Fisch v. General Motors Corporation

• Decision Date: 02 August 1948
• Docket Number: 10685.,No. 10692,10692
• Citation: 169 F.2d 266
• Parties: FISCH et al. v. GENERAL MOTORS CORPORATION. BATEMAN et al. v. FORD MOTOR CO.
• Court: U.S. Court of Appeals — Sixth Circuit

169 F.2d 266 (1948)

FISCH et al. v. GENERAL MOTORS CORPORATION.

BATEMAN et al. v. FORD MOTOR CO.

Nos. 10692, 10685.

Circuit Court of Appeals. Sixth Circuit.

August 2, 1948.

COPYRIGHT MATERIAL OMITTED No. 10692:

Ernest Goodman, of Detroit, Mich. (Ernest Goodman, Jack N. Tucker and N. L. Smokler, all of Detroit, Mich., on the brief; Harry H. Anbemder, Morton A. Eden, Benjamin J. Safir and Geo. W. Crockett, Jr., all of Detroit, Mich., of counsel), for appellants Fisch and others.

Nicholas J. Rosiello, of Detroit, Mich. (Henry M. Hogan and Nicholas J. Rosiello, both of Detroit, Mich., on the brief), for appellee General Motors Corp.

No. 10685:

Lowell Goerlick, of Toledo, Ohio (Nicholas J. Rothe, of Detroit, Mich., and Lamb, Goerlich & Mack, of Toledo, Ohio on the brief; Edward Lamb and Lowell Goerlich, both of Toledo, Ohio, of counsel), for appellants Bateman and others.

Rockwell T. Gust, of Detroit, Mich. (Butzel, Eaman, Long, Gust & Kennedy, of Detroit, Mich., By Rockwell T. Gust, of Detroit, Mich., on the brief), for appellee Ford Motor Co.

Tom C. Clark, H. G. Morison, Enoch E. Ellison and Johanna M. D'Amico, all of Washington, D. C. and Thomas P. Thornton and Roger P. O'Connor, both of Detroit, Mich., for United States as Intervenor.

Beaumont, Smith & Harris, Albert E. Meder, Frank E. Cooper and Charles Wright III, all of Detroit, Mich., amici curiae in support of District Court's order of dismissal.

Before HICKS, SIMONS and ALLEN, Circuit Judges.

HICKS, Circuit Judge.

These suits were brought by plaintiffs and other employees of defendants. Originally the complaint sought to recover alleged unpaid wages for overtime work such as "walking time" and other activities preliminary to actual work, and for liquidated damages and attorney's fees, under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., as interpreted in Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515. The suits were brought prior to the Portal-to-Portal Act, Ch. 52, Public Law 49, May 14, 1947, 29 U.S.C.A. § 251 et seq. After the Portal-to-Portal Act became effective defendants filed motions to dismiss upon the ground that the court had no jurisdiction of the subject matter. Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Thereupon the plaintiffs amended their complaints by alleging that they were entitled to payment because the defendants had entered into a contract or contracts with the United States or its agencies under which the defendants agreed that they would comply with all federal laws and regulations, including the Fair Labor Standards Act and the regulations issued with relation thereto, and that these contracts inured to the benefit of the plaintiffs. The Government intervened and for plea said that the Portal-to-Portal Act conformed in all respects to the requirements of the Constitution. The court sustained the motions to dismiss and plaintiffs appealed.

As the cases involve similar questions and were heard together, one opinion will suffice. In view of the large number of Judicial opinions already announced upon the issues involved, we think it appropriate to limit this opinion rather closely to a simple statement of our conclusions and the reasons therefor.

The parties are referred to as plaintiffs and defendants as they appeared in the court below.

We cannot yield to plaintiffs' contention that the court's action on the motion to dismiss was premature. If it appeared to the satisfaction of the court at any time after the suits were brought that they did not really and substantially involve a dispute or controversy properly within its jurisdiction, it was its duty to proceed no further and to dismiss the suit. Title 28 U. S.C.A. § 80; Kline v. Burke Const. Co., 260 U.S. 226, 234, 43 S.Ct. 79, 67 L.Ed. 226, 24 A.L.R. 1077; Gallardo v. Santini Fertilizer Co., 275 U.S. 62, 48 S.Ct. 24, 72 L.Ed. 157; The Assessors v. Osbornes, 76 U.S. 567, 19 L.Ed. 748; Hallowel v. Commons, 239 U.S. 506, 36 S.Ct. 202, 60 L.Ed. 409. The court was not relieved of this duty by the presence of a constitutional question for the reason that the Constitution is the supreme law.

