Appendix — Amell v. United States

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

No. 282

HARRY J. AMELL, ET AL., PETITIONERS,

vs.

UNITED STATES.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF CLAIMS

INDEX

Original Print

Record from the United States Court of Claims in

' Amell, et al. v. U. S. (No. 387-64)

| SAMO ee tee eer ene MeN oes 1 1

Defendant’s motion to transfer or dismiss —._. 5 4

Objection to defendant’s motion to transfer or

a a ce 13 5

Order denying motion to dismiss and transferring

case to the United States District Court for the

Southern District of New York — ioienetv 43 6

Clerk’s certificate (omitted in printing) - . 44 6

Record from the United States Court of Cleless i in

Allwein, et al. v. U.S. (No. 423-64) ~.0 45 7

Ra RT rte et eS Re An 45 7

Defendant’s motion to transfer or dismiss 50 11

Objection to defendant’s motion to transfer or

dismiss 5 52 13

Order denying motion to ‘Genin onl transferting

ease to the United States District Court for the

Southern District of Florida 53 13

Clerk’s certificate (omitted in veinting} . 54 13

REcorRD PRESS, PRINTERS, NEw YorkK, N. Y., NOVEMBER 3, 1965

$2 ORE

li INDEX

Record from the United States Court of Claims in

Bennett, et al. v. U. S. (No. 269-64) —---. 55 14

Petition 55 14

Defendant’s motion to strike part of plaintiffs’

petition 60 18

Defendant’s answer ........_____------—___----_-__----- 62 19

Defendant’s motion to transfer or dismiss --........ 67 23

Objection to detendant’s motion to transfer or

dismiss 69 24

Order denying motion to dismiss and transferring

ease to the United States District Court for the

Southern District of Florida — 70 24

Clerk’s certificate (omitted in printing) —-...- 71 25

Record from the United States Court of Claims in

Detling, et al. v. U. S. (No. 333-64) 72 25

Petition a 72 25

Defendant’s motion to dismiss or transfer —.-- 78 29

Objection to defendant’s motion to dismiss or

transfer 80 30

Order denying motion to dismiss and transferring

ease to the appropriate United States District

Court : a3 81 31

Clerk’s certificate (omitted in printing) ~~... 82 31

Order allowing certiorari ———-.—---.---..---------------------- 83 32

[fol. 1]

IN THE UNITED STATES COURT OF CLAIMS

No. 387-64

1. Harry J. AMELL, 36. JoHn J. Markey,

2, CuHarLes BanisH, 37. Joun H. Miter,

3. Epwarp A. Barnack, 38. Gaetano MINUTILLO,

4. NicHotas Bpera, 39. Pau. J. NELSON,

5. Frank W. Brett, 40. J. Nestor,

6. Marion R. Broepon, 41. Jason D. OBERon,

7. Loron M. Bryant, 42. SaTuRNIN

8. Frank H. CatHovun, ONICHIMONSKI,

9. JosePpH R. CaRMAN, 43. Ricnarp R. PryNeLo,

10. FRrep Crpresso, 44. Jonun A. PREGENZER,

11. Jeremian P. Cottrys, 45. Ratra F. Ranpatt,

12. JosepH P. 46. B. Rasmussen,

CoNnSTANTINEAU, 47. Puiie E. Reyno.ps,

13. Roperr E. Corper, 48. James C. Rows,

14. Cartos Dre Jesus, 49. Danie, F. Santos,

15. Grorce A. DeLong, 50. THEODORE

16. AtHony Draces, ScHOENBERGER,

17. Anprew J. Dunne, 51. M. Srmonsen,

18. Grorce E. DuPont, 52. Haavarp SKILNAND,

19. C. Forsytx, 53. C. W. Skornickt,

20. Freprick J. Fromm, 54. JosepH B. Smits,

21. JosepH GopLEWSKI, 55. Harotp Sorenson,

22. C. Gorvon Grant, Jr., 56. Joun M. STAntey,

23. Wituiam A. Gross, 57. Ratpax W. Stockman,

24. Jacos M. Hann, 58. ALEXANDER TALKUN,

25. JoHn HARGRAVE, 59. CHartes E. Taytor,

26. CHartes HELLER, 60. Grorce Torx,

27. Soren G. Henrixsen, 61. THeopore F. Verney,

28. J. A. Kirven, 62. Homer M. WarTerMan,

29. Anpor KiTTILsEN, 63. Harotp W. WHEELER,

30. Catvin M. JoHnson, 64. JEROME W.

31. Max J. Lecuicn, WINTERFIELD,

32. Mervin F. Lesse, 65. Joun Wricut,

33. A. LrBerato, 66. Mopesto Zaar,

34. James R. Loper, 67. Bruno H. ZaHLManyn,

39. Donato K. McKes, Plaintiffs,

v

Tue Unitrep States.

£ Sytaaeees

wee:

POS EAI ORY SS

tk FE PL RS

-

—

Petrrion—Filed November 12, 1964

ifol.2] To the Honorable, the United States Court of

Claims:

For a First Cause of Action

1. This Court has jurisdiction under 28 U.S. C. Section

1491.

2. Petitioners are citizens of the United States and at

all times hereinafter mentioned were licensed marine en-

gineer officers employed aboard vessels operated and con-

trolled by the Military Sea Transportation Service, Atlan-

tic Area (hereinafter referred to as “MSTS"), a subsidiary

agency of the Department of Navy, Defense Department,

United States of America,

3. Seetion 202(8) of the Classification Act of 1949, 5

U.S. C. 1082(8) provides:

Ҥ LOS2, Positions exempt

(8) officers and members of crews of vessels, whose

compensation shall be fixed and adjusted from time to

time as nearly as is consistent with the public interest

in accordance with prevailing rates and practices in

the maritime industry.”

4. The prevailing rates and practices in the maritime

industry are established by collective bargaining agree-

ments between commercial maritime carriers and maritime

labor unions.

