# Petition for Writ of Certiorari — Goldberg v. Wade Lahar Construction Co. (No. 359) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_1219%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1961 ## Text Cfflea-Sunreme Gout, US F { - ae ge Bee & } . AUG 25 194] ‘ j ae ay, '§ JAMES R. BRONING Cink t ! No.e 3G Jn the Supreme Court of the United States OcToBER TERM, 1961 ARTHUR J. GOLDBERG, SECRETARY OF LaBor, UNITED STATES DEPARTMENT OF JLABOR, PETITIONER v. WabDE LaHaR CONSTRUCTION Co. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ARCHIBALD COX, Solicitor General, Department of Justice, Washington 25, D.C. CHARLES DONAHUE, Solicitor, BESSIE MARGOLIN, Assistant Solicitor, BEATE BLOCH, Attorney, Department of Labor, Washington 25, D.C. INDEX Opinions below - Binge Jurisdiction _ - ; ihe Questions presented __. Statute involved. - Statement. - - @ Reasons for granting the writ—- - - Conc.usion..2 _ . ay Appendix. CITATIONS Cases: Archer v. Brown & Root, Inc., 241 VF. 2d 663, certiorari denied, 355 U.S. 825... _ _-- Ariza v. California, 283 U.S. 423... .-_-- Ausiford vy. Goldberg, decided June 29, 1961, 15 WH Cases 135_-- oT a eae Bennelt v. Loftis Co.. 167 I. 2d 286. _._-__- Berman v. Parker, 348 U.S. 26---- cae Bodden v. McCormick Shipping Corp., 188 F. DN er ee eine een ose Compania de Ingenicros y Contratistas, Inc. v. (roldberg; Quilichini v. Goldberg, 289 F. 2d 78. Crook v. Bryont, 265 ¥. 2d 541_---.---- Davis v. United a - F. 2d 938, cert:orari Gee, Bee we. Gee. «..--..-.-..,..-.-. Emulsi fied Asphalt eau Co. v. =a aga ©. 2a Sis... ...- .-- Be. Goldberg v. Nolla, Galib & Cia.; “Goldberg Vv. Five Roro, decided June 15, 1961, 15 WH RC Re re wea kek Rane 6057 °3 61 ----1 ip a) 21 Il Cases—Continued Goldberg v. Owen, decided June 30,1961,15 WIL page Cases 139_. 1] Kirschbaum Co. v. Walling, 316 U.S. 517 13 Mitchell v. Hooper Equipment Co., 270 F. 2d 893 _ - - . 1] Mitchell v. Lublin, McGaughy & Asso., 358 ag ig Waa 12 Mitch-"l v. Vollmer, 349 U.S. 427. ise... PTZ Mitchell v. Zachry Co., 362 U.S. 310. 11, 12,13 North Shore Corp. v. Barnett, 143 P. 2d 172 20 Oklahoma v. Atkinson Co., 313 U.S. 308. 16 Overstreet v. North Shore Corp.,318 U.S. 125. 11-12, 20 Powell v. U.S. Cartridge Co., 339 U.S. 497- 19-20 Schmidt v. Peoples Telephone Union of Mary- Oe es ee ee Be 21 10 East 40th St. v. Callus, 325 U.S. 578 _ _-. 13. Tobin v. Pennington-Winter Construction Co., 198 F. 2d 334, certiorari denied, 345 U.S. MiG ay eeuames Otsu cee oe 14, 16, 17 United States v. Appalachian Power Co., 311 U.S. 377.. oe 16 United States v. ¢ ‘ommodore Park, 324 US eee owe Noreen Gee way aes 5 16. United States v. Twin City Power Co., 350 U.S BR t eee a! gla owe wet 16. Walling v. Jacksonville Paper Co., 317 U. S. rg LE a es cine ee Re een 11 Statutes: Fair Labor Standards Act of 1938, c. 676, 52 Stat. 1060, as amended by the Fair Labor Standards Amendments of 1949, c. 736, 63 Stat. 910, 29 U.S.C. 201, et seq.: ee eo hwo ow ARES es . 3,12, 19 lS a a a. a6 os al gi”. ease ae Wak 3. ee Se as sta kere laa tae aae 3 ene eee 4 |. PRE ES ee re re 4 III Statutes—Con tinued Flood Control Act of 1941, 55 Stat. 638_.--- 23 U.S.C. 319. - : Watershed Protection and Flood Prevention Act of 1954, 68 Stat. 666... - Miscellaneous: Annual Report of the Chief of Engineers, U.S. Army, on Civil Works Activities, 1959, House Document No. 244, 86th Cong., 2d ia ne hg ne er aie ie ae si Heuse Document Né, 917, 76th Cong., 3d ma] 17 Gn the Supreme Court of the Tnited States OcToBER TERM, 1961 No. — ARTHUR J. GOLDBERG, SECRETARY OF LABOR, UNITED SrTaTeS DEPARTMENT OF LABOR, PETITIONER v. Wape LAHAR Constreection Co. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHT CIRCUIT The Solicitor General, on behalf of the Secretary of Labor, “prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Eighth Circuit, entered in the above case on April 13, 1961. OPINIONS BELOW The opinion of the District Court is reported at 179 F. Supp. 551. The opinion of the Court of Appeais (App. tnfra, pp. 23-44) is reported at 290 F. 2d 408. JURISDICTION The judgment of the Court of Appeals was entered vn April 13, 1961. On July 6, 1961, the time for peti- tioning for a writ of certiorari was extended by order of Mr. Justice Whitaker to August 26, 1961. The ju- (1) 4 risdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED Respondent’s employees have been engaged in reser- voir clearance work performed in connection with a multi-purpose dam and reservoir project (the Table Rock Project on the White River in Missouri and Arkansas), authorized by Congress under its power to regulate commerce. The Table Rock Project was de- signed as part of a comprehensive plan for coordi- nated development of the water resouress of the White River Basin for purposes of navigation, flood contro}, electric power, recreation and other beneficial uses. Respondent’s work, like the other activities at Table Rock, was paid for out of project appropria- tions and supervised by the United States Army Corps of Engineers. The Table Rock reservoir forms a lake extending into the States of Arkansas and Missouri, and re- spondent’s clearance work extended into both States. A principal reason for the particular clearance plan adopted by the Army Engineers was to improve the navigability of the lake for the passage of boats— generally recreational craft. The questions presented are: 1. In aetermining whether employees were engaged ‘in’ commerce’? under the Fair Labor Standards Act, should the reservoir clearance be regarded as an integral element of the comprehensive interstate river project cr as a separate local activity. 2. Whether, even if viewed as a discrete segment 3 of the project, the work of clearing land for the reser- voir was employment “in commerce” by reason of the fact that one of its principal j»urposes was to impreve a a the navigability of the interstate lake. STATUTE INVOLVED This ease arises under the Fair Labor Standards Act of 1938, ¢. 676, 52 Stat. 1060, as amended by the Fair Labor Standards Amendments of 1949, ¢. 736, 63 Stat. 910, 29 U.S.C. 201, ef seq., the pertinent. pro- visions of which are: See. 3. As used in this Aet— * * * * = (b) “Commerce”? means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof, * * * * * Sec. 6. (a) Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates— (1) not less than $1 an hour; * * * * * Sec. 7. (a) Except as otherwise provided in this seetion, no employer shall employ any of his employees who is engaged in commerce or in the production of goods for commerce for a workweek lonzer than forty hours, unless such employee receives compensation for his employ- ment 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 STATEMENT These proceedings were brought by the Secretary of Labor’ under Sections 17 and 16(c) of the Fair Labor Standards Act, to enjoin respondent from violating the Act’s minimum wage, overtime, and record-keeping requirements, and to recover unpaid minimum wages and unpaid overtime competsation due named employees. Respondent contracted with the Corps of Engineers to perform, at a total cost of more than $1,500,000, clearance work in the reservoir of the Table Rock Project. The employees in question were engaged in this work. Construction of Table Rock Dam and Reservoir was authorized by the Flood Control Act of 1941 (55 Stat. 638, 645), on the basis of the detailed reports and recommendations appearing in House Document No. 917, 76th Congress, 3d Session, as part of a compre- hensive plan previously approved for the development of the water resources of the White River Basin.’ The White River, which has been the subject. of navigational improvement projects by the Federal Government since 1892,* is considered navigable down- stream from Branson, Missouri, whence it flows through Arkansas, and empties into the Mississippi River. There is no dispute that the purposes of the ‘Secretary Goldberg was substituted for former Secretary Mitchell by order of the Court of Appeals, dated April 3, 1961. *The Table Rock Project. was completed in 1959. The Nor- fork and Bull Shoals Projects had been completed in 1943 and 1952, respectively. The Beaver Project is currently under construction. * House Document No. 917, supra, pp. 16, 37. This House Document is hereafter cited as HD. 9) Table Rock Project included improvement of inter- state navigational polentialities, interstate flood cen- trol benefits and the development of hydroelectric power for interstate markets.*. The Federal Power Commission endorsed the construction project upon the basis of studies which showed ‘that multiple- purpose reservoirs at the Table Rock and Bull Shoals sites, primarily for the control of floods, would have a substantial beneficial effeet upon navigation’? (HD, p. 4). It was contemplated that “[o]wing to the regu- lated and inereased low flow in the river below the dams, navigation conditions would be improved in White River and to a lesser degree in the Mississippi River downstream from the mouth of White River’ (HD, p. 48). In addition to the navigation, tlood eon- trol, and power contributions to be made by the pro- posed project, it was anticipated that recreational and wildlife benefits would be provided by the dam’s large reservoir which extends into both Arkansas” and Missouri, covering portions of Carroll and Boone Counties in Arkansas, and Barry, Stone, and Taney Counties in Missouri (HD, pp. 15, 48). Respondent, an Arkansas corporation, is one of the largest) eoncerns engaged in” reservoir clearance throughout the United States (its president, Mr. Lahar, having been engaged in clearing work under ‘Tt was contemplated that the flood control benefits of the Table Rock Project and a conipanion project on the White River, the Bull Shoals Project, would accrue to Missouri, Mississippi, and Louisiana as well as Arkansas. ‘The market for power from these two dams Jay in Arkansas and Missouri. (11D, p. 49). 