# Petition for a Writ of Certiorari — Eastern Sugar Associates v. Peña

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1955
- **Citation:** 350 U.S. 900

## Text

FiIiLEav

SEP 7 1955

In the
Supreme Court cf the Anited States

Octosper Term, 1955.

No. 377

EASTERN SUGAR ASSOCIATES (a Trust),
Petitioner,

v.

JOSE A. PENA,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

Earnie T. Firppier
Counsel of Record

Jose G. Gonzalez P. O. Box 3507
Tomas I. Nivo San Juan 17, Puerto Rico
Cantos J. Faure Attorney for Petitioner

Of Counsel

P. O. Box 3507

San Juan 17, Puerto Rico

Blanchard Printing Company, Boston, Mass. Law Printers

TABLE OF CONTENTS.

Sussecr I> pex. Page
Opleiens Dele a 1
Param SS kn RAS 2
Questians Freasate®
Section 6 (29 U.S.C., Seetion 255, 255(a)) 2, 3, 8, 9, 12,22
Seetion 6(a) . SEES AA Eee Seige eae eet ae
Section 7 (29 U. S. C., Section 207(a)) ee ox 2 ae
Miscellaneous:

House Report No. 71, February 25, 1947, U.S. Code
Congressional Service, 80th Congress, First Ses-
aims, Pes 10RD) 100G: . =... oe ee 18

Developments in the Law—Statute of Limitations, 63
Harv. L. Rev. 1177, 1186-7. ed Ses xk ea 19

In the
Supreme Court of the Anited States

Ocroser Term, 1955.

No.

EASTERN SUGAR ASSOCIATES (a Trust),
Petitioner,

v.

lod

JOSE A. PENA,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

To the Honorable, The Supreme Court of the United States:

Petitioners pray that a writ of certiorari issue to review
the decision and judgment of the United States Circuit
Court of Appeals for the First Cirenit entered in the above
ease on May 25, 1955.

Opinions Below

The opinion of the Circuit Court of Appeals for the First
Circuit, handed down on May 25, 1955 (Record on Appeal,
pp. A91-A98)* is reported in 222 F. 2d 934. It is also
reproduced in the Appendix to this Petition starting at
page 24, infra.

* References are to the Record on Appeal in the First Circuy: Court
of Appeals, as supplemented with the proceedings in the said Court.

2

The opinion of the Supreme Court of Puerto Rico handed
down on March 15, 1954 (R. on A., pp. A59-A69) and
appealed to the Court of Appeals for the First Circuit, is not
as yet officially reported.

Jurisdiction

The judgment of the United States Court of Appeals for
the First Circuit which is sought to be reviewed herein was
entered on May 25, 1955 (R. on A., p. A99). Petitioners
applied for and obtained a retention of the mandate on
June 23, 1955 and filed a petition for rehearing on July 7,
1955 (R. on A., p. A107). Rehearing was denied on August
3, 1955. Upon application of petitioners, the Circuit Court
of Appeals on August 10, 1955 ordered a stay of the man-
date unti) September 12, 1955 for the filing of the petition
herein. (R. on A., p. A107.)

The Savladietion of this Court is invoked aie 28 U.S.C.
1245(1).

Questions Presented

1. Whether the United States Court of Appeals for the
First Cireuit can decline to decide the federal question on
which an appeal from a decision of the Supreme Court of
Puerto Rico is taken, and can dispose of the appeal by con-
sidering and deciding questions of Puerto Rican local law
not theretofore decided, and expressly left open for adjudi-
cation by the Supreme Court of Puerto Rico and not as-
signed on appeal.

2. Whether the statute of limitations provision of See-
tion 6 of the Portal-to-Portal Act (29 U.S.C., Section 255)
is substantive in nature, extinguishes the cause of action
and can be raised for the first time on appeal.

3. Whether the States or Puerto Rico have unrestricted

a

=e

authority under the provisions of Section 18 of the Fair
Labor Standards Act (29 U.S.C., Section 218) to enact
‘‘more favorable’’ legislation, even though contrary to the
provisions of the Fair Labor Standards Act and/or the
Portal-to-Portal Act and to the intent of Congress there-
under.

4. Whether the statute of limitations provision of the
Portal-to-Portal Act applies to claims for wages in inter-
state commerce purportedly arising under local laws.

Statutes Involved

The statutes involved, or pertinent portions thereof, are
the following:

1. Section 1293, 28 U.S.C.

‘*F inal decisions of Puerto Rico and Hawaii Supreme
Courts

‘*The courts of appeals for the First and Ninth Cir-
cuits shell have jurisdiction of appeals from all final
decisions of the Supreme Courts of Puerto Rico and
Hawaii, respectively in all cases involving the Consti-
tution, laws or treaties of the United States or any
authority exercised thereunder, in all habeas corpus
proceedings, and in all other civil cases where the value
in controversy exceeds $5,000, exclusive of interest and
costs.”’

2. Section 6 of the Portal-to-Portal Act of 1947 (29 U.S.C.,
Section 255(a) ). Pak:

‘‘Statute of Limitations
‘‘Any action commenced on or after May 14, 1947,
to enforce any cause of action for unpaid minimum

4

wages, unpaid overtime compensation, or liquidated
damages, under the Fair Labor Standards Act of 1938,
as amended, the Walsh-Healey Act, or the Bacon-Davis
Act—

‘*(a) if the cause of action accrues on or after May
14, 1947—may be commenced within two years after
the cause of action accrued, and every such action shall
be forever barred unless commenced within two years
after the cause of action accrued.’’

3. Section 7 of the Fair Labor Standards Act (29 U.S.C.,
Section 207(a)).

‘*Maximum hours

‘“(a) Except as otherwise provided in this section,
no employer shall employ any of his employees who is
engaged in commerce or in the production of goods for
commerce for a workweek longer than forty hours,
unless such employee receives 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.”’

4. Section 18 of the Fair Labor Standards Act (29 U.S.C.,
Section 218).

‘*Relation to other laws

‘*No provision of sections 201-219 of this title or of -'
any order thereunder shall excuse noncompliance with
any Federal or State law or municipal ordinance estab-
lishing a minimum wage higher than the minimum
wage established under such sections or a maximum
workweek lower than the maximum workweek estab-
lished under such sections ... ”’

5

5. Sections 4(b) and 5, Puerto Rico Act No. 379, approved
May 15, 1948 (1948 Laws of Puerto Rico, pp. 1256, 1258,
1260).

‘*Section 4.—Extra hours of work are:

**(b) The hours that an employee works for his em-
ployer in excess of forty-eight hours during any week,
unless the hours worked daily in excess of eight are
paid double rates.

