Opposition Brief — Soderberg v. S. Birch & Sons Construction Co.

Page

Opinions below - - - - - - ------------------------------------ 1

Jurisdiction. - - - ----------------------------------------- 1

Question presented. -------------------------------------- 2

Statute involved ------------ Rivatwicen cae nees ames nee tes 2

Gistement...----.-.---.--------------------------------- 3

Argument-.-.--------------------------------------------- 12

DION coi oca aw cone ct cc cnncabeceeuelceckinenessuneses 17

CITATIONS

Cases:

Cohen et al v. Cauldwell Wingate Co., 296 N. Y. 776, certi-

oreri denied, No. 255, this Term... ..--.......-.--.-.-- 14

F. J. Englert v. S. Birch & Sons Construction Co., et al.,

Wie. Do, Wee eee oe ee eco ataceuesces 3

Higgins v. Carr Bros. Co., 317 U. 8. 572_---.------------ 16

Kirschbaum Co. v. Walling, 316 U. 8. 517_--------------- 14

Bela 4. FAP, BLO U.. MON ogo wee cce concen ceeons 15, 16

Overstreet v. North Shore Corp., 318 U. 8. 125_-_-_-------- 14

10 East 40th St. Co. v. Callus, 325 U.S. 578_-_---------- 14

Walling v. Jacksonvill. Paper Co., 317 U. 8S. 564__-._-- 18, 14, 15

Warren-Bradshaw Co. v. Hall, 317 U. 8. 88_--------- Bese 14

Statutes:

Fair Labor Standards Act of 1938, c. 676, 52 Stat. 1u60

ot ee, Bee. 7, SoU: BG. ©. BO) OF Gig, «nce encodes 2,12

Miscellaneous:

Interpretative Bulletin No. 5, Paragraph 12 ({1944—1945]

Waso 6nd Hout Manusl'2s) ....-.-.-=--2-.-.2--<..55 14

Sess Wan SOM. OUD BUD ic eee ac kak eens 13

(I)

765814—47——-_1

Pa

pr i dad

Gnthe Supreme Gourt of the nited States

OctToBER TERM, 1947

No. 359

Epwarp C. SoperBERG, JOHN J. KISSANE AND-

Witiarp B. HoweELL, PETITIONERS

Vv.

S. Birch & Sons Construction Co. AND Morri-

SON-KNUDSEN Co.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the District Court of the United

States for the Western District of Washington,

Northern Division (R. 611-618) is not officially

reported. The opinion of the Circuit Court of

Appeals for the Ninth Cireuit (R. 633-642) is

reported at 163 F. 2d 37.

JURISDICTION

The judgment of the Circuit Court of Appeals

for the Ninth Circuit was entered on July 9,

(1)

LTA BITE LEIS EE MET

2

1947 (R. 643). The petition for certiorari was

filed on September 22, 1947. The jurisdiction of

this Court is invoked under Section 240 (a) of

the Judicial Code, as amended by the Act of

February 13, 1925.

QUESTION PRESENTED

Whether petitioners and their assignors, em-

ployed as clerks, typists, timekeepers, warehouse-

men and expediters by a Government contractor

engaged in the construction of fortifications on

Aleutian island bases were ‘‘engaged in commerce

or in the production of goods for commerce”

within the meaning of the Fair Labor Standards

Act.

STATUTE INVOLVED

The pertinent part of the Fair Labor Stand-

ards Act of 1938 (52 Stat. 1060; 29 U. S. C. 201,

et seq.) provides as follows:

Sec. 7 (a). No employer shall, * * *

employ any of his employees who is en-

gaged in commerce or in the production of

goods for commerce * * *

(3) for a workweek longer than forty

hours * * * unless such employee re-

ceives compensation for his employment in

excess of the hours above specified at a

rate not less than one and one-half times

the regular rate at which he is employed.

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3

STATEMENT

This action was originally brought by petition-

ers on their own behalf, and, as assignees of their

eauses of action, on behalf of eighty-two former

fellow employees of respondents, to recover over-

time compensation, liquidated damages, and

eounsel fees under the provisions of the Fair

Labor Standards Act, supra (R. 2-158, 183).

