Opposition Brief — Fisch v. General Motors Corp.

Supreme Court brief1949

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Supreme Court af the United sates

OCTOBER TERM, 1948

No. 365

FISCH, et al.,

Petitioners,

vs.

GENERAL MOTORS CORPORATION,

Respondent

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

“ HENRY M. HOGAN,

Counsel for Respondent,

14-242 General Motors Building,

Detroit 2, Michigan.

’ NICHOLAS J. ROSIELLO,

OF Counsel.

Interstate Brief 6 Record Co., 170 Bast Larned St., Detroit 26, Michigan

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Point I—Numerous District Courts Have Unani-

mously Upheld The Constitutionality Of

Section 2 Of The Portal Act On Motions to

Dismiss the Complaints Before Trial. Three

Courts of Appeals Have Unanimously Af-

firmed On Identical Grounds.............. 5

Point II—The Decision Of The Court Of Ap-

peals Is In Accord With The Decisions Of

This Court Regarding The Power To Regu-

late Commerce Granted Congress By The

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Point III—The Decision Of The Court Of Ap-

peals Is In Accord With The Decisions Of

This Court Regarding The Power To Regu-

late The Jurisdiction Of Inferior Courts

Granted Congress By The Constitution... . 14

Point [V—The Dismissal For Lack Of Jurisdic-

tion Of The Independent Contract Actions

Alleged By The Amended Complaint Was

In Accord With The Decisions Of This

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APPENDICES

Page

A. Text of Section 1 and Sections 2(a)-(d) of The

Portal-to-Portal Act of 1947 (c. 52, Public Law

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B. Decisions By District Courts Dismissing ‘‘ Por-

tal-to-Portal’’ Actions Under Section 2 of The

Portal Act

1. Summary By District and Judge...........

2. List By Circuit and District................

C. Unreported Dismissals By District Courts of

**Portal-to-Portal’’ Actions Under Section 2 of

The Portal Act

1. Summary By District and Judge........... 34

2. List By Cireuit and District................ 36

D. Summary of Reported and Unreported Dismiss-

als By District Courts of ‘‘Portal-to-Portal’’

Actions Under Section 2 of The Portal Act..... 45

INDEX OF CASES

(Referred to in text of brief)

Addyston Pipe & Steel Co. v. U. S. (1899) 175 U.

BR ERD, Be habs hid dna soe cacdeinpvaceene 11

American Power & Light Co. v. S. E. C. (1946)

329 U. S. 90, 99, 103-104, 106-107.............. 10, 12

Atallah v. Hubert & Son (CCA 4th, July 7, 1948)

168 Fed. 2d 993; cert. denied, Nov. 15, 1948..... 2, 6, 8

Battaglia et al. v. General Motors Corp. (CCA 2d,

July 8, 1948), 169 Fed. 2d 254; cert. denied, Dec.

Re eee per re re ee 2, 6, 8, 9

Boehle v. Electric Metallurgical Co., Ore., June 9,

IOUT, TS Fr. Bets Tha avis i cece ccc tecissvecvs

Brooklyn Savings Bank v. O’Neil (1944), 324 U. S.

ig RU Winn wed seddnae sacs ad cbieaeei occu

Clark v. Paul Gray, Inc. (1939), 306 U. S. 583, 589...

Cochran v. St. Paul & Tacoma Lumber Co., WD

Wash., May 26, 1947, 73 F. Supp. 288........

Coombes v. Getz (1932) 285 U. S. 434............

Darr v. Mutual Life Insurance Co. (CCA 2d, July

8, 1948) 169 Fed. 2d 262; cert. denied Nov. 22,

ote, EEE UL PO EP Sta RE a

Ettor v. City of Tacoma (1913) 228 U. S. 148....

Fisch, et al. v. General Motors Corporation and

Bateman, et al. v. Ford Motor Company (CCA

6th, August 2, 1948) 169 Fed. 2d 269........

Fleming v. Rhodes (1947) 331 U. S. 100..........

James v. Appel (1903) 192 U. S. 129............

Jewel Ridge Corp. v. U. M. W. (1943) 325 U. S.

Mg. SE osnd cnn bec nbd bkth ed Coke cuaaT aL

Kemp v. Day & Zimmerman (Iowa S. C. June,

1948) ... Towa ...; 33 N. W. 2d 569; 8 WH

: Se ccna heh A CE eee ee te CS Ie

Kilbourn v. Thompson (1880) 103 U.S. 168.........

Kline v. Burke Construction Co. (1922) 260 U. S.

BOR cover clcvpoueciwctivitawes ties

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Lockerty v. Phillips (1943) 319 U. S. 182, 187......

Louisville and Nashville R. R. Co. v. Mottley (1911)

oe, Se AR RS eee ee

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North American Co. v. S. E. C. (1946) 327 U. S.

WE AO. Sb ivi edi ucpetavastessnuiwcie uk

Overnight Motor Co. v. Missel (1942) 316 U. S.

MOM UE aN wS fev ciandsignad dun eecns kot

Page

Pacific Mail Steamship Co. v. Joliffe (1864), 2

I ha hse 6 acd band aedosnwcson tabebUsad

Pinel v. Pinel (1916), 240 U. S. 594. ................

Prentis v. Atlantic Coast Line (1908) 211 U. S.

Bs oe kb ORR AAA WS bn OA 6 aerek ob od 0 ORAS 00 088

Rogers Cartage Co. v. Reynolds (CCA 6th, Febru-

ary 16, 1948) 166 Fed. 2d 317...............

Seese v. Bethlehem Steel Co. (CCA 4th, May 5,

1948) 168 Fred. 20.58... 0. cc cccccvccccccesss

Sunshine Coal Co. v. Adkins (1940) 310 U. S. 381,

MRA dd Wa ebaaed otha alds MiMidans 0 6s sce Jes

Sveltik v. Vultee Aircraft Corp., ND Tex., Septem-

ber 15, 1947, 16 U. S. Law Week 2161; 7 WH

CN ed os Gch bce seks ude sk

Tennessee Coal, Iron and R. R. Co. v. Museoda

Local (1944) 321 U. S. 590, 602, 603

Thomson v. Gaskill, 315 U. S. 442, 447

U. S. v. General Motors Corporation (1944) 323

United States v. Klein, 13 Wall. 128, 20 L. Ed. 519..

United States v. United Mine Workers of America

(1947) $30.0. S. 258, SL... nce ce ncccdiees

Werner v. Milwaukee Solvay Coke Company (Wis.

S. C. March 1948), 252 Wis. 392; 31 N. W.

eeeetewer eee eee eeereeeeeeeeeeeeeeeeeeeee

U.S. v. Darby (1941), 312 U. S. 100, 114-115...... 10, 12, 13

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Supreme Court of the United States

OCTOBER TERM, 1948

eee

No. 365

——

FISCH, et al.,

Petitioners,

vs.

GENERAL MOTORS CORPORATION,

Respondent

centile

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

OPINIONS BELOW

The District Court opinion was filed February 27, 1948,

(R. 17-20) and is reported in 76 Fed. Supp. 178. The

opinion of the Court of Appeals was filed August 2, 1948,

(R. 34-45) and is reported in 169 Fed. 2d 266.

JURISDICTION

The jurisdiction of this Court is invoked under Section

1254 (1) of Title 28 of the United States Code as amend-

ed by the Act of June 25, 1948, (Public Law 773; c. 646).

The judgment of the Court of Appeals was entered August

2, 1948 (R. 34). The petition was filed on October 25, 1948.

Notice of its filing was served on Respondent on November

24, 1948.