+. The prevailing rates and practices for marine en-

gineers are established by collective bargaining agree-

ments between commercial maritime carriers and the Na-

tional Marine Engineers’ Beneficial Association (herein-

after called “NMEBA”),

6G. Pursuant to such collective bargaining agreements be-

tween commercial maritime earriers and NMEBA, wage

jfol. 3] reviews were conducted, effective June 15, 1962,

June 15, 1963 and June 13, 1964, in whieh 3t. pereent pay

increases for marine engineers were made available by the

carriers,

3

7. Pursuant to the terms of said wage review agree-

ments, the members of the Union employed by the eom-

mereial carriers decided to put the St, pereent pay in-

creases effective June, 1962 and June, 1963 into the MEBA

Pension and Welfare Fund, and to put the 3t. pereent pay

increase for June, 1964 into monthly wages.

’

S. ‘The aforesaid constituted prevailing rates and prae-

tices in the maritime industry for maritime engineers,

% MSTS has failed and refused to pay to its licensed

marine engineers, including the petitioners, the two 3,

pereent pay increases received by licensed marine engineers

employed on commercial carriers effective June 15, 1962

and dune 1d, 1903, although such payment was duly de-

manded on behalf of petitioners,

10. The refusal of MSTS to grant the aforesaid pay

increases is in violation of dO U.S. CL 1082(8).

For a Second Cause of Action

Il. Petitioners repeat and reallege all of the faets set

forth in the First Cause of Aetion as if set forth in full

herein,

12. Petitioners are members of Distriet No. 1 National

Marine Engineers’ Beneticinl Association.

18. The NMEBA is recognized as the exelusive repre-

sentative of all civilian licensed marine engineers employed

by MSTS, Atlantic Area.

I4. Article NIL of the Agreement negotiated between

the Commander, MNTS, Atlantic Area and the NMEBA

pursuant to Executive Order 1O9SS, and Civilian Marine

Personnel Instruction 4311-2 provide that “prevailing pay

{fol. 4] rates and practices in the maritime industry are as-

eertained by analysis of * * * (2) agreements and contracts

between commercial carriers and maritime labor unions.”

lo. ‘The refusal of MNTS to grant the pay increases of

June 15, 1962 and June 15, 1963 is in violation of the afere-

said agreement and of CMP S31,

arte mena? NOTE

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Poe Petra

er

AIA ID, Wa ER AN ah a hh aC oe Rae

16. Petitioners have exhausted all administrative reme-

dies.

17. Petitioners demand an accounting for computation

of the amount of damages to which they are entitled.

18. Upon information and belief, petitioners claim dam-

ages totalling $100,000.

Wherefore, petitioners demand judgment against the

United States in the amount of $100,000 or an accounting

and judgment directing payment to petitioners of the two

314, percent pay increases due June 15, 1962 and June 15,

1963.

Dated: November 3, 1964.

Lee Pressman, 50 Broadway, New York, N. Y. 10004,

Attorney for Petitioners;

David Scribner, Joan Kiok, 50 Broadway, New York,

N. Y. 10004, Of Counsel.

Harry J. Amell, a petitioner, Jakeway Road, Hudson

Park, New York.

[fol. 5]

Ix tHE Unitep States Court or CLaAms

[ Title omitted]

DerenpvANT’s Motion To TRANSFER OR Dismiss—

Filed December 22, 1964

Defendant moves the Court for an order transferring this

action to the United States District Court for the Southern

District of New York or other Districts elected by peti-

tioners or, in the alternative, for an order dismissing the

petition. The ground for this motion is that it appears from

the face of the petition that plaintiffs’ claims are for sea-

men’s wages allegedly earned in maritime employment

aboard vessels owned and operated by the United States and

are thus a matter of admiralty and maritime jurisdiction

5

justicable exclusively in the district courts under the

Admiralty Claims Acts, 46 U.S.C. 741 752, 781-790.

* * * * ” * *

[fol. 11] Respectfully submitted.

John W. Douglas, Assistant Attorney General, Civil

Division.

Leavenworth Colby, Allen Van Emmerik, Attorneys, Ad-

miralty & Shipping Section, Department of Justice.

(fol. 13]

In tHe Unirep States Court or Cuams

No. 387-64

[Title omitted]

OssJECTION TO DEFENDANT’s MOTION TO TRANSFER OR DisMIss—

Dated February 19, 1965

Plaintiffs object to the granting of defendant’s motion to

transfer or dismiss, filed on December 22, 1964, on the

ground that this Court has exclusive jurisdiction of claims

for overtime wages by government employees when the

amount exceeds $10,000.00.

The attached Memorandum is submitted in support of

this objection.

Dated: February 19, 1965

Lee Pressman, Attorney for Plaintiffs, Office and

P. O. Address: 50 Broadway, New York, N. Y.

10004.

eae RE iy

| ak: .

[fol. 43]

In THE Unitep States Court or CLAMS

No. 387-64

Harry J. AMELL, eft al.,

Vv.

Tue Unitrep States.

Orper Denyinc Motion To Dismiss AND TRANSFERRING CASE

to U.S. D.C. 8. D. N. Y.—April 12, 1965

This case comes before the court on defendant’s motion

to transfer or dismiss. Upon consideration thereof, to-

gether with the opposition thereto, and without oral argu-

ment, on the basis of Wingate v. United States, Ct. Cl. No.

147-61; Alesiani, et al. v. United States, Ct. Cl. No. 266-63;

and Afnese v. United States, Ct. Cl. No. 294-64,

It Is Ordered that defendant’s motion to dismiss be and

the same is denied, and that defendant’s motion to transfer

be and the same is granted in that this case is transferred

to the United States District Court for the Southern Dis-

trict of New York.

The clerk will forward to the clerk of said court a certi-

fied copy of the record made here.

By the Court

Wilson Cowen, Chief Judge.

[fol. 44] Clerk’s certificate to foregoing transcript

(omitted in printing).