The complaint was in eighty-five counts (R. 2-

158). It alleged that respondents were engaged

in the purchasing and using, selling and furnish-

ing of materials, equipment and supplies in inter-

state commerce; that petitioners and their as-

signors, employees of respondents, performed

duties constituting an essential part of the han-

dling and the buying, selling and transporting of

respondents’ goods in interstate commerce; that

the performance of such duties constituted ‘‘en-

gaging in commerce’’ within the meaning of the

Fair Labor Standards Act; and that respondents

had failed to compensate them for hours worked

in excess of forty hours per week as provided for

in the Act (R. 3-6). The trial court, having

found that only certain of the claimants had been

“engaged in commerce’’ within the meaning of

the Act (R. 203-207), entered judgment granting

in part the relief sought (R. 217) and dismissing

1 This is a companion case to F. J. Englert vy. 8. Birch &

Sons Construction Co., et al., now on petition for a writ of

certiorari, No. 358, at this Term.

4

the other claims (R. 214-216).* On appeal, the

court below affirmed (R. 643).

The facts which gave rise to this cause of action

are briefly summarized as follows:

As a defense measure, the United States, during

the past war, undertook to fortify certain of the

? The trial court found claimant in count 16, who acted as

camp postmaster, to have been “engaged in commerce or in

the production of goods for commerce” within the meaning

of the Act, and that he had been employed in excess of 40

hours per week without overtime compensation (R. 203-204).

Accordingly, it entered judgment in his favor (R. 217). The

trial court further found that claimants in counts 1, 2, and

18, while employed in Seattle, Washington, and claimants

in counts 8 and 9, while employed in the camp post office,

had been “engaged in commerce or in the production of goods

for commerce” within the meaning of the Act (R. 204-207),

and entered judgment in their favor for such periods (R.

217). These portions of the judgment were not questioned

on appeal (R. 620, 636) and are not in issue here.

At the trial, counts 51, 74, and 81 were dismissed on peti-

tioners’ motion (R. 633). The other claims dismissed were

those asserted in counts 3-7, 10-15, 17, 19-50, 52-73, 75-80,

and 82-85 (R. 209-211, 634).

°On appeal, counts 6, 9, 11, 14, 41-50, 53-56, 69, 70, 72, 73,

75, 78, and 85 were dismissed on petitioners’ motion (R. 624-

625) and the court considered only counts 1-5, 7, 8, 10, 12, 13,

15, 17-40, 57-68, 71, 76, 77, 79, 80, and 82-84 (R. 634).

The petition herein states that it seeks review by this Court

of the claims of petitioners and 26 former employees of re-

spondents (Pet. 2). It then lists 25 claims in which relief

is sought (Pet. 2-3, n. 1). The Government assumes that

petitioners seek relief in a total of 26 claims, and that the

claim of Kissane in count 1 was inadvertently omitted from

those listed.

_—

5

Aleutian islands (R. 178-179, 183, 637). To this

end the Government instituted various construe-

tion projects whereby essential fortifications and

improvements were to be erected on the islands

under the direction of the Army Engineers (R.

179, 183-184, 637). Respondents, as joint ven-

turers (R. 184), obtained three construction con-

tracts from the Government. These contracts,

designated as contracts 500, 501 and 502, provided

in general for the mixing, delivering and placing

of asphaltic concrete and asphaltic seal coat on

three of the islands (R. 179, 184, 637). They

specified that all work would be done under the

direction of the Army Engineers, and required

respondents to furnish the necessary labor, to per-

form engineering, laboratory and inspection work,

and to supply crews to operate mess halls and

quarters (R. 179-180, 184-185, 637-638). Build-

ing equipment and rations were furnished by the

Government (R. 180, 185, 638).°

Respondents’ projects required approximately

270,000,000 pounds of materials, supplies, and

equipment (R. 180, 185, 638). Of this total ton-

‘The names of the island have been withheld at the request

of the Army, but the islands were owned by the United States

aa complete occupation and control by the Army (R.

° Pursuant to the terms of respondents’ contract the United

States is, or may be obligated to reimburse the contractors for

money paid in resisting or settling claims arising out of work

performed thereunder. Defense of this action was under-

taken by the Department of Justice at the request of the War

Department.

6

nage, approximately 94 percent. was procured by

the Government* and the remaining 6 percent.

including repair parts and merchandise intended

for resale in Alaska, was procured by respondents’

Seattle, Washington, office from various vendors

in the United States (R. 180, 185, 638)." The

majority of respondents’ purchases, including all

resale merchandise, were delivered in Seattle by

rail or truck directly to either Government oper-

ated or commercial crating plants, where it was

processed for overseas shipment and transhipped

by the Government to the Resident Engineer,

U. S. Army, in the islands in question, without

cost to respondents (R. 181, 185-186, 639). Upon

the arrival of a shipload of goods at the projects,

the entire handling of all cargo was accomplished

by Army personnel without regard to type (R.