605793 61 - 2 6 contracts with the Corps of Engineers for over 30 years, R. 56). Respondent has performed 56 clear- ance jobs since its incorporation in 1952 (R. 51-52). The two contracts here involved covered the entire clearing operation performed for the Table Rock Project, except at the dam site itself (R. 40-43, 46, 49), and provided for clearing in selected areas throughout the reservoir (in both Missouri and Arkansas). In some areas clearance included all tim- ber growing out of the ground between elevation 915 and either elevation 874 or 840 (the clearing to the lower level in the public use areas). In other places modified clearing was effected by removing or topping only those trees that projected above the stated eleva- tion. In still other areas, there was no clearing. Only one side of the stream was cleared at each location. In all, respondent’s clearing operations covered 12,700. acres, including about 122 miles of shoreline in the reservoir (R. 42-46). It was the Secretary’s position that the Fair Labor Standards Act applied to ‘‘the project as a whole’’— including the reservoir clearance—because of “the over-all purpose of the project’ (R. 18). The gov- ernment called as a witness the Corps of Engineers official under whose supervision the Table Rock reser- voir clearing plan had been prepared—J. C. Pyle, Chief of the Hydraulic Branch of the Engineering Department, Little Rock District (R. 22). Mr. Pyle, on direct examination, explained that the clearing design was prepared as a part of ‘‘the overall proj- ect’’ and that the work was paid for out of appro- priations provided by Congress for the general cost 7 of construction of the project; there was, he said, ‘‘no such thing as an allocation for recreation’’ (R. 22-23). Mr. Pyle’s testimony also made clear the extreme difficulty of attributing only a single purpose to a clearing operation which, it was hoped, might be beneficial in a number of ways to the comprehensive plan for the control and development of the White River. He described the purposes of reservoir clear- ance (R. 23): Clearing of the reservoir is desirable to the extent that it aids in control of the malaria and encephalitis vectors, reduces the hazard to boat- ing, improves fish and wildlife conditions, adds to the general appearance and recreational value of the lake, and reduces the maintenance prob- lems caused by floatage and possible interfer- ence with the outlet works. Mr. Pyle acknowledged that the primary reasons for the clearing in question were ‘*to promote the passage of boats”? (R. 23) and ‘to control mosquitoes”’ (R. 39), but he also insisted that one of the objectives he had in mind in the preparation of the clearing design memorandum was the removal of ‘*tlotable material which would tend to damage the dam’’ (R. 29) and thereby interfere with its navigational, power, and flood control functions. He specifically denied that none of this clearance work would have been under- taken but for the recreational purposes, “because there are quite a few people in the Corps that feei that some clearing is needed’’ (R. 34-35). *On cross-examination, Mr. Pyle was questioned as to the foliowing: changes in the “thinking” and “policy” of the Corps 8 Respondent’s president, Wade Lahar, and its proj- ect engineer, Hilton Keen, testified that it was their opinion that the modified clearing performed at Table Rock was done solely for recreational purposes, health benefits, boating, and to improve local prop- erty values (R. 47-48, 58). The trial court ruled that ‘“‘the clearing performed by the defendant in the Table Rock Reservoir was not a necessary part of the over-all project and served no purpose in the protection or the operation of the dam,”’ but was “‘strictly of a local nature,’’ and there- fore, ‘‘must be considered isolated local activity’’ out- side the scope of the Fair Labor Standards Act (179 F. Supp. 551, at 560). The Court of Appeals af- firmed this conclusion. It also rejected the govern- ment’s alternative basis of coverage—that a specific of Engineers on the “concept of clearing reservoirs” (R. 26) ; the necessity or desirability of “any clearing from the stand- point of flood control, navigation or hydroelectric power” (R. 28); whether clearing in particular areas was designed with “the objectives * * * to take out floatable material that would tend to damage the dam” (R. 28-29); whether selection of other areas for clearance would not have been more effective if that had been an “objective in mind” (R. 29-31); how clearance at particular points might be expected to protect the penstock openings or spillway gates of the dam from floatage of debris (R. 32-35). Mr. Pyle’s testimony was that “there has been a general change in thinking all the way along, a gradual change”-—that although “formerly they felt they would need to clear the whole lake”, they now fe't that it “is not necessary to clear nearly that much” (R. 26, 35). He further stated that there was a difference of opinion among the different offices of the Corps of Engineers as tothe adequacy of the small clearing plan from the flood-control, power standpoint (R. 27), and reaffirmed his view that the clearance plan actually adopted was designed “for a number of purposes” including consideration of “the need of preventing drift to collect at the dam” (R. 28, 29). 9 purpose of the clearance work was to improve the navigability of the interstate reservoir—regarding this as “only an incidental circumstance” insufficient to bring the elearance within the scope of the statu- tory phrase, “engaged in commerce” (App. tnfra, pp. 42-43; 179 F. Supp. at 561). REASONS FOR GRANTING THE WRIT Review of the decision below is warranted on two grounds. First, the Eighth Circuit has adopted an approach which fragmentizes work performed on integrated projects in interstate commeree—one which, if e¢on- sistently followed, would remove large numbers of employees from the coverage of the Fair Labor Stand- ards Act. Four other circuits have reached a contrary conclusion on essentially similar facts by viewing such projects as a whole. The latter cases, we be- lieve, are in keeping with prior decisions of this Court and serve to carry out the purposes of the Act in a practical and predictable manner. Secondly, the court below erred in rejecting the al- ternative basis of coverage. Even if the reservoir clearance work in question is viewed apart from the project to which it is related, it improves navigation on an interstate lake. In this aspect, the instant case vunflicts with the numerous decisions of this and other courts holding that improvement of an_ interstate highway or waterway is engagement ‘‘in commerce.” J As both courts below recognized, the Table Rock Dam and Reservoir Project—which is the sole basis 10 and justification for undertaking the reservoir clear- ance work here involved at federal expense and under the supervision of the Army Corps of Engineers— was authorized by Congress and designed as part of a comprehensive national plan for development of the White River Basin in Missouri and Arkansas. The project had multiple purposes—aid to navigation on the lower White and Mississippi Rivers, flood ¢con- trol, power, and other beneficial uses. It is also clear that the reservoir, as well as the dam, serves *‘com- meree”’ funetions; in particular it. aids interstate navigation and flood control. Under this Court’s precedents, plainly construction work for the improve- ment of interstate transportation facilities (ineluding rivers and waterways) is “in ecommerce” for purposes of the Fair Labor Standards Act. See Mitchell v. Vollmer, 349 U.S. 427, and eases there cited. Respondent’s employees were engaged in one aspect of the comprehensive Table Rock project—the clear- ing of the reservoir. Only on the basis of a piecemeal! approach, isolating a particular type of work within the reservoir and appraising separately the need, wis- dom, and effect of this single aspect of the integrated project, could the court below decide that respondent's cmployees were not also engaged ‘tin’ commerce’’. The government believes that certiorari should be granted because this approach to work on a federally authorized project in interstate commerce is incon- sistent with the decisions of this Court; is at variance with results reached by four other courts of appeals; threatens to impose upon private parties and the ll courts an unmanageable burden—that of evaluating engineering, economic, and other data to determine how neeessary or desirable is each aspect of a compre- hensive project; and potentially affects large numbers of employees who work on such projects, 1. The court below has failed to give effect to the distinction between the ‘tin’ commerce’ and the “related to the production’? of goods for commerce provisions of the Fair Labor Standards Act which this Court repeated as recently as Mitchell v. Zachry Co., 302, U.S. 310." As there stated, the ‘tin commerce” coverage of the Act has been construed “by the courts in conformity with the statutory scheme, so as to dis- place state regulation ‘throughout the farthest reaches of the channels of interstate commerce.’ 