The opinion of the court was delivered by: BYERS
The defendants' motion for summary judgment presents an interesting and difficult question under the Social Security Act, 42 U.S.C.A. § 301 et seq., of whether sums paid to plaintiff by his employer for his subsistence and maintenance while engaged upon the latter's business, at places remote from his home, are to be treated as wages for the purposes of the Act.
There are no contested questions of fact, and decision is required concerning the legality of the defendants' conclusion that such payments were to be regarded and treated as an 'allowance or reimbursement for * * * expenses incurred in the business of the employer' and therefore not wages.
This conclusion is based upon the report of the Board's Referee, which took into account the facts presented by the employee and the employer according to testimony taken at first and second hearings; the latter was ordered by the Appeals Council which reconsidered its first action, and granted relief to the plaintiff as to the item of lunch money paid when the plaintiff was attached to and working from the home office of his employer, but at places somewhat removed therefrom.
The defendants argue that the conclusion is a mixed question of law and fact, and in the latter aspect is not open to judicial review since the record reveals evidence to sustain the decision.
As to so much of the case, the statute itself, 42 U.S.C.A. § 405(g), and the cases completely sustain the defendants' argument: Walker v. Altmeyer et al., 2 Cir., 137 F.2d 431; Social Security Board v. Warren, 8 Cir., 142 F.2d 974; Thompson v. Social Security Board, App. D.C., 154 F.2d 204. As stated above, however, there is no present contention by the plaintiff (he appears pro se and has filed no brief) to the effect that the facts as already found should be reconsidered; he assumes them to have been established, but he argues that the law and regulations have been incorrectly interpreted against him.
In passing upon the status of newsboys the National Labor Relations Board had helm them to be employees, subject to the Labor Act, 29 U.S.C.A. § 151 et seq. The Supreme Court used this expression when the case came before it, National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111, 64 S. Ct. 851, 860, 88 L. Ed. 1170:
'Undoubtedly questions of statutory interpretation, especially when arising in the first instance in judicial proceedings, are for the courts to resolve, giving appropriate weight to the judgment of those whose special duty is to administer the questioned statute.' (Citing cases)
This cause was brought under the Social Security Act (42 U.S.C.A. § 405(g)), to obtain a review of a decision of the Social Security Board refusing to revise the plaintiff's wage record from January 1, 1938, to March 8, 1942, so as to include therein amounts paid to him by his employer for living expenses while absent from New York City on his employer's business.
The plaintiff during the period in question was employed by Pinkerton National Detective Agency, Inc., as a special operative in attendance at race tracks, and the items now in dispute have to do with his employment at Saratoga, N.Y., where he was paid $ 3.00 per day and $ 1.50 per week for laundry, and at one or more tracks in Florida where he was paid $ 6.00 per day, in addition to the $ 5.00 per day which he was paid when working in New York City. As to the latter, when in attendance he was also paid fifty cents a day for lunch money when assigned to the Belmont, Jamaica, Aqueduct and Yonkers tracks.
The original action of the Appeals Council upheld the Referee in excluding all such items from plaintiff's wages, but reconsideration caused the decision to be changed as to the lunch money items, which were added to his wage record, namely:
1939 . . . $ 69.00 (138 days)
1940 . . . $ 73.00 (146 days)
1941 . . . $ 70.59 (141 days)
The statutory definition of 'wages' is found in 42 ...