181, 186, 639). When needed, supplies and sub-

sistence stores required for mess halls and quar-

®* Procurement of approximately 90 percent of the ma-

terials, supplies, and equipment used in the over-all construc-

tion of the projects was effected directly by the Government

from various stateside manufacturers and shipped to the

projects by Government-furnished transportation (R. 180,

185, 638).

* In the purchase of all materials, supplies, and goods, title

to the items passed directly to the Government from the

vendor, The respondents never, at any time, owned or had

title to the purchased materials or merchandise. Shipments

from the vendor's place of business to Seattle were by Gov-

ernment bill of lading after inspection and acceptance by the

Government at the point of origin, unless the vendor shipped

the merchandise f. 0. b. Seattle and retained title to such

point of delivery (R. 180, 185, 638),

EELS EV RIES aT? “ PEPIN Lats 21S eth PER

_—

7

ters were procured at the site of the project from

the United States Army Quartermaster Corps

(R. 186).

Cargoes of materials, supplies and equipment

arriving at the islands were discharged at a Gov-

ernment dock by Army personnel under Army

supervision (R. 181, 186, 639). Such goods were

thereafter transferred under the direction of the

Army by Army personnel to a sorting or classifi-

cation yard, maintained and operated by the

Army and located approximately one-half mile

from the dock, where they were sorted and loaded

on Government trucks* (R. 181, 186-187, 639).

The entire handling of all such cargo was ac-

complished by Army personnel, although the con-

tractors employed two of the claimants herein

at the sorting yard as expediters to claim the

goods intended for their companies’ projects (R.

181, 187, 639).°

‘Asphalt and fuel oil were unloaded from government

vessels, and were hauled by Army personnel to stock piles or

dumps located at advantageous points where they were drawn

upon by respondents’ employees as required (R. 191).

* Respondents employed Scheid, claimant in count 18 and

Robinson, claimant in count 68, as expediters (R. 187).

Claimant Robinson was first employed as a clerk in the re-

sale commissary store. He was transferred to the job as

expediter on August 4, 1944, and was so employed until

December 30, 1944. (R. 187, 488-491.) It was shown that

Robinson worked at the sorting yard on an average of three

days a month (R. 492). Claimant Scheid was first employed

as an expediter in respondents’ Seattle office (R. 496-497).

He has been awarded judgment for overtime compensation

while so employed (R. 217) and that portion of his claim is

765814472

a

- rn ee

8

From the sorting yard the goods were trans-

ported by Government truck * to the several Goy-

ernment warehouses occupied by respondents at

each of the projects (R. 187-188). Specific types

of materials, supplies and equipment needed for

construction were redistributed from the central

warehouse at each project” to other warehouses

for storage and issuance as needed (R. 188),

The claimants herein, who were employed at these

central warehouses, performed the mixed duties

of clerks and warehousemen (R. 188-190). These

duties consisted of tallying or listing goods re-

ceived, transferred or issued; stowing goods;

maintaining perpetual inventories; and sub-

mitting reports of goods received to the office

not now in issue (R. 620). He testified that while in the

islands he had worked as an expediter from August 1944 to

November 1944 during which time 20 vessels discharged (R.

500) and that at one time he found three boxes of merchandise

that had been mislaid (R. 499).

* These trucks were operated by Army personnel or re-

spondents’ employees (R. 187). No claim is here made

(Pet. +7), and the courts below did not find, that any of

the claimants herein had been engaged as truck drivers.

"= On Project 500, materials, supplies. and equipment needed

for construction purposes were taken direct to the “materials

and supplies” warehouse and supplies designated as resale

goods were taken direct to the “resale goods” warehouse (R.

IST). On Project 502, all materials, including “resale goods”,

were taken first to the “materials and supplies” warehouse

(Rt. isv-188). On both projects, the “materials and sup-

plies” warehouses were the central warehouses for the storage

of the general materials, supplies, and equipment needed for

coustruction purposes (R. 188).

SRR SS RS RIES ENR ES oy REI ail SAY ANOS

_—

9

manager located at the project sites (R. 188).

The personnel so employed performed no duties

in connection with the ordering of materials,

supplies or equipment or in the transportation

of goods in interstate commerce (R. 188, 641).”

Under their contract,” respondents operated

for the Government, at each project site, a com-

cecemnetanianianin

2 Claimant Howell was supervisor of the “materials and

supplies warehouse” at Project 502 (R. 189, 388). it was

shown that he had no connection with any merchandise until

it arrived at the warehouse at the job site (R. 399401).