* . *

‘*Section 5.—Every employer who employes or per-
mits an employee to work during extra hours shall be
obliged to pay him for each extra hour a wage rate
equal to double the rate agreed upon for regular hours;
Provided, however, that every employer in any indus-
try in Puerto Rico covered by the provisions of the
Fair Labor Standards Act enacted by the Congress
of the United States of America on June 25, 1938, as
heretofore or hereafter amended, shall be under obliga-
tion to pay only for each hour of work in excess of the
legal eight-hour working day, or in excess of forty (40)
hours a week, a wage at the rate of not less than time
and a half the rate of wage agreed upon regular hours,
save when by a decree of the Minimum Wage Board
or by a collective labor agreement, other working and/
or compensation standard is heretofore or hereafter
fixed. To determine the wage rate agreed upon for
regular hours of work, the daily, weekly, or monthly
wages, or wages otherwise stipulated, shall be divided
by the number of regular hours worked during that
same period in accordance with the provisions of this
Act.”’

6

Statement of the Case

This case involv.s substantial questions relative to the
Fair Labor Standards Act and to the Portal-to-Portal Act
of 1947.

Respondent José A. Peja, a train dispatcher employed
on a railroad system owned and operated by your petition-
ers, who are engaged in ‘‘interstate commerce’’ (29 U.S.C.
Section 203 (b), (c)), brought an action against petitioners
pursuant to the provisions of Puerto Rico Act No. 379 of
May 15, 1948 and the Fair Labor Standards Act, on No-
vember 7, 1951, before the Superior Court of Puerto Rico,
Humacao Section, claiming the amount of $2,371.16 for
overtime compensation at the rate of time and a half, among
other things, for work performed from May 15, 1948 to
July 12, 1950 in excess of a 40-hour regular workweek.
(R. on A., pp. Al-A4.) Respondent alleged that your peti-
tioners were covered by the provisions of the Fair Labor
Standards Act and that a certain Belo-type employment
contract in effect between respondent and your petitioners
constituted a deliberate evasion and violation of (1) the
Fair Labor Standards Act, (2) Puerto Rico Act No. 289
of April 9, 1946, and (3) a certain Mandatory Decree No, 3,
approved by Puerto Rico’s Minimum Wage Board, pursuant
to the provisions of Puerto Rico Act No. 8 of April 5, 1951,
as amended. Your petitioners filed their answer to the
complaint on December 10, 1951, but then omitted to raise
the defense of limitations under the Portal-to-Portal Act.
(R. on A., pp. A13-A15.)

On April 30, 1952 the Superior Court entered judgment —
for respondent from which your petitioners took an appeal
to the Supreme Court of Puerto Rico, which latter Court
affirmed the judgment by opinion of August 7, 1953. (R. on
A., pp. A19-A35.) Your petitioners then filed a motion for .
reconsideration raising, among other things, the defcase of

a

limitations under the Portal-to-Portal Act and the Court,
having entertained the motion on the question of limitations,
invited the Secretary of Labor of Puerto Rico and the Ad-
ministrator of the Wage and Hour Division, United States
Department of Labor, to appear as ‘‘amici curiae.’’ (R. on
A., pp. A43-A45.)

On December 10, 1953, the Supreme Court of Puerto Rico
handed down an opinion and order denying your petitioners’
motion for reconsideration in which, after making reference
to the provisions of Puerto Rico Act No. 379 of 1948, which
provides for the payment of time and a half*for hours
worked in excess of a regular workweek of 40 hours to em-
ployees covered by the Fair Labor Standards Act, and
double time for hours worked in excess of a regular work-
week of 48 hours to those not covered, it held that it was
““amecessary ... to decide the question [of limitations
unter the Portal-to-Portal Act] . . . because we agree with
the plaintiff, the Secretary of Labor of the Commonwealth
of Puerto Rico, and the.Secretary of Labor of the United
States, that the claims involved herein are based not on
the Federal Act but on local laws ... ’’ (R. on A., pp.
A46-A51.) Your petitioners then filed a second motion for
reconsideration on December 14, 1953 calling the attention
of the Court to respondent’s allegations invoking coverage
under the Fair Labor Standards Act, and to the nature of
respondent’s claim, i.e., time and a half for hours worked
in excess of a regular workweek of 40 hours.

The Supreme Court of Puerto Rico entertained the mo-
tion, set aside its former decision on the question of limita-
tions, and on December 14, 1954 handed down an opinion in
which, after comparing the provisions of Puerto Rieo Act
No, 379 of 1948 with those of the Fair Labor Standards Act
and deciding that both fixed ‘‘exactly the same standards for
minimum wages and maximum hours . . . ’’ and ‘‘the same
compensation,’’ it conceded that there was a ‘‘fairly formid-

8

able argument’’ against the validity of the local statute and,
therefore, against its applicability to the facts of the case
in that ‘‘Congress could not have intended to permit indi-
vidual states to reinstate for claims covered by the Federal
Act the vexatious situation of differing state statutes of
limitations which it had eliminated by § 6 of the Portal Act
through the device. of enacting local statutes embodying
exactly the same standards of minimum wages and maxi-
mum hours of work found in the Federal Act in order to
apply thereto the longer prescriptive periods provided by
local law.’’ (R. on A., pp. A62-A63.) The Court, however,
reasoned that ‘‘nothing in the language or legislative his-
tory of the Portal Act . . . indicates that Congress intended
to change the usual rule that statutes of limitations are
generally remedial rather than substantive,’’ and held that
the Portal-to-Portal limitations were remedial and could not
be raised for the first time on appeal (R. on A., pp. A6S-
A66), and that, in view of the result, it preferred ’’to leave
open the question of whether the Puerto Rican statute of
limitations rather than § 6 of the Portal Act applies to wage
claims for which the local and Federal Act provide exactly
the same compensation”’ (R. on A., p. A63), holding, theie-
fore, by inescapable implication, that it preferred to leave
open the question of the validity of the local statute.
Your petitioners then took an appeal to the United States
Court of Appeals for the First Circuit from the above judg-
ment and supplementary resolution (R. on A., p. A71), and
invoked the appellate jurisdiction of the Circuit Court of
Appeals for the revision of a federal question. (28 U.S.C.,
Section 1293.) They assigned as their only question on
appeal that the Supreme Court of Puerto Rico had erred in |
holding that the provisions of Section 6 of the Portal-to- —
Portal Act were remedial rather than substantive (R. on —
A., p. A7). The amount in controversy being less than —
$5,000, your petitioners could have appealed on no other

9

ground. Petitioners filed their brief and argued their case
before the Cireuit Court on that theory. Respondent did
not file a brief or argue his case. The ‘“‘amicus”’ Secretary
of Labor of the United States, basing his argument on is-
sues not raised on appeal, insisted, in a supplemental brief
on appeal, and in his argument, that respondent’s case arose
solely under local law.