7’ Mitchell v. Zachry Co, 302 US. at 320, quoting from Walling v. Jacksonville Paper Co., 317 U.S. 564, 567; see, also, Overstreet ve. North Shore Corp., 318 US. 125, 128. *The Zachry opinion expressly noted, at the outset, that the dam there was “not a multi-purpose project” (362° U.S. at $10), and emphasized that the issue before the Court concerned only the “related-to- production” clause of Seetion 3(¢j) dealing with the “periphery of coverage” of “activities only ‘related’ to production” (44. at 316-317): it carefully distinguished deci- sions involving the “in commerce” phase of coverage (/d. at S20). And, contrary to the assumption by the court below that the 149 Amendments evidenced a general “legislitive tendency ** * in the direction of limiting the broad interpretations Which the courts have given the statute” (App. énfra. p. 42), any such mference with respeet to the judicial interpretation of the “in commerce” aspect was directly contradicted by Zachry (see text, saprr). In contrast to the Eighth Cireuit: in’ the instant case, the Fifth and Sixth Cireuit Courts of Appeals have refused to draw that inference from Zachry. Mitchell vy. Hooper Equipment Co., 279 F. 2d 893 (CLA. 5): Goldberg v. Oriren (CLA. 6) 15 WHEE Cases 139 (decided June 30, 1961, not vet officially reported ). 12 Contrary to the ‘implications’? found by the court below (App., infra, p. 38), this Court, in Zachry, ex- pressly recognized that Congress, by the 1949 Amend- ments, “did not alter’’ or in any way limit the prior broad judicial construction of the Act’s ‘fin com- merce’’ coverage (362 U.S. at 316-317).’ That cover- age must still be ‘‘construed liberally to apply to the furthest reaches consistent with congressional direc- tion’? (Mitchell v. Lublin, McGaughy & Asso., 358 U.S. 207, 211; Mitchell v. Vollmer, 349 U.S. at 429). In this light, it is plain that the clearing operation undertaken by respondent's employees was well within ‘the furthest reaches consistent with congressional direction,’’ whether this standard be regarded from the point of view of substantiality of the connection of the operation with interstate commerce or from the standpoint of respect for state control of essentially local enterprise. The clearing operation was an integ- ral part of a single construction project which was indisputably ‘tin commerce’’, The work in ques- tion took place at the very site of the construction of an interstate facility, was regarded by Congress as an integral part of that construction, and was puid for out of appropriations for the general cost of eonstrue- tion of the one project. The precise plans were drawn and the operation was supervised by the Army Corps "Indeed, the 1949 Amendments, far from imposing any restrictions on the “in commerce™ coverage, made one change ; that modification broadened coverage so as to include commerce “between any State and any place outside thereof”, replacing the previous language “from any State to any place outside thereof” (emphasis added). 13 of Engineers as part of the Table Rock Dam construc- tion project. The decision below is, indeed, at odds with prin- ciples expressed in the very cases upon which the court below relied, t.e., Zachry, supra, and 10 East 40th St. v. Callus, 325 U.S. 578. Clearing the reservoir of a federal multi-purpose river project, at federal expense and wader federal supervision, on property owned and to be uperated by the United States for natiotial pur- poses certainly does not ‘‘spontaneously satisf[y] the common understanding of what 1s local business’’; nor does it otherwise fit the description of ‘local business’’ : or “essentially local activities that Congress did not see fit to take over by legislation’? (see Callus, 325 U.S. at 582-583; Zuchry, 362 U.S. at 314). Regu- lation of the work involved in this case, far from being representative of “‘historic functions of the individual States’? (see Kirschbaum Co. v. Walling, 316 U.S. 517, 520), is peculiarly a matter ‘‘of traditionally national eoneern’’ (see Zachry, 362 U.S. at 316). There is thus no possible warrant for excluding the activity from the broad remedial purposes of the Act in order to ac- commodate “the competing concern of Congress to avoid undue displacement of state regulation of activities of a domimantly local character’’ (¢bed.). 2. In considering the status of employees working on some single aspect of an integrated project in in- terstate commerce, four other courts of appeals have taken the position that, in determining this Act's cov- erage of employment on projects of this type (inelud- ing river, highway, airfield, radio communication and 605793 61 14 other comparable projects), ‘‘the whole project * * * should be regarded as an entirety, and not broken down into its component parts.” Goldberg v. Nolla, Galib & Cia. and Goldberg v. Five Boro (C.A. 1), de- cided June 15, 1961 (not yet officially reported), 15 WH Cases 145, 147 (construction of technical build- ings and supporting facilities for one of the Army Sig- nal Corps’ radio relay centers) ; Bennett v. Loftts Co., 167 F. 2d 286, 288 (C.A. 4); Archer v. Brown & Root, Inc., 241 F. 2d 663, 668-669 (C.A. 5), certiorari de- nied, 355 U.S. 825; Tobin v. Pennington-Winter Con- struction Co., 198 F. 2d 334 (C.A. 10), certiorari denied, 345 U.S. 915. As stated by the Fourth Cir- cuit over a decade ago (in upholding the Act’s cover- age of a watchman guarding the construction of a new highway bridge): “If the declared purpose of the Act is to be accomplished, a project should be considered as a whole, in a realistic way; not broken down into its various phases so as to defeat the purpose of the Act’? (Bennett v. Loftis Co., 167 F. 2d at 288). In approach and in principle, these cases conflict with the decision below. 3. The piecemeal approach will involve the courts, we believe, in an effort to evaluate factors which they are ill equipped to determine—matters which involve essentially legislative or executive judgments. There are frequent controversies, both in Congress and within the executive establishment, as to how exten- sive a project should be undertaken and as to the manner of its execution. Should a navigation project be narrowly confined or should it be broadly conceived to serve incidental purposes, such as (for example) 15 the production of power and the advancement of rec- reational opportunities? Should a project be ex- ecuted in Spartan fashion, in the interest cof rigid economy, oc should it be carried out in a manner which will satisfy other values, including, perhaps, aesthetic sensibilities? Is a particular aspect of a project a worthwhile addition or a needless frill? In planning an interstate highway, should efforts be made to }indseape the borders of the road as well as pro- vide a means of surface transportation? If a reser- voir is needed as an adjunct of a dam, should steps be taken, at the same time, to make it a highly useful and attractive reservoir—a haven for wildlife, a place of recreation, an area free of insect infestation? Ques- tions of this kind involve, among other things, con- siderations of cost and of political expediency. Also, they involve innumerable subsidiary problems as to which expert planners, engineers and technicians will often differ. We submit that the courts should not be called upon to review the myriad judgments involved in the planning and execution of a comprehensive project. If the reviewing court is satisfied that the overall project is ‘in commerce”, it should suffice that the particular work which gives rise to the question of coverage is a part of the project or ancillary to it. The evidence in the present recond of differences in engineering opinion as to the neéd and extent of clearance for purposes of protecting the dam (R. 34-36), of the “several plans’’ considered by the engineers before selection of the one adopted for ‘a multiple reason’? (pp. 26-29), and of the ‘‘ehange in engineering attitudes in the intervening vears * * * 16 as to the non-necessity of clearance in projects of this kind’’ (see App. infra, p. 43), reflects precisely the “complexity of engineering data’, the “contrariety of views”? and the “questions of policy’’ which, as this Court has emphasized in other contexts, are not generally within the competence of courts to assay.’ It is suggestive to compare the instant case with Tobin v. Pennington-Winter Construction Co., 198 F. 2d 334 (C.A. 10), a case which also involved reservoir clearance and can be distinguished only if each re- viewing court is to pass judgment on a complexity of engineering data and policy considerations as to the need, effectiveness, and desirability of each par- ticular segment of a multi-purpose river project.” In Pennington-Winter, after concluding that construc- tion of the multi-purpose dam (on a non-navigable tributary of the Arkansas River) was within the cov- erage of the Act because ‘‘[t]he construction of levees, dams and other improvements * * * for the purpose of aiding navigation and preventing floods, must be considered as items of a single project undertaken to effectuate such purposes” (198 F. 2d at 337), the court of appeals held that the reservoir clearance work for the project was also covered, reversing the * See, «.g., United States v. Twin City Power Co., 350 US. 222, 224; United States v. Commodore Park, 324 U.S. 386: Oklahema v. Atkinson Co., 313 U.S. 508, 522, 527-528: T'’nited States v. Appalachian Power Co., 311 U.S. 377, 426. Cf. Ber- man Vv. Parker, 348 U.S. 26, 33-36. *The Government did not oppose certiorari in Pennington- Winter because it involved “an important question as to the application of the Act which has not specifically been deter- mined by this Court * * *” (see Memorandum for the Re- spondent, pp. 8-9, No. 380, Oct. Term, 1952). 