Claimant Stewart. an inventory and tally clerk in the “ma-

terials and supplies” warehouse at Project 502 (R. 189, 459),

had no contact with the goods until after their arrival at the

warehouse (R. 461-463). Claimant Mayfield had no other

duties than that of perpetual inventory clerk (R. 159, 557-

558). Claimant Showalter merely kept the record of receipts

and disbursements of goods (R. 189-190, 455) and had no

connection with their shipment or transportation (R. 456).

Claimant Stockemer was employed merely as a receiving

clerk (R. 190, 482, 486). Claimants Cox and Brown, records

clerks, had no contacts with the goods except at the ware-

house (R. 190, 529, 530, 327). Claimant Krampert, em-

ployed as a clerk, and claimants Kouns and Buchanan, clerk-

typists, had no connection with the transportation of goods

(R. 190, 475, 531-533), nor did claimants Taylor, Wilcox,

and Sinema who were employed as clerks (R. 189, 190, 561-

363). Smith. claimant in count 80, a clerk in the automo-

tive repair shop warehouse, merely drew supplies from the

central warehouse (R. 190, 495).

% Under the contracts, respondents were also required to

operate and supervise the camps at the project sites, and the

housing and mess facilities for employees (R. 198). This

work was performed under the supervision of a camp man-

ager (R.198). The only claimant herein who was employed

at a camp is claimant Ferrell (see n. 17, fvfre. p. 12) who

performed clerical duties in the camp manager's office (R.

199).

10

missary or ‘“‘resale’’ stores, where retail goods

were sold to the various personnel in the islands

irrespective of whether or not thev were re-

spondents’ employees * (R. 191, 640). Separate

warehousing was maintained for the storage of

supPlies sold in these stores which were designated

as ‘‘resale goods’’ warehouses (R. 191). The

duties of the personnel employed in these ‘‘re-

sale’ stores and ‘‘resale goods’’ warehouses con-

sisted of making retail sales and of keeping ree-

ords of the transfer of supplies to the ‘‘resale

goods’? warehouses and from such warehouses

to the ‘‘resale’”’ stores (R. 191-192). These per-

sonnel did not perform any duties in connec-

tion with the ordering or transporting in inter-

state commerce of the commissary supplies to

the project site.”

~ a4 There was a 15% to 40% mark-up in the price of goods

over the cost to the Government. Receipts from retail sales

were accounted for to the Resident Engineer, and the profits

realized accrued to the Government. ‘Title to the goods sold

in the commissary was in the Government at all times, (R.

191-)

2° The following claimants herein were employed in the re-

sale goods warehouses and commissary stores: Soderberg,

count 2; Hazelberg, count 7; Ferrell, count 8; Lindgren,

count 10; Showalter, count 22; Strini, count 17; Downs,

count 33; Roach, count 61; Ayres, count 67; Robinson, count

68; and Law, count 77 (R. 192-194). Claimant Soderberg

has been awarded judgment for overtime compensation for

his employment in respondents’ Seattle office (R. 217) and

that portion of his claim is not now in issue (R. 620).

Claimant Ferrell has been awarded judgment for overtime

compensation for his employment at respondents’ “Camp

Post Office” (R. 204-205, 217) and that portion of his claim

_—

11

Respondents maintained general construction

offices at the project sites under the general direc-

tion and supervision of an office manager and

project manager (R. 194). Personnel employed

here included clerks, typists, timekeepers and

pay-roll clerks (R. 194). The trial court found

is not now in issue (R. 620). Soderberg, who was store-

keeper in charge of the resale goods warehouse at Project 502

(R. 192), testified that he had nothing to do with the pur-

chase of or the transportation of resale goods to the islands

(R. 372) and that neither he nor any of the men who worked

under him had any contact with the goods until after they

had reached the island (R. 379). He testified that he had

made two shipments of goods to other islands in the Aleutian

chain (R. 383). Ferrell was employed at the resale goods

warehouse for 30 days in the capacity of night watchman

(R. 548-549). Claimants Hazelberg, Roach, Strini, and

Downs were employed as clerks in the resale goods ware-

house at Project 502 (R. 193). Claimant Ayres was em-

ployed as a warehouse clerk at Project 500 (R. 193) and testi-

fied that he had nothing to do with the goods until after

they had arrived at the warehouse (R. 250, 252-253).

