Harp v. United States

• Decision Date: 26 April 1949
• Docket Number: No. 3794.,3794.
• Citation: 173 F.2d 761
• Parties: HARP v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

173 F.2d 761 (1949)

HARP v. UNITED STATES.

No. 3794.

United States Court of Appeals Tenth Circuit.

March 28, 1949.

Rehearing Denied April 26, 1949.

John L. Goode, of Shawnee, Okl. (Mark Goode, of Shawnee, Okl., on the brief), for appellant.

Bessie Margolin, Asst. Sol., of Washington, D. C. (Robert E. Shelton, U. S. Atty., and Haskell B. Pugh, Asst. U. S. Atty., both of Oklahoma City, Okl., William S. Tyson, Sol., of Washington, D. C., Earl Street, Regional Atty., of Dallas, Tex., and William A. Lowe and Joseph M. Stone, Attys., U. S. Department of Labor, both of Washington, D. C., on the brief), for Appellee.

Before PHILLIPS, Chief Judge, BRATTON, Circuit Judge, and SAVAGE, District Judge.

BRATTON, Circuit Judge.

Section 1 of the Act of June 30, 1936, 49 Stat. 2036, 41 U.S.C.A. § 35 et seq., commonly called the Walsh-Healey Act, provides in presently material part that in any contract made and entered into by any executive department, independent establishment, or other agency or instrumentality of the United States, for the manufacture or furnishing of materials and supplies in any amount exceeding $10,000 there shall be included a provision that no female person under eighteen years of age will be employed by the contractor in the manufacture or production or furnishing of any of such materials and supplies. Section 2 provides that any breach or violation of any of the stipulations in any contract for the purposes set forth in section 1 shall render the party responsible therefor liable to the United States for liquidated damages, in addition to damages for any other breach, the sum of $10.00 per day for each female person under eighteen years of age knowingly employed in the performance of the contract. It further provides that any sums due the United States by reason of a violation of any of the stipulations set forth in section 1 may be withheld from amounts due on any such contracts or may be recovered in suits brought in the name of the United States by the Attorney General. Section 4 authorizes the Secretary of Labor to administer the Act and to make rules and regulations necessary to carry out its provisions. Section 5 provides that upon his own motion, or on complaint of a breach or violation of any stipulation as therein provided, the Secretary or any impartial representative designated by him shall have power to hold hearings; that he shall make findings of fact after notice and hearings; that such findings shall be conclusive upon all agencies of the United States; that if supported by the preponderance of the evidence, such findings shall be conclusive in any court of the United States; and that the Secretary or any authorized representative shall have power and authority to make such decisions, based upon findings of fact, as are deemed necessary to enforce the provisions of the Act. And section 6 empowers the Secretary to make exceptions in specific cases respecting the inclusion in a proposal or contract of the representations and stipulations set forth in section 1 of the Act. The rules of practice promulgated by the Secretary under the authority vested in him by section 4 of the Act provide that the Secretary or his duly authorized representative may institute administrative proceedings to determine whether the Act has been violated; that in the event a complaint is issued by the Government a full administrative hearing may be had before a trial examiner; and that the trial examiner shall make an order and decision embodying his findings of fact and conclusions of law on all issues in the case. Provision is made to petition for review of the examiner's decision by the Administrator of the Wage and Hour and public Contracts Divisions of the Department of Labor. And the right is also given to petition for review of the Administrator's decision by the Secretary, but in the absence of a petition for such review the decision of the Administrator becomes final. 11 F.R. 14,493.

Section 6 of the Act of May 14, 1947, 61 Stat. 84, 87, 29 U.S.C.A. § 255, hereinafter referred to as the Portal Act, provides:

"Any action commenced on or after the date of the enactment of this Act to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act —

"(a) if the cause of action accrues on or after the date of the enactment of this Act — may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued;

"(b) if the cause of action accrued prior to the date of the enactment of this Act — may be commenced within whichever of the following periods is the shorter: (1) two years after the cause of action accrued, or (2) the period prescribed by the applicable State statute of limitations; and, except as provided in paragraph (c), every such action shall be forever barred unless commenced within the shorter of such two periods;

"(c) if the cause of action accrued prior to the date of the enactment of this Act, the action shall not be barred by paragraph (b) if it is commenced within on hundred and twenty days after the date of the enactment of this Act unless at the time commenced it is barred by an applicable State statute of limitations."

Between October 15, 1943, and January 12, 1945, O. G. Harp, engaged in business at Shawnee, Oklahoma, under the trade name of O. G. Harp Poultry and Egg Company, entered into a series of eighteen contracts with the War Department for the sale and delivery of canned poultry. Each contract was for an amount in excess of $10,000, and each contained a provision incorporating therein by reference the terms and provisions of the Walsh-Healey Act. After completion of the contracts, the Secretary of Labor issued a complaint charging that Harp breached the contracts and violated the Act by knowingly employing girls under sixteen years of age, and also by hiring girls under eighteen years of age for periods of more than eight hours a day in violation of the terms of the Act and the terms of an exemption order issued by the Secretary. After notice, a hearing was held by a duly appointed trial examiner. The examiner made detailed findings and conclusions of law and recommended that $13,030 be...