On May 26, 1955 the Circuit Court affirmed the decision of
the Supreme Court of Puerto Rico on the grounds that ‘‘we
think that the Supreme Court (of Puerto Rico) rightly de-
cided in its second opinion thet the plaintiff's claims arose
under the local law rather than under the Federal Fair
Labor Standards Act and that it was not necessary for the
Court to consider the nature of the statute of limitations
contained in Section 6 of the Portal-to-Portal Act’’; that
although ‘‘the Legislature of Puerto Rico reduced, in the
case of industries covered by the Federal Act, the length
of the workwee": to conform to the Federal standard of 40
hours and provided in the case of such industries for the
payment of time and a half as provided in the Federal Act,
instead of double time, for excess hours worked, ...”’
that did not mean ‘‘as the Supreme Court in its opinion
assumed, that the amount of overtime compensation pro-
vided by the local and Federal acts is identical . . . be-
cause the two acts differ as to the manner in which the
employee’s regular rate is computed’’; that ‘‘in its first
spinion the Supreme Court [of Puerto Rico] pointed out
that the Puerto Rican act is more favorable to the employee
than the Federal act in that it provides that the guaranteed
weekly wage is to be divided by the number of ‘regular
hours’ worked, in this case 40, instead of by the actual num-
ber of hours worked, . . . ” and that the methods for the
computation of the ‘‘regular rate’’ under the Fair Labor
Standards Act ‘‘necessarily results in a lower hourly basic
rate than that computed under the Puerto Rican Meo

10

wherefore it followed ‘‘that the plaintiff’s entire claim is
necessarily based upon the local law and not upon the
Federal Fair Labor Standards Act ... ’’ (R. on A., pp.
A91-A98.)

Your petitioners applied for and obtained a retention of
the mandate on June 23, 1955 and filed a petition for re-
hearing on July 7, 1955 (R. on A., pp. A101-A106) request-
ing the Circuit Court to set aside its opinion on the grounds
that:

1. The Cireuit Court had no jurisdiction to enter into
and decide the question of local law, because

(a) The Supreme Court of Puerto Rico did not make
a final determination of the same.

(b) The appellate jurisdiction of the Circuit Court
had been invoked solely for the revision of a federal
question.

(c) The broad appellate jurisdiction of the Circuit
Court to review questions of local (Puerto Rican) law,
as originally defined in Municipality of Rio Piedras v.
Serra, Garabis & Co., 65 F.2d 691, was substantially
restricted by the decisions of this Court, in De Castro v.
Board of Commissioners, 322 U.S. 451, 88 L.Ed. 1384
and Sancho Bonet v. Yabucoa Sugar Co., 306 U.S. 505,
83 L.Ed. 946, and by the creation of the Commonwealth
of Puerto Rico.

(d) The decision of the Supreme Court of Puerto
Rico, in touching upon a local act and withholding final
construction of the same, was not reviewable under the
rule of the Sancho Bonet and De Castro cases.

2. Puerto Rican Act No. 379 of 1948, insofar as it pro-
vides for paymcat of overtime at the rate of time and a
half for hours worked in excess of 40 per week in indus-
tries engaged in interstate commerce and covered by the

11

Fair Labor Standards Act, is identical to the latter Act
and pro tanto, actions brought to recover for such overtime
are necessarily subject to the limitations of the Portal-to-
Portal Act.

3. Congress did not intend to permit the States to regu-
late the same employer-employee relations in interstate.
commerce with different and varying periods of limitations
throughout the nation by means of the approval of state
laws for better wages and/or hours.

4. Congress did not intend to sanction discrimination
against employees otherwise covered by the Fair Labor
Standards Act, but whose claims found no basis under local
statutes and in favor of empleyees also covered by the
above Act, merely because they could bring a similar claim
under local statutes.

5. The limitations provisions of the Portal-to-Portal Act
are applicable to any cause of action for wages in interstate
commerce, regardless of the statute giving rise to the same.

6. Section 5 of Act 379 of 1948 of Puerto Rico, insofar as
it applies to employers also covered by the Fair Labor
Standards Act, is identical to the provisions of the Fair
Labor Standards Act and therefore null and void, because

(a) It transcends the legislative field reserved or
granted to the States under Section 18 of the Fair
Labor Standards Act.

{b) It attempts to establish a different mechanism
for the computation of the regular rate of pay than that
established under the Fair Labor Standards Act.

(c) The power to change the Federal formula for
regular rate of pay would trench upon the provisions
of the Fair Labor Standards Act and could potentially
be construed and used as a general power by the States
to accomplish, by legislative scheme, purposes not con-
teniplated by Congress under Section 18 of the Fair

12

Labor Standards Act and to justify the same on the
sole ground that it might yield a higher take-home pay.

7. The danger and inadvisability of adjudicating on ap-
peal a question left open by the lower court (ie., the Su-
preme Court of Puerto Rico) in this case is illustrated by
its possible implications and premature impact upon other
issues now pending before the Supreme and lower Courts
of Puerto Rico.

Rehearing was denied by the Cireuit Court of Appeals
on August 3, 1955, without opinion. (R. on A., p. 107.)

Reasons for Granting the Writ

1. Tae Unurmiren Appretiate Jurispiction AsseRTED BY
THE Unrrep States Circuit Court or APPEALS FOR THE |
Fiest Crrcurt in Reviewrne Decisions oF THE SuPREME
Court oF Purrto Rico on Questions or Loca Law
Ovent To Be Revisep py THis Court 1n a MANNER Con-
sistent With General FeperaL APPELLATE J vURISDIC-
TION, Witu tHe Decisions or Tuis Court ConcerNninG
Puerto Rico’s Lecistative, Srate-Like, AvTONOMOUS
Conprrion anp Wits Puerto Rico’s Newiy Acqumerp
CoMMONWEALTH Status.

