443 F.2d 689 (D.C. Cir. 1971), 22692, National Automatic Laundry and Cleaning Council v. Shultz

Docket Nº:22692.
Citation:443 F.2d 689
Party Name:NATIONAL AUTOMATIC LAUNDRY AND CLEANING COUNCIL, Appellant v. George P. SHULTZ, Secretary, U.S. Department of Labor, et al.
Case Date:March 31, 1971
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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443 F.2d 689 (D.C. Cir. 1971)



George P. SHULTZ, Secretary, U.S. Department of Labor, et al.

No. 22692.

United States Court of Appeals, District of Columbia Circuit.

March 31, 1971

Argued March 13, 1970.

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Mr. Edward Hatton, Chicago, Ill., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, with whom Messrs. Ashley Sellers and Charles E. Yonkers, Washington, D.C., were on the brief, for appellant.

Mr. Nathan Dodell, Asst. U.S. Atty., with whom Messrs. Thomas A. Flannery, U.S. Atty., Joseph M. Hannon and Roger E. Zuckerman, Asst. U.S. Attys., and Robert B. Nicholson, Atty., U.S. Department of Labor, were on the brief, for appellees. Mr. David G. Bress, U.S. Atty., at the time the record was filed, also entered an appearance for appellees.

Before WRIGHT, LEVENTHAL and ROBINSON, Circuit Judges.

LEVENTHAL, Circuit Judge:

Appellant brought an action for a judgment declaring invalid a ruling of the Administrator of the Wage and Hour Division of the, department of Labor that coin-operated laundries (sometimes called launderettes) are subject to the Fair Labor Standards Act (Act), 29 U.S.C. § 201 et seq., as amended in 1966. The District Court dismissed the action, stating, 'The Court is the opinion that there exists no case or controversy between the parties.' We find there was jurisdiction but conclude judgment should be entered in favor of defendant on the merits.


The events leading up to this lawsuit began with a letter written on January 17, 1967, by appellant's attorneys to the Wage-Hour Administrator. National Automatic Laundry and Cleaning Counsel ('NALCC') is a national trade association for the coin-operated laundry and dry cleaning industry. Its membership includes 72 manufacturers, 119 distributors and 1, 260 owners or operators of over 1, 600 coin-operated laundry and/or dry cleaning establishments. Its letter inquired about the effect of the recently passed 1966 amendments to the Act, effective February 1, 1967, on the status of employees of coin-operated laundries.

Understanding of the letter's inquiry requires a reference to the provisions, as they existed prior to 1966, of the two exemptions in § 13(a), 29 U.S.C. § 213 and (3). The exemption in § 13(a)(2) was the conventional retail or service establishment exemption, while § 13(a)(3) specifically exempted 'any employee employed by any establishment engaged in laundering, cleaning, or repairing clothing or fabrics' provided the establishment met certain further criteria

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not here relevant. Employees of ordinary laundries or dry cleaning establishments were thus not generally subject to the Act's minimum wage and overtime requirements. In 1963, however, the Administrator ruled that coin-operated launderettes were 'engaged in renting the service of the laundry machines rather than engaged in laundering or cleaning, ' and hence were not exempt under § 13(a)(3); but they could still qualify for the § 13(a)(2) retail or service establishment exemption if they met that subsection's criteria. W.H.M. 91:1162 (1963)

The Fair Labor Standards Amendments of 1966, Pub.L. 89-601, effective February 1, 1967, repealed the specific laundry exemption of § 13(a)(3) and added provisions specifying that establishments 'engaged in laundering, cleaning or repairing clothing or fabrics' could no longer qualify for the retail exemption of § 13(a)(2) 1 and were to be deemed 'engaged in commerce or in the production of goods for commerce' within the meaning of the Fair Labor Standards Act without regard to the dollar amount of gross sales. 2

NALCC reasoned that its members were unaffected by the 1966 amendments because coin-operated laundries had been determined by the Administrator's 1963 ruling to be renting the service of laundry machines, not 'engaged in laundering, cleaning or repair of clothing or fabrics.' Its letter therefore said, 'We wish to confirm that (the 1963 ruling) still applies to our client's business.' The letter concluded by setting forth three typical fact situations prevailing in the coin-operated laundry business and requested the opinion of the Administrator as to the Act's applicability to each example.