QUESTIONS PRESENTED

The primary questions raised by the petition are the

same as those presented in Atallah v. Hubert € Son (CCA

4th, July 7, 1948), 168 Fed. 2d 993; cert. den. (No. 340)

November 15, 1948 and in Battaglia et al. v. General Motors

Corporation (4 cases) (CCA 2d July 8, 1948), 169 Fed. 2d

254; cert. den. (No. 320-323) December 6, 1948*, These

are:

Congress found that the retroactive enforcement of

Section 7 (a) of the Fair Labor Standards Act construed

as requiring compensation for ‘‘portal-to-portal’’ activi-

ties regardless of any contract, custom or practice to the

contrary, constituted a substantial burden on commerce

and the courts. ‘T'o remove such burdens, Congress en-

acted the Portal-tc-Portal Act of 1947. Section 2 of the

Act was construed by the lower courts as requiring that

a complaint based on Section 7 (a) of the Fair Labor

Standards Act and seeking recovery under Section 16 (b)

*The “Conclusion” to the petitioners’ brief (pp. 27-29) is identical

with Point V (setting forth “the reason relied upon for the allowance of

the writ”) of the petition in the Battaglia case. The same grounds were

stated in the petition for certiorari (No. 337) denied by this Court on

November 22, 1948, in Darr v. Mutual Life Insurance Co. (CCA 2d

July 8, 1948), 169 Fed. 2d 262.

of that Act for ‘‘portal-to-portal’’ activities engaged in

prior to the effective date of Section 2 of the Portal Act,

must allege the facts required by Section 2 in order to

state a cause of action and to establish jurisdiction. The

facts to be alleged are that a contract, custom or practice

to pay for the activities existed between the employee

and the employer at the time that the activities were en-

gaged in. :

1. Is Section 2 of the Portal Act, as so applied, un-

constitutional because it abrogates rights which are pro-

tected by the Fifth Amendment to the Constitution?

2. Is Section 2 of the Portal Act, as so applied, un-

constitutional because it is an attempt by Congress to in-

terfere with the powers granted the judiciary under Ar-

ticle III, Section 1 of the Constitution?

The subsidiary question presented by the petitioners is

as follows:

The complaint was amended to allege that Respondent

entered into ‘‘certain’’ contracts with the United States

which required the Respondent to comply with the Fair

Labor Standards Act. The petitioners contend that there-

by the Respondent was under a contractual obligation to

pay for the alleged ‘‘portal-to-portal’’ activities. The peti-

tioners further contend that they are third party benefi-

ciaries of such obligation and, as such, are entitled to re-

cover therefor by contract actions which are independent of

the Fair Labor Standards Act and the Portal Act. The

jurisdictional basis for such independent contract actions

was alleged by the amendment to be diversity of citizenship.

The jurisdictional amount was alleged as follows: ‘‘The

matter in controversy exceeds, exclusive of interest and

costs, the sum of Three Thousand ($3,000.00) Dollars.’’

The amendment claimed a total of $700,000 on behalf of

682 named plaintiffs or an average of $1026 per claimant.

Did the lower court err in dismissing the independent

contract actions alleged by the amended complaint for lack

of jurisdiction?

STATUTES INVOLVED

The petitioners’ brief does not set forth the applicable

sections of the Portal Act. For the Court’s convenience,

therefore, the full text of Section 1 and Section 2 (a)-(d)

of the Act are reprinted in Appendix A to this brief.

SUMMARY OF ARGUMENT

There are no special and important reasons for grant-

ing the petition:

(1) There is complete unanimity of opinion in numer-

ous lower federal courts and in all of the Courts of Ap-

peals that Section 2 of the Portal Act as construed by the

lower court is a constitutional exercise by Congress of its

power over commerce. Unless this Court feels that this

unanimous conclusion is open to question, this Court’s con-

sideration of the issue is not necessary to settle the status

of pending cases.

(2) Had the Court of Appeals agreed with the peti-

tioners’ contention that the Section violates the Fifth

Amendment, the decision would clearly have been in con-

flict with the decisions of this Court regarding the power

over commerce granted Congress by the Constitution.

3. Had the Court of Appeals agreed with the peti-

tioners’ contention that the Section constitutes an inter-

ference with the judiciary, the decision would clearly have

been in conflict with the decisions of this Court regarding

the power over the jurisdiction of inferior courts granted

Congress by the Constitution.

4. Under the decisions of this Court, there clearly was

no jurisdiction in the District Court to entertain the inde-

pendent contract actions alleged by the amended complaint.

ARGUMENT

Point I.

NUMEROUS DISTRICT COURTS HAVE UNANIMOUSLY UP-

HELD THE CONSTITUTIONALITY OF SECTION 2 OF THE

PORTAL ACT ON MOTIONS TO DISMISS THE COMPLAINTS

BEFORE TRIAL. THREE COURTS OF APPEALS HAVE

UNANIMOUSLY AFFIRMED ON IDENTICAL GROUNDS.

There are numerous ‘‘portal-to-portal’’ cases in which

the same contentions under the Constitution that are now

made by the petitioners were presented to and considered

by lower federal courts. Not one of these cases has come

to the attention of Respondent’s counsel in which the con-

tentions were accepted by the court.

Counting only decisions in which opinions were writ-

ten and reported, a total of fifty-two federal district

judges sitting in thirty-three federal districts in all ten

federal circuits have granted defendants’ motions to dis-

miss under Section 2 of the Portal Act in almost two hun-

dred ‘‘portal-to-portal’’ actions. See Appendix B infra,

which contains a summary and a list of such dismissals

by federal district and judge.* In each instance, the com-

plaint sought recovery for activities engaged in prior to

the effective date of the Portal Act. In each instance,

the motion was based on the failure of the complaint to

allege the facts required by Section 2 of that Act. In each

instance, the court found Section 2 of the Act constitu-

tional.

Five appeals from the dismissals of eight such cases

were perfected and decided—two in the Fourth Circuit;

one in the Second Circuit and two in the Sixth Circuit.

In each case the court unanimously affirmed the dismissal

on the ground that Section 2 of the Portal Act was within

the power over commerce granted Congress by the Consti-

tution. Seese v. Bethlehem Steel Co. (CCA 4th, May

5, 1948) 168 Fed. 2d 58; Atallah-v. Hubert &d Son (CCA

4th, July 7, 1948) 168 Fed. 2d 993, cert. den. Nov. 15, 1948;

Battaglia, et al. v. General Motors Corporation (4 cases),

(CCA 2d, July 8, 1948) 169 Fed. 2d 254, cert. den. Dec. 8,

1948; Fisch, et al. v. General Motors Corporation and Bate-

man, et al. v. Ford Motor Company (CCA 6th, August 2,

1948) 169 Fed. 2d 269, R. 34.

Two state supreme courts have similarly found Section

2 of the Portal Act constitutional on the same ground.

Werner v. Milwaukee Solvay Coke Company (Wis. S. C.

March, 1948) 252 Wis. 392; 31 N. W. 2d 605; Kemp v.

Day & Zimmerman (Iowa S. C. June, 1948) —— Iowa

——; 33 N. W. 2d 569; 8 W. H. cases 78.

The petitioners’ brief (p. 28) cites without comment,

three district court cases in support of the statement that

‘*many doubts’’ have been expressed ‘‘as to the propriety

and constitutionality of the Act.’’

In two of the three cases, the courts granted the defend-

ants’ motions to dismiss the complaints after finding that

Section 2 of the Portal Act is constitutional. Cochran v.

St. Paul € Tacoma Lumber Co., W. D. Wash., May 26,

1947, 73 Fed. Supp. 288; Boehle v. Electric Metallurgical

Co., Ore., June 9, 1947, 72 Fed. Supp. 21. In the third case

(Sveltik v. Vultee Atrcraft Corp. (N. D. Tex., 1947) 16

U. S. Law Week 2161; 7 W. H. Cases 282) the court de-

ferred the question without consideration:

“IT could learn a whole lot more by reading your

briefs; I will admit that. But for the present I over-

rule defendant’s plea to the jurisdiction * * *”’

The petitioners’ brief (p. 28) also cites without comment,

the decisions of two Courts of Appeals in support of the

statement that ‘‘there is no unanimity of opinion on the

basis of the decisions’’ in the circuit courts. The reason

for the lack of comment is obvious; no conflict exists. All

the decisions of the Courts of Appeals agree that the Act is

within the power over commerce granted Congress.

One of the cases cited by the petitioners’ brief (p. 28) is

Rogers Cartage Co. v. Reynolds, CCA 6 Feb., 1948, 166

Fed. 2d 317, which involved the constitutionality of Sec-

tions 9 and 11 of the Portal Act. The court found both sec-

tions constitutional on the ground that they were within

the commerce power.

““Congress, in the exercise of its power to regu-

late interstate commerce, may interfere with valu-

able property rights.’’ The rights asserted here

“fare purely the creature of statute.’’ 166 Fed. 2d at

320-321.