(a) General Limitations of Appellate Jurisdiction of Cir-
cuit Court of Appeals

The appeal below solely raised a federal question. (28
U.S.C. 1293.) The only question brought up on appeal,
briefed, argued and submitted to the Cireuit Court was that
concerning the nature of the limitations of Section 6 of
the Portal-to-Portal Act. The scope of the appeal, there-
fore, was necessarily limited to that issue. U.S. v. Crescent
Amusement Co., 323 U.S. 173, 89 L.Ed. 160, 167, Reh.Den.

13

323 U.S. 818, 89 L.Ed. 650. The Circuit Court, however,
decline? to decide the question on the ground that re-
spondent’s cause of action arose under local law No. 379
of 1948 and was, therefore, not subject to the limitations
of the Portal-to-Portal Act. In arriving at that result, the
Cireuit Court (1) construed the local law in a manner
different and opposite to the Supreme Court of Puerto Rico
and concluded that the provisions of the local act for the
payment of time and a half over a regular workweek of
forty hours and for the computation of regular rate of pay
by dividing total pay by a week of forty hours—yielded a

_ “more favorable’’ result than the Fair Labor Standards

Act, and (2) therefore assumed the validity of the local law.
The first question was decided by the Supreme Court con-
trary to the decision of the Circuit Court and the same was
not raised on appeal. The second was left open by the
Supreme Court of Puerto Rico. The Circuit Court, under
well established general principles of appellate jurisdiction,
should have been precluded from going into and/or deciding
the same (Waiters v. St. Louis, 347 U.S. 231, 98 L.Ed. 660,
664; Radio Station WOW, Inc. v. Johnson, 326 US. 120,
89 L.Ed, 2092, 2097; Grayson v. Harris, 267 U.S. 352, 69
L.Ed, 652, 696; Helvering v. Hormel, 111 F.2d 1, 5, aff'd
Hormel v. Helvering, 312 U.S. 552, 85 L.Ed. 1037; Publicity
Building Realty Corporation v. Hannegan, 139 F.2d 583, _
587; Consolidated Royalties vy. Ashton, 132 F.2d 226, 229),
the decision of the Supreme Court of Puerto Rico not con-
stituting a deliberate evasion of a federal question by a
decision on a local law ground (Radio Station WOW, Inc. v.
Johnson, supra, L.Ed. p. 2100; Nickel v. Cole, 256 U.S, 222,
65 L.Ed. 900, 905; Nevada-California-Oregon R. Co. v. Bur-
rus, 244 U.S. 103, 61 L.Ed. 1019, 1022; Atlantic C.L.R. Co. v.
Mims, 242 U.S. 532, 61 L.Ed. 476, 478); nor being the deci-
sion of the questions imperative to dispose of the federal
question brought up on appeal. Public Utilities Com. v.

14

United Fuel Gas Co., 317 U.S. 456, 87 L.Ed. 396, 400;
Sterling v. Constantin, 287 U.S. 378, 77 L.Ed. 375, 383.

(b) Scope of Asserted Appellate Jurisdiction of the Court
of Appeals for the First Circuit on Questions of Local
Laws of Puerto Rico

The Circuit Court of Appeals for the First Cireuit, how-
ever, has consistently reiterated that its appellate jurisdic-
tion is not subject to the limitations under (a) above, on
appeals from decisions of the Supreme Court of Puerto
Rico holding that in such cases, regardless of amount in
controversy or the appellate ground invoked, it can examine
the whole record and decide questions of Puerto Rican local
laws. Mercado Riera v. Mercado Riera, 152 F.2d 86, 92;
Gelpi v. Tugwell, 123 F.2d 377, 382; Municipality of Rio
Piedras v. Serra, Garabis & Co., 65 F.2d 691, 700-702.

The Serra case, decided in the year 1933, in construing
28 U.S.C. 1293, broadly asserted this unlimited and peculiar
appellate jurisdiction stating that Congress ‘‘in conferring
jurisdiction [on the Court of Appeals for the First Circuit]
to review the final decisions of the Supreme Court of Puerto
Rico, placed no such limitation upon its scope of review .
and left it unrestricted,’’ and that ‘‘it cannot reasonably be
contended that the People of Puerto Rico stand like a State
and that questions of local law decided by the Supreme
Court of Puerto Rico are not subject to review here...
The people of Puerto Rico and its courts are the creatures
of Congress—not so a State court and its agencies.’’ Munic- :
ipality of Rio Piedras v. Serra, Garabis & Co., supra, pp.
700-701. Later decisions of the Cireuit Court of Appeals
have reaffirmed this principle. —

28 U.S.C. 1293, though not in specific language denying
such broad assumption of appellate jurisdiction, does not
warrant or require that the Court of Appeals, motu proprio,

15

enter into questions of local laws not raised on appeal and
not adjudicated by the Supreme Court of Puerto Rico. The
power to review judgments of the Supreme Court of Puerto
Rico on questions of local law does not call for its exercise
without regard to the issues brought up on appeal and to
the usual rules of appellate practice. Following the princi-
ples controlling the appellate jurisdiction of other Courts
of Appeals will not detract from such power. Examining
the whole record on appeal without heed to the errors as-
signed, adds nothing to such power of review and only
brings confusion and uncertainty into appeals to the First
Cireuit, where a party is never sure of the grounds upon
which his case will be decided, and is constantly subjected
to the risk of having his appeal disposed of on grounds not
assigned on appeal and, therefore, not adequately briefed or
properly discussed.

(c) Limitation of the Serra Doctrine by Subsequent Deci-
stons of this Court

Assuming, arguendo, that the Serra case constituted a
correct exposition of the appellate jur‘sdiction of the Cir-
cuit Court of Appeals for the First Circuit in eases coming
from Puerto Rico, its scope has been effectively limited by
subsequent decisions of this Court. The Serra case was
decided in the year 1933. Puerto Rico v. Shell Co., 302 US.,
253, 82 L.Ed. 235, decided by this Court in the year 1938,
held that the Congress, in enacting the Foraker Act (39
Stat. at L. 951), intended ‘‘to give Puerto Rico full power
of local self-determination, with an autonomy similar to
that of the States and incorporated territories’’; that ‘‘the
effect was to confer upon the territory many of the attri-
butes of quasi-sovereignty possessed by the States’? and
that ‘‘so far as local matters are concerned .. . legislative
powers were conferred nearly, if not quite, as extensive as

an

16

those exercised by the state legislatures.’’ Puerto Rico vy.
Shell, supra, L.Ed. pp. 242-243. To the same effect see
People of Puerto Rico v. Rubert Hermanos, 309 U.S. 543,
84 L.Ed. 916. Thus, the very foundation of the Serra
doctrine, Puerto Rico’s subservience, was seriously ques-
tioned, for if Puerto Rico enjoys a position similar to that
of a State for legislative purposes, there is no legitimate or
practical justificat‘on for the Serra doctrine.