The Fair Labor Standards Act of 1938 was declared to be constitutional in United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430 see also Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296, and within the congressional power to regulate commerce. When these actions were brought the court had jurisdiction to entertain them under the Fair Labor Standards Act because, (1) the Act constituted a regulation of interstate commerce Title 28 U.S.C.A. § 41(8); and (2) because jurisdiction was especially conferred by Sec. 216(b) of the Act. Johnson v. Butler Bros., 8 Cir., 162 F. 2d 87, 88.

The complaints set out the grounds upon which the court's jurisdiction depended and a short and plain statement of their claims for overtime wages and other preliminary activities, etc., which by the Mount Clemens case, supra, were declared compensable under the Fair Labor Standards Act.

The Portal-to-Portal Act caused a different situation to be presented. It is an amendment to the Fair Labor Standards Act Holland v. General Motors Corporation, D.C., 75 F.Supp. 274, 276, and like its predecessor, is within the domain of interstate commerce. In Rogers Cartage Co. v. Reynolds, 6 Cir., 166 F.2d 317, we declared Sections 9 and 11 thereof to be constitutional. Part I embraces "Findings and Policy," herein later referred to; and in Part II, which embraces the subject of "Existing Claims," appears the following:

"Sec. 2. Relief from certain existing claims under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, and the Bacon-Davis Act —

"(a) No employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act (in any action or proceeding commenced prior to or on or after the date of the enactment of this Act), on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any activity of an employee engaged in prior to the date of the enactment of this Act, except an activity which was compensable by either —

* * * * * *

"(d) No court of the United States, of any State, Territory, or possession of the United States, or of the District of Columbia, shall have jurisdiction of any action or proceeding, whether instituted prior to or on or after the date of the enactment of this Act, to enforce liability or impose punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended, under the Walsh-Healey Act, or under the Bacon-Davis Act, to the extent that such action or proceeding seeks to enforce any liability or impose any punishment with respect to an activity which was not compensable under subsections (a) and (b) of this section."

It is obvious that if subsections (a) and (d) of Section 2, Part II, are valid, plaintiffs' claims are precluded. Sec. 2(a) nullifies employer liability and Sec. 2(d) withdraws the jurisdiction of the court to act on them. Plaintiffs challenge the validity of these sections upon constitutional grounds.

We make certain preliminary observations, — (1) that "every possible presumption is in favor of the validity of an act of Congress until overcome beyond rational doubt" Adkins v. Childrens Hospital, 261 U.S. 525, 544, 43 S.Ct. 394, 396, 67 L.Ed. 785, 24 A.L.R. 1238; (2) that "the burden of establishing the unconstitutionality of a statute rests upon him who assails it" Metropolitan Cas. Ins. Co. v. Brownell, 294 U.S. 580, 584, 55 S.Ct. 538, 540, 79 L. Ed. 1070; and (3) that a court cannot declare a statute unconstitutional solely upon the ground that it is unjust and oppressive and will work hardship and loss, or because it is supposed to violate some natural, social or political rights of a citizen, unless it can be shown that such injustice is prohibited or such rights protected by the Constitution. Cooley's Constitutional Limitations, 8th ed., Vol. I, p. 341; Norman v. Baltimore & O. R. Co., 294 U.S. 240, 307, 55 S. Ct. 407, 79 L.Ed. 885, 95 A.L.R. 1352.

Plaintiffs contend that their causes of action are founded upon rights vested in them and protected by the due process clause of the Fifth Amendment, which cannot be disturbed. We think plaintiffs' rights were not "vested rights" in the sense contended. The law is thus stated by Judge Cooley:

"And it may be well at this point to examine in the light of the reported cases the question, What is a vested right in the constitutional sense? and when we have solved that question, we may be the better able to judge under what circumstances one may be justified in resisting a change in the general laws of the State affecting his interests, and how far special legislation may control his rights without coming under legal condemnation. In organized society every man holds all he possesses, and looks forward to all he hopes for, through the aid and under the protection of the laws; `but as changes of circumstances and of public opinion, as well as other reasons affecting the public policy, are all the while calling for changes in the laws, and as these changes must influence more or less the value and stability of private possessions, and strengthen or destroy well-founded hopes, and as the power to make very many of them could not be disputed without denying the right of the political community to prosper and advance, it is obvious that many rights, privileges, and exemptions which usually pertain to ownership under a particular state of the law, and many reasonable expectations, cannot be regarded as vested rights in any legal sense.' * * *" Cooley's Constitut. Lim., Vol. II, pp. 746-7.

See Dibrell v....