In Darr v. Mutual Life Insurance Co. (CCA 2, July,

1948) (169 Fed. 2d 262, cert. den. Nov. 22, 1948 (not cited

by the petition) the constitutionality of the same sections

of the Act was questioned. The Court of Appeals for the

Second Circuit came to the same conclusion on the same

ground:

““We hold, therefore, as did the Sixth Circuit in

Rogers Cartage Co. v. Reynolds, 166 F. 24 317, that,

even if appellants’ rights are considered as contrac-

tual, these two sections are a valid exercise of the

constitutional power of Congress to legislate in the

field of interstate commerce * * *.’’ 169 Fed. 2d at

266.

The second case cited by the petitioners to support the

claim that there is no unanimity of opinion in the Courts

of Appeals (the Seese case, supra), is one of the four Court

of Appeals’ decisions all of which specifically decided that

Section 2 of the Portal Act is a constitutional exercise by

Congress of its power over interstate commerce.

In the Seese case the Court of Appeals for the Fourti

Cirenit stated:

**The answer is that even rights arising out of

contract cannot fetter Congress in the exercise of a

power granted it by the Constitution and that the

rights stricken down by the statute are not rights

arising out of contracts at all but rights created by

statute as an incident of the statutory regulation of

commerce.’’ 168 Fed. 2d at 62.

On July 7, 1948, the same court in a per curiam opinion

affirmed a similar dismissal on the same grounds. Atallah

v. Hubert € Son, 168 Fed. 2d 993, cert. den. Nov. 15, 1948.

The Court of Appeals for the Second Circuit in affirm-

ing the dismissal of four such caves stated (Battaglia v.

General Motors ee 169 Fed. 2d 254, cert. den.

December 6, 1948) :

**We find ourselves, then, in agreement with the

decision of the Circuit Court of Appeals for the

Fourth Circuit in Seese v. Bethlehem Steel Co., 4

Cir., 168 F. 2d 58.’’ 169 Fed. 2d at 262.

The Court of Appeals for the Sixth Circuit in affirm-

ing the similar dismissal of the present two cases by the

five district judges sitting en banc in the Eastern District of

Michigan, reached the same conclusion (Fisch v. General

Motors Corporation; Bateman v, Ford Motor Company,

169 Fed. 2d at 271):

“The proposition that their rights granted by the

Congress under the commerce clause could not be

taken away by the congressional legislation under

the same clause, is self-contradictory.

‘Rights secured even by private contract may

be abrogated by subsequent legislation when au-

thorized by constitutional provisions.’’

All three Courts of Appeals specifically rejected the con-

tention that Sect‘on 2 of the Portal Act constitutes an

interference with the powers granted the judiciary under

Article III, Section 1 of the Constitution. Seese case, 168

Fed. 2d at 62; Battalgia case, 169 Fed. 2d at 261-262; Fisch

case, 169 Fed. 2d at 272.

All three Courts of Appeals specifically rejected the peti-

tioners’ contention that a decision on the constitutional

questions should await a trial. Seese case, 168 Fed. 2d at

99; Battaglia case, 169 Fed. 2d at 256-257; Fisch case, 169

Fed. 2d at 269.

It is clear that all of the large number of lower federal

courts and all of the three Courts of Appeals which have

passed on the contentions made by the petitioners unani-

mously agree that Section 2 of the Portal Act as con-

strued by the lower court does not violate the Constitu-

tion.

Unless this Court feels that the conclusion is open to

question, consideration by this Court of the contentions

made by the petitioners is not necessary to settle the

status of similar claims still pending in the courts.

Point Il.

THE DECISION OF THE COURT OF APPEALS IS IN AC

CORD WITH THE DECISIONS OF THIS COURT REGARD-

ING THE POWER TO REGULATE COMMERCE GRANTED

CONGRESS BY THE CONSTITUTION

The broad scope of the plenary power granted Congress

by the commerce clause has been clearly indicated in a

number of recent decisions by this Court.

In U. 8. v. Darby (1941) 312 U. S. 100, in upholding

the constitutionality of the Fair Labor Standards Act,

which involved the same form of activity in commerce as

is affected hy the Portal Act, Justice Stone stated:

‘‘The power of Congress over interstate com-

merce ‘is complete in itself, may be exercised to its

utmost extent, and acknowledges no limitations other

than are prescribed in the constitution.’ Gibbons

v. Ogden, supra, 196.

**It is no objection to the assertion of the power

to regulate interstate commerce that its exercise is

attended by the same incidents which attend the ex-

ercise of the police power of the states.’’ 312 U. S.

at 114-115.

See also: Labor Board v. Jones and Laughlin (1937),

301 U. S. 1, 36-37; North American Co. v. 8. E. C. (1946),

327 U. S. 686, 705-706; American Power & Light Co. v. 8.

E. C. (1946), 329 U. S. 90, 99, 103-104.

The rights and remedies which the petitioners sought

to enforce under the Fair Labor Standards Act have been

described by this Court as statutory. See: Overnight

Motor Co. v. Missel (1942), 316 U. S. 572, 574; Tennessee

Coal, Iron and R. R. Co. v. Muscoda Local (1944), 321 U.

S. 590, 602, 603; Jewel Ridge Corp. v. UMW (1943), 325 U.

S. 161, 167.

This Court has held that these rights could not be

waived because they are statutory rights conferred on

private parties in the public interest and in the further-

ance of a Congressional policy for the regulation of com-

merce. Brooklyn Savings Bank v. O’Neil (1944) 324 U. §.

697, 704,

The rights affected by the Portal Act are only those

rights which are based solely on the Fair Labor Stand-

ards Act.

This Court has repeatedly held that even purely private

contractual rights cannot fetter the plenary powers

granted Congress by the Constitution. In Louisville and

Nashville R. R. Co. v. Motiley (1911) 219 U. S. 467, 482,

this Court said:

“‘That the exercise of such power may be ham-

pered or restricted to any extent by contracts pre-

viously made between individuals or corporations,

is inconceivable. The framers of the Constitution

never intended any such state of things to exist.’’

See also: Norman v. Baltimore & Ohio R. R. Co. (1935),

294 U. S. 240; Fleming v. Rhodes (1947), 331 U. S. 100, 109;

Addyston Pipe & Steel Co. v. U. 8. (1899), 175 U. 8, 211,

228-230,

Since contractual rights have a “‘congenital infirmity”’

when they relate to a subject matter that lies within the

control of Congress (Norman v. B. d O. R. R. Co., 294 U.

S. at 307) clearly rights and remedies conferred by Con-

gress for the specific purpose of fostering commerce are

subject to defeasance when Congress finds that their im-

mediate withdrawal is necessary to prevent great injury

to commerce.

The petitioners have attacked the motives and conclu-

sions of Congress in the enactment of the Portal Act.

This Court has repeatedly warned that it is not its

function to re-examine the conclusions of Congress or the

policy and remedies adopted by Congress in the exercise

of its constitutional powers. In the Darby case, supra,

Justice Stone stated:

‘‘The motive and purpose of a regulation of in-

terstate commerce are matters for the legislative

judgment upon the exercise of which the Constitu-

tion places no restriction and over which the Courts

are given no control. McCray v. U. S., 195 U.S. 27;

Sonzinsky v. U. S., 300 U. S. 506, 513 and cases cited.

The judicial cannot prescribe to the legislative de-

partment of the government limitations upon the

exercise of its acknowledged power.’’ 312 U. S. at

115.

See also: American Power & Light case, supra, 329 U.

S. at 90, 106-107; Sunshine Coal Co. v. Adkins (1940), 310

U. S. 381, 394.

The Court of Appeals therefore held in conformance

with the decisions of this Court in deciding that rights

created by Congress under its commerce power were sub-

ject to withdrawal by Congress in the further exercise ot

such power.

The petitioners’ brief (pp. 28-29) lists four decisions of

this Court in support of the contention that the decision of

the Court of Appeals erroneously held that there was no

violation of the Fifth Amendment.

None of these four decisions involved the exercise by

Congress of its power over commerce.

Three of these four decisions involved state enactments.

Pacific Mail Steamship Co. v. Joliffe (1864) 2 Wall. 450;

Eitor v. City of Tacoma (1913) 228 U. S. 148; and

Coombes v. Getz (1932), 285 U. S. 434. None of these enact-

ments were passed in the exercise of the state’s police

power which would be necessary to make them in any way

analogous to the present statute. See: U. 8. v. Darby, p.