Claimant Lindgren was employed as manager of the resale

store at Project 502 (R. 193) and merely drew goods from

the resale goods warehouse (R. 553). Claimant Showalter,

who had also been employed at the materials and supplies

warehouse at Project 502 (see n. 12, supra, p. 9) made

over-the-counter sales at the resale store at Project 502 (R.

193, 449). Claimant Robinson, who had also been employed

as an expediter (see n. 9, supra, pp. 7-8) and claimant Law,

were employed as sales clerks at the Project 500 resale goods

store (R. 194).

* After payment, certified copies of the pay rolls were

transmitted to respondents’ Seattle office. The timekeepers

and pay-roll clerks had no part in forwarding these copies

to Seattle. (R. 194-195.)

a

12

that none of these personnel were engaged in

interstate commerce (R. 195, 641).”

ARGUMENT

The sole question presented is whether the

claimants herein were ‘** * * engaged in com-

merce * * *’? within the meaning of the Fair

Labor Standards Act. Both courts below held

that petitioner had failed to show that their du-

ties were closely enough related to interstate

commerce to be a part thereof and that, accord-

ingly, they were not within the coverage of the

Act.* We submit that the decisions below are

correct and that, contrary to petitioners’ sugges-

* Prior to his employment in Alaska, petitioner Kissane

had been employer in respondents’ Seattle office (R. 205-206).

He had been awarded judgment for overtime compensation

while so employed (R. 217) and that portion of his claim is

not. now in issue (R. 620). In Alaska, Kissane was employed

at Project 502 as an auditor (June 1, 1944, to September 16,

1944) and as chief timekeeper (September 16, 1944, to Decem-

ber 20, 1944) (R. 195). As an auditor, he made sales

analyses of the resale goods store sales (R. 195). As chief

timekeeper, he supervised the work of timekeepers, assigned

their duties, checked time reports and was generally respon-

sible for the efficient conduct of the time office (R. 195).

Claimant Ferrell (see n. 13, supra, p. 9), was employed in

the general office for approximately six weeks in the capacity

of clerk typist (R. 195-196). Claimant Kouns (see n. 12,

supra, p. 9), was employed as a general clerk and typist

for approximately two months (R. 197).

#8 As noted throughout our statement of the case, some of

the claimants herein, in certain aspects of their duties, were

considered by the courts below to have been within the cover-

age of the statute and were given judgment to that extent

(R. 216,620). Such claims are not involved herein.

ee Sette SEPA ARERR AE PEP LIE IEE RGR

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13

tion (Pet. 12-15), there is no conflict with the

decisions of this Court.

1. Petitioners urge that a reversal of the judg-

ment below is compelled by Walling v. Jackson-

ville Paper Co., 317 U. S. 564 (Pet. 12). They

argue that the interstate movement of the goods

involved did not end until their arrival at the

commissary or “‘resale’”’ stores or at the con-

struction site (Pet. 12) ; and they assert that they

performed duties in connection with such move-

ments prior to those points (Pet. 12). In sup-

port of this argument, they cite a ruling by the

Administrator of the Wage and Hour Division,

[1947] WH Man. pp. 9-10, to the effect that ware-

house personnel checking out-of-state movements

of goods on an unloading platform and removing

them to the interior of the warehouse are within

the coverage of the Act (Pet. 13).

The vice of petitioners’ argument is clear.

Unlike the situation presented in the Jacksonville

Paper Co. case, the respondents herein were not

mere intermediaries in the movement of goods

from the manufacturers to a particular customer.

317 U. S. at 566." They were engaged in new

and original construction at the ultimate des-

In the Jacksonville Paper Co. case, this Court was deal-

ing with employees of the wholesaling industry, the medium

through which large-scale sources of supply meet a nation-

wide demand. The Government urged that the warehouse

employees of a wholesaler were within the coverage of the

Act. It was pointed out that the economic function of the

wholesaler was to make available to his trade the products

LSS ANE. STE: Ge OES Me PS A ae NRG Ge RII IE NE

naa

14

tination of the goods, an Alaskan Army base, a

purely local activity (R. 612) under the diree-

tion of the Army Engineers (R. 179, 184, 612,

637-638). It has been uniformly held that local

construction employees are not within the cover-

age of the Act (Cohen, et al. v. Cauldwell Wingate

Co., 296 N. Y. 776, certiorari denied on October

20, 1947, No. 255, this Term, and cases cited

at page 6 of the Brief in Opposition filed in that

case), a judicial view entirely consistent with an

official interpretation of the statute by the Ad-

ministrator of the Wage and Hour Division,

Interpretative Bulletin No. 5, Paragraph 12

( [1944-1945] Wage and Hour Manual 23).

