Battaglia v. General Motors Corporation

• Decision Date: 08 July 1948
• Docket Number: No. 290-293,Docket 21026-21029.,290-293
• Citation: 169 F.2d 254
• Parties: BATTAGLIA et al. v. GENERAL MOTORS CORPORATION. HOLLAND et al. v. GENERAL MOTORS CORPORATION. HILGER et al. v. GENERAL MOTORS CORPORATION. CASHEBA v. GENERAL MOTORS CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

169 F.2d 254 (1948)

BATTAGLIA et al. v. GENERAL MOTORS CORPORATION.

HOLLAND et al. v. GENERAL MOTORS CORPORATION.

HILGER et al. v. GENERAL MOTORS CORPORATION.

CASHEBA v. GENERAL MOTORS CORPORATION.

Nos. 290-293, Docket 21026-21029.

Circuit Court of Appeals. Second Circuit.

July 8, 1948.

David Diamond, of Buffalo, N. Y. (Manly Fleischmann, of Buffalo, N. Y., of counsel), for plaintiffs-appellants.

Henry M. Hogan, of New York City (Nicholas J. Rosiello, of Detroit, Mich., of counsel), for appellee.

Tom C. Clark, Atty. Gen., H. G. Morison, Asst. Atty. Gen., George L. Grobe, U. S. Atty., of Buffalo, N. Y., John F. X. McGohey, U. S. Atty., of New York City, Enoch E. Ellison, Sp. Asst. to the Atty. Gen., and Johanna M. D'Amico, Atty. Department of Justice, of Washington, D. C., for United States as Intervenor.

Before SWAN, AUGUSTUS N. HAND and CHASE, Circuit Judges.

CHASE, Circuit Judge:

Four separate suits were brought against the appellee in the District Court for the Western District of New York by and in behalf of its employees to recover overtime pay in accordance with the provisions of the Fair Labor Standards Act of 1938,¹ as interpreted by the Supreme Court in Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515. While these suits were pending without adjudication, Congress enacted the Portal-to-Portal Act of 1947, 61 Stat. 84-90, 29 U.S.C.A. §§ 251-262. The appellee then moved to dismiss each of the complaints, which for present purposes may be treated as identical, on the grounds that no cause of action was alleged and that the court was without jurisdiction by virtue of section 2 of the Portal-to-Portal Act.² As the appellants then questioned this statute upon constitutional grounds, notice of that was given the Attorney General and he was allowed to intervene in behalf of the government in support of the validity of the Act. The motions to dismiss were granted with leave to amend within a reasonable time fixed. The plaintiffs did not amend their complaints and after the expiration of their time to do so orders were entered granting the motions to dismiss each complaint. Appeals taken by the plaintiffs from each of those orders were consolidated for hearing.

The complaints alleged a cause of action under section 16(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 216(b), for overtime compensation and an additional equal amount as liquidated damages, together with reasonable attorney's fees, for time upon the employer's premises preliminary to, and after engagement in, the principal activities of the employees. This time was spent by the employees in walking to and from their work stations and walking out of their employers' premises when their principal work was done; in changing their clothes on their employer's premises before and after their main activities; in receiving their orders; in obtaining on such premises their tools and other equipment before, and in disposing of them after, their main activities; in washing and cleansing themselves after their principal work was done; and in lunch and rest periods during which their time was not entirely at their own disposal. It was not alleged that the compensation sought was for activities which were compensable by an express provision of a written or non-written contract, or by a custom or practice, in effect at the time of the activities and at the place of employment. Consequently, appellants did not meet the conditions of subdivision (a) of section 2 of the Portal-to-Portal Act on showing the employer's liability under the Fair Labor Standards Act, nor did they comply with the jurisdictional requirements of subdivision (d) of that section of the Act.³

In this way the issue of the constitutionality of this section of the Portal-to-Portal Act has been presented by these appeals. Though the appellants do not contend here, as they did below, that the question is premature since there was no trial on the merits, we deem it necessary to determine this point on our own motion, We think that the issue of constitutionality was properly raised by motion in each case before trial. Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following § 723c. It was the duty of the court to ascertain whether it had jurisdiction before proceeding to hear and decide the case on the merits. Emmons v. Smitt, 6 Cir., 149 F.2d 869, certiorari denied, 326 U.S. 746, 66 S.Ct. 59, 90 L.Ed. 446; Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264; see Smith v. McCullough, 270 U.S. 456, 459, 46 S.Ct. 338, 70 L.Ed. 682; Rule 12(h), Federal Rules of Civil Procedure, 28 U.S.C.A. following § 723c. The allegation of facts to show jurisdiction in the district court is a prerequisite to the trial of an action on the merits. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135; Donnelly Garment Co. v. International Ladies' Garment Workers' Union, 8 Cir., 99 F.2d 309, 316, certiorari denied, 305 U.S. 662, 59 S.Ct. 364, 83 L.Ed. 430; 28 U.S.C.A. § 380. Unlike the situation in Ward Baking Co. v. Holtzoff, 2 Cir., 164 F.2d 34, 36, where we said that, "It is inexpedient to attempt to decide a constitutional question such as this in vacuo," there were no allegations of fact which if proved would have permitted recovery whether or not the Portal-to-Portal Act were valid. If subdivision (d) of section 2 of that Act is valid the lack of jurisdiction is clear and if subdivisions (a) and (b) of section 2 are valid it is equally apparent that no cause of action on the merits was alleged. We think the dismissal of each cause of action right, for the following reasons.