17 trial court’s ruling that the clearance work was not covered because primarily related to recreational ac- tivities. The differing results in these two closely similar cases emphasize the need for review by this Court. 4. The question presented by this case is of sub- stantial importance not only with respect to multi- purpose river development projects, but in the entire area of federal projects for the development or im- provement of interstate facilities. The impact of the decision below on river projects alone is considerable. The Corps of Engineers has, since March 1953 (the date of denial of certiorari in Pennington-Winter), undertaken 130 federally finarzed multi-purpose river projects, all of which, we are ‘nformed, have included substantial reservoir clearance. Thirty-five such projects are currently under construction, and the estimated reservoir clear- ance costs total over $31,000,000.° In addition, © This information was furnished to the Department of Labor by the U.S. Army Corps of Engineers, Civil Works, compiled from the 1959 Annual Report, House Document No. 244, and supplementary current information. The projects are in vari- ous stages of construction so that the estimated costs range from those fairly firm to those preliminary and subject to change. A list of projects in the planning and construction stage, with their purposes, is found in S. Rept. No. 1768, 86th Cong., 2d Sess., p. 7, et seq. While estimates of the number of employees involved are not available, some indication of the substantial number in- volved appear. from the fact that the work in the instant case required 119 employees, working considerable overtime (Rt. 56), under contracts totalling 144 million dollars; and in the Pennington-Winter case (supra, p. 16), about 100 em- ployees (also working substantial overtime) were employed under a contract for $698,360. 18 numerous multi-purpose dam and reservoir projects are being carried out under the jurisdiction of the Bureau of Reclamation and the Agriculture Soil Con- servation Service.” As to other‘types of federal projects which may be affected, it suffices to point to the extensive fed- eral highway construction program, which makes provision for roadside and landscape development, t.e., beautification, scenic overlooks, recreational and rest areas, ete.” The coverage of all this work is affected by the decision below. "Information from the Bureau of Reclamation (U.S. De- partment of the Interior) indicates that over 75° of the 54 federally-financed dam and reservoir projects constructed under the jurisdiction of the Bureau since Mareh 1953 have included reservoir clearance, and at least 14 such projects are currently under const suction. Information from the Director of the Water-Shed Planning Division, Soii Conservation Service (U.S. Department of Agri- enlture), indicates that clearing was required in each reservoir of 304 multi-purpose water-shed projects (averaging seven reservoirs per project) completed or under construction since 1954 with federal grants furnished by the Soil Conservation Service, as authorized by the Watershed Protection and Flood Prevention Act of 1954. In the federal-aid highway system, proviston is specifically made for “roadside and landseape development.” inclnding the purchase of adjacent strips of iand “for the preservation of the natural beauty through which highways are constructed” (23 Us.C. 519). The Office of Engineering in the Bureau of Public Roads (U.S. Department of Commerce) advises that during 1960 between 5.000 and 7.500 estimated man-vears of highway construction labor were used in roadside improvements outside the paved area, including beautification work, erosion control, planting, setting up recreational and rest areas, ete. 19 IT Even if the reservoir clearance could be isolated from the other aspects of the project, the court below departed from the controlling decisions of this Court when it rejected the alternative basis of coverage advanced by the Secretary: That the activity was ‘‘in ecommerce” because a principal purpose and an un- doubted consequence of the work was to improve the navigability of an interstate lake. The Gourt of Appeals did not question—quite the contrary, it found—that the reservoir clearance Was ‘aleulated to improve the navigability of the jake formed by the dam and reservoir. The court also took note of the fact that the waters diverted to the lake would eover portions of two states, Missouri and Arkansas. It resisted the suggestion (which it de- scribed as “‘tantalizine”) that these cireumstances brought the case wituin the ‘Sin commerce” language of the statute, apparently because it believed that some distinction ought to be drawn as between naviga- tion (or transportation) for don-cemmercial (recrea- tional) and commercial (trade) purposes. But the Act makes no such distinction. It defines commerce (supra, p. 3) to include “trade, commerce, transpor- tation, transmission, or communication among the several States or between any State and any place out- side thereof.” This. Court, moreover, has laid) the question to rest. It has stated that “commerce’’, as defined in the Act, ineludes ‘‘transportation as such, * & & and not merely shipments or transportation of 20 articles that are intended for sale, exchange or other trading activities.’’ Powell v. U.S. Cartridge Co., 339 U.S. 497, 512.” If, as we believe, it is immaterial that the interstate lake will be used by recreational rather than commer- cial craft, there can be no doubt that the Act applies. Ceriainly, work on an interstate highway, whether it he ar overland road or a waterway, is directly covered. See, e.g., Overstreet v. North Shore Corp., 318 U.S. 125: Mitchel! v. Vollmer, 349 U.S. 427. We point ont additionally that numerous decisions of the courts of appeals have held that the Act reaches activities related to the-improvement of transportation facilities, even though those facilities are used pri- marily for non-commercial reasons or for intrastate (as opposed to interstate) purposes. E.g., North Shore Corp. v. Barnett, 143 F. 2d 172, 174 (C.A. 5)— a privately owned and operated toll road and bridge located wholly within one county of Florida and serv- ing primarilytocat trafie-to_and-from an island off the coast, but also ‘‘open and available at all times for interstate use’’ (mostly by tourists), held to be an in- strumentality of :1terstate commerce *‘based upon the fact of interstate use rather than upon the extent of such use’’; Crook v. Bryant, 265 F. 2d 541, 543 (C.A. Cf. Arizona v. California, 283 U.S. 423 at 454, fn. 5, noting that a part of the Colorado River which the Boulder Dam project would make “susceptible to use by power boats” was a boundary stream, so that “such navigation will be at least partially interstate’; Davis v. United States, 185 F. 2d 938 (C.A. 9), certiorari denied, 340 U.S. 932, holding that Lake Tahoe, located in California and Nevada, is a navigable water- way of the United States although it is used primarily by sightseeing boats. 21 4)—*a limited access toll road * * * used by vehicles traveling interstate, not by necessity but for conven- lence only’’; Bodden v. McCormick Shipping Corp., 188 F. 2d 773, 775 (C.A. 5)—a pleasure yacht held to be “‘clearly an instrumentality of commerce * * * even though such transportation was not in connec- tion with a trade or business.’’ “ * See, also, Seliaidt ve Peoples Telephone Union of Mary- ville, Mo., 138 F. 2d 13, 15 (C.A. 8)—telephone service for sub- seriber-members of an association of farmers which was devoted primarily to local calls (only « fraction of 1% of its revenue being derived from the infrequent interstate calls) held inter- state commerce because “continuous [interstate] service” was “offered”: Emulsified Axphalt Products Co. vy. Mitchell, 222 F. Yd 913, 914 (CLA. 6)—city, town and country streets and roads, constructed primarily for local traffic, held to be interstate instrumentalities because “used by persons and goods passing between the various States”; Compania de Ingenieros y Contra- tistas, Inc. v. Goldberg and Quilichini v. Goldberg, 289 F. 2d 78, 80 (C.A. 1)—construction of sections of secondary roads in rural areas of Puerto Rico held covered !:cause “at least. some agricultural products * * * from areas alongside and near the roads” would be transported interstate “over other roads which connect or would connect with the roads here involved”; Austford v. Goldberg (C.A. 8) (decided June 29, 1961, not yet officially reported), 15 WH Cases 135—maintenance of county and township dirt and gravel roads, wholly within one rural county of North Dakota, held covered because some agricultural products were transported over them to connecting roads and ultimately shipped interstate. 