Thus, the essential problem presented by a cov-

erage case under the Act, that of “‘drawing lines”

(Kirschbaum Co. v. Walling, 316 U. 8. 517, 523;

10 East 40th St. Co. v. Callus, 325 U. S. 578, 584),

has been fully explored in so far as the needs of

this case are concerned. Nor can it here be suc-

cessfully contended that the judgments below did

not result from full inquiry into the ‘“‘* * *

special facts pertaining to the particular busi-

ness.” Walling v. Jacksonville Paper Co., 317

U. S. 564, 572. See Overstreet v. North Shore

Corp., 318 U.S. 125, 128. Warren-Bradshaw Co.

v. Hall, 317 U.S. 88, 90. Accordingly, we submit

of widely scattered factories, mines, farms, and forests, and

that his warehouse was a machine for the movement of goods

rather than as a space for storing merchandise (Government's

Brief, pp. 18-14).

BEGRE (SPRY ASSERT ARR OSE OTR AY Ket hone MERE ET eGR oO as eae ah Z

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15

that claimants’ duties, at best remotely connected

with any ‘‘channels of interstate commerce”’

(McLeod v. Threlkeld, 319 U.S. 491, 494), were

not concerned with the movement of materials or

personnel in interstate commerce within the

meaning of the statute and that the judgments

below were correct (R. 182-217, 612, 640-641).

9. Even assuming, arguendo, as petitioners ap-

parently contend, that the Jacksonville Paper Co.

ease applies to local new construction projects as

well as to commercial wholesale warehouses, it is

clear that petitioners may not succeed herein.

Here, there was no mere “‘ritual’’ of placing the

goods in respondents’ warehouses to defeat the

purposes of the Act. 317 U. S. at 568. Title to

all of the goods involved was in the Government

(R. 180-181, 185, 638). Such goods were con-

signed to and shipped directly to the Resident

Engineer, U. S. Army (R. 181, 186, 639) and,

upon arrival in the islands, were delivered by the

Army, or by certain of respondents’ employees

not involved in the instant action (see pp. 6-7,

supra), to respondents’ warehouses (R. 181, 186-

188, 639). It was at this point that the con-

tinuity of movement and the interstate character

of the shipments ended, since respondents were

the ultimate consignees. The warehouse was an

integral part of the project to which the goods

were destined, not an intermediate stopping

place. Walling v. Jacksonville Paper Co., 317

16

U. S. at 568; ef. Higgins v. Carr Bros Co., 317

U. S. 572. No work was performed by 24 of

the 26 claimants herein until subsequent to the

arrival of the goods at the central warehouse

(see pp. 8-11, swpra) and such claimants clearly

could not be considered as having been ‘‘engaged

in commerce”’ within the meaning of the Act”

3. Petitioners urge as error that the court

below did not reiterate the detailed findings of

the district court, and, further, that the court be-

low examined the testimony and stipulations in

the record ‘‘which were never collected by either

counsel for review * * *’ (Pet. 11). It is

difficult to see the direction of this argument.

The court below affirmed the district court judg-

ment and, in so doing, did not diverge from the

district court’s findings in any material respect.

The findings of the trial court closely parallel the

facts stipulated by the parties and are fully sup-

ported by the testimony. We cannot see that

there are thus presented any ‘“‘procedural prob-

2° With respect to the question whether the two expediters,

Robinson (count 68) and Scheid (count 18), who assisted

Army personnel in “claiming” the goods at the classification

yard, were employed in the “channels of interstate com-

merce,” the record does not disclose that they assisted in the

unloading of incoming vessels, handled any goods, or did

more than identify the goods at the classification yard. We

submit that, at best, they were only remotely connected with

the stream of commerce (McLeod v. Threlkeld, 319 U. S.

491, 494), and that no question warranting certiorari is

presented by their claims.

—

_—

lems’? (Pet. 11) or any basis for urging that the

court below erred in affirming the trial court ’s

17

conclusion.

CONCLUSION

For the reasons set forth above, the petition

for certiorari should be denied.

Respectfully submitted.

Puitie B. PERLMAN,

Solicitor General.

Herpert A. BERGSON,

Acting Assistant Attorney General.

SAMUEL D. SLADE,

Emery Cox, Jr.,

JOHN R. BENNEY,

Attorneys.

NovEMBER, 1947

U. S. GOVERNMENT PRINTING OFFICE: 1947

A ea Le