7

[fol. 45]

Iw THE Unitep States Court or CLaims

No. 423-64

1. James J. ALLWEIN, 6. Ranvauu D. Hartiey,

2. Raymonp H. BE is.2, 7. Wriiu1aM G. Hm,

3. Frank H. Coins, 8. Grorce E. Hucues,

4. Tuomas D. Outten, 9. James J. Lex,

5. JoserH KE. Hart, 10. Earu Payne,

11. Junior A. TYLER,

Petitioners,

Vv.

THE Unirep States.

Pertition—Filed December 23, 1964

To the Honorable, the United States Court of Claims:

For a First Cause of Action

1. Petitioners are citizens of the United States and at

all times hereinafter mentioned, were and are employed by

the United States as boat group employees and stationed at .

the Naval Ordnance Laboratory Test Facility at Fort

Lauderdale, Florida.

2. The Naval Ordnance Laboratory Test Facility is

an agency of the Department of the Navy, Defense Depart-

ment, United States of America.

[fol.46] 3. This Court has jurisdiction under 28 U. S. C.

Section 1491.

4. Petitioners, as a condition of their employment, have

been and are required to work, and did work, and con-

tinue to work, eight and one-half (8%) hours per day.

on

aA ee .

CASE BR eee RSE Te POETINES SOY RY or Ne Seay vein nats ip re eee ay 3S ia vaso

5. Petitioners have not been and are not compensated

for such work in excess of eight (8) hours per day.

6. Petitioners have been required to work such over

time periods for various periods of time, depending upon

the length of time of their individual employments,

7. Upon information and belief, petitioners’ compensa

tion is fixed and adjusted from time to time in accordance

with prevailing rates and practices in the maritime industry

by a wage board or similar administrative authority,

& The Federal Employees Pay Aet of 1945, 5 UL S.C.

HOZ(e) exempts from coverage (with certain exceptions)

“ * * * omployees whose basic compensation is fixed and

adjusted from time to time in accordance with prevailing

rates by wage boards or similar administrative authority

eee

9 One of the stated exceptions to said exemption is

5 UL S.C. 918 whieh provides for payment of overtime

to wage board employees in accordance with the provision

of Seetion 673(¢) of 5 ULS. CL and further provides for the

method of computing such overtime on the basis of time

and one-half as follows:

‘Employees whose basic rate of compensation. is

fixed on an annual or monthly basis and adjusted

from time to time in accordance with prevailing rates

by wage boards or similar administrative authority

serving the same purpose shall be entitled to over.

time pay in accordance with the provisions of see-

tion 678e of this title The rate of compensation for

[fol 47] each hour of overtime employment of any

such employee shall be computed as follows:

(a) If the basie rate of compensation of the em.

ployee is fixed on an annual basis, divide such basic

rate of compensation by two thousand and eighty and

multiply the quotient by one and one-half; and

(b) Tf the basie rate of compensation of the em

plovee is fixed on a monthly basis, multiply sueh basic

9

rate of compensation by twelve to derive a basic an

nuat rate of compensation, divide such basic annual

rate of compensation by two thousand and eighty, and

multiply the quotient by one and one-half.”

10. OULS. CL 678(e) Gus amended by Public Law 87-581

(1962)) provides in pertinent part;

“Seetion O73(e) * * * s Provided further, That over

time work in excess of eight hours per day or in excess

of forty hours per week shall be compensated for at not

less than time and one-half the basic rate of compen.

mre “ew

sation .

Il. Petitioners are entitled to damages computed for

each petitioner ino accordance with the provisions of

UL S.C. Seetion 913,

For a Second Cause of Action

12. Petitioners repeat and realloge all of the facts: set

forth in the First Cause of Action as if set forth in full

herein,

18. Naval Civilian Personnel Instruction G10.2-1k pro.

Vides :

“Normally, during each S-hour shift employees will

be allowed a specitied period of time off to eat linch,

A lunch period is nonwork time for which neither basic

nor overtime compensation is pavable, When a lunch

period is set aside, the length of the shift or workday

will be extended by the length of the non-work period.

[fol 48] In some types of jobs it may not be admin

istratively desirable to allow a specified period of time

off for lunch, For example, it may be desirable to

avoid overlapping shifts when night: shifts are em

ployed or the job may require the constant attention

or availability of the emplovee without being relieved

for lunch, In these types of eases, it is proper to

schedule shifts without a hineh period, Under such

cirenmstances, the employees may be permitted to eat

7

lunch on the job when it is possible to do so without

stopping or interrupting his work. When no lunch

period is scheduled, the schedule shall so indicate.”

10

14. Petitioners were not allowed a specified period of

non-work time to eat lunch and were required to work over-

time in excess of eight hours per day for various periods

of time depending upon their individual lengths of employ-

ment.

* Ge ene SG NLS sec Ra

15. Petitioners are entitled to damages computed for

each petitioner in accordance with the provisions of 5

U. S. C. Section 913.

Baa eS it) ayien re,

For a Third Cause of Action

4 16. Petitioners repeat and reallege all of the facts set

; forth in the First and Second Causes of action as if set

forth in full herein.

17. The Classification Act of 1949, 5 U. S. C. 1082(8)

exempts:

“(8) Officers and members of crews of vessels, whose

compensation shall be fixed and adjusted from time

to time as nearly as is consistent with the public in-

terest in accordance with prevailing rates and prac-

tices in the maritime industry * * * .”

18. The prevailing rates and practices for employees

in the maritime industry may be determined from the col-

lective bargaining agreements between the maritime unions

and various shipping companies.

[fol.49] 19. The prevailing rates and practices in the

maritime industry require overtime pay for all work in

excess of eight hours per day.

20. Petitioners are entitled to damages computed for

each petitioner in accordance with the provisions of 5

U.S. C. Section 913.

21. Petitioners have exhausted all administrative reme-

dies.

iia

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ay ep ee og vais Hee ee arco sae he Ie? ket See BADEN ee LYE Gy cree eee ae A ear Te eee ee Lee TTT

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11

22. Petitioners demand an accounting for computation

of the overtime worked and payment therefor.

23. Upon information and belief petitioners claim dam-

ages totalling $20,000.00.