10 supra. None of the enactments reflected a conclusion by

the legislature that the termination of the rights granted

by the prior enactment was necessary.

In the Joliffe case the court emphasized that the plain-

tiff changed his position in reliance on the statutory pro-

vision and that the form of the new statute clearly indicated

no intention in the legislature to cut off rights created

under the prior statute. This was a four to three decision,

the minority maintaining that the statutory right fell

even though the legislature did not show in the new sta-

tute any intention to cut off the right under the prior

statute. The Coombes case (a five to three decision) in-

volved similar considerations with the three dissenting

Justices (Cardozo, Brandeis and Stone) taking the same

position as was taken by the minority in the Joliffe case.

In the Ettor case, the court held that the city could not

repudiate its obligation to pay damages resulting from

grading authorized by statute on that condition, solely

because of the subsequent repeal of the statute.

The fourth case cited by the petition (U. S. v. General

Motors Corporation (1944), 323 U. S. 373) involved a ques-

tion entirely foreign to the present questions:

“The problem involved is the ascertainment of

the just compensation required by the Fifth Amend-

ment of the Constitution, where in the exercise of

the power of eminent domain, temporary occu-

pancy of a portion of a leased building is taken from

a tenant who holds under a long term lease. * * *

The award was therefore limited to the market value

of the occupancy of a vacant building. The question

is whether any other element of value inhered in the

interest taken.’’ 323 U.S. at 374, 379.

Point III.

THE DECISION OF THE COURT OF APPEALS IS IN AC

CORD WITH THE DECISIONS OF THIS COURT REGARD-

ING THE POWER TO REGULATE THE JURISDICTION OF

INFERIOR COURTS GRANTED CONGRESS BY

THE CONSTITUTION

The derivation and scope of the jurisdiction of all in-

ferior federal courts has been described in this Court’s

decision in Lockerty v. Phillips (1943) 319 U. S. 182, 187:

‘*The Congressional power to ordain and estab-

lish inferior courts includes the power ‘of investing

them with jurisdiction either limited, concurrent, or

exclusive, and of withholding jurisdiction from them

in the exact degrees and character which to Con-

gress may seem proper for the public good.’ ’’

This Court has further stated in Kline v. Burke Con-

struction Co. (1922) 260 U. S. 226, 234, that:

‘* And the jurisdiction having been conferred may,

at the will of Congress, be taken away in whole or in

part; and if withdrawn without a saving clause all

pending cases though cognizable when commenced

must fall. The Assessors v. Osbornes, 9 Wall. 567,

575. A right which thus comes into existence only

by virtue of an act of Congress, and which may be

withdrawn by an act of Congress after its exercise

has begun, cannot well be described as a constitu-

tional right.’’

In United States v. United Mine Workers of America

(1947), 330 U. S. 258, Justice Rutledge (in a dissent from

a holding involving other questions) summarized the hold-

ings of this Court on that question as follows:

“‘And where Congress has acted expressly to ex-

clude particular subject matter from the jurisdic-

tion of any court, except this Court’s original juris-

diction, I know of no decision here which holds the

exclusion invalid, * * *’’ 330 U.S. at 351.

The petitioners’ brief (p. 29) urges that Section 2 of the

Portal Act constitutes an invasion of the powers granted

the judiciary under Article IIT Section 1 of the Constitu-

tion.

The Portal Act is expressly based on the acceptance by

Congress of this Court’s construction of Section 7 (a) of

the Fair Labor Standards Act and Congress’ finding that

Section 7 (a), as so construed, created conditions inimi-

eal to commerce and the operation of the courts. Section

1 of The Portal Act, Appendix A, infra. Congress con-

cluded that to remedy these conditions it was necessary

to enact Section 2 of the Portal Act which, inter alia,

withdraws from inferior courts part of the jurisdiction

that Congress had previously conferred on such courts

under The Fair Labor Standards Act.

The petitioner’s brief (p. 29) lists four cages to stpport

the contention that the decision of the Court of Appeals

conflicts with the decisions of this Court on that question.

None of the four cases is applicable. United States v.

Klein, 13 Wall. 128, 20 L. Ed. 519, involved an attempt by

Congress to interfere with pardons granted by the Presi-

dent in pursuance of his powers under Article II Section

2 of the Constitution:

‘*Its great and controlling purpose is to deny to

pardons granted by the President the effect which

this court adjudged them to have.’’ 13 Wall. at 145,

Kilbourn v. Thompson (1880) 103 U. S. 168, involved the

question whether Congress had constitutional authority to

punish a witness for contempt. In James v. Appel (1903),

192 U. S. 129, it was held that a territorial statute pro-

viding for an automatic denial of a motion for new

trial, if not ruled on by a judge during the term, did

not constitute an interference with the judiciary and was

not inconsistent with the grant by Congress of common

law jurisdiction to the courts of the territory. In Prentis

v. Atlantic Coast Line (1908) 211 U. S. 210, this Court

(per Justice Holmes), held that though the proceedings fix-

ing railroad rates appeared judicial in form they were in

fact legislative. The action was remanded to await com-

pletion of the legislative process before allowing the rail-

road to attack the rates as confiscatory.

The decision of the Court of Appeals therefore is in clear

accord with the decisions of this Court regarding the

powers granted Congress under Article III Section 1 of

the Constitution.

Point IV.

THE DISMISSAL FOR LACK OF JURISDICTION OF THE

INDEPENDENT CONTRACT ACTIONS ALLEGED BY THE

AMENDED COMPLAINT WAS IN ACCORD WITH THE

DECISIONS OF THIS COURT

Afer Respondent’s motion to dismiss, the complaint was

amended to allege that ‘‘during the period’’ since October

24, 1938, the Respondent entered into ‘‘certain’’ contracts

with the United States which contained a provision requir-

ing the Respondent to comply with the Fair Labor Stand-

ards Act. Alleg. XX, R. 13. Petitioners contend that such

provision created a contractual obligation in the Respond-

ent to compensate its employees for ‘‘portal-to-portal’’

activities. They further contend that they are third party

beneficiaries of that contractual obligation and as such are

entitled to recover time and one-half for the ‘‘portal-to-

portal’’ activities described in the complaint. Petitioners

also contend that ‘‘this theory of recovery is neither predi-

cated upon nor is it dependent upon the continuing validity

or existence of the Fair Labor Standards Act with or with-

out its amendment by the Portal-to-Portal Act”’ (peti-

tioners’ brief p. 7).

Jurisdiction to entertain these independent contract

claims is alleged by the amendment to exist because of a

diversity of citizenship. The only allegation of the juris-

dictional amount required for such actions is the statement

that: ‘‘The matter in controversy exceeds, exclusive of in-

_ terest and costs, the sum of Three Thousand ($3,000.00)

Dollars.’’ Alleg. XXIV, R. 14. The contract claims are

alleged by the amendment to total $700,000. R. 15. A

total of 682 named plaintiffs have joined in the action (R.

29-30). Each claimant, therefore, is seeking an average of

$1026.

It is abundantly clear from the decisions of this Court

that these individual claims may not be aggregated for

jurisdictional purposes. Clark v. Paul Gray, Inc. (1939),

306 U. S. 583, 589; Pinel v. Pinel (1916), 240 U. S. 594;

Thomson v. Gaskill ( 1941), 315 U. S. 442, 447. The Court

of Appeals, therefore, held in accord with these decisions

when it decided that: ‘‘Each plaintiff has a separate and

distinct demand for the compensation to him and there is

no allegation that as to him the matter in controversy

exceeds the jurisdictional sum or value of $3,000.’’ 169

Fed. 2d at 274, R. 44.

CONCLUSION

It is respectfully submitted that the petition should be

denied.

Respectfully submitted,

HENRY M, HOGAN

Counsel for Respondent.

NICHOLAS J. ROSIELLO,

Of Counsel.

December 20, 1948.

