Pyramid Motor Freight Corporation v. Ispass

• Decision Date: 31 March 1947
• Docket Number: No. 41,41
• Citation: 330 U.S. 695,67 S.Ct. 954,91 L.Ed. 1184
• Parties: PYRAMID MOTOR FREIGHT CORPORATION v. ISPASS et al
• Court: U.S. Supreme Court

330 U.S. 695

67 S.Ct. 954

91 L.Ed. 1184

PYRAMID MOTOR FREIGHT CORPORATION

v ISPASS et al.

No. 41.

Argued Oct. 22, 1946.

Decided March 31, 1947.

[Syllabus from pages 695-697 intentionally omitted] Mr. Charles E. Cotterill, of New York City, for petitioners.

Mr. Deane Ramey, of New York City, for respondents.

Mr. Justice BURTON delivered the opinion of the Court.

This case presents two issues:

I. Was it reversible error for the Circuit Court of Appeals, 2 Cir., 152 F.2d 619, to deny petitione § motion to dismiss the appeal, made on the ground that the appeal had not been docketed and the transcript of record had not been filed within the time specified in Rule 73(g) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c? We hold that it was not.

II. Under the principles we have stated in the companion case of Levinson v. Specitor Motor Service, 330 U.S. 649, 67 S.Ct. 931, was the Circuit Court of Appeals justified in remanding the present case to the District Court for entry of a judgment under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., in favor of all of the respondents except Shapiro? We hold that the case should be remanded, but with directions to proceed in accordance with the opinion of this Court in this case and the Levinson case. This will include a direction to the District Court to determine whether or not the activities of each respondent consisted, wholly or in substantial part, of the class of work which is defined by the Interstate Commerce Commission in Ex parte No. MC—2, 28 M.C.C. 125, 133—134, as that of a 'loader' of freight for an interstate common carrier by motor vehicle, and as affecting the safety of operation of motor vehicles in interstate or foreign commerce.¹

This action was begun in 1942 in the City Court of the City of New York, pursuant to § 16(b) of the Fair Labor Standards Act.² It sought to recover unpaid overtime compensation for services rendered to the petitioner by each of six of the eight respondents as 'a delivery clerk and 'push-boy", during various periods between October 24, 1938, and September 20, 1941, computed in accordance with § 7 of the Fair Labor Standards Act,³ together with interest, liquidated damages and an attorney's fee. The case was removed by the petitioner to the United States District Court for the Southern District of New York, 59 F.Supp. 341. The other two respondents there joined in the complaint on like grounds. The petitioner answered that it was an interstate common carrier of freight by motor vehicle; that the labor performed by each of the respondents 'consisted primarily of that of (a) driver's helper and of (a) loader;' that, with respect to them, the Interstate Commerce Commission had power to establish qualifications and maximum hours of service pursuant to § 204 of the Motor Carrier Act, 1935, 49 U.S.C.A. § 304, and that, by virtue of s 13(b)(1) of the Fair Labor Standards Act,⁴ § 7 of that Act did not apply to the services of the respondents. The case was submitted to the court upon an agreed statement of facts.⁵

On November 29, 1943, the District Court rendered an opinion in which it declined to determine the status of the respondents but held the case 'open for further action' in order to give the respondents an opportunity to present that question to the Interstate Commerce Commission. D.C., 54 F.Supp. 565, 569. Pursuant to respondents' statement that they would not so apply to the Commission and pursuant to their motion requesting a final disposition of the case, the court, on February 14, 1945, dismissed the complaint 'without prejudice.'⁶ D.C., 59 F.Supp. 341. After considerable delay in the filing of the record on appeal, the Circuit Court of Appeals for the Second Circuit affirmed the judgment of dismissal as to the respondent Shapiro on the ground that 'he is a 'helper' within the Commission's ruling in 28 M.C.C. at pp. 135, 136.' 2 Cir., 152 F.2d 619, 622. As to the other respondents, it reversed the judgment with costs and remanded the cause 'for entry of judgment in their favor and for allowance of an attorney's fee.' 152 F.2d at 622. The judgment as to Shapiro has not been questioned and is not before us.

Because of its importance in the interpretation of the Motor Carrier Act and the Fair Labor Standards Act, we granted certiorari, 327 U.S. 774, 66 S.Ct. 818, and the case was argued immediately following the Levinson case. A brief on behalf of the Administrator of the Wage and Hour Division, United States Department of Labor, as amicus curiae, was filed jointly in this case and in the Levinson case, supporting the position of the respondents.⁷

I.