4 605793 — 61——-4 22 CONCLUSION It is respectfully submitted that this petition for a writ of certiorari should be granted. ARCHIBALD Cox, Solicitor General. CHARLES DONAHUE, Solicitor, BEssIE MARGOLIN, Assistant Solicitor, BEaTE BLOcH, Attorney, Department of Labor. Avucust 1961. APPENDIX In the United States Court of Appeals for the Eighth Circuit Nos. 16509 and 16510 ARTHUR J. GoLpBERG, SECRETARY OF LaABor, UNITED STATES DEPARTMENT OF LABOR, APPELLANT vi Wade LAHAR ConstrucTION CoMPANY, 4 CoRrorRATION, APPELLEE APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS (April 13, 1961) Before Van OosTERHOoUrT and Buackmun, Cireuit Judges, and Reaister, District Judge BrackmuN, Circuit Judge: These are companion eases instituted by the Secretary of Labor under ‘17 and § 16(¢), respectively, of the Fair Labor Standards Act of 1928, Chapter 676, 52 Stat. 1060, as amended, now found as 29 USCA § 201 et seq." The complaint in the first action alleges violations by the defendant of the Aet’s minimum wage, maximum hours, and record keeping provisions and demands injunctive relief. The second action seeks compensation for 29 named employees of the defendant. The District Court held that the emplovees were engaged neither ’ Subsequent references herein to the Act are to sections as amended and as numbered in USCA, (23) 24 ‘‘in commerce” nor “in the production of goods for commerce’”’ within the meaning of the Act. As a con- sequence, it dismissed both complaints. 179 F. Supp. 551. The Secretary has appealed. The pertinent facts are set forth with meticulous detail in Judge Miller’s opinion below. They need not be repeated at length here. We stress the follow- ing: 1. The defendant is a general contractor which has participated in reservoir clearing projects and other similar work throughout the country. Its president has been active in endeavors of this kind for the gov- ernment since 1931. 2. Of the 29 employees here involved, only 3 are concerned with both the wage and overtime provisions of the statute. The remaining 26 are concerned only with overtime. It is conceded that the Act’s over- time requirements were not met. 3. The project is the Table Rock Dam and Reser- voir on the White River. This stream rises in the mountains of northwest Arkansas, flows northeasterly 215 miles into Missouri, and then flows southeasterly back into Arkansas for a distance of 505 miles where it empties into the Mississippi upstream from Arkan- sas City. Table Rock Dam itself was completed in 1959 * and is situated in Taney County, Missouri, near the town of Branson. The reservoir it creates ex- tends its arms into Barry and Stone Counties, Mis- souri, and into Boone and Carroll Counties, Arkansas. 4. The basic authority for the construction of the Table Rock project is found in House Document No. 917, 76th Congress 3rd Session. This consists of re- ports and recommendations transmitted in 1940 to the ? This does not render the injunction case moot. Chambers Construction Company v. Mitchell, 8 Cir., 233 F. 2d 717, 725. See Walling v. Helmerich & Payne, 323 U.S. 37, 43. 20 House Committee on Flood Control. The projects recommended therein came to be authorized by the Flood Control Act of 1941, 55 Stat. 638, 645, which re- ferred to ‘‘the prosecution of the comprehensive plan approved in the Act of June 28, 1938, for the White River Basin in Missouri and Arkansas, including the projects for flood control and other purposes recom- mended by the Chief of Engineers in House Docu- ment Numbered 917 * * *”. The plan admittedly had as its primary purposes aid to navigation on the lower White and Mississippi Rivers, flood control, generation of electric power, and recreation. 5. The Table Rock project is the tnird in a series of dams built on the White and its tributaries. The first was the Norfork Dam and Reservoir in Arkansas com- pleted in 1943. The second was the Bull Shoals Dam and Reservoir, also in Arkansas, completed in 1952. Both of these are downstream from Table Rock. The fourth is to be upstream near Beaver, Arkansas. The entire development of the White River Basin is under the supervision of the Army Corps of Engineers. 6. The defendant obtained, as a result of bids, two contracts for clearance on the Table Rock project. The work proposal submitted by the Corps listed wage scales to be paid and mentioned the Fight-Hour Law, 27 Stat. 340, as amended, now found as 40 USCA ¢ 321 et seq., and two other statutes. It made no ref- erence to the Fair Labor Standards Act. 7. The defendant's clearance work involved certain areas of the reservoir in both Arkarisas and Missouri but specifically did nof involve the damsite itself. The clearing for the dam's immediate area was performed hy another contraetor. 8. The cost of the defendant's work was paid by the government out of appropriations for the overall project. 26 9. The reservoir has a series of ‘‘pools” located be- tween elevations or contours. The normal level of the water in the reservoir is at Elevation 915 and the ‘‘power pool” consists of the area between that eleva- tion and the lower Elevation 846. The area between Elevation 915 and 936 (or thereabouts) is the ‘‘flood pool’? which will contain water only during periods of flood. The entire reservoir up to 936 contains ap- proximately 52,000 acres. 10,000 of these lie above 915. 10. Complete clearing of all timber was accom- plished in certain areas from Elevation 915 down to either 874 or 840 (the clearing to the lower of these was in the public use-.areas). In certain other areas only modified clearing was effected down to 874 or 840. This consisted of clearing, by removal or top- ping, of only those trees which projected above the stated elevation but most of the trees where this type of clearing was performed were left standing. Trash and brush were allowed to remain there. The prac- tice was to clear only one side of the stream an¢ to leave the opposite side totally uncleaved. In still other areas, no clearing of any kind was effected even though these locations were between the same contour lines as the areas for clearance or modified clearance. In the flood pool itself there was no clear- ing. The defendant’s work, on both complete and modified clearance, covered 12,700 acres and 122 miles of a total of 857 miles of “shoreline’’. The Seeretary’s position on appeal is that the clearing work, being on a multiple purpose project constructed with federal funds as a part of the eom- prehensive development mrogram of the White River Basin for the combined purposes of navigation im- provement, flood control, power, and other beneficial uses, “is in practical effect so integral a part of the 27 improvement of an interstate instrumentality as to be ‘in commerce’ within the coverage’’ of the Act. He cites as controlling the 1952 case of Tobin v. _Pennington-Winter Const. Cv., 10 Cir.. 198 F. 2d 334 (cert. den. sub nom. Pennington-Winter Construction Co. v. Durkin, 345 U.S. 915). He also refers to the established propositions that the determination of need for a particular government project is a matter of leg- islative judgment and is not for the courts and that the Congress under the commerce clause may con- stitutionally reach the lesser aspects of a single pri- mary project. He urges that the same ‘‘ practical real- istic approach’”’ is applicable to coverage under the— Act. He argues secondarily that the employees here were engaged in improving the navigability of a waterway between two states and that for this reason they are covered. The defendant’s position is that the facts of each case must control its disposition; that the recent case of Mitchell v. H. B. Zachry Co., 362 U.S. 310, not. men- tioned in the Secretary’s brief, is significant; that the general propositions urged by the Secretary have no application here; that Pennington-Winter is not rele- vant; that the record is silent as to the use of the res- ervoir for commerce; and that such use in any event is purely local. The statute, §206(a) establishes the minimum wage: Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates—* * * 207(a) is concerned with maximum hours: Except as otherwise provided in this ‘sec- tion, no employer shall employ any of his em- 28 ployees who is engaged in commerce or in the production of goods for commerce for a work- week longer than forty hours, unless such em- ployee receives compensation for his employ- ment 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. §211(¢) requires appropriate records. Violation of these provisions is made unlawful by 4 215(a) (2) and (5). §217 and §216(c) authorize actions, such as these, by the Secretary. The terms ‘‘in commerce” and “in the production of goods for commerce’’ appear not only in § 206(a) and ¢ 207(a) but, as well, in 4 202(a) setting forth the findings of Congress, and in § 208(a). They are, of course, vital in the interpretation and application of the Act. Some of the words in these phrases are in turn defined in § 203.* *“8 903. Definitions * * * “(b) ‘Commerce’ means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof. * * * = “(1) ‘Goods’ means goods * * * wares, products, con::nodi- ties, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not in- clude goods after their delivery into the actual physical pos- session of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof. “(j}) ‘Produced® means produced, manufactured, mined, han- dled, or in any other manner worked on in any State: and for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essen- tial to the production thereof, in any State.” Subsection (j) assumed its present form by amendment. in 1949. Prior thereto its last clause read “or in any process or 29 The Supreme Court authority. Those sections of the Act which are involved here have been the subject of extensive litigation. Since February 3, 1941, when aumied court held the Act to be witht the commerce power of Congress and not violative of the Fifth — Tenth Amendments, United States ve Darby, 212 0. 