APPENDIX A

TEXT OF SECTION 1 AND SECTIONS 2(a)-(d) OF THE

PORTAL-TO-PORTAL ACT OF 1947 (c. 52, PUBLIC LAW

49, MAY 14, 1947)

Section 1

with the results t

arising under su re permitted to stand

uld bring about finan-

y employers and seriously impair the capi-

tal resources of many others, thereby resulting in the re-

duction of industrial operations, halting of expansion anc

development, curtailing employment, and the earning power

of employees; (2) the credit of many employers would be

seriously impaired; (3) there would be created both an ex-

tended and continuous uncertainty on the part of industry,

both employer and employee, as to the financial condition

of productive establishments and a gross inequality of com-

petitive conditions between employers and between indus-

tries; (4) employees would receive windfall payments, in-

cluding liquidated damages, of sums for activities per-

formed by them without any expectation of reward beyond

that included in their agreed rates of pay; (5) there would

of increasing demands for payment

ing in activities no com

couraged; (8) the Public Treasury would be deprived of

large sums of revenues and public finances would be seri-

ously deranged by claims against the Public Treasury for

refunds of taxes already paid; (9) the cost to the Govern-

ment of goods and services heretofore and hereafter pur-

chased by its various departments and agencies would be

unreasonably increased and the Public Treasury would be

seriously affected by consequent increased cost of war con-

tracts; and (10) serious and adverse effects upon the reve-

nues of Federal, State, and local governments would occur.

‘‘The Congress further finds that all of the foregoing

constitutes a substantial burden on commerce and a sub-

stantial obstruction to the free flow of goods in commerce.

‘*The Congress, therefore, further finds and declares that

it is in the national public interest and for the general wel-

fare, essential to national defense, and necessary to aid,

protect, and foster commerce, that this Act be enacted.

_ The Congress further finds that the varying and ex-

tended periods of time for which, under the laws of the

several States, potential retroactive liability may be im-

posed upon employers, have given and will give rise to

great difficulties in the sound and orderly conduct of busi-

ness and industry.

‘‘The Congress further finds and declares that all of the

results which have arisen or may arise under the Fair

Labor Standards Act of 1938, as amended, as aforesaid,

may (except as to liability for liquidated damages) arise

-with respect to the Walsh-Healey and Bacon-Davis Acts

and that it is, therefore, in the national »ublic interest and

for the general welfare, essential to national defense, and

necessary to aid, protect and foster commerce, that this Act

shall apply to the Walsh-Healey Act and the Bacon-Davis

Act.

‘*(b) It is hereby declared to be the policy of the Con-

gress in order to meet the existing emergency and to cor-

rect existing evils (1) to relieve and protect interstate com-

merce from practices which burden and obstruct it; (2) to

protect the right of collective bargaining; and (3) to de-

fine and limit the jurisdiction of the courts.

Section 2(a)-(d)

*“*(a) No employer shall be subject to any liability or

punishment under the Fair Labor Standards Act of 1938,

as amended, the Walsh-Healey Act, or the Bacon-Davis Act

(in any action or pr ing commenced prior te or on or

after the date of the enactment of this Act), on account of

the failure of such employer to pay an employee minimum

wages, or to pay an employee overtime compensation, for

or on account of any activity of an employee engaged in

prior to the date of the enactment of this act, except an

activity which was compensable by either

“*(1) an express provision of a written or non-writ-

ten contract in effect, at the time of such activity, be-

tween such employee, his agent or collective-bargain-

ing representative and his employer; or

“*(2) a custom or practice in effect, at the time of

such activity, at the establishment or other place where

such employee was employed, covering such activity,

not inconsistent with a written or non-written contract,

in effect at the time of such activity, between such em-

ployee, his agent, or collective-bargaining representa-

tive and his employer.

“‘(b) For the purposes of subsection (a), an activity

shall be considered as compensable under such contract

provision or such custom or practice only when it was en-

gaged in during the portion of the day with respect to

which it was so made compensable.

“(c) In the application of the minimum wage and over-

time compensation provisions of the Fair Labor Standards

Act of 1938, as amended, of the Walsh-Healey Act, or of the

Bacon-Davis Act, in determining the time for which an

employer employed an employee there shall be counted all

that time, but only that time, during which the employee

engaged in activities which were compensable within the

meaning of subsections (a) and (b) of this section.

**(d) No court of the United States, of any State, Ter-

ritory or possession of the United States, or of the District

of Columbia, shall have jurisdiction of any action or pro-

ceeding, whether instituted prior to or on or after the date

of the enactment of this Act, to enforce liability or impose

punishment for or on account of the failure of the employer

to pay minimum wages or overtime compensation under

the Fair Labor Standards Act of 1938, as amended, under

the Walsh-Healey Act, or under the Bacon-Davis Act, to

the extent that such action or proceeding seeks to enforce

any liability or impose any punishment with respect to an

activity which was not compensable under subsections (a)

and (b) of this section.”’

OF THE PORTAL ACT

Total Cases

District Court District Judge Dismissed

First Circuit

D. Mass. Sweeney 17

Second Circuit

, a Ye A Knight

S. D. N.Y. Coxe

Goddard

Knox

CO mt Oe mm Oo

Total Cases

District Court District Judge Dismissed

W. D. Pa. Gibson 43

DN. J Meaney 1

Forman 1

Madden 3

Fourth Circuit

D. Md. Chesnut 1

Fifth Circuit

N. D. Ga. Russell 5

S. D. Tex. Atwell 1

Kennerly 1

N. D. Tex. Atwell 1

Sixth Circuit

E. D. Mich. Picard, O’Brien, Led-

erle, Koscinski, Levin 2

N. D. Ohio Jones 3

E. D. Tenn. Darr 2

Taylor 2

Seventh Circuit

N. D. I. Barnes 1

Campbell 1

E. D. Til. Lindley 2

E. D. Wis. Duffie 1

W. D. Wis. Stone 2

District Court

Ninth Circuit

D. Mont.

D. Idaho

D. Ore.

W. D. Wash.

E. D. Wash.

N. D. Cal.

S. D. Cal.

Tenth Circuit

N. D. Okla.

E. D. Okla.

D. Kans.

Total Districts

Total Cases

District Judge Dismissed

Pray 1

Clark 28

McColloch 1

Leavy 4

Driver 1

Roche, Goodman &

Harris 5

Goodman 1

Yankwich 2

Hall 1

O’Connor 2

Savage 1

Rice 1

Mellott 3

52 194

Total Judges Total Cases

APPENDIX B-2

LIST OF DISTRICT COURTS’ DECISIONS DISMISSING “PORT-

AL-TO-PORTAL” ACTIONS UNDER SECTION 2 OF THE

PORTAL-TO-PORTAL ACT OF 1947

First Circuit

MASSACHUSETTS

Moeller v. Eastern Gas & Fuel Associates, Sweeney,

December 22, 1947, 74 F. Supp. 937.

Not Orrictatty Reportep

Millet v. Bethlehem-Hingham Shipyard (3 cases),

Sweeney, June 4, 1948, 8 W. H. Cases 46.

Mitchell v. Boston Sausage Co. (11 cases), Sweeney,

June 4, 1948, 8 W. H. Cases 49.

Finn v. Bethlehem Steel Co., Sweeney, June 4,

1948, 8 W. H. Cases 51.

Wiley v. Reece Corp., Sweeney, June 4, 1948, 8 W.

H. Cases 52.

Second Circuit

NEW YORK—WESTERN DISTRICT

Battaglia, et al. v. General Motors Corporation (4

cases), Knight, December 15, 1947, 74 F. Supp.

274; affirmed July 8, 1948, 169 F. 2d 254.

Sinclair v. U. 8. Gypsum Company, Knight, Jan-

uary 24, 1948, 75 F. Supp. 439.

Not OrriciaLtty REeporTep

Donovan v. Republic Steel Corporation, Knight,

January 22, 1948, 7 W. H. Cases 644; 14 C.C.H.

Labor Cases, par. 64,295.

NEW YORK—SOUTHERN DISTRICT

Borucki, et al. v. Continental Baking Company,

Coxe, November 7, 1947, 74 F. Supp. 815.

Nor OrriciaLty Reportep

Sochulak v. American Brake Shoe Company, God-

dard, January 5, 1948, 7 W. H. Cases 584; 13

C. C. H. Labor Cases, par. 64,220.

Shaietvitz v. Laws, Knox, May 3, 1948, 7 W. H.

Cases 975.