24. Petitioners will be required to work overtime dur-

ing the time this action is pending and will be entitled to

recover for such overtime until final judgment in this

case.

Wherefore petitioners demand judgment against the

United States in the amount of $20,000.00, plus such other

and further amount as may be due petitioners on the day

of judgment.

Dated: December 18, 1964.

Lee Pressman, 50 Broadway, New York, N. Y. 1004,

Attorney for Petitioners;

David Scribner, Joan Kiok, 50 Broadway, New York,

N. Y. 10004, Of Counsel.

Earl Payne, a petitioner, 1106 N. W. 13th Court, Fort

Lauderdale, Fla.

[fol. 50]

In THE UNITED States Court or Cuaims

[ Title omitted]

DEFENDANT’s Motion To TRANSFER OR DismIss—

Filed January 26, 1965

Defendant moves the Court for an order transferring this

action to the United States District Court for the Southern

District of Florida or, alternatively, for a dismissal of the

action. The ground for this motion is that it appears from

the face of the petition that plaintiffs’ claims are for sea-

men’s wages allegedly earned in maritime employment

aboard vessels owned and operated by the United States

and are thus matters of admiralty and maritime jurisdiction

justiciable exclusively in the district courts under the Ad-

miralty Claims Acts, 46 U.S.C. 741-752, 781-790.

* * * * * ” *

{fol. 51] Respectfully submitted,

John W. Douglas, Assistant Attorney General, Civil

Division.

Leavenworth Colby, Allen Van Emmerik, Attorneys, Ad-

miralty & Shipping Section, Department of Justice.

[fol. 52]

In THE Unitep States Court or CLaims

No. 423-64

[ Title omitted]

OsJECTION TO DEFENDANT’s Motion To TRANSFER OR DIsMIss

—Dated February 23, 1965

Plaintiffs object to the granting of defendant’s motion

to transfer or dis~‘<s, filed on January 26, 1965, on the

ground that this Court has exclusive jurisdiction of claims

for overtime wages by government employees when the

amount exceeds $10,000.00.

The attached Memorandum is submitted in support of this

objection.

Dated: February 23, 1965

Lee Pressman, Attorney for Plaintiffs, Office and

P. O. Address: 50 Broadway, New York, N. Y.

10004.

13

{fol. 53]

In THE Unitep States Court or CLAIMs

No. 423-64

James J. ALLWEIN, et al.,

Vv.

Tue Unitep States.

OrverR Denyine Motion To Dismiss aND TRANSFERRING CasE

to U.S. D. C., 8. D. FLtorma—April 12, 1965

This case comes before the court on defendant’s motion

to transfer or dismiss. Upon consideration thereof, to-

gether with the opposition thereto, and without oral argu-

ment, on the basis of Wingate v. United States, Ct. Cl. No.

147-61; Alesiani, et al. v. United States, Ct. Cl. No. 266-63;

and Afnese v. United States, Ct. Cl. No. 294-64,

It Is Ordered that defendant’s motion to dismiss be and

th> same is denied, and that defendant’s motion to trans-

fer be and the same is granted in that this case is trans-

ferred to the United States District Court for the Southern

District of Florida.

The clerk will forward to the clerk of said court a certified

copy of the record made here.

By the Court

Wilson Cowen, Chief Judge.

[fol.54] Clerk’s Certificate to foregoing transcript (omit-

ted in printing).

om

2 ——

oo POR asta sm ETRE RC ORT Be BEB NRE RIT IEEE ODN RV NR RP GH PEETTP REDDY LTE OY STDP HE IE OG a

l4

[fol do]

Ix vrur Unvrep Srares Court or Charms

No, 209-04

1. Jack EL Benner, 7. Baw C. MeCor,

2 Sranpuev RL Brooks, S Cranes RK, Roor,

R Rov S, Cogarstans, Y Jon HO Sr, Qronar,

4. Jouwsn W. Ennis, 10. Raven J. Vanpiver,

& Tromas W. Guia, Tl. Mrankiin W, Wanker,

6 Tanvey J. Manes,

on behalf of themselves and all others similarly situated,

Plaintitls,

v.

Tur Unverd Starrs,

Pererion- Filed August 17, 1904

To the Honorable, the United States Court ef Claims:

Fora First Cause of Action

1. Petitioners are citizens of the United States and at

all Cimes hereinafter mentioned, were and are employed by

the United States as boat group emplovees and stitioned at

the Naval Ordnance Laboratory Test) Facility: at) Port

Lauderdale, Florida,

2 The Naval Ordnance Laboratory Test) Facility is

an ageney of the Department of the Navy, Defense Depart.

mont, United States of America,

[fol d6] 8.) Petitioners bring this action for themselves

and on behalf of others stmularty situated, the others being

likewise emploved by the Naval Ordnance Laboratory ‘Test

Facility at Fort: Lauderdale, Florida,

b

4 This Court has jurisdiction under 28 U.S. C. Seetion

1H491(2) and (3),

4, Petitioners, as a condition of their employment, have

boon and are required to work, and did work, and continue

to work, eight and one-half (Sty) hours per day,

6 Petitioners have not been and are not compensated

for such work in excess of eight (8) hours per day,

7. Petitioners have been required to work such over-

tune periods for various periods of time, depending upon

the length of time of their individual omployments,

S Upon information and belief, petitioners’ compensa-

tion ts fixed and adjusted from time to time in accordance

With prevailing rates and practices in the maritime industry

by a wage board or similar administrative authority,

% The Federal Employees Pay Act of 1943, 5 UL S.C,

M2(e) exempts from coverage (with certain exceptions)

“* * * employees whose basie compensation is fixed and

adjusted from time to time in accordance with prevailing

rates by wage boards or similar administrative author.

ity eee Pad

1. One of the stated exceptions to said exomption is

YUL SCO which provides for payment of overtime

to wage board employees in accordance with the provision

of Section G73(e) of 8 UL S. Co and further provides for the

method of computing such overtime on the basis ef time

and one-half as follows:

“Employees whose basie rate of compensation is

fixed on an annual or monthly basis and adjusted

from time to time in accordance with prevailing rates

[fol O7] by wage boards or similar administrative au

thority serving the same purpose shall be entitled to

overtime pas in accordance with the provisions of sec

tion G73e of this titlh, The rate of compensation for

eich hour of overtime employment of any such em.

ployee shall be computed as follows:

PARRY Rat eR SHTML SERIES EEE IO RY ICON IS REMAN TERE

—

16

(a) If the basic rate of compensation of the em-

ployee is fixed on an annual basis, divide such basic

rate of compensation by two thousand and eighty and

multiply the quotient by one and one-half; and

(b) If the basic rate of compensation of the em-

ployee is fixed on a monthly basis, multiply such basic

rate of compensation by twelve to derive a basic an-

nual rate of compensation, divide such basic annual

rate of compensation by two thousand and eighty, and

multiply the quotient by one and one-half.”