Notice of appeal, dated March 29, 1945, was filed by the respondents in the District Court April 2, 1945. In spite of the applicable provisions of Rule 73(g) of the Federal Rules of Civil Procedure,⁸ respondents sought from the District Court no extension of time within which to docket their appeal or file a transcript of the record. On July 20, 1945, more than 90 days from the date of the first notice of appeal, respondents, pursuant to motion supported by affidavit, secured from Circuit Judge Augustus N. Hand an order extending to September 1, 1945, the time within which to serve and file their record on appeal. On that date, the transcript of record was filed. The petitioner promptly moved to dismiss the appeal under Rule 73(a) of the Federal Rules of Civil Procedure,⁹ questioning especially the right of a single member of that court to make the order of July 20. This motion was denied October 10, 1945, Circuit Judges Learned Hand, Swan and Clark speaking for the court. The motion was renewed at the hearing on the merits of the appeal and, on December 28, 1945, was denied again, Circuit Judges Learned Hand, Swan and Frank speaking for the court. 2 Cir., 152 F.2d 619. The issue was raised properly and fully presented here.

The authority of a Judge of the Circuit Court of Appeals for the Second Circuit to extend the time for filing the record on appeal appears to be supported by Rule 15 of that court.¹⁰ That Rule, however, was not discussed by counsel and we sustain the action taken by the Circuit Court of Appeals under authority of Rule 73(a), even without reference to its own Rule 15.

The principal argument against the final action of the Circuit Court of Appeals on this motion is based upon the following statement in that court's opinion: 'In the case at bar there was no abuse of discretion in extending the time, despite the somewhat feeble excuses for delay, since the appeal presents a substantial question as to the correctness of the judgment.' (Italics supplied.) 2 Cir., 152 F.2d 619, 621. It is urged that this shows that the court based its refusal to dismiss the appeal on the substantiality of the question to be presented on the merits of the appeal, rather than on the substantiality of the excuses for the delay in filing the record.

We interpret the sta ement as no more than a recognition by the court that the substantiality of the question to be at issue on the merits of the appeal was a matter appropriate for its consideration under Rule 73(a), in connection with all the other circumstances before It. Rule 73(a) is intended to place reliance upon the sound discretion of the Circuit Court of Appeals. We see no reason to question the discretion exercised in this case as evidenced by the agreement of all of the five Circuit Judges to whom the issue was rpesented. Ainsworth v. Gill Glass & Fixture Co., 3 Cir., 104 F.2d 83; Mutual Benefit Health & Accident Ass'n v. Snyder, 6 Cir., 109 F.2d 469; Burke v. Canfield, 72 App.D.C. 127, 111 F.2d 526; United States v. Gallagher, 9 Cir., 151 F.2d 556.

Accordingly, we sustain the denial of the motion to dismiss the appeal under Rule 73(a).

II.

On the merits, the question is whether or not the Circuit Court of Appeals was justified in remanding this case with instructions to enter a judgment under the Fair Labor Standards Act in favor of all of the respondents except Shapiro. We hold that the cause should be remanded but that the order of remand should be modified. This case was tried, without a jury, entirely upon an agreed statement of facts and a pre-trial agreement between the parties, approved by the District Court, settling the issues to be determined. For the sake of clarity, we have proceeded on the same basis and have treated the case as though, upon remand of it to the District Court, that court will proceed upon the same record. This, however, should not be interpreted as necessarily restricting that court to that record if, for good cause, that court should find it advisable to retry the case de novo.¹¹

Under the agreed statement there was no question but that the Fair Labor Standards Act applied to each respondent provided only that he was not found to have been excluded from the overtime pay requirements of that Act by § 13(b)(1) because of being an 'employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 204 of the Motor Carrier Act, 1935; * * *.' 52 Stat. 1068, 29 U.S.C. § 213(b)(1), 29 U.S.C.A. § 213(b)(1). There thus will remain to be determined by the District Court the question whether the activities of the respective respondents consisted, either wholly or in substantial part, of the class of work which is defined by the Interstate Commerce Commission in Ex Parte No. MC—2, 28 M.C.C. 125, 133—134, as that of a 'loader,' and as affecting the safety of operation of motor vehicles in interstate or foreign commerce.¹²

It will remain for the District Court to apply the facts found by it as to the activities of the respective respondents to the classifications of work that have been made by the Interstate Commerce Commission, defining what comes within the jurisdiction of the Commission under § 204 of the Motor Carrier Act. The Commission has defined...