100; Opp Cotton Mills vy. Administrator, 312 U.S. fe these sections have been subjected to serutiny and interpretation in over 80 cases In the Supreme Court itself.' occupation necessary to the production thereof, in any State.” The amendment thus inserted “closely related” before “process” and substituted “directly essential” for the word “necessary.” ‘Kirschbaum Co. ve Walling, 1942, 316 ULS. SIT: Overnight ‘Motor Co. v. Missel, 1942, 316 U.S. 57220 Warren-Bradshaiw Cov. Hall, 1942, 317 Uls, 88: Walling vi Jacksonville Paper Co, 1913, 317 U.S. 564: Wiggins ve Carr Bros, Co. VV, Blt US. 572: Overstreet ve North Shove Corp. AB. B18 TLS. 125: Pedersen vod FL Fitzgerald Construction Ca, WAS. BIS US. THO: reversing per curiam ais N.Y. 687, 25 NBL 2d 8: WeLeod v. Threlheld, 1943, “—_ U.S. 491: Walton vo Southern Package Corp, LOE. 3820 TLS. 540: ree Coal Cory. Muscoda Local, 144, 521 US. 590; Addison ve Holly [1//1 Se 1944, 322 US. 607; Armour & Co. v. Wantockh, 1944, 323 U.S. 126; Skidmore ‘. Swift & Te. 4, 28 TS. 134: ee Co, v. Walling, 1945, 324 US. 490: 10 Fast 40th St. Co. ve Callus. WAS. B25 US. Sm: Heinden mS rg Hla, ADAD, B25 ULS. 678: Roland Co. v. Walling, 1916, 526 ULS. 657: Mertine ve Mich. Window ( ‘bandied Cex WD46, $26 ULSs " gis Maher ve Wiite Plains Pub. Co., 1946, 327 ULS. 178: Boutell vo W lian. 1946, 327 US, 463: Schulte Co. v. Gangi, 1946, 328 U.S. 108; Walling v. Portland Terminal Co., 1947, 330 U.S. 148: Murphey v. Reed, 1948, 335 U.S. 865: Farmers Irrigation Co, ve MeComhb, ager. 337 U.S. 195; Powell yo UN, Cartridge c'0.. 1950, 339 US. 497: Alxtate Construction Co. v. Durkin, 1953, 345 U.S. i Thomas v. Hempt Bros., 1953, 845 U.S. 19; Vitchell v. Joyce Agency, Ine., 1955, 348 U.S. 945; Mitchell v. Vollmer & Co.. 1955, 349 U.S. 427; Vitehell v. Lublin, MeGaughy & Asxo.. 1959, 358 U.S. 207; Mitchell v. H. B. Zachry Co., 1960, 362 U.S. 310. There are additional cases which, while they involve other sections of the 30 While some of these decisions by our highest court have been unanimous, most of them have not «nd in several Instances the particular case or the entire de- cisional process in this statutory area has been char- acterized as presenting ‘fa difficult problem’? (Lublin, p. 212), as *‘rewarding as an attempt to square thie circle’? (Kirschbaum, p. 520), as requiring **pain- staking appraisal of all the variant elements’? and as involving ‘*matters of the nicest degree” (Zachry, pp. 315 and 321). The Court has often intimated that much of the difficulty may be due to the absence of aid afforded by a preliminary administrative process and the conse- quent placing upon the courts of **the independent responsibility of applying ad hoc the general terms of the statute to an infinite variety of complicated in- dustrial situations’’; to the fact that the Aet, in con- trast to certain other important federal regulatory legislation, stops short of limits which might constitu- tionally have been reached (Kirschbaum, p. 523; 10 Kast 40th St., pp. 579-80) ; and to the lack of certain statutory definitions (Bay Ridge, p. 460; Zachry, p. 320). The result is that the courts find themselves Act, are revealing and helpful for the solution of our present problem: -lnderson v. Mt. Clemens Pottery Co., 1946, 328 U.S. 680; Bay Ridge Co. v. Aaron, 1948, 334 U.S. 446; Maneja v. Waialua Agricultural Co. 1955, 349 UUs. 254: Sreiner v. Mitchell, (956, 350 ULS. 247: Mitchell ve Ning Packing Co. 1956, 350 U.LS. 260; Mitchell ve Budd, 1956, 350 UlS. 473: Mitchell vy. Hentucky Finance Co. 1959, 359 US. 290: Arnold v. Ben Hanowsky, Inec., 1960, 361 US. 388. These cases are gathered in this foetnote in the hope that their citation here will simplify the reading of this opinion. They will usually be referred to later by their respective pri- mary names. We cite them all, moreover, to show the warmth of the issues which have been generated under the Act, the obvi- ous complexity of the problems and, as brought out below, the closeness of the lines that have been drawn. 31 involved ‘tin the empirie process of drawing lines from case to case, and inevitably nice lines’’ (10 East 40th St.,.p. 579), and in dealing ‘with doubtful in- stanees’’ (Threlkeld, p. 495). With this difficulty announced and recognized, the Court, in applying the Act, nevertheless has ‘tried to state with eandor the larger considerations of national poliey, legislative history, and administrative practi- ealities that underlie the variations in the terms of | Congressional commercial regulatory measures and- which therefore should govern their judicial coustrue- tion”? (Kirschbaum, p. 523). Against this hackground the following matters of note and emphasis emerge : 1. As already indicated, Congress, in producing the Act, did not make it coextensive with the limits of its power over commerce, ‘The history of the legislation leaves no doubt that Congress chose not to enter arenas which it might have oecupied’’ (Kirschbaum, p. 522; Overstreet, p. 128). 2. This necessarily means that there is a remaining area which is the subject for appropriate state regu- lation. Congress “indieated its purpose to leave local business to the protection of the ug (Jacksonville Paper, p. 570; 10 East 40th St., p. 582; Waialua, p. 272; Zachry, p. 314). 3. This less-than-complete coverage is manifoste.t and oceasioned by the Act’s failure to contain, with respect to interstate commerce, such words as “affect- ing’? or ** promoting” rather than the narrow “engaged in commerce or in the produetion of goods for com- meree"™ (Polish Alliance ve Labor Board, 322 U.S. 643, 647; Carr, p. 574; Threlkeld, p. 493; Lublin, H. Zt). 32 4. This fact of restricted coverage, however, ‘is no reason for narrowly circumscribing the phrase ‘en- gaged in commerce’ ’’ (Overstreet, p. 128; Lublin, p. 211). Indeed, it is to be construed liberally, reeogniz- ing **that the purpose of the Act was to extend federal eoutrol in this field throughout the farthest reaches of the channels of jnterstate eommerve’’ (Jacksonville Paper, p. 567; Overstreet, p. 128; Zachry, p. 320) limited only by the reach of the Act itself (Threlkeld, p. 493). See also Mitchell v. Kroger Company, 8 Cir., 248 F. 2d 935, 938. We are said to be dealing with an Act ‘‘that has been given a liberal construction from Kirschbaum * * * to Alstate * * *’? (Vollmer, p. 429). The statute ‘‘nmst not he interpreted or applied in a narrow, grudging manner” (‘lennessee Coal, p. 597). 5. On the other hand courts are to bear in mind that ‘Gt is no warrant for extending a statute that experi- ence may disclose that it should have been made more ecomprehensive.’”’ (Holly Hill, p. 617); they are to be alert ‘not to absorb by adjudication essentially local activities that Congress did not see fit to take over by legislation’? (10 East 40th St., pp. 482-3; Zachry, p. 314). 6. The provisions of the Act ‘‘are remedial and humanitarian in purpose’’ (Tennessee Coal, p. 597) and the statute ‘‘was based on findings and a declara- tion of broad poliev”’ (Holly Hill, p. 616). 7. It is-said that ‘‘deecisions dealing with various assertions of state or federal power in the «ommerce field are not particularly helpful in determining the reach of this Act’? (Jacksonville Paper, p. 569; >The liberal construction given the Act from Airschhaum * * * to Alatate * * * and down to and including the Vod/mer case is now forsaken.” Mr. Justice Douglas dissenting, with otuers, in Zachry, p. 322. 33 Kirschbaum, pp. 520-1) and that there is ‘no single concept of interstate commerce which can be applied to every federal statute regulating commerce’ (Threl- keld, p. 495). 8. Nevertheless, the observation made, in Swift and Company v. United States, 196 U.S. 375, 398, with respect to the constitutional scope of the commerce power, that ‘‘commerce among the States is not a technical legal conception, but a practical one, drawn from the eourse of business’’ has been apphed ‘as a starting point for inquiry whether a particular busi- ness is ‘in ecommerce’ within the meaning of this Aet”’ (Jacksonville Paper, p. 570). 9. The application of the Act is ‘dependent upon the character of the employees’ activities’? and not upon those of the employer (Kirschbaum, p. 524; Warren-Bradshaw, p. 90; Jacksonville Paper, p. 571; Overstreet, p. 132; Threlkeld, p. 497; Lublin, p. 211; Zachry, p. 315). The fact an employer may he en- gaged in ecommerce or in the production of goods for ecommerce does not mean that all his employees are necessarily covered by the Act (White Plains, p. 184). 10. Tests have been evolved. In eases where the “in commerce” phrase is in issue the test “is not whether the employee’s activities afrect or indirectly relate to interstate commerce but whether thev are actually in or so closely related to the movement. of the commerce as to be a part of it’? (Threlkeld, p. 497; Boutell, p. 466) or “whether the work is so di- rectly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated, local activity’? (Vollmer, p. 429; Lublin, p. 212; Mitchell v. Brown, 8 Cir., 224 F.2d 359, 363, cert. den., 350 U.S. 875). Where the “production of goods for commerce’ phrase is involved the test, at 34 least before the 1949 amendment, was whether the work has ‘‘a close and immediate tie with the process of production for commerce’’ (Kirschbaum, p. 529; Borden, p. 682; Roland, p. 665; Farmers Irrigation, p. 759; Waialua, p. 271). ‘‘Whatever terminology is used, the criterion is necessarily one of degree and must be so defined’’ (Kirschbaum, p. 526). Since 1949 it is still required “that we once again apply the formulation set down in Kirschbaum, which, in view of the 1949 amendment, we must do with re- newed awareness of the purpose of Congress to avoid intrusion into withdrawn local activities’’ (Zachry, p. 318). . 