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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1947
- **Citation:** 332 U.S. 816

## Text

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.

_—

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1378%3A2. Public record. Not legal advice.