Markert and 699 others, & c. v. Swift & Co., Inc.,

et al., Coxe, November 12, 1947, 7 W. H. Cases

459, 13 C. C. H. Labor Cases, par. 64,145; Coxe,

June 23, 1948, 8 W. H. Cases 159.

Bonner, et al. v. Elizabeth Arden, Inc., Coxe, No-

vember 22, 1947, 7 W. H. Cases 469, 13 C. C. H.

Labor Cases, par. 64,147; Coxe, June 22, 1948, 8

W. H. Cases 68.

Lemme v. Caruso Foods, Inc. (fifteen cases), Clancy,

January 17, 1948, 7 W. H. Cases 626.

Cook v. Industrial Rayon Corp., Clancy, June 23,

1948, 8 W. H. Cases 218.

Abernathy v. General Motors Corporation, Hulbert,

May 8, 1948, 7 W. H. Cases 1027.

NEW YORK—NORTHERN DISTRICT

Cardinale, et al. v. General scotors Corporation,

Brennan, October 25, 1947, 76 F. Supp. 743.

CONNECTICUT

Local 626, UAW-CIO v. General Motors Corpora-

tion (2 cases), Hincks, October 22, 1947, 76 F.

Supp. 593.

Moeller, et al. v. Atlas Powder Company, Hincks,

October 22, 1947, 76 F. Supp. 707.

Third Circuit

PENNSYLVANIA—EASTERN DISTRICT

Battery Workers’ Union v. Electric Company,

Kirkpatrick, January 30, 1948, 78 F. Supp. 947.

Nor OrriciaLty ReporTep

Medrick v. Textile Machine Works, Inc., Follmer,

July 20, 1948, 8 W. H. Cases 202.

PENNSYLVANIA—WESTERN DISTRICT

Hart v. Aluminum Company of America (forty-

three cases), Gibson, October 8, 1947, 73 F. Supp.

727.

NEW JERSEY

Grazeski v. Federal Shipbuilding € Dry Dock Com-

pany, Meaney, April 16, 1948, 76 F. Supp. 845.

Hoyt v. Merritt-Chapman @ Scott Corp., Madden.

August 9, 1948, 79 F. Supp. 106.

Industrial Union v. New York Shipbldg. Corp. (2

cases), Madden, August 9, 1948, 79 F’. Supp. 104.

Nort Orrictatty ReportTep

Hess v. E. 1. duPont de Nemours & Company, For-

man, July 9, 1948, 8 W. H. Cases 118.

Pourth Circuit

MARYLAND

Seese, et al. v. Bethlehem Steel Company, Chesnut,

October 14, 1947, 74 F. Supp. 412; affirmed May

5, 1948, 168 F. 2d 58.

Fifth Circuit

GEORGIA—NORTHERN DISTRICT

May, et al. v. General Motors Corporation, Russell,

October 17, 1947, 73 F. Supp. 878.

Nor Orrictatty Reportep

Akins, et al. v. Firestone Tire € Rubber Company,

Russell, October 17, 1947, 7 W. H. Cases 356.

Cassels, et al. v. General Motors Corporation, Rus-

sell, October 17, 1947, 7 W. H. Cases 355.

Glynn Metal Trades Council, et al. v. J. A. Jones

Construction Company, Inc., Russell, October 17,

1947, 7 W. H. Cases 355.

Robison, et al. v. General Motors Corporation, Rus-

sell, October 17, 1947, 7 W. H. Cases 355.

TEXAS—NORTHERN DISTRICT

Burfiend v. Eagle-Picher Company, Atwell, May

21, 1947, 71 F. Supp. 929.

TEXAS—SOUTHERN DISTRICT

Story, et al. v. Todd Houston Shipbuilding Corpor-

ation, Kennerly, July 17, 1947, 72 F. Supp. 690.

SL Py OE TE SEN RRR RE ee

Sixth Circuit

MICHIGAN—EASTERN DISTRICT

Fisch, et al. v, General Motors Corporation; Bate-

man, et al. v. Ford Motor Company, Picard,

O’Brien, Lederle, Koscinski, Levin, February 27,

1948, 76 F. Supp. 178; affirmed August 2, 1948, 169

F. 2d 266.

OHIO—NORTHERN DISTRICT

Fajack v. Cleveland Graphite Company, Jones, July

23, 1947, 73 F. Supp. 308.

Nort Orriciatty Reportep

Hassel v. Standard Oil Company, Jones, May 4,

1948, 8 W. H. Cases 41.

Smith v. Cleveland Pneumatic Tool Company,

Jones, March 30, 1948, 7 W. H. Cases 855.

TENNESSEE—EASTERN DISTRICT

Lasater, et al. v. Hercules Powder Company, Darr,

July 25, 1947, 73 F. Supp. 264.

Colvard, et al. v. Southern Wood Preserving Com-

pany, Darr, November 1, 1947, 74 F. Supp. 804.

Not Orricratty Reportrep

Young v. Kellex Corporation, Taylor, January 2,

1948, 7 W. H. Cases 562.

Jesse v. Tennessee Eastman Corporation, Taylor,

May 6, 1948, 7 W. H. Cases 983.

ILLINOIS—NORTHERN DISTRICT

Not OrriciaLty ReporTep

McCalpin v. Magnus Metal Corporation, Barnes,

July 1, 1948, 8 W. H. Cases 120.

Bauler v. Pressed Steel Car Company, Campbell, |

May 27, 1948, 8 W. H. Cases 55.

ILLINOIS—EASTERN DISTRICT

Not OrriciaLtLy REporTED

Smith, et al. v. American Can Co., Lindley, Jan-

uary 12, 1948, 7 W. H. Cases 603.

Green, et al. v. Stokely Foods, Inc., Lindley, Jan-

uary 12, 1948, 7 W. H. Cases 603.

WISCONSIN—EASTERN DISTRICT

Ackerman, et al. v. J. I. Case Company, Duffy, No-

vember 4, 1947, 74 F. Supp. 639.

WISCONSIN—WESTERN DISTRICT

Not OrriciaLty REeportep

Lee v. Hercules Powder Co. (2 sases), Stone, March

18, 1948, 8 W. H. Cases 247.

Eighth Circuit

MINNESOTA

Smith, et al. v. Cudahy Packing Company (3 cases),

Donovan, September 15, 1947, 73 F. Supp. 141;

December 12, 1947, 76 F. Supp. 575.

Plummer v. Minneapolis-Moline Power Implement

Company, Nordbye, stil 3, 1948, 76 F.

Supp. 745.

Not Orrictatty ReportTep

DeMaio v. Grant Storage Battery Company, Nord-

bye, February 3, 1948, 7 W. H. Cases 721; 14

C. C. H. Labor Cases, par. 64,285.

IOWA—SOUTHERN DISTRICT

Nort OrricitaLty Reportep

Hornbeck, et al. v. Dain Manufacturing Company

(6 cases), Dewey, September 25, 1947, 7 W. H.

Cases 295; 13 C. C. H. Labor Cases, par. 64,055.

MISSOURI—WESTERN DISTRICT

Sadler v. Dickey Clay Manufacturing Company,

Ridge, September 30, 1947, 73 F. Supp. 690;

Ridge, February 25, 1948, 78 F. Supp. 616.

Charles Breusing, et al. v. General Motors Corpor-

ation (Fisher Body Div., Kansas City Plant),

Reeves, October 29, 1947, 74 F. Supp. 541.

Bumpus v. Remington Arms Company, Reeves,

December 10, 1947, 74 F. Supp. 788; March 27,

1948, 77 F. Supp. 94.

Lockwood v. Hercules Powder Company, Ridge,

February 16, 1948, 78 F. Supp. 716.

Tucker v. Pratt Whitney, W. D. Mo., March 25

1948, 77 F. Supp. 227.

Nort OrriciaLty ReportTep

Hayes, et al. v. Hercules Powder Company, Reeves,

November 1, 1947, 7 W. H. Cases 381; 13 C. C. H.

Labor Cases, par. 64,123.

MISSOURI—EASTERN DISTRICT

Johnson, et al. v. Park City Consolidated Mines

Company, Hulen, October 3, 1947, 73 F. Supp.

852.

Nor OrriciatLty REporTED

Horner, et al. v. McQuay Norris Manufacturing

Company, Hulen, October 3, 1947, 13 C. C. H.

Labor Cases, par. 64,086; 7 W. H. Cases 436.