11. 5 U.S. C. 673(¢) (as amended by Public Law 87-581

(1962)) provides in pertinent part:

“Section 673(c) * * * : Provided further, That over-

time work in excess of eight hours per day or in excess

of forty hours per week shall be compensated for at

not less than time and one-half the basie rate of com-

pensation * * * ,”

12. Petitioners are entitled to damages computed for

each petitioner in accordance with the provisions of 5

U. S. C. Section 913,

For a Second Cause of Action

13. Petitioners repeat and reallege all of the facts set

forth in the First Cause of Action as if set forth in full

herein.

14. Naval Civilian Personnel Instruction 610.2-1k pro-

vides:

“Normally, during each 8-hour shift employees will

be allowed a specified period of time off to eat lunch.

{fol.58] A lunch period is non-work time for which

neither basic nor overtime compensation is payable.

When a lunch period is set aside, the length of the

shift or workday will be extended by the length of the

non-work period. In some types of jobs it may not

w=

17

be administratively desirable to a!iow a specified period

of time off for lunch. For example, it may be desirable

to avoid overlapping shifts when night shifts are

employed or the job may require the constant atten-

tion or availability of the employee without being re-

lieved for lunch. In these types of cases, it is proper

to schedule shifts without a lunch period. Under such

circumstances, the employees may be permitted to eat

lunch on the job when it is possible to do so without

stopping or interrupting his work. When no lunch

period is scheduled, the schedule shall so indicate.”

15. Petitioners were not allowed a specified period of

non-work time to eat lunch and were required to work over-

time in excess of eight hours per day for various periods

of time depending upon their individual lengths of employ-

ment.

16. Petitioners are entitled to damages computed for

each petitioner in accordance with the provisions of 5

U. S. C. Seetion 913.

For a Third Cause of Action

17. Petitioners repeat and reallege all of the facts set

forth in the First and Second Causes of Action as if set

forth in full herein.

18. The Classification Act of 1949, 5 U. S. C. 1082(8)

exempts:

“(8) Officers and members of crews of vessels, whose

compensation shall be fixed and adjusted from time to

time as nearly as is consistent with the public interest

in accordance with prevailing rates and practices in

the maritime industry * * * .”

[fol.59] 19. The prevailing rates and practices for em-

ployees in the maritime industry may be determined from

the collective bargaining agreement between the maritime

unions and various shipping companies.

LIOR L MEY SDT EUS DAN NISL ein RR re aeons TO a Re a ce |

|

bi

|

|

18

20. The prevailing rates and practices in the maritime

industry require overtime pay for all work in excess of

eight hours per day.

21. Petitioners are entitled to damages computed for

each petitioner in accordance with the provisions of 5

U.S. C. Section 913.

22. Petitioners have exhausted all administrative reme-

dies.

23. Petitioners demand an accounting for computation

of the overtime worked and payment therefor.

24. Upon information and belief petitioners claim dam-

ages totalling $60,000.00,

25. Petitioners will be required to work overtime dur-

ing the time this aetion is pending and will be entitled to

recover for such overtime until final judgment in this ease.

Wherefore petitioners demand judgment against the

United States in the amount of $60,000.00, plus such other

and further amount as may be due petitioners on the day

of judgment.

Dated: August 10, 1964.

Lee Pressman, David Seribner, 50 Broadway, New

York 4, New York, Attorneys for Petitioners.

Charles R. Roof, a Petitioner, 236 Southwest 23rd Street,

Fort Lauderdale, Florida 33315,

[ fol. 60]

Ix tHe Unrrep States Court or CLAIMS

| Title omitted ]

DeEFENDANT’s Motion to Srrike Part or PLAINTIFFS’

Pretririon—Filed August 21, 1964

—Allowed September 3, 1964

Defendant moves the Court to strike from plaintiffs’ peti-

tion the words “and all others similarly situated” which

awh

By ie

— .

19

appears in the caption of plaintiffs’ petition. Rule 24 of

the Rules of this Court require that every action be prose-

cuted in the name of the real party in interest. The named

perseus herein are not che real parties in interest with

respect to the rights of all others similarly situated,

Rule 15(a) of this Court requires that a petition inelude

the names of all parties. Plaintiffs’ petition fails in this

respect in that plaintiffs attempt to bring within the Court’s

jurisdiction unnamed persons who may never be identified.

Such a procedure is not permitted by the Rules of this

Court.

This caption in plaintiffs’ petition is further objectionable

in that this Court cannot grant a money judgment to such

unnamed persons, What plaintiffs are attempting to do is

to have this Court render a declaratory judgment which

would affect these unnamed persons. However, it is well-

[fol. 61] settled that this Court cannot grant such relief,

United States Rubber Company v. United States, 142 C. Cls.

42,55 (1958).

Accordingly, for the above-stated reasons, defendant re-

quests that its motion be granted, and the words “and all

others similarly situated” be stricken from plaintiffs’ peti-

tion herein.

Respectfully submitted,

John W. Douglas, Assistant Attorney General, Civil

Division.

Robert R. Donlan, Attorney, Civil Division, Department

of Justice.