Furthermore, the political mutation of Puerto Rico from
® non-incorporated, organized territory into a Common-
wealth would also seem to detract from the necessity of such
broad revisionary power.

(d) Limitation of the Serra Doctrine by the ‘‘Patently
Erroneous’’ or ‘‘Inescapably Wrong’’ Requirement

This Court has further restricted the appellate jurisdic-
tion of the Circuit Court of Appeals for the First Circuit
in dealing with decisions of the Supreme Court of Puerto
Rico bearing on questions of local laws. Bonet v. Yabucoa
Sugar Co. (1939), 306 U.S. 505, 83 L.Ed. 946, 949, and De
Castro v. Board of Commissioners, (1944), 322 U.S. 451, 88
L.Ed. 1384, 1392, while not restricting the occasions for the
exercise of the revisionary power of the Court of Appeals
for the First Circuit, have laid down the rule that judg- |
ments of the Supreme Court of Puerto Rico on questions
of local law must be deferred to unless inescapably wrong
or patently erroneous, thus practically assimilating revision
of judgments of the Supreme Court of Puerto Rico to that
of State judgments bearing on State laws. De Castro v.
Board of Commissioners, supra, L.Ed. p. 1393.

Petitioners submit that after De Castro, the rule of Serra
was inapplicable to appeals from Puerto Rican judgments
on questions of local laws. The broad rule in Serra is
incompatible witli the restrictions in De Castro. Thus, under

17

Serra and De Castro, the Circuit Court could at any time
examine the whole record on appeal, if only to affirm on
questions of local law, a power which has not, up to the
present, yielded, as far as petitioners know, a single re-
versal.

(e) The Circuit Court of Appeals for the First Circuit
Circumvented the De Castro Rule and the Provisions
of 28 U.S.C. 1293

The Cireuit Court entered into, laid down the construction
and upheld the validity of Section 5 of Puerto Rico Act No.
379 of 1948 in a manner inconsistent with the decision of the
Supreme Court of Puerto Rico, in leaving the questions open
for future decision. With no ‘‘final decision’’ of the Su-
preme Court of Puerto Rico on the question of the validity
of the local act (Ocean Park Development Corp. v. People
of Puerto Rico, 204 F.2d 371, 373), and with no showing of
patently or manifestly erroneous in the reasoning of the
Supreme Court of Puerto Rico, the Circuit Court undertook
to decide, contrary to the said Supreme Court, that the
local act was different from the Fair Labor Standards Act
and, therefore, by implication, that the same was valid.
Thus, by deciding in advance a question of local law left
open for decision, the Circuit Court sought to avoid the
inescapably wrong sine qua non of revision of Puerto Rican
final decisions on questions of local law and the provisions
of 28 U.S.C. 1293, granting review only of ‘‘final decisions’’
of the Supreme Court of Puerto Rico.

(f) This Court Can Decide the Questions Left Undecided
by the Circuit Court of Appeals

The issues are clear on the record and nothing would be
gained, if this Court shall reverse the Circuit Court, by

18

sending the case down for further proceedings. In all like-
lihood, the case will again be brought to this Court for final
determination. Furthermore, the questions posed are of
such importance that they warrant a decision by this Court
in order to settle them at the first available opportunity,
Kiefer-Stewart v. Seagram, 340 U.S. 211, 95 L.Ed. 219, 224;
Ecker v. Western Pacific R. Corp., 318 U.S. 448, 87 L.Ed.
892, 940; Story Parchment Co. v. Paterson P. Paper Co., 282
U.S, 555, 75 L.Ed. 544, 551.

2. Tur Statute or Limitation Provision or Section 6 or
THE PortaL-To-PortaL Act 1s SusstTaNnTIve In Nature

Both the intent of the Congress in framing the Portal-to-
Portal Act and the language in which the Act is couched,
warrant the conclusion that the same was designed as a
means to terminate and extinguish the causes of action for
wages in interstate commerce not exercised within the time
allotted by it.

Congress intended to establish a uniform statute of limita-
tions in order to relieve interstate commerce of the difficul-
ties arising from the potential retroactive liability which —
might have been imposed upon employers under the
different State statutes of: limitations. (House Report
No. 71, February 25, 1947, U.S. Code Congressional
Service, 80th Congress, First Session, pp. 1029, 1036;
Portal-to-Portal Act, Congressional Findings and Dee-
laration of Policy, 29 U.S.C., Section 251.) “The intent
of Congress could be made futile and academic if the
statute approved were remedial in nature and, there-
fore, subject to the various and different State statutes
bearing upon the manner in which statutes of limitations
may be tolled.

Furthermore, State courts, if the statute be held remedial
in nature, will not be bound to apply its provisions and will

19

apply the law of the forum in deciding claims under the
Fair Labor Standards Act, thus thwarting the Congres-
sional Policy of uniformity and limited retroactive liability
in wage claims in the interstate commerce field. Bindczyck
v. Finucane, 342 U.S. 76, 96 L.Ed. 100, 110; Angel v. Daven-
port, 271 U.S. 33, 70 L.Ed. 813, 817-818; Arnson v. Murphy,
109 U.S. 238, 27 L.Ed. 920, 922; Developments in the Law—
Statute of Limitations, 63 Harv. L. Rev. 1177, 1186-7.

The rights emanating from the Fair Labor Standards Act
are creative rights, unknown to the common law. Rogers
Cartage Co. v. Reynolds, 166 F.2d 317, 320-321; Local 626,
etc. v. General Motors Corporation, 76 F.Supp. 593, 594; ©
Role v. J. Neils Lumber Co., 74 F.Supp. 812, 814, aff’d 171
F.2d 706. Statutes limiting the time within which such
rights may be exercised are construed as substantive limits
on the right or as a condition precedent to their exercise.
Midstate Horticultural Co. v. Pennsylvania R. Co., 320 US.
356, 88 L.Ed. 96, 100; A. J. Phillips Co. v. Grand Trunk W.
R. Co., 236 U.S. 662, 59 L.Ed. 774, 776. The limitations of
the Portal-to-Portal Act, furthermore, form part of the
. Fair Labor Standards Act (Jackson v. Northwestern Air-
lines, 76 F.Supp. 121, 125, reversed on other grounds, 185
F.2d 74, cert. den. 342 U.S. 812, 96 L.Ed. 614) and must be
taken as an integral part of the same in the statute and not
form part of the general law of limitations.