Ninth Circuit

MONTANA

Role v. Neils Lumber Company, Pray, Deeember

19, 1947, 74 F. Supp. 812.

IDAHO

Hollingsworth, e: al. v. Federal Mining and Smelt-

ing Company (28 cases), Clark, December 12,

1947, 74 F. Supp. 1009.

OREGON

Boehle v. Electric Metallurgical Company, McCol-

loch, June 9, 1947, 72 F. Supp. 21.

WASHINGTON—WESTERN DISTRICT

Cochran, et al. v. St. Paul: and Tacoma Lumber

Company (4 cases), Leavy, May 26, 1947, 73 F.

Supp. 288.

WASHINGTON—EASTERN DISTRICT

Nor OrsrictatLty Reportep

Millen v. How Sound Mining Company, Driver,

May 11, 1948, 8 W. H. Cases 1.

CALIFORNIA—NORTHERN DISTRICT

Alameda, et al. v. Paraffine Companies, Inc. (5

cases), Roche, Goodman and Harris, November 6,

1947, 75 F. Supp. 282.

Kirkham v. Pacific Gas d Electric Company, Good-

man, December 22, 1947, 78 F. Supp. 658.

CALIFORNIA—SOUTHERN DISTRICT

Ditto v. Aluminum Company of America, Yankwich,

June 9, 1947, 73 F. Supp. 955.

Quinn, et al. v. California Shipbuilding Corpora-

tion, Hall, September 29, 1947, 76 F. Supp. 742.

Devine et al. v. Joshua Hendy Corp., S. D. Calif.,

April 30, 1948, 77 F. Supp. 893.

Nort OrriciaLty ReportTep

Felton v. Latchford Marble Glass Co., O’Connor,

May 26, 1948, 8 W. H. Cases 53.

Tully v. Joshua Hendy Corp., O’Connor, July 28,

1948, 8 W. H. Cases 198.

Tenth Circuit

OKLAHOMA—NORTHERN DISTRICT

Nor OrriciaLty Reportep

Adkins v. E. I. duPont de Nemours & Company,

Savage, September 26, 1947, 7 W. H. Cases 298;

13 C. C. H. Labor Cases, par. 64,025.

OKLAHOMA—EASTERN DISTRICT

Nort OrriciatLy Reportep

McDaniel v. Brown & Root, Inc., Rice, March 6,

1948; amended April 5, 1948, 7 W. H. Cases 978.

KANSAS

Nort Orrictatty ReportTep

Elting, et al. v. North American Aviation, Inc.

(3 cases), Mellott, November 3, 1947, 7 W. H.

Cases 491; 13 C. C. H. Labor Cases, par. 64,154.

APPENDIX C-1

SUMMARY OF UNREPORTED DISMISSALS BY DISTRICT

COURTS OF “PORTAL-TO-PORTAL” ACTIONS UNDER SEC-

TION 2 OF THE PORTAL ACT

Total Cases

District Court District Judge Dismissed

Second Circuit

D. Conn. Smith 1

Conger 3

District Court

Sixth Circuit

N. D. Ohio

S. D. Ohio

W. D. Tenn.

E. D. Ky.

Seventh Circuit

N. D. Il.

S. D. Ind.

W. D. Wis.

Eighth Circuit

W. D. Mo.

KE. D. Mo.

W. D. Ark.

E. D. Ark.

Ninth Circuit

S. D. Cal.

Tenth Circuit

D. Utah

D. Kans.

Total Districts

District Judge

Jones

Nevin

Druffel

Boyd

Campbell

Sullivan

Igoe

Baltzell

Stone

Duncan

Ridge

Hulen

Weinberger

Hall

Mellott

Total Judges

i oonmep

~~ —_

APPENDIX C-2

LIST OF UNREPORTED DISMISSALS BY DISTRICT COURTS

OF “PORTAL-TO-PORTAL” ACTIONS UNDER SECTION 2

OF THE PORTAL ACT*

Second Circuit

CONNECTICUT

Walsh v. United States Aluminuwn Company, C. A.

No. 1980, Smith, July 14, 1947.

NEW YORK—SOUTHERN DISTRICT

McKenna, et al. v. General Motors Corporation

(Fisher Body Division), C. A. No. 39-554, Con-

ger, March 22, 1948.

McKenna, et al. v. General Motors Corporation

(Chevrolet Motor Division), C. A. No. 39-555,

Conger, March 22, 1948.

McKenna, et al. v. General Motors Corporation

(Eastern Aircraft Division), C. A. No. 39-556,

Conger, March 22, 1948.

Zuccarello, et al. v. General Motors Corporation,

C. A. No. 9481, Forman, April 26, 1948.

Amato, et al. v. General Motors Corporation, C. A.

No. 9490, Meaney, April 14, 1948.

Saragino, et al. v. General Motors Corporation,

C. A. No. 9437, Meaney, May 14, 1948.

not complete. It included only those dismissals that

the attention of Respondent's counsel by local

Bruzaitis, et al. v. General Motors Corporation,

C. A. No, 9474, Meaney, May 14, 1948.

Ackerson, et al. v. General Motors Corporation,

C. A. No. 9509, Meaney, May 14, 1948.

Gawleck, et al. v. General Motors Corporation, C.

A. No. 9402, Meaney, May 14, 1948.

Muche, et al. v. Electric Boat Co., C. A. No. 9113,

May 14, 1948.

Armstrong, et al. v. Muller Metal Products, Inc.,

C. A. No. 9456, May 5, 1948.

Elliot, et al. v. Pittsburgh Plate Glass Co., C. A.

No. 9467, April 28, 1948.

Elliot, et al. v. E. I. duPont de Nemours € Co., C.

A. No. 9467, May 4, 1948.

Moselle, et al. v. Driver-Harris Co., C. A. No.

9480, May 13, 1948.

Eick, et al. v. Hercules Powder Co., C. a

May 13, 1948.

Int. Union, Local 713 v. General Motors Corpora-

tion, C. A. No. 9490, May 4, 1948.

Dichter, et al v. Aluminum Co. of America, C. A.

No. 9492, April 29, 1948.

Workers v. General Motors Corporation, C. A. No.

9509, May 4, 1948.

Heimann, et al. v. Armour € Co., C. A No. 9529,

May 3, 1948.

Armstrong, et al. v. Wright Aeronautical Corp.,

C. A. No, 9530, May 11, 1948.

Mosele, et al. v. Tube Reducing Corp., C. A. No,

9538, May 11, 1948.

O’Shea, et al. v. National Battery Co., C. A. No.

9554, May 13, 1948.

Barnes, et al. v. E. I. duPont de Nemours & Co.,

C. A. No. 9652, May 4, 1948.

Froesch, et al. v. Pittsburgh Plate Glass Co., C. A.

No. 9682, April 29, 1948.

Barclay, et al. v. Original Trenton Cracker Co.,

C. A. No. 9780, October 30, 1947.

Froesch, et al. v. Libby-Owens-Ford Glass Co., C.

A. No. 9865, May 5, 1948.

McKeown, et al. v. Garden State Hosiery Co., C. A.

No. 10030, February 11, 1948.

Pourth Circuit

VIRGINIA—WESTERN DISTRICT

Cornett, et al. v. Hercules Powder Company, C. A.

No. 319, November 28, 1947.

John D. Lewhorne, et al. v. Hercules Powder Com-

pany, C. A. No. 290, November 28, 1947.

Fifth Circuit

TEXAS—NORTHERN DISTRICT

Ford v. Southern Aircraft Corporation, C. A. No.

2375, Atwell, June 16, 1947.

TEXAS—SOUTHERN DISTRICT

Snyder, et al. v. Todd Galveston Dry Docks, Inc.,

C. A. No. 487, July 17, 1947.

ALABAMA—SOUTHERN DISTRICT

Farr v. Aluminum Ore Company, C. A. No. 687,

McDuffie, June 16, 1947.

Sixth Circuit

OHIO—NORTHERN DISTRICT

Davis, et al. v. Formica Insulation Co., C. A. No.

24490, Jones, July 23, 1947.

Matheson and Saley v. Aluminum Co. of America

and American Magnesium Corporation, C. A. No.

24441, Jones, September 1947.

Radden v. Aluminum Company of America, C. A.

No, 24437, Jones, September 1947.