By letter of April 6, 1967, the Administrator replied to the attorneys representing NALCC stating, in pertinent part:

The legislative history of the 1966 amendments to the Fair Labor Standards Act makes it clear that a coin-operated launderette or dry cleaning service is engaged in laundering or cleaning clothing or fabrics within the meaning of the act. The amendments extend the coverage of the act to employees in enterprises engaged in laundering, cleaning or repairing clothing or fabrics.

In the situations outlined in your letter, each of the business operations would comprise an enterprise as defined in section 3(r) of the act. Each would be a covered enterprise as defined in section 3(s) (2), provided two or more employees in each enterprise are engaged in the activities described above.

It is this interpretation of the Act that appellant challenges in its declaratory judgment action.


The Government raises the basic question whether the courts may appropriately provide the judicial review sought by plaintiff of the interpretation by the Administrator. In past decisions refraining from judicial review courts have summoned, and often confused, a variety of concepts, finding a lack in one or another of the elements a suitor must provide to obtain judicial review: case or controversy; standing; finality (or formality); ripeness; suitability of case for relief in equity or declaratory judgment. These concepts are separable, and for clarity of analysis we discuss them separately, but with awareness that they are intermeshed in the overall determination of the appropriate occasion for judicial review.

A. Case or Controversy; and Standing

The District Court's ruling that no case or controversy exists between the parties was intended, as appears from

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the cases it cited, 3 to invoke the rule that avoids judicial consideration of an administrative ruling that is only informal and hypothetical, until an enforcement proceeding is begun. We discuss this subsequently, and begin our consideration by taking up the Government's contention that, wholly apart from the lack of appropriateness of any court review at this juncture, plaintiff association lacks standing to sue, and has no interest of its own and no standing to vindicate the rights of its members.


The Supreme Court's recent decisions have made the standing obstacle to judicial review a shadow of its former self, and have for all practical purposes deprived it of meaningful vitality. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); K. Davis, The Liberalized Law of Standing, 37 U.Chi.L.Rev. 450 (1970). The broad new test announced by the Court to determine whether a person has standing to bring a suit to challenge an administrative ruling is 'whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.' 397 U.S. at 153, 90 S.Ct. at 830.

These cases were intended in the broad to forego litigation about preliminaries in favor of early settlement of controversies, and in a large sense they carry forward the presumption favoring judicial review that was stated in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). But they must also be given significance in terms of a line of cases which has shifted the focus of the courts from primary concern with the effect of the agency position on the challenger to a lens that provides both a broader field of vision and more depth perspective, to a view, or overview, that examines the broad consequences of the administrative ruling in terms of fidelity to Congressional purpose and other requirements of the Rule of Law.

The courts still require a stake in the outcome to assure adversarial presentation and sharpen the issues. But even a minuscule pecuniary stake of the litigant may be sufficient if he provides a suitable and effective vehicle for vindication of larger values. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The decisions have witnessed a steady enlargement and extension of Judge Frank's illuminating concept giving standing to a litigant not directly governed by the ruling he challenges on the ground that he has interest as a 'private attorney general.' See Scanwell Laboratories, Inc., v. Shaffer, 137 U.S.App.D.C. 371, 375-376, 424 F.2d 859, 863-864 (1970), for discussion of Associated Industries v. Ickes, 134 F.2d 694 (2d Cir.), vacated as moot, 320 U.S. 707, 64 S.Ct. 74, 88 L.Ed. 414 (1943), and later cases. The rulings have struck the fetters of the prior judicial inhibitions and restraints that had gone beyond detachment to inaccessibility

This revision of judicial thinking on the standing question has been accompanied by an adjunct line of cases that show a wide disposition to allow associations to appear as representatives of their members and to grant them standing to seek to vindicate the interests of those members. See, e. g., National Motor Freight Traffic Ass'n v. United States, 372 U.S. 246, 83 S.Ct. 688, 9 L.Ed.2d 709 (1963); Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 428...

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