Mitchell v. Robert De Mario Jewelry, Inc., No. 17068.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtHUTCHESON, , and TUTTLE and JONES, Circuit
Citation260 F.2d 929
PartiesJames P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant, v. ROBERT DE MARIO JEWELRY, INC. and Robert DeMario, an Individual, Appellees. ROBERT DE MARIO JEWELRY, INC. and Robert DeMario, an Individual, Cross-Appellant, v. James P. MITCHELL, Secretary of Labor, United States Department of Labor, Cross-Appellee.
Docket NumberNo. 17068.
Decision Date07 November 1958

260 F.2d 929 (1958)

James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant,
v.
ROBERT DE MARIO JEWELRY, INC. and Robert DeMario, an Individual, Appellees.

ROBERT DE MARIO JEWELRY, INC. and Robert DeMario, an Individual, Cross-Appellant,
v.
James P. MITCHELL, Secretary of Labor, United States Department of Labor, Cross-Appellee.

No. 17068.

United States Court of Appeals Fifth Circuit.

November 7, 1958.


260 F.2d 930

Jacob I. Karro, Atty., Dept. of Labor, Bessie Margolin, Asst. Sol., Dept. of Labor, Sylvia S. Ellison, Dept. of Labor, Washington, D. C. (Stuart Rothman, Solicitor, Washington, D. C., Albert M. Horn, Birmingham, Ala., United States Department of Labor, Beverley R. Worrell, Regional Attorney, Birmingham, Ala., on the brief), for appellant.

R. Lamar Moore, Moultrie, Ga. (Moore, Gibson, DeLoache & Gardner, Moultrie, Ga., on the brief), for appellees.

Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.

JONES, Circuit Judge.

The Secretary of Labor brought suit in the United States District Court for the Middle District of Georgia, invoking the jurisdiction conferred by Section 17 of the Fair Labor Standards Act,1 against Robert DeMario Jewelry, Inc., a corporation, and Robert DeMario who controlled the corporation and owned most of its stock. It was charged by the Secretary that three employees of the jewelry company had been wrongfully discharged in violation of Section 15 of the Act2 for having complained to the Secretary that they were not receiving minimum wages. In addition to seeking an injunction, in general terms, against violations of Section 15(a) (3) of the Act, the Secretary prayed that the appellees be required to reinstate the three discharged employees and to reimburse them for wages lost as a result of the wrongful discharges.

The district court entered its decree ordering the reinstatement of the three discharged employees. The district judge indicated a doubt as to whether the court had any power to decree reimbursement for lost wages but found it unnecessary to determine this question "inasmuch as in the exercise of the Court's discretion such would not be ordered even assuming, without deciding, that the Court would have jurisdiction to order such reimbursement." The Secretary has appealed and urges that the district court erred in refusing to direct the appellees to make reimbursement to the employees for wages lost as a result of their wrongful discharge. The Secretary designated for printing only those portions of the record consisting of the Complaint, the Answer, and the Findings of Fact, Conclusions of Law and Decree. The appellees, saying that the record on appeal is not sufficient to permit a determination of whether there was an abuse of discretion in denying reimbursement, move that the appeal be dismissed.

The printed record is sufficient for our disposition of the case. If the appellees believed that the portion which the appellant designated for printing was inadequate, the rules of this Court provide the method by which other portions of the record may be included. 5th Cir. Rule 23, 28 U.S.C.A.

260 F.2d 931

Section 17 of the Fair Labor Standards Act, as originally enacted, merely conferred jurisdiction upon the district courts to restrain violations of Section 15 of the Act. The limiting proviso was not then a part of the statute. The Eighth Circuit Court of Appeals sustained a consent decree in a suit by the Wage and Hour Administrator directing payment to employees of the defendant of the difference between wages paid and the amount payable at the prescribed minimum hourly and overtime rates. Walling v. Miller, 8 Cir., 1943, 138 F.2d 629, certiorari denied 321 U.S. 784, 64 S.Ct. 781, 88 L.Ed. 1076. Doubt was expressed as to the authority of the administrator to maintain the suit, but it was found unnecessary to decide the question. One of the judges, in an opinion concurring specially, expressed the opinion that the power given to district courts to restrain violations included the power to direct payments of wage deficiencies unlawfully withheld. Thereafter it was held by the Second Circuit Court of Appeals that in a proceeding brought under Section 17 for the reinstatement of wrongfully discharged employees the court had inherent power to enforce payment of wages lost by the discharge. Walling v. O'Grady, 2 Cir., 1944, 146 F.2d 422. In support of its decision the court cited and relied upon Texas & N. O. R. Co. v. Brotherhood of Ry. Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034; Phelps Dodge Corporation v. N. L. R. B., 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217; and the specially concurring opinion in Walling v. Miller, supra.