Bannister, et al. v. General Motors Corporation, C.

A. No, 24557, Jones, September 17, 1947.

Neale, et al. v. General Motors Corporation, C. A.

No. 24526, Jones, September 17, 1948.

Moughan v. General Motors Corporation, C. A.

No. 24453, Jones, September 17, 1948.

OHIO—SOUTHERN DISTRICT

Heine, et al. v. Allis-Chalmers Mfg. Co., C. A. No.

1646, Druffel, June 13, 1947.

Whitehouse, et al. v. The American Rolling Mill

Co., C. A. No. 1648, Druffel, June 2, 1947.

Whitehouse, et al. v. Sawbrook Steel Casting Co.,

C. A. No. 1654, Druffel, June 2, 1947.

Whitehouse, et al. v. William Powell Co., C. A. No.

1650, Druffel, June 2, 1947.

Whitehouse, et al. v. Hamilton Foundry & Machine

Co., C. A. No. 1660, Druffel, June 2, 1947.

Whitehouse, et al. v. American Can Co., C. A. No.

1653, Druffel, June 4, 1947.

Lear, et al. v. Cleveland Automatic Machine Co.,

C. A. No. 1693, Druffel, June 9, 1947.

Coggshell, et al. v. Ford Motor Co., C. A. No. 1655,

Druffel, August 25, 1947.

Whitehouse, et al. v. Aluminum Industries, Inc.,

C. A. No. 1662, Druffel, June 23, 1947.

Combs, et al. v. Standard Silicate Div., C. A. No.

1664, Druffel, June 2, 1947.

Notz, et al. v. General Motors Corporation, C. A.

No. 766, Nevin, September 19, 1947.

Baker, et al. v. General Motors Corporation, C. A.

No. 1656, Druffel, June 24, 1947.

Patton, et al. v. General Motors Corporation, C. A.

No. 1657, Druffel, August 25, 1947.

Kenney, et al. v. General Motors Corporation, C. A.

No. 767, Nevin, September 19, 1947.

TENNESSEE—WESTERN DISTRICT

Kirby, et al. v. General Motors Corporation, C. A.

No. 1213, Boyd, February 28, 1948.

Gossett, et al. v. Proctor & Gamble Defense Cor-

poration (22 cases), C. A. No. 399, Boyd, Janu-

ary 10, 1948.

KENTUCKY—EASTERN DISTRICT

Tisa v. American Suppliers, Inc., C. A. No. 533,

June 27, 1947.

Seventh Circuit

ILLINOIS—NORTHERN DISTRICT

Workman v. E. I. duPont de Nemours € Co., C. A.

No. 47-C-426, Campbell, October 3, 1947.

Thomas, et al. v. Chicago Plating Company, C. A.

No. 47-C-46, Sullivan, November 24, 1947.

Malzone, et al. v. General Motors Corporation, C.

A. No. 46-C-2103, Campbell, June 4, 1948.

Skup, 1352 Independence, Chicago—Individually

and in behalf of Other Employees Similarly

Situated v. General Motors Corporation, C. A.

No. 47-C-520, Igoe, June 15, 1948.

Mattson, et al. v. General Motors Corporation, C.

A. No. 47-C-21, Igoe, June 15, 1948.

INDIANA—SOUTHERN DISTRICT

Price, et al. v. General Motors Corporation, C. A.

No. 1281, Baltzell, September 26, 1947.

Ashcraft, et al. v. General Motors Corporation, C.

A. No. 223, Baltzell, September 26, 1947.

Stevens, et al. v. General Motors Corporation, C.

A. No. 1286, Baltzell, September 26, 1947.

Lilly, et al. v. General Motors Corporation, C. A.

No. 1285, Baltzell, September 26, 1947.

Stokes, et al. v. General Motors Corporation, C. A.

No. 1305, Baltzell, September 26, 1947.

Brown, et al. v. General Motors Corporation, C. A.

No. 1283, Baltzell, September 26, 1947.

Mueller, et al. v. General Motors Corporation, C.

A. No. 1286, Baltzell, September 26, 1947.

Leonard, et al. v. General Motors Corporation, C.,

A. No. 1284, Baltzell, September 26, 1947.

WISCONSIN—WESTERN DISTRICT

Edwards, et al. v. General Motors Corporation, C.

A. No. 1832, Stone, April 14, 1948.

Sands, et al. v. General Motors Corporation, C. A.

No. 1830, Stone, April 14, 1948.

Adkins v. General Motors Corporation, C. A. No.

1831, Stone, April 14, 1948.

Eighth Circuit

MISSOURI—WESTERN DISTRICT °

Breusing, et al. v. General Motors Corporation

(Oldsmobile Division-Kansas City Plant), C. A.

No. 4506, Duncan, December 9, 1947.

Breusing, et al. v. General Motors Corporation

(Chevrolet-Kansas City Plant), C. A. No. 4498,

Ridge, December 11, 1947.

MISSOURI—EASTERN DISTRICT

Schilling, et al. and Local No. 25, UAW-CIO v.

General Motors Corporation, C. A. No. 5123,

Hulen, April 30, 1948.

ARKANSAS—WESTERN DISTRICT

Hardesty v. Aluminum Company of America and

Aluminum Ore Co., C. A. No. 315, September,

1947.

ARKANSAS—EASTERN DISTRICT

Hardesty v. Aluminum Company of America and

Aluminum Ore Co., C. A. No. 1598, September, -

1947,

Ninth Circuit

CALIFORNIA—SOUTHERN DISTRICT

Anger, et al. v. General Motors Corporation, Los

Angeles Division, C. A. No. 6168W, Weinberger,

November 17, 1947.

Armin, et al. v. Standard Oil Co. of Cal., C. A. No.

6190-PH, Hall, October 16, 1947.

Gibson, et al. v. Consolidated Vultee Aircraft Corp.,

C. A. No. 6277-BH, June 26, 1947.

Tenth Circuit

UTAH

Smith v. Geneva Steel Co., C. A. No. 1255, August

1, 1947.

Dispenza, et al. v. Utah Copper Company, C. A.

No. -976.

Dispenza, et al. v. Utah Copper Company, C. A. -

No. 1253.

McKissick, et al. v. Park Utah Consolidated Mines

ie Co., C. A. No. 1253.

Draper, et al. v. Silver King Coalition Mines Com-

pany, C. A. No. 1290.

Smyth, et al. v. New Park Mining Company, C. A.

‘ No. 1291. .

Lester, et al. v. American Smelting € Refining

Company, C. A. No. 1295.

Pratt, et al. v. American Smelting € Refining Com-

pany, C. A. No. 1296.

McCandless, et al. v. United States Smelting, Re-

fining and Mining Company, C. A. No. 1297.

Michaelson, et al. v. United States Smelting, Re-

fining € Mining Company, C. A. No. 1298.

Morton, et al. v. United States Smelting, Refining

& Mining Company, C. A. No. 1299.

Cases, et al v. Utah Copper Company, C. A. No.

1310.

Gibbons, et al. v. Utah Ore Sampling Company,

C. A. No. 1311.

KANSAS

Place, et al. v. Hercules Powder Co., C. A. No.

6076, Mellott, November 3, 1947.

Bennett, et al. v. Hercules Powder Co., C. A. No.

6093, Mellott, November 3, 1947.

Quincy, et al. v. Hercules Powder Co., C. A. No.

6124, Mellott, November 3, 1947.

McNealey, et al. v. Hercules Powder Co., C. A. No.

5993, Mellott, November 3, 1947.

Walker, et al. v. Hercules Powder Co., C. A. No.

6135, Mellott, November 3, 1947.

Allen, et al. v. General Motors Corporation, C. A.

No. 6107, Mellott, February 24, 1948.

APPENDIX D

SUMMARY OF REPORTED AND UNREPORTED DISMISSALS

BY DISTRICT COURTS OF “PORTAL-TO-PORTAL” ACTIONS

UNDER SECTION 2 OF THE PORTAL-TO-PORTAL ACT

No. of Total Cases

Judges Dismissed

—

Baits

MAMAN oe ie ee

No. of Total Cases

District Court Judges Dismissed

Tenth Circuit

N. D. Okla. ©

E. D. Okla

D. Kans.

D. Utah 1

Total Districts Total Judges Total Cases

42 64 314

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.