[ fol. 62]

In THE Unitep States Court or CLAimMs

[Title omitted]

DeFrendant’s ANSwer—Filed October 16, 1964

For its answer to plaintiffs’ petition, defendant admits,

denies and alleges as follows:

1. Admits the allegations contained in paragraph one.

2. Admits the allegations contained in paragraph two.

? 7

3. Defendant does not have sufficient information to form

a belief with respect to the truth or the falsity of the allega-

tions contained in paragraph three, and therefore denies

same.

4. Paragraph four contains a conclusion of law not re-

quiring an answer, but to the extent that said conclusion

may be deemed aa allegation of material fact it is denied.

5. Denies the allegations contained in paragraph five,

and alleges that plaintiffs worked Monday through Friday,

from 7:30 a.m. to 4:00 p.m., including a non-work period of

thirty minutes for lunch.

6. Denies the allegations contained in paragraph six, and

alleges that plaintiffs were paid overtime rates for all hours

worked in excess of eight hours per day.

7. Denies the allegations contained in paragraph seven.

8. Admits the allegations contained in paragraph eight.

[fol.63] 9. Paragraph nine contains a conclusion of law

not requiring an answer, but to the extent that said con-

clusion may be deemed an allegation of material fact it is

denied.

10. Paragraph ten contains a conclusion of law not re-

quiring an answer, but to the extent that said conclusion

may be deemed an allegation of material fact it is denied.

11. Paragraph eleven contains a conclusion of law not

requiring an answer, but to the extent that said conclusion

may be deemed an allegation of material fact it is denied.

12. Paragraph twelve contains a conclusion of law not

requiring an answer, but to the extent that said conclusion

may be deemed an allegation of material fact it is denied.

13. Paragraph thirteen is a procedural allegation not

requiring an answer, but to the extent that it may be

deemed an allegation of material fact it is denied.

14. Admits the allegations contained in paragraph four-

teen.

ee

21

15. Denies the allegations contained in paragraph fif-

teen, and alleges that each plaintiff received a thirty-minute

lunch period during each workday.

16. Paragraph sixteen contains a conclusion of law not

requiring an answer, but to the extent that said conclusion

may be deemed an allegation of material fact it is denied.

17. Paragraph seventeen is a procedural allegation not

requiring an answer, but to the extent that it may be deemed

an allegation of material fact it is denied.

[fol.64] 18. Paragraph eighteen contains a conclusion of

law not requiring an answer, but to the extent that said

conclusion may be deemed an allegation of material fact it

is denied.

19. Denies the allegations contained in paragraph nine-

teen.

20. Defendant does not have sufficient information to

form a belief with respect to the truth or the falsity of the

allegations contained in paragraph twenty, and therefore

denies same.

21. Paragraph twenty-one contains a conclusion of law

not requiring an answer, but to the extent that said con-

clusion may be deemed an allegation of material fact it is

denied.

22. Paragraph twenty-two contains a conclusion of law

not requiring an answer, but to the extent that said con-

clusion may be deemed an allegation of material fact it is

denied.

23. Paragraph twenty-three is a claim for relief not re-

quiring an answer, but to the extent that said claim may

be deemed an allegation of material fact it is denied.

24. Paragraph twenty-four is a claim for relief not re-

quiring an answer, but to the extent that said claim may be

deemed an allegation of material fact it is denied.

25. Paragraph twenty-five is a claim for relief not re-

quiring an answer, but to the extent that said claim may be

deemed an allegation of material fact it is denied.

LEAL E EGG ER RS BT a Ls i A i

26. Defendant denies each and every allegation not spe-

cifically admitted, denied or otherwise qualified herein.

| fol. 65) First Affirmative Defense

yo7

27. Each plaintiff has been fully compensated for each

hour and each workday upon which his claim is premised.

Accordingly, since payment has already been made, there

is no basis upon which additional payment can be made,

Seeond Affirmative Defense

28. Prior to his employment, each plaintiff was advised

of the work conditions and the financial arrangements con-

cerning his employment. At no time prior to the filing of

this suit, except in the case of plaintiff, Charles Roof, who

filed an administrative appeal on June 18, 1963, did any of

the planitiffs herein make any complaints or file any pro-

tests regarding their hours of work or methods of ecompen-

sation. In reliance upon the actions of plaintiffs, defendant

did not undertake to change or otherwise alter its working

arrangements with the plaintiffs herein. Accordingly, under

these circumstances, the plaintiffs are estopped from pre-

senting these claims.

Third Affirmative Defense

29. Each plaintiff's tour of duty and method of compen-

sation was known to him long before the filing of this suit

on August 17, 1964. However, at no time prior to the filing

of this suit, except in the case of Charles Roof, who filed

an administrative appeal on June 18, 1963, did any of the

plaintiffs herein take any action to correct or otherwise

| fol. 66] alter their tours of duty or methods of compensa-

tion. As a result of this unreasonably long delay in bring-

ing the present action, defendant has been injured in that it

has been unable to mitigate its damages, if any, or extin-

guish its liability by changing plaintiffs’ tours of duty or

methods of compensation. Accordingly, plaintiffs’ claims

are barred by laches.

23

Fourth Affirmative Defense

30. Plaintiffs’ petition was filed on August 17, 1964. Ac-

cordingly, that portion of their claim which is premised

upon events which occurred prior to August 17, 1958, is

barred by the six-year Statute of Limitations. 28 U.S.C.

2501.

Wherefore, defendant demands judgment dismissing

plaintiffs’ petition herein.

John W. Douglas, Assistant Attorney General, Civil

Division.

Robert R. Donlan, Attorney, Civil Division, Department

of Justice.

| fol. 67]

In THE UNITED States Court or CLAIMS

[Title omitted]

DrFENDANT’s Motion TO TRANSFER OR

Dismiss—Filed January 26, 1965

Defendant moves the Court for an order transferring

this action to the United States District Court for the

Southern District of Florida or, alternatively, for a dis-

missal of the action. The ground for this motion is that it

appears from the face of the petition that plaintiffs’ claims

are for seamen’s wages allegedly earned in maritime em-

ployment aboard vessels owned and operated by the United

States and are thus matters of admiralty and maritime

jurisdiction justiciable exclusively in the distriet courts

under the Admiralty Claims Acts, 46 U.S.C. 741-752, 781-

790.