11. The “test of whether one is in commerce 1s obviously more exacting than the test of whether his occupation is necessary to production for com- merece’? (Armour, p. 131; Tobin v. Johnson, 8 Cir., 198 F. 2d 130, 132, cert. den. sub nom. Johnson Vv. Durkin, 345 U.S. 915: Hertz Drivurself Stations v. United States, 8 Cir., 150 F. 2d 923, 926). 12. No precise formula or hard and fast rule which will resolve all cases is available. “Formulas are not provided bv the great concepts of the Con- stitution * * *”? (Kirschbaum, p. 526) and none is provided here. “Practical considerations”? are re- peatedly emphasized (Overstreet, p. 128; Vollmer, p. 429). “What is required is a practical judgment ** * (Armour, p. 130; Roland, p. 665). As has been noted above, it is a matter of drawing lines: And when lines have to be drawn they are bound to appear arbitrary when judged solely by bordering cases. To speak of drawing lines in adjudication is to express figuratively the task of keeping in mind the considerations relevant to a problem and the duty of coming down on the side of the considerations having controlling weight. Lines are not the worse 390 for being narrow if they are drawn on rational considerations. 10 Kast 40th St. Co. vy. Callus, 325 U.S. 578, S84. This “makes it all the more necessary to hew close to the line marked out by the specific facts of the eases before us’’ (Mr. Justice Frankfurter, dissenting, in U. S. Cartridge, p. 523). 13. The emplovee has the burden of establishing that he is covered by the Act (Warren-Bradshaw, p. 90; Schulte, p. 120; Mt. Clemens, p. 687). 14. Each case must stand on its own facts (Swift, p. 140; Mitchell v. Brown, supra, p. 362 of 224 F. 2d).° *It is nevertheless interesting to observe the specific results in only the Supreme Court cases and without. listing the results in the very numerous lower federal court decisions including our own which have been decided to this date. Thus we have hold- ings, either direct or upon admission, that the Act does apply to employees of a loft building whose tenants are engaged in the production of goods for interstate commerce (Kirschbaum) . the rate clerk of an interstate motor transportation company (Overnight Motors): employees of a rotary drill crew whose task ceased at an agreed depth short of the oil sand stratum (Warren-Bradshaw). employees of a paper wholesaler’s branch houses from which distribution did not cross state lines (Jack- sonville Paper): employees of a toll road and drawbridge over the intra-coastal waterway in Florida (Overstreet): employees of a construction company building new replacement abutments and repairing sub-structures of bridges damaged by floods and used by interstate railroads (Pedersen): night watchman for manufacturing plant shipping auost of its goods in interstate commerce (Southern Packaged; underground iron ore miners (Tennessee Coal): citrus fruit cannery employees (Holly Hill); on-call time of fire guards for a packing plant producing goods for interstate commerce (Armour; Swift): warehouse and cen- tral office employees of an interstate retail chain store system (Phillips): interstate manufacturer's office building employees (Borden): employees of a manufacturer and interstate servicer of electrical equipment (Roland) ; employees of a window clean- ing firm doing contract work for customers engaged in inter- state commerce (Mich. Window Cleaning: but see Zachry, p. 36 Inspite of the recent referenee (Mr. Justice Douglas for the dissenters, in Zachry, p. 325) to the theretofore existing “‘svimmetry of the judicial rulings under the Act’’, we must bear in mind that each of these cases, too, “*must stand on its own facts’, and that perhaps no decided case affords precise precedent for the ones now before us. It is our task to adopt a liberal ap- proach where the statute is applicable and yet to be aware that there is an area of regulation whieh Con- vress has left to the states: to be mindful of the facet 317); employees of a daily newspaper having less than one- half of 1% of outstate circulation (White Plains) ; employees of a service firm working on vehicles owned by a corporation en- gaged in interstate commerce (Boutell); employees of a loft building, the tenants of which deliver their manufactured goods to local distributors who ship them in interstate commerce (Schulte) ; emplovees of irrigation company supplying water to farmers who raise produce shipped in interstate commerce (Farmers Irrigation); employees of manufacturer operating government munitions plant under contract (U.S. Cartridge) : off-the-road employees producing surfacing materials used on interstate roads and railroads (Alstate; Hempt):; employees of an agency furnishing watchmen, fire inspection and other serv- ices to an interstate retail system (Joyce Agency): sugar processing plant employees (Waialua) ; employees of contractor building lock on new alternate route for intra-coastal water- way in Louisiana (Vollmer); non-professional employees. of architectural and engineering firm designing projects in more than one state (Lublin). We also have holdings that the Act does not apply to employees of a wholesale produce company receiving some of its merchandise from other states but deliver- ing only in Maine (Carr); a cook employed by a firm contract- ing to furnish meals to maintenance-of-way employees of an interstate railroad (Threlkeld); employees of a loft building, the tenants of which are not engaged in manufacture (16 East 40th St.); interstate railroad employees in training (Portland Terminal) ; employees engaged in the construction of a naval training camp and base depot (Murphey); employees of a con- struction company building a dam to increase a city’s reservoir capacity (Zachry). 37 that construction employees may (Warren-Bradshaw ; Pedersen; Alstate; Hempt; Vollmer; Tobin v. John- son, supra, and Tobin v. Pennington-Winter Const. Co., supra) or may not (Murphey; Zachry) be subject to the Act; and to be aware that the so-called new construction rule, which has been developed and ap- plied in other areas of federal regulation,’ does not now thwart coverage under this Act... This may well involve the walking of a decisional tightrope but we do so with the comfort that all the cases are close and that the lines are necessarily finely drawn. Zachry, being not only the most recent expression of the Sapreme Court but involving, as it does, con- struction employees, deserves special mention. ‘The employer there was constructing a Texas river dam designed to increase existing reservoir capacity of a water supply distriet whieh imeluded the City of Corpus Christi. The dam was not a multi-purpose project. The existing dam was to continue im use until inundated upon the completion of the new con- struction. Nearly half the water consumption from the system went to industrial users most of whom produced goods for commerce, Some water was con- sumed by facilities and instrumentalities of commerce. The Court mentioned many of the general rules out- lined above and noted three categories of activity to which the Act applied: first, employment which was TSee Raymond ve Chi, Mil. de St. Pe Py, Co. 245 US. 43, and the cases cited by the dissent in Voller. p. 452-3. * Vollmer, p. 429 and Zachry, p. 313. See Southern Pacific Co. vv. Gileo, 351 US. 493, 500; Lublin, p. 213: Archer v. Brown c& Root, Ine., 5 Cir. 241 F. 2d 663, 664-5, cert. den. 355 U.S. 825. The fact that construction is new, however, is not an irrelevant factor in determining coverage (Zachry, p. 319). 38 “in commerce’ and the least affected by local inter- ests; second, and a ostep removed, employment in “production for commerce’; and third, and furthest removed, employment in an activity which is’ only related to such production. It stated, pp. 315-4, 319 and 320 of 362 U.S.: * * * whether construction work is covered depends upon all the circumstances of the rela- tion of the particular activity to “commerce” in the statutory. sense and setting. * * * ** * As we held in Vollmer, that an activity is rightly called construction and is therefore distinet from operation, does not per se remove it from coverage. Construction may be suff ciently “closely related” to production to place it in that proximity to “commerce which the Act demands as a predicate to coverage * * * ** * What is finally controlling im each case is the relationship of the employment. to commerce,” in the sense of the statute, and it needs no argument that as to that relationship this case is significantly different from: Lublin or Vollmer. ZAachry, of course, has distinguishing factual fea- tures from those before us, centers upon the ‘pro- duction’? clause rather than the “in commerce” clause of the Act and, furthermore, is a decision by a bare majority of the Court. The case is helpful, however, because (a) it emphasizes the limitations of the stat- ute; (b) it recognizes that all work and particularly all construction work is not covered by the Act; (¢) it gives emphasis to the three gradations of covered ac- tivity; (d) it stresses the need for considered judg- ment in the light of all aspects of the activity under review, and (e) its implications are not restricted to the “production’’ clause. 