# Petition for Writ of Certiorari — Vermilya-Brown Co. v. Connell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0076%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1948 - **Citation:** 335 U.S. 377 ## Text 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. ° 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 7 ae : *~e ¢ . . “” > > gt ‘ . e gi , : er > Section (bh) defines Seoantiierce™ to mean— ‘*, . « trader commerce, transportation, transmis- : 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 ‘ : 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 ¢ 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’ 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0076%3A02. Public record. Not legal advice.