* * * * ® * .

| fol. 68] Respectfully submitted,

John W. Douglas, Assistant Attorney General, Civil

Division.

Leavenworth Colby, Allen Van Emmerik, Attorneys, Ad-

miralty & Shipping Section, Department of Justice.

a —_—— MP PE SEAN TETRIS ONESIES SEIMEI

Pad

24

[fol. 69]

In THE Unitep States Court oF CLAIms

[Title omitted]

OBJECTION TO DEFENDANT’S MoTION TO TRANSFER

or Dismiss—Dated February 23, 1965

Plaintiffs object to the granting of defendant’s motion

to transfer or dismiss, filed on January 26, 1965, on the

ground that this Court has exclusive jurisdiction of claims

for overtime wages by: government employees when the

amount exceeds $10,000.00.

The attached Memorandum is submitted in support of

this objection.

Dated: February 23, 1965.

Lee Pressman, Attorney for Plaintiffs, Office and

P. O. Address: 50 Broadway, New York, N. Y.

10004.

[fol. 70]

In THE UniteEp States Court or CLAIMS

No. 269—64

Jack E. Bennett, et al.,

v.

THE UNITED STATES.

Orper Denyinc Motion to Dismiss AND TRANSFERRING

Case To U.S.D.C., S.D. FLtorrpa—April 12, 1965

This case comes before the court on defendant’s motion

to transfer or dismiss. Upon consideration thereof, together

with the opposition thereto, and without oral argument, on

the basis of Wingate v. United States, Ct. Cl. No. 147-61;

es

25

Alesiani, et al. v. United States, Ct. Cl. No. 266-63; and -

Afnese v. United States, Ct. Cl. No. 294-64,

It Is Ordered that defendant’s motion to dismiss be and

the same is denied, and that defendant’s motion to transfer

be and the same is granted in that this case is transferred

to the United States District Court for the Southern Dis-

trict of Florida.

The clerk will forward to the clerk of said court a certi-

fied copy of the record made here.

By the Court

Wilson Cowen, Chief Judge.

[fol.71] Clerk’s Certificate to foregoing transcript

(omitted in printing).

[fol. 72]

In THE UNITED States Court or CLaims

No. 333-64

1. Cuatmers QO. Detiine, 2. Francis E. James, 3. Severt

N. Ouness, 4. Micnaet A. Rocco and 5. Joun J. Tarpey,

Petitioners,

v.

Tue Unirtep States.

Petition—Filed October 6, 1964

To the Honorable, the United States Court of Claims:

For a First Cause of Action

1. This Court has jurisdiction under 28 U.S.C., Section

1491.

2. Petitioners are citizens of the United States and at all

times hereinafter mentioned were employed on the dredge

Essayons.

3. The dredge Essayons is operated by the Corps of

Engineers, Department of the Army, Defense Department,

United States of America.

MRIS SEEPS TR ARE FP WORE S HEL IN STE SD ENP et ETRY SSeS GG AR ER re SCE EO

i

26

4. Petitioners, as a condition of their said employment,

have been and are required to work and did work and con-

tinue to work certain port watch tours of duty.

[fol.73] 5. During said port watch tours of duty, peti-

tioners were and are required to work 24 hours per day

or 16 hours in excess of 8 hours per day.

6. Petitioners have not been and are not compensated

for such overtime work in excess of 8 hours per day.

7. Upon information and belief, petitioners’ compensa-

tion is fixed and adjusted from time to time in accordance

with prevailing rates and practices by a wage board or

similar administrative authority.

8S. The Federal Employees Pay Act of 1945, 5 U.S.C.

902(c) exempts from coverage (with certain exceptions)

“* * * employees whose basic compensation is fixed and

adjusted from time to time in accordance with prevailing

rates by wage boards or similar administrative author-

ity * # bad

9. One of the stated exceptions to said exemption is

5 U.S.C. 913 which provides for payment of overtime to

wage board employees in accordance with the provision

of Section 673(¢) of 5 U.S.C. and further provides for

the method of computing such overtime on the basis of

time and one-half as follows:

“Employees whose basie rate of compensation is

fixed on an annual or monthly basis and adjusted

from time to time in accordance with prevailing rates

by wage boards or similar administrative authority

serving the same purpose shall be entitled to overtime

pay in accordance with the provisions of section

673e of this title. The rate of compensation for each

hour of overtime employment of any such employee

shall be computed as follows:

(a) If the basie rate of compensation of the em-

ployee is fixed on an annual basis, divide such basic

_=_7—"

27

[fol. 74] rate of compensation by two thousand and

eighty and multiply the quotient by one and one-half;

and

(b) If the basic rate of compensation of the em-

ployee is fixed on a monthly basis, multiply such

basic rate of compensation by twelve to derive a basic

annual rate of compensation, divide such basic annual

rate of compensation by two thousand and eighty, and

multiply the quotient by one and one-half.”

10. 5 U.S.C, 673(¢) (as amended by Public Law 87-581

(1962) ) provides in pertinent part:

“Section 673(c) * * *: Provided further, That over-

time work in excess of eight hours per day or in excess

of forty hours per week shall be compensated for at

not less than time and one-half the basic rate of com-

pensation * * *,”

11. Petitioners are entitled to be paid for an additional

16 hours of work for each 24 hour port watch tour of duty

at overtime rates computed for each petitioner in accord-

ance with the provisions of 5 U.S.C., Section 913.

For a Second Cause of Action

12. Petitioners repeat and reallege all of the facts set

forth in the First Cause of Action as if set forth in full

herein.

13. Army Corps of Engineers Regulations, Corps of

Engineers Manual, EM690-7-102, Change 1, Paragraph 7,

Subparagraph (4), dated November 17, 1961, provides in

pertinent part:

“Port Watch Practices: (4) Port Watch person-

nel stand one 8-hour or two 4hour watches per 24-

hour period, as a part of their regular 40-hour tour

[fol. 75] of duty, and are required to remain aboard the

plant on a stand-by basis for the remainder of the port

watch.