Finally, the language in which the limitations are couched
point to the conclusion that the statute is substantive .in
nature. Section 6(a) of the Portal-to-Portal Act refers to
‘causes of action’’ and expressly provides that ‘‘every such
action’’—obviously meaning. the ‘‘causes of action’’—not
brought within the stated time ‘‘shall be forever barred.’’
This language is not usual in remedial limitations and its
positive declaration, in keeping with the intent of the Con-
gress in framing the same and the historical medium in
which it was adopted, lead to no other result than that the

20

limitation is substantive. (Wiliam Danzer & Co. v. Gulf
€ I.R. Co., 268 U.S. 633, 69 L.Ed. 1126, 1129; A. J. Phillips
Co. v. Grand Trunk W.R. Co., supra; Finn v. United States,
123 U.S. 227, 31 L.Ed. 128, 130; Sgambati v. U. S., 172 F.2d
297, 298; Joint Council, etc. v. Delaware, L. & W. R. Co.,
157 F.2d 417, 420; Pennsylvania Co. for Insurances, etc. v.
Deckert, 123 F.2d 979, 984-985; John F. Jelke Co. v. Smie-
tanka, 86 F.2d 470, 471, 473; De Bonis v. U. S., 103 F.Supp.
123, 126; Paschal v. North Atlantic € Gulf S.S. Co., 95 F.
Supp. 293, 295; Adams v. Albany, 80 F.Supp. 876, 880-882;
Berry v. Heller, 79 F.Supp. 476, 477; O’Neill v. Cunard
White Star Ltd., 69 F.Supp. 948, 945; Awad v. Durant, 69
F.Supp. 921; U. 8. v. MacEvoy, 110 F.R.D. 323, 325.

3. Tue Provistons or Section 18 or tHe Fam Lasor
Sranparps Act (29 U.S.C. 218) po nor ConstrruTE a
**Carte Buancue’’ To THE STATES AND TO Pverto Rico
To Enact Aux Sorts or Locat LecisLation THAT WovLp
OVERRIDE THE PRovisIONS OF THE F'ark Lasor StTanparps
Act AND oF THE PortaL-To-PortaL Act

Section 18 of the Fair Labor Standards Act recognizes
State action in two clearly defitied fields, a lower maximum
workweek and a higher minimum salary. By the same
token, the other particulars of the employer-employee rela-
tion in interstate commerce are exeluded from State action
(Weber v. Anheuser-Busch, U.S. ,99 L.Ed. (Advance
pp. 368, 394) ), especially in view of the Congressional intent
to establish uniform legislation on a national level. Walling
v. Jacksonville Paper Co., 317 U.S. 564, 87 L.Ed. 460, 465-
466. The States were not, therefore, allowed by Section 18
to approve legislation identical to the provisions of the
Fair Labor Standards Act or, as pointed by the Circuit
Court, ‘‘to conform to the Federal Standards >f 40 hours.”’
Moreover, such legislation would not only be outside the

21

scope of that permitted by Section 18, but would also coin-
cide with the provisions of the Federal Act and would there-
fore be null and void. Bethlehem Steel Corp. v. New York
Labor Rel. Bd., 330 U.S. 767, 91 L.Ed. 1234, 1247; Missouri
P. R. Co. v. Porter, 273 US. 341, 71 L.Ed. 672, 675; Charles-
tond W.C. R. Co. v, Varnville Furniture Co., 237 U.S. 597,
59 L.Ed. 1137, 1140. The provisions of Section 5 of Puerto
Rico Act No. 379 of 1948 insofar as they coincide with the
federal wage and hour standards are, therefore, invalid.

The Cireuit Court found, however, that such provisions,
when taken together with those other of the said Section 5
establishing a different mechanism to arrive at ‘‘regular
rate of pay’’ made the local act ‘‘different’’ from the Feder-
al Act, in that-it yielded a ‘‘more favorable’’ result to the
employee and therefore presumably established a higher
wage. But this mathematical result does not warrant the
conclusion reached by the Court, nor does it sustain the
validity of Section 5. The States were not left free to adopt
any kind of legislation, and by devious means to override the
provisions of the Fair Labor Standards Act, provided it
yielded a better take home pay to the employee. If such
were the case, the States would be free to “‘establish a
higher minimum wage’’ by trenching upon the exemptions
granted by the Federal Act, or as in this case, altering the
method for the computation of the regular rate of pay,
which also forms part of the Federal Act. Bayridge Oper-
ating Co. v. Aaron, 334 U.S. 446, 92 L.Ed. 1502, 1517; Wall-
ing v. Halliburton Oil Well Cement Co., 331 U.S. 17, 91 L.Ed.
1312, 1318.

Furthermore, an interpretation of Section 18 of the Fair
Labor Standards Act, as would allow the States to leave
without effect the exemptions of the Federal Act and to
change its mechanism for the computation of regular rate of
pay, would leave the applicability of those provisions to the
discretion of the States and would lead to differentiations in

22

interstate commerce not contemplated by the Act (29 U.S.C.,
Section 208(6)). (Walling v. Jacksonville Paper Co., supra,
L.Ed. pp. 465-466 ; Jerome v. United States, 318 U.S. 101, 87
L.Ed. 640, 643; United States v. Pelzer, 312 U.S. 399, 85
L.Ed. 913, 915; Knickerbocker Ice Co. v. Stewart, 253 U.S.
149, 64 L.Ed. 834, 840-841.)