A few of the district court decisions sustaining section 2 of the Portal-to-Portal Act have done so on the ground that since jurisdiction of federal courts other than the Supreme Court is conferred by Congress, it may at the will of Congress be taken away in whole or in part. E. g., Boehle v. Electro Metallurgical Co., D.C. Or., 72 F.Supp. 21; Story v. Todd Houston Shipbuilding Corp., D.C.S.D. Tex., 72 F.Supp. 690; Johnson v. Park City Consol. Mines Co., D.C.E.D. Mo., 73 F.Supp. 852; Quinn v. California Shipbuilding Corp., D.C.S.D. Cal., 76 F.Supp. 742; Grazeski v. Federal Shipbuildings & Dry Dock Co., D. C. N.J., 76 F.Supp. 845. Relying upon a statement of the Supreme Court in Kline v. Burke Construction Co., 260 U.S. 226, 234, 43 S.Ct. 79, 67 L.Ed. 226, 24 A.L.R. 1077, and on cases like Norris v. Crocker, 13 How. 429, 14 L.Ed. 210; Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264; and Assessors v. Osbornes, 9 Wall. 567, 19 L. Ed. 748, these district court decisions would, in effect, sustain subdivision (d) of section 2 of the Act regardless of whether subdivisions (a) and (b) were valid. We think, however, that the exercise by Congress of its control over jurisdiction is subject to compliance with at least the requirements of the Fifth Amendment. That is to say, while Congress has the undoubted power to give, withhold, and restrict the jurisdiction of courts other than the Supreme Court,⁴ it must not so exercise that power as to deprive any person of life, liberty, or property without due process of law or to take private property without just compensation. Graham & Foster v. Goodcell, 282 U.S. 409, 431, 51 S.Ct. 186, 75 L.Ed. 415; cf. Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 682, 50 S.Ct. 451, 74 L.Ed. 1107; see also Lynch v. United States, 292 U.S. 571, 580, 54 S.Ct. 840, 78 L.Ed. 1434; Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 589, 55 S.Ct. 854, 79 L.Ed. 1593, 97 A.L.R. 1106. Thus, regardless of whether subdivision (d) of section 2 had an independent end in itself,⁵ if one of its effects would be to deprive the appellants of property without due process or just compensation, it would be invalid. Under this view, subdivision (d) on the one hand and subdivisions (a) and (b) on the other will stand or fall together. We turn then to a consideration of the question whether the appellants have been unconstitutionally deprived of any substantive rights.

It is contended that, while the employees' rights to overtime compensation⁶ ultimately flow from the Fair Labor Standards Act, they are also in some sense "contractual" in nature and hence were vested. And it is well settled that contracts made by private parties must necessarily be construed in the light of the applicable law at the time of their execution. See 3 Williston on Contracts (Rev.Ed.) Sec. 615. These appellants' contracts of employment with the appellee were made before the Fair Labor Standards Act was enacted.⁷ Thus it cannot be said that the contracts were "made," as the appellants put it, with reference to the provisions of that Act. Perhaps it can be argued, however that upon the enactment of that Act, it was adopted by the parties as a part of their agreement. See Roland Electrical Co. v. Black, 4 Cir., 163 F.2d 417, appeal pending. If this be true, then the contracts would, of course, have to be read in connection with, among other provisions, section 7, 29 U.S. C.A. § 207, providing for payment of one and one-half times the regular rate for hours worked in excess of a "work-week" of forty-four hours during the first effective year of the Act, forty-two hours the second year, and forty hours thereafter.

But, assuming the contracts were thus modified, at the time of the modification the decisions in Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949, 152 A.L.R. 1014; Jewell Ridge Coal Corp. v. Local No. 6167, U. M. W., 325 U.S. 161, 65 S.Ct. 1063, 89 L.Ed. 1534; and Anderson v. Mt. Clemens Pottery Co., supra — all of them so construing section 7 as to include time spent in so-called portal to portal activities in the "work-week" of employees — had not been handed down. Williston says, in Sec. 615 noted above, "Doubtless law frequently is adopted by the parties as a portion of their agreement. Whether it is or not in any...