Ba SER REO de RON RL I PERN SIL IERIE IOI APS SEN ig CIF ‘ PTE RIOR RATION

Ped

a

Method of Payment: 8 hours at regular rates, per

24-hour period, plus overtime for any additional time

worked.”

14. Under the aforesaid regulation petitioners are en-

titled to overtime wages for any time worked over and

above 8 hours per 24-hour period.

15. The above regulation, as applied to petitioners, is

in violation of 5 U.S.C., Section 673(c) and 5 U.S.C.

Section 1082(7).

16. Petitioners are entitled to be paid for an additional

16 hours of work for each 24 hour port watch tour of duty

at overtime rates computed in accordance with 5 U.S.C.,

Section 913.

For a Third Cause of Action

17. Petitioners repeat and reallege all of the facts set

forth in the First and Second Causes of Action as if set

forth in full herein.

18. The Classification Act of 1949, 5 U.S.C., Section

1082(7) exempts:

“employees in recognized trades or crafts, or other

skilled mechanical crafts, or in unskilled, semiskilled,

or skilled manual-labor occupations, and other em-

ployees including foremen and supervisors in posi-

tions having trade, craft, or laboring experience and

knowledge as the paramount requirement, * * *:

Provided, That the compensation of such employees

shall be fixed and adjusted from time to time as

[fol. 76] nearly as is consistent with the public interest

in accordance with prevailing rates * * *.”

19. Upon information and belief the*prevailing rates for

employees with tours of duty similar to the petitioners

require overtime pay for all work in excess of 8 hours per

day, or 16 hours at overtime rates per 24 hour port watch

tour of duty.

———

29

20. Petitioners are entitled to be paid for an additional

16 hours of work for each 24 hour port watch tour of duty

at overtime rates computed in accordance with 5 U.S.C.,

Section 913,

21. Petitioners have exhausted all administrative rem-

edies.

22. Petitioners demand an accounting for computation

of the overtime worked and payment therefor.

23. Upon information and belief petitioners claim dam-

ages totalling $3,000.00.

Wherefore petitioners demand judgment against the

United States in the amount of $3,000.00, plus such other

[fol. 77] and further amount as may be due petitioners on

the day of judgment.

Dated: October 5, 1964.

Lee Pressman, 50 Broadway, New York, N. Y. 10004,

Attorney for Petitioners.

David Scribner, Joan Kiok, 50 Broadway, New York,

N. Y. 10004, Of Counsel.

Chalmers O. Detling, a Petitioner, 34 Classon Ave., Mas-

tic, New York.

[fol. 78]

In THE UNITED States Court or CLaims

[Title omitted]

DerenpvaANnt’s Motion to Dismiss or TRANSFER—

Filed December 17, 1964

Defendant moves the Court for an order dismissing the

petition or, in the alternative, for an order transferring this

action to any United States Distriet Court or Courts elected

by petitioners. The ground for this motion is that it appears

from the face of the petition that plaintiffs’ claims are for

RN EE OR LAIST LL IT AAO BHM IUCE GIR ALIA ES TER FET RONEN NTR Se Se a

i

30

seamen’s wages allegedly earned in maritime employment

aboard vessels owned and operated by the United States

and are thus a matter of admiralty and maritime jurisdic-

tion justiciable exclusively in the district courts under the

Admiralty Claims Acts, 46 U.S.C. 741-752, 781-790.

* * * * * * *

[ fol. 79} Respectfully submitted,

John W. Douglas, Assistant Attorney General, Civil

Division.

Leavenworth Colby, Allen Van Emmerik, Attorneys, Ad.

miralty & Shipping Section, Department of Justice.

(fol. 80]

In THE UNITED States Court or CLAIMs

[Title omitted]

OssECTION TO DEFENDANT’s Motion To Dismiss or TRANSFER

—Dated February 18, 1965

Plaintiffs object to the granting of defendant’s motion to

dismiss or transfer, filed on December 21, 1964, on the

grouid that this Court has jurisdiction of claims for over-

time wages by government employees.

The attached Memorandum is submitted in support of

this objection.

Dated: February 18, 1965

Lee Pressman, Attorney for Plaintiffs, Office and

P, O. Addrexs: 50 Broadway, New York, N. Y.,

10004.

31

[fol. 81]

In tHE Unitep States Court or CLamms

Cuatmers QO, Deriina, et al.

—V,——

Tue Unitep States.

Orper DeNyING Motion To Dismiss AND TRANSFERRING CASE

TO THE Appropriate U. S. D. C.—April 12, 1965

This case comes before the court on defendant’s motion

to transfer or dismiss. Upon consideration thereof, to-

gether with the opposition thereto, and without oral argu-

ment, on the basis of Wingate v. United States, Ct. Cl. No.

147-61; Alesiani, et al. v. United States, Ct. Cl. No. 266-63 ;

and Afnese v. United States, Ct. Cl. No. 294-64.

It Is Ordered that defendant’s motion to dismiss be and

the same is denied, and that defendant’s motion to trans-

fer be and the same is granted in that this case is trans-

ferred to the appropriate United States District Court as

shall be designated by the plaintiffs to the clerk of this

court.

The clerk will forward to the clerk of said court a cer-

tified copy of the record made here.

By The Court

Wilson Cowen, Chief Judge

[fol. 82]

Clerk’s Certificate to foregoing transcript omitted

in printing.

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[fol. 83]

SuPREME Court or THE Unitrep States

No. 282, October Term, 1965

Harry J. AMELL, et al., Petitioners,

—VV—

Unitep StTATEs.

Orpver ALLowina Certiorari—October 11, 1965

The petition herein for a writ of certiorari to the United

States Court of Claims is granted, and the case is placed

on the summary calendar.

And it is further ordered that the duly certified copy of

the transcript of the proceedings below which accompanied

the petition shall be treated as though filed in response to

such writ.