4. Tue Statute or Lrurtations Provision or Secrion 6
oF THE Portat-To-PortaL Act Appuigs To ALL CLAIMS
For Waces 1x Interstate COMMERCE REGARDLESS OF
Tuer Oriern Unper Loca Laws

The evil sought to be remedied by the Portal-to-Portal
Act was of a national character (Northwestern-Hanna Fuel
Co. v. McComb, 166 F.2d 932, 939; W. U. Tel. Co. v. McComb,
165 F.2d 65, 73), and it is to be presumed that the remedy
adopted was in the same order. (United States v. American
Trucking Association, 310 U.S. 534, 84 L.Ed. 1345, 1350-
1351.) The Portal-to-Portal Act—if it is to be effectively
operative in interstate commerece—must govern and limit all
eauses of action for wages in the said commerce. To hold
otherwise would lead to the conclusion that even after the
enactment of 1947 the States were left free, under the pro-
visions of Section 18 of the Fair Labor Standards Act, or
otherwise, to adopt legislation that would render the Act
academic and which would stand as an obstacle to the ac-
complishment of the objectives of Congress. This result is
more necessary if the States, in enacting legislation within
the scope of the limits of Section 18 of the Fair Labor
Standards Act, raise the minimum wages and/or lower the
maximum workweek of the Federal Act, with the result, if
the employer-employee relation be then controlled by the
State statute of limitations, of reproducing, perhaps in
worse form, the conditions which prompted Congress to
enact the Portal-to-Portal Act. Weber v. Anheuser-Busch,

23

supra, L.Ed. p. 386; Amalgamated Ass’n v. Wisconsin Emp.
Rel. Bd., 340 U.S. 383, 95 L.Ed. 364, 375; Hill v. Florida, 325
U.S. 538, 89 L.Ed. 1782, 1784-1785; Hines v. Davidowitz,
312 U.S. 52, 85 L.Ed. 581, 587.

Conclusion

For the above stated reasons, it is respectfully submitted
that this petition for a writ of certiorari be granted.

Earnie T. Frppier
Counsel of Record
P. O. Box 3507
San Juan 17, Puerto Rico
Attorney for Petitioner
JosE G. GonzaLEz
Tomas I. Nipo
Cartos J. Faure
Of Counsel
P. O. Box 3507
San Juan 17, Puerto Rico ,

August , 1955.

24

APPENDIX

SE UEEEEEnEEEEEEEEE

Opinion Below

Oprnton OF THE CouRT.
May 25, 1955..

Maris, Circuit Judge. This is a suit by the plaintiff,
Jose A, Pena, against his employers, the defendants East-
ern Sugar Associates, a trust, for unpaid overtime com-
pensation which he alleges is due him under the provisions
of Act No. 379, Laws of Puerto Rico, 1948. The suit was
brought in the former insular district court. The defense
was that the parties had entered into an employment cor-
tract of the so-called Belo type? which precluded the claim.
The district court overruled the defense and entered judg-
ment for the plaintiff. From this judgment both parties
appealed to the Supreme Court of Puerto Rico. That court,
upon the appeal of the defendant, upheld the conclusion
of the district court that the contract between the parties
was not a Belo type contract and that the plaintiff was
therefore entitled to recover overtime compensation. Upon
the appeal of the plaintiff the Supreme Court modified the
judgment so as to award the plaintiff overtime compensa-
tion computed on the basis of a regular workweek of 40
hours instead of 48 hours, the figure used by the district
court. P.R.R.

The defendants asked the Supreme Court to reconsider
its decision on the ground, then asserted for the first time,
that the statute of limitations contained in section 6 of the
Federe! Portal-to-Portal Act of 1947? barred the portion
of the claim in suit which arose prior to November 7, 1949,
two years before the suit was begun. The Supreme Court

1See Walling v. Belo Corp., 1942, 316 U.S. 624.
229 U.S.C.A. § 255.

25

denied the motion in an opinion holding that the plain-
tif’s claim arose exclusively under the local l.w of Puerto
Rico and not under the Federal Fair Labor Standards
Act and that the statute of limitations contained in section
6 of the Portal-to-Portal Act did not apply to suits brought
to enforce claims io overtime compensation arising under
local law. P.R.R.

Upon a second motion by the defendants, however, the
Supreme Court gave further consideration to the defend-
ants’ contentions, filing a third opinion in which it con-
sidered the question whether the suit was not in fact for
overtime wages due under the Federal Fair Labor Stand-
ards Act and whether in such a suit the issue of the bar
of the statute of limitations or prescription under section
6 of the Portal-to-Portal Act could be raised for the first
time on appeal. Concluding that section 6 was a procedural
statute which barred the remedy but did not extinguish
the right the court held that since this defense had not
been raised at the trial it had been waived and could not be
raised on appeal. Stating that in view of this conclusion it
preferred to leave open the question whether the Puerto
Rican statute of limitations rather than section 6 of the
Portal-to-Portal Act applied to wage claims for which both
the Federal and the local law provide exactly the same
standards, the Supreme Co: :t again denied reconsideration.

P.R.R. . The present appeal by the defendants
followed. .

We think that the Supreme Court rightly decided in its
second opinion that the plaintiff’s:elaims arose under the
local law rather than under the Federal Fair Labor Stand-
ards Act and that it was not necessary for the court to
consider the nature of the statute of limitations contained
in section 6 or the Portal-to-Portal Act.

Section 18 of the Fair Labor Standards Act provides
that no provision of that act ‘‘shall excuse non-compliance

26

with any Federal or State law or municipal ordinance
establishing a minimum wage higher than the minimum .
wage established under this Act or a maximum workweek
lower than the maximum workweek established under this
Act’’.? Thus the States, and this undoubtedly includes the
Commonwealth of Puerto Rico, are given freedom of action
to establish higher standards than those established by the
Federal act. Puerto Rico has done so by Act No. 379, Laws
of Puerto Rico, 1948, under which this suit was brought.
The pertinent portions of that act follow:

‘*Section 2. Eight hours of work constitute the legal
working day in Puerto Rico.

Forty-eight hours of werk constitute a working week,

Two hundred and eight hours of work constitute a
working month.

Section 3. Regular hoars of work are eight hours
during any period of twenty-four consecutive hours,
forty-eight hours during any week, and two hundred
and eight hours during any month; .. .