The O'Grady case was followed in the Second Circuit by McComb v. Frank Scerbo & Sons, 2 Cir., 1949, 177 F.2d 137, in which it was held that the district courts had power, in a suit to restrain violations of the minimum wage and hour provisions of the Act, to order restitution of overtime wages. In the opinion of the court it followed, and it recited in its opinion that it was following, its O'Grady case. It quoted from the special concurrence in Walling v. Miller, supra. The authorities relied upon in the O'Grady case were cited and also the intervening decision in McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed. 599. Cf. Brotherhood of Ry. & S. S. Clerks v. Texas & N. O. R. Co., D.C., 25 F.2d 876, affirmed 5 Cir., 33 F.2d 13. The Texas & N. O. R. Co. case and McComb v. Jacksonville Paper Co. case involved situations where prior decrees, framed to act prospectively, had not been complied with and contempt proceedings had thereafter been instituted. In the McComb v. Jacksonville Paper Co. opinion 336 U.S. 187, 69 S.Ct. 500 it was said "We can lay to one side the question whether the Administrator, when suing to restrain violations of the Act, is entitled to a decree of restitution for unpaid wages." It is hornbook law that in a contempt proceedings for the violation of an injunction the court may ascertain damages for the breach and enter judgment for such damages. 12 Am.Jur. 430-432, Contempt § 62. The power of Federal courts to enforce decrees and punish by contempt for their breach is expressly recognized in Rule 70, Fed.Rules Civ. Proc., 28 U.S.C.A. Cf. National Drying Machinery Co. v. Ackoff, 3 Cir., 1957, 245 F.2d 192, certiorari denied 355 U.S. 832, 78 S.Ct. 47, 2 L.Ed.2d 44. Phelps Dodge Corp. v. N. L. R. B. involved the provision of the National Labor Relations Act, 29 U.S.C.A. § 160(c), authorizing the Labor Board, under the circumstances stated by the Congress, "to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of" that Act. No such power is conferred on the courts by Section 17 of the Fair Labor Standards Act. 313 U.S. 177, 61 S.Ct. 849.

By the Fair Labor Standards Amendments of 1949, 63 Stat. 910, 920, Section 17 was amended by adding the proviso,

"That no court shall have jurisdiction, in any action brought by the Administrator Secretary of Labor to restrain such violations, to order the payment to employees of unpaid
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13 practice notes
  • Brennan v. State of Iowa, No. 73-1500.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 26, 1974
    ...of Labor in enforcing the FLSA, though brought in public interest, are suits by the United States. See Mitchell v. Robert DeMario Jewelry, 260 F.2d 929, 932 (5th Cir. 1958), rev'd on other grounds, 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960) (and cases cited therein). Suits by the Unit......
  • Perez v. Gulf Coast Mgmt. Co., CIVIL ACTION NO. 14-00426-N
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • March 3, 2015
    ...unpaid minimum wages or overtime compensation and an equal amount as liquidated damages." See Mitchell v. Robert De Mario Jewelry, Inc., 260 F.2d 929, 932 (5th Cir. 1958) ("In the drafting of the 1949 [Fair Labor Standards Amendments] there was included as Section 16(c) the provision that, ......
  • Dunlop v. State of N.J., No. 74-1289
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 3, 1975
    ...(8th Cir. 1974), cert. denied, --- U.S. ---, 95 S.Ct. 2422, 44 L.Ed.2d 683 (1975) (No. 73-1565); Mitchell v. Robert DeMario Jewelry, Inc., 260 F.2d 929, 932 (5th Cir. 1958), reversed on other grounds, 361 U.S. 288 (1960); Mitchell v. McCarty, 239 F.2d 721, 724 (7th Cir. 1957); Walling v. Fr......
  • Ford v. Alfaro, Nos. 85-1615
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 27, 1986
    ...v. Griffin, 446 F.Supp. 791, 799-800 (D.D.C.1977); Mitchell v. Robert DeMario Jewelry, Inc., 180 F.Supp. 800, 801-02 (M.D.Ga.1957), aff'd, 260 F.2d 929 (5th Cir.1958), rev'd on other grounds, 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960); Mullins Broadcasting Co., 200 N.L.R.B. 119, 126-2......
  • Request a trial to view additional results
13 cases
  • Brennan v. State of Iowa, No. 73-1500.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 26, 1974
    ...of Labor in enforcing the FLSA, though brought in public interest, are suits by the United States. See Mitchell v. Robert DeMario Jewelry, 260 F.2d 929, 932 (5th Cir. 1958), rev'd on other grounds, 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960) (and cases cited therein). Suits by the Unit......
  • Perez v. Gulf Coast Mgmt. Co., CIVIL ACTION NO. 14-00426-N
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • March 3, 2015
    ...unpaid minimum wages or overtime compensation and an equal amount as liquidated damages." See Mitchell v. Robert De Mario Jewelry, Inc., 260 F.2d 929, 932 (5th Cir. 1958) ("In the drafting of the 1949 [Fair Labor Standards Amendments] there was included as Section 16(c) the provision that, ......
  • Dunlop v. State of N.J., No. 74-1289
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 3, 1975
    ...(8th Cir. 1974), cert. denied, --- U.S. ---, 95 S.Ct. 2422, 44 L.Ed.2d 683 (1975) (No. 73-1565); Mitchell v. Robert DeMario Jewelry, Inc., 260 F.2d 929, 932 (5th Cir. 1958), reversed on other grounds, 361 U.S. 288 (1960); Mitchell v. McCarty, 239 F.2d 721, 724 (7th Cir. 1957); Walling v. Fr......
  • Ford v. Alfaro, Nos. 85-1615
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 27, 1986
    ...v. Griffin, 446 F.Supp. 791, 799-800 (D.D.C.1977); Mitchell v. Robert DeMario Jewelry, Inc., 180 F.Supp. 800, 801-02 (M.D.Ga.1957), aff'd, 260 F.2d 929 (5th Cir.1958), rev'd on other grounds, 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960); Mullins Broadcasting Co., 200 N.L.R.B. 119, 126-2......
  • Request a trial to view additional results

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