: to the’ House of

Commons about thems stated to fle Ifo Se of ( ‘om mots that

sovereignty would. net Le transfe ae, Soe We: “never “departed

‘from the position that the hea tds of the two governments ad °

taken on that technical pein t ;

Mr W alters “Then if there -is aio transfer pf sovereignty, |

the only powers and 1 ‘ihts that we hid over ibeat territory

were thone expressly riven tous tinder thé terns of the Agree.

oe : a

ine ‘nt’

Ur. Fahy: “ Eithter expressiv or by implication, but they

‘tome from the agreement. We are not Severeign’’. ‘

>

SP es 1):

me) de. The Dis Talon of Ve ritor ie: s vind [sland Posse ‘s-

slows of. the Departinerit. of Tuterior has hot beer

vested with administration uf the Leased Areas (R.2

The Wage-Hour Dividion of the Dé ‘partment of aber:

charged with the administration and. enfore theat of

‘the Fair Labor Standards Act, lias published interpre-

tations whieh-have been outsta nding continuously from

the inception of the Aet to the present date, aud whieh

have never inehuded the Le assed Are: AS Or siintilar haises-

in the enumeration jof -7Perritories and possessions ste aE

_ covered by the. Act! ‘This evidences the cleat inte nt of a

the Adminisirator to exclude them. Although fully Cou ,

nizant of this.and other litigation raising the que ston,

the Adininistr: ator has reite rate ‘d this interpre tation’ as

recently as July 3, W94GS Such interpretation by the

Administrator is ¢ sutitled Jn reat weight. See United |

Slides. Amysie whe Trachin Y. Ldaie iation, O10 1’..8, 834.

49. The” Administrator’ < policies... determine the

poliey which will euide: applications for enforcement by

injunetion on behalf of the Government. > Good adutin-

istration of the Aet and good judicial adininistration

~ahke require 1 hat the standards of pthhe enforcement

and those for determining seer sauces shall be at.

¢

, oie Section 3he) State! is detinal ay medning, ainy State of

the United States, or the District of Co! tinaloian | or any Territory pr

-°. possession ofthe United States.” Therefore, employees, within the

District of Golumbia, aid the Territories did possessions ¢ Alaska, :

‘* Hitwars, Puc tle R nw ‘0, the Caneel Zon P Gu ty Gouanea Is ‘ands, Si-

mor, Virgin dslands -, ave dealt with oni the same basis ase smployed

* working in any of the forty-eight States’. LTaterprefative Bulletin

No. °?, issued (ut. Hy ESs. repeated in “Central Ntatement on

Coverage”, eft ive uly Bs. Ey... OCH Labor Service, peur’,

32102 par, OF, SSO Ce ; , Se |

As

“12 FAR. 4583. 4984, See. 776.166), quoted sapra note 7.

variance only where justified by-very good reasons’’. -

Shidmore Vv. Savift & Co., 823.0. 8. 134, 140. Here, no

‘reasons for variance appear, and many conside ‘rations.

of nation’l and futernational policy eall for uniformity

~ as between-private rights and public enforcgm@m.

Khe exelusion of: Leased Areas from cov ‘erage is in

line: with Section 17 of the Act, which-vests civil juris-

diction to issue iM junetions in the district courts of the

CU hited Statessand in *the?U nited State 's courts of the

+ Fer rritories and possessions’”, The Leased Areas are

not ues rly included within the expression ‘T erri-,

tury er possession”, as used in this statute, sirfte’ no

civil courts of anv kind have been established by Con-

_ gress in the Lease d Areas bon 25), and there is ny inten-

tion to do so.’

This conelusion is reinforced by other eee of

wright in statutery construction, First, the Act does

“uot purport.to exhaust the Federal power, either over

calle ape inent Subject to.the commerce clause (Kirsch-

baum Con W ating, | 316 U. S.517, 521-523; valling NV.

Jacksonr iti Pape r Co, 317 UU; S. 564, 569-571), or the

fullest-application te all places subject to F ederal juris-

***The President: has stated. that civil courts will not be -estab-

lished “in leased areas beyond the veetsragsal jurk sdietion ‘of the

Thited, States’. S. Rpt. 26 (by ‘Mr. Walsh} on S. 303, Committee’

on- Naval Affairs, U.S. Senate, 78th Cong., Ist fies The bill in

<puestion, 8. 803, extending, yitrisdiction of nayal courts-martial,

was approved Mfireh 22. 19. 97 Stat. 4), supra p. 12. In de-

scribing a similar measure in the preceding Congfess, Chairman

Walsh stated: ‘*The bill seeks to give: jurisdiction /to naval courts.

over civilians employed by gur naval. organizatiow in areas where .

no tivil courts are uy? vail: ily le”? S8 Cong. Ret. S481, 77th Cong.

; 3

id Sess. .

1% : :

Q ° bd

dietion.’” Second, where Congress intended the L ek ASC d |

“Areas to be covered, it has done so by express statutes,

nthe two iustances of. naval ecoutt-mar ‘tial jurisdiction

and the Longshoreinen’s et Harbor Workers’ Com-

pensation Act. Supra, pp. 7, 12... Third, no Congres-.

‘sional acquiescence avas obtaiied or somht here ou the

basis that sov ereignty was. being acquired, and all of-

ficial acts in the premises, executive and. lesisl: ative,’

- show that the Unite] States contemplated and ac quired

only. leascholds for naval and air bases in British pos-

SeSSIONS, with the 1 ights, powers and authority ineident

to their yilitary puxspose. :

In all the circumstances, it is ‘submitted that ay

doubt as to -the construction -of the stgfute should be -,

resolved agaiust its application to such, nilitary bases

on foreign soil, with eorresponding extension of soy-

ereignty. It is submitted that such application should *

be made only by C ongress, in the light of the*situation

existing at the time, and with the benetit of cousulta-

tion with the executive departinents particularly con-

cerned with our international relations, insular affairs,

national defense, and labor relations. ‘The judiciary

should he slow-fo decide that laws-enacted without eon-

sideration of the, factors here involved should be ayi-

plied to such Leased Areas as ‘possessions of the

United States”. In any event, a decision to that effec “

'* Bmployment within the Territories and possessions is not. cCOv-

ered to the Jimit of Congress * plenary “power therein, but on the

same basis as eytployment in any of the 48 St ates, “See Interpreta-

tive Bulletin No. 2, supra note 7. The Philippine Telands are @Xx-

‘cluded altogether because not expressly emmerated. 39 Stat. 547,

IS UUS.C. See. 1003.5 Special provision is rhade as to homework in‘

the Virgin Islands “and Puert® Rico: MM Stat. 615, 616,29 U.S.€.

See, 205(e), 206, . Qo

Sch 18

should: not remain unre viewed by this Court. Absent.

such review inthis tase the decision below, Whatever

-the oufeome on other possihle issues on remand, will |

* remain to vex the question which éalls so strongly for.

the conside! ‘ation and decision of this Court.

sae . CONCLUSION -

>

For the foregoing reasons, it is respectfully sub-

nritted that the writ praved shoud be gr anted.

KIDLITZ. Frencu, FInk’ & Marke,”

- J. Raxbae CREEL, —

CHARLES Fany,”

Attorneys for Petit loners.

Februa ry, 1948.

ee ae

plat A a