30) The foregoing principles and Zachry itself show the way, we feel, to the disposition of the present ‘ases and we affirm. We do so in the conviction, reached after a thorough review of this reeord and of the original exhibits, that the activities of these 29 employees are not within the vital phrases of the Act. We reaeh this conelusion in the light of the following factors: A. The: employees were certainly not engaged in the “production of goods for Commerce” in spite of the allegations of the complaints and the argument evidently made in the trial court. The Secretary on this appeal does not seriously, oat all, urge cover- age under this phrase of the statute. Im any event, Zachry would appear to be conclusive oppose ait- thority on that issue. Bb. We are then conceerned with fitting the work of these emplovees tito the “in commerce” plirase. “This Is activity “least affected by local interests”. Are these employees engaged in “trade, commerce, trans- portation, transmission or communication among the several States”, as §203(b) defines, and as Zachry outlines, p. 316, in aetivities of traditionaily national concern” at ‘the hub of national interest in *c¢om- merce’ or does their work have a more ready rela- tionship te what is essentially local activity ? (. Many of the decided cases, where coverage is found, involve the last phrase of the definition of produced” (see footneate 3) which, Zachry teils us, pp. 316-7, is “at the periphery of coverage” and ‘marking the outer limits of applieabilitv’. The present cases with their reliance on ‘tin’ commerce” involve the “‘more exacting.” test. 1). Congress, when it wants clearly to imelude ai area of aetivity, knows how to use appropriate lan- 40 guage (Holly Hill, p. 616; Polish Alliance, supra, p. 647 of 322 U.S.). EK. These employees were not engaged in the con- struction of the dam itself or in the clearance work at the damsite. Their activities were in more remote areas and certain phases of their work, such as com- plete clearance down to Elevation 840, admittedly were oceasioned solely by the anticipated public recreational use. F. The trial court’s findings that the clearing oper- ations ‘‘were strictly of a local nature”, p. 560 of 179 F. Supp., has support in the testimony of defendant’s witnesses and also finds support from the Secretary’s principal witness, J. C. Pyle, Chief Hydraulic Engi- neer with the Corps. Much of the eross-examination of Pyle is set forth in Judge Miller’s memorandum. Mr. Pyle did state on direct that in his opinion the clearing work was a part ‘‘of the overall construction’’ and he gave a: affirmative answer to the question whether the clearing was “desirable from the stand- point of reducing floating debris on the reservoir”; yet he aiso acknowledged that the design memorandum stated that the clearing was desirable for reasons other than floatage and that ‘‘the largest reason for the clearing was to promote the passage of boats”. On cross-examination, he recognized the change, since the Norfork dam was built, in official attitude as to the necessity of clearance and admitted that ‘one of the plans studied provided only ‘‘for a very small amount of clearing”’ at the “access points and the main public aeeess”; that floating material would not hother the penstocks at all; that “ttuat type of clearing in the vicinity is desirable * * * I would be inclined to say that it is not necessary * * *”; that he didn’t expeci trouble; that ‘‘it was cleared to control mosquitoes and for boat passage, the boats being primarily recrea- 41 tional boats” and that “this is not a navigation proj- ect’. The testimony as to the purpose of the clearing thus, at best, is in conflict. The trial judge’s deter- mination as to this is essentially factual in nature and we are reluetant and unable to say that it is clearly erroneous. G. Setting to one side this conflicting testimony, the changes in the Corps thinking and other items re- viewed in the trial court’s opinion, there remains the signifieant nature of the clearing itself. This alone almost compels the conclusion that protection of the dam, if it were present as a factor at all, Was no more than a consequential motive in the elearing. Only a little over 14% of the reservoir shoreline was cleared; the major portion of the timbered area in the reservoir had no clearing of any kind; in the modified clearing areas any existing fallen trees and trash were allowed to remain; there was no clearing in the flood-pool although water will rise to that level on occasion and at Bull Shoals flood-pool timber was killed by the flooding; complete clearing centered in the publie ac- cess areas; and no clearing was done on opposite sides of the stream. : H. While we can accept the Secretary's proposition that the White River project must be viewed in its entirety, we are not convinced that it follows from this that every activity in connection with the project is eovered by the Act. The argument would be stronger if Congress had used all its available constitutional power. Somewhere the line must be drawn. “There must be a cut-off point at some time * * *”. Mitchell v. Hygrade Water & Soda Company, 8 Cir., 285 F. 2d 362, 367. I. We are not here concerned with an issue com- parable to that of the validity of government taking as to which the cases (including our own recent United 42 States v. Mischke, 8 Cir., 285 F. 2d 628, 631) hold that, at least in the absence of arbitrariness, wisdom of de- cision is a legislative matter not subject to judicial review. We have involved here the interpretation and application of a statute. J. We attach little significance to the fact that the funds paid defendant came from general appropria- tions allocable either to flood control or power. Mr. Pyle testified that all the costs were allocated to these two categories. K. The legislative tendency since the passage of the original Act has been in the direction of limiting the broad interpretations which the courts have given the statute. This is evidenced by both the Portal-to- Portal Pay Act, ec. 52, 61 Stat. 84, now 29 USCA § 251 et seq., and the 1949 amendment to §203(j). (See Steiner, pp. 253-6; Zachry, p. 317, and Mitchell v. Hy- grade Water & Soda Company, supra, p. 366 of 285 F. 2d). We must heed that tendency and its judicial recognition. The Secretary’s alternative argument that, because one of the purposes of the clearing activities had a relationship to the passage of boats in the reservoir, and because the reservoir extends into two states, we are concerned with employment directed toward the improvement of navigability of a waterway of the United States and thus with employment plainly within the coverage of the Act, has its tantalizing as- pects. We find no authority precisely supporting this contention. We think that the Secretary’s argument is no more than part and parcel of, and not separate from, his main argument; that the fact there may be pleasure boats wandering into certain of the reser- voir’s tentacles stretching into adjacent Arkansas is only an incidental circumstance which does not make the present employees’ activities of a kind the Act’s 43 “engaged in commerce” language Was meant to em- brace; and that this secondary issue is fully controlled by all that has been said on the primary point. Tobin ve Pennington-Winter Const. Co., supra, which the Seeretary urges upon us, must net be passed by. This is particularly so because the Su- preme Court stated, p. 429 of 349 ULS., that certiorari in Vollmer was granted to resolve an apparent con- tliet with Penntngton-Winter. This Tenth Cireuit ease involved elearance work for a multi-purpose project. The decision, one judge dissenting, placed great emphasis upon the comprehensive character of the improvement plan and upon the fact that the recreation facilities “were a very stnall part of -the project’, and it regarded as of “vital significance” the fact “that the major portion of the work’? con- sisted of the removal of possible obstructions which would interfere with the operation of the dam itself. It is net clear whether “in commerce’? or “produc- tion’? was primarily involved. In any event, the record before us, in contrast, brings out the primarily local or recreation aspects of the work performed. Much of this may be due, as the record indicates, to the change in engineering attitudes in the inter- vening years, tempered by experience, as to the non- necessity of clearance in projeets of this kind. Be that as it may, we feel that if Pennington-Winter falls on one side of the fine line whieh courts must draw, the present cases are sufficiently different. from it so as to fall on the other side. In any event, Pen- nington-Winter predates Zachry. We have reviewed, undoubtedly at too great length, the many Supreme Court cases, the rules they pro- mulgate, and the several factors which have influenced us In reaching our conclusion. Decision in this kind of case is, after all, perhaps only a question of touch 44 and of tone. Although this may be one of the “hostile constructions’’ anticipated by the dissent in Zachry, p. 325, we conclude that the work performed by these employees was activity essentially collateral and local in nature and not subject to the reach of the Fair Labor Standards Act. Affirmed. United States Court of Appeals for che Eighth Circuit No. 16509. September Term, 1960 ARTHUR J. GOLDBERG, SECRETARY OF LaBor, UNITED STATES DEPARTMENT OF LABOR, APPELLANT v. WapbE LaHAR CONSTRUCTION COMPANY, A CORPORATION APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS This cause came on to be heard on the record from the United States District Court for the Western District of Arkansas, and was argued by counsel. On Consideration Whereof, It is now here Ordered and Adjudged by this Court that the judgment of the said District Court appealed from in its Civil Cause No. 451 be, and it is hereby, affirmed. APRIL 13, 1961. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_1219%3A2. Public record. Not legal advice.