Section 4. Extra hours of work are:

(a) The hours that an employee works for his em-
ployer in excess of eight hours during any period of
twenty-four consecutive ours;

(b) The hours that ar employee works for his em-
ployer in excess of forty-eight hours during any week,
unless the hours worked daily in excess of eight are
paid at double rates;

(e) The hours that ar employee works for his em-
ployer during the day o! rest heretofore or hereafter
fixed by law in the case of businesses and industries
not subject to the closing of their establishments;

399 U.S.C.A. § 218.

27

Section 5. Every employer who employs or permits
an employee to work during extra hours shall be
obliged to pay him for each extra hour a wage rate
equal to double the rate agreed upon for regular hours;
Provided, however, That every employer in any indus-
try in Puerto Rico covered by the provisions of the
Fair Labor Standards Act enacted by the Congress of
the United States of America on June 25, 1938, as
heretofore or hereafter amended, shall be under obli-
gation to pay only for each hour of work in excess of
the legal eight-hour working day, or in excess of forty
(40) hours a week, a wage at the rate of not less than
time and a half the rate of wage agreed upon for
regular hours, save when by a decree of the Minimum
Wage Board or by a collective labor agreement, other
working and/or compensation standard is heretofore
or hereafter fixed. To determine the wage rate agreed
upon for regular hours of work, the daily, weekly, or
monthly wages, or wages otherwise stipulated, shall be
divided by the number of regular hours worked during
that same period in accordance with the provisions of
this Act.

Section 7. If an employee works for a weekly wage,
the wage stipulated shall cover solely the payment of
the regular working hours during each week.

“S: aee Ko ees

Section 13. Any employee who receives a compensa-
tion less than that fixed by this Act for regular hours
and extra hours of work shall be entitled to recover
from his employer, through civil action, the sums un-
paid, plus an equal sum as liquidation of damages, in
addition to the costs, expenses, and attorney’s fees of
the proceeding.’’

28

It will thus be seen that the local law authorizes suits
by employees for the recovery of unpaid overtime compen-
sation plus an equal sum of liquidated damages. It is quite
clear from the record that the present suit was brought
under the authority of this act. The plaintiff was paid
under his employment contract a guaranteed weekly wage
of $34.00. The contract also specified hourly rates. But
since the Supreme Court held that these rates were ficti-
tious and arbitrary and its ruling in this regard is not :
here appealed from we need not consider them. The plain.

tiff’s claim is for overtime pay predicated upon daily work ~

after 8 hours, work on days of rest, and in some weeks
work for more than 40 hours but not more than 8 hours
on any one day or at all on a day of rest.

With respect to the first two bases for the plaintiff’s
claim, that is, daily work after 8 hours and work on days
of rest, he claims time and a half and double time, respec-
tively, under section 5 of Act No. 379. Since there is no
similar provision in the Federal law it is perfectly clear
that this part of his claim is solely under the local law.
With respect to the portion of the plaintiff’s claim based
on work for more than 40 hours in one week but not more
than 8 hours in any one day or at all on a day of rest the
matter is more complicated. For this claim is based on the
proviso in section 5 of Act No. 379 ‘‘That every employer
in any industry in Puerto Rico covered by the provisions
of the Fair Labor Standards Act . . . shall be under obliga-
tion to pay only for each hour of work . . . in excess of
forty (40) hours a week, a wage at the rate of not less than
time and a half the rate of wage agreed upon for regular
hours ... ’’ Thus the Legislature of Puerto Rico reduced,
in the case of industries covered by the Federal act, the
length of the workweek to conform to the Federal standard
of 40 hours and provided in the case of such industries for
the payment of time and a half as provided by the Federal

29

act, instead of double time, for excess hours worked.* But
this does not mean, as the Supreme Court in its third
opinion assumed, that the amount of overtime compensation
provided by the local and Federal act is identical in the
case of one who works more than 40 hours a week but not
more than 8 hours in any one day or at all on a day of rest.

This is because the two acts differ as to the manner in
which the employee’s regular rate is computed for overtime
purposes. In its first opinion the Supreme Court pointed
out that the Puerto Rican act is more favorable to the
employee than the Federal act in that it provides that the
guaranteed weekly wage is to be divided by the number of
“regular hours’’ worked, in this case 40, instead of by the
actual number of hours worked, in determining the ‘‘rate
agreed upon for regular hours’? which is the basis for com-
puting time and a half for extra hours worked. We agree
with the Supreme Court that this conclusion is compelled
by the last sentence of section 5 and by section 7 of Act No.
379. Under the Federal Fair Labor Standards Act, how-
ever, the ‘‘regular rate at which he is employed’’ which is
the basis for the overtime compensation of an employee
who. works more than 40 hours in a week is to be found by
dividing the weekly compensation by the total number of
hours actually worked in that week® This necessarily
results in a lower hourly basic rate than that computed
under the Puerto Rican act. Accordingly in every case in

* Section 7(a) of the Federal Fair Labor Standards Act, as amended,
provides as follows:
“(a) Except.as otherwise provided in this section, no employer
shall employ any of his employees who is engaged in commerce
or in the production of goods for commerce for a workweek longer
than forty hours, unless such employee receives compensation for
his employment in excess of the hours above specified at a rate
not less than one and ene-half times the regular rate at which
he is employed.” 29 U.S.C.A. § 207(a).
* Overnight Motor Co. v. Missel, 1942, 316 USS. 572; Bay Ridge
Co. v. Aaron, 1948, 334 U.S. 446.

30

which the plaintiff worked for more than 40 hours for his ©
weekly wage of $34.00 the overtime compensation to which |
he was entitled under the Puerto Rican act was greater than j
that provided for by the Federal act, regardless of whether ~
or not he worked on a rest day or for more than 8 hours on —
any other day. q

It follows that the plaintiff’s entire claim is necessarily ©
based upon the local Jaw and not upon the Federal Fair ~
Labor Standards Act. The statute of limitations imposed —
by section 6 of the Portal-to-Portal Act by its terms, how- ©
ever, applies only to suits to enforce causes of action ‘‘under —
the Fair Labor Standards Act of 1938, as amended, the —
Walsh-Healey Act, or the Bacon-Davis Act’’. It does not ©
purport to apply to similar causes of action arising under q
state law® and was not intended to do so, as the legislative ~
history clearly shows.” It is, therefore, unnecessary for us ©
to determine whether section 6 of the Portal-to-Portal Act ~
is substantive or procedural or to consider what its effeet |
might be under other circumstances than those at bar. :
The judgment of the Supreme Court will be affirmed.

6 Whether it could constitutionally be applied to bar suits for the ~
enforcement of purely state causes of action we need not consider. >

7 “The limitation herein provided applies only to the statutory actions ~
or proceedings set forth in the acts enumerated in Section 5 of H.R. —
2157 [which became the Portal-to-Portal Act]. Actions under the ~
common law, or under State statutes for recovery of wages are not ~
affected.” _H. Rept. No. 71, 80th Cong., 1st Sess., p. 7. 4

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_0238%3A1. Public record. Not legal advice.