The opinion of the court was delivered by: KNOX
This suit was begun in 1943, when the employees of a number of lighterage firms in the New York area sued their respective employers for overtime pay, together with liquidated damages under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. Civil 23-517.
One of the defendants moved for summary judgment, on the ground that its employees were seamen, and hence exempt from the Act. That motion was granted by the District Judge, but the decision was reversed on appeal. Anderson v. Manhattan Lighterage Corporation, 2 Cir., 1945, 148 F.2d 971.
Thereafter, the case against Lee & Simmons came on for trial before me, the sole issue being whether or not the employees were properly classifiable as seamen. On August 7, 1946, I rendered an opinion, D.C., 68 F.Supp. 538, in which I held they were not seamen, and judgment was entered for plaintiffs on January 10, 1947. My conclusions underwent appellate review, and on July 21, 1947, they were affirmed. 2 Cir., 163 F.2d 95. The appeal was argued before the date of enactment of the Portal-to-Portal Act, 29 U.S.C.A. § 251 et seq., but the decision was rendered subsequent thereto. Shortly thereafter, the defendant filed a petition for rehearing. This was denied. However, the Court of Appeals ordered 'that the cause be remanded to the District Court with authority in that Court to consider and adjudicate any matters that may be presented to it under the Portal-to-Portal Act of 1947 by the parties.'
Defendant then moved successfully before me for permission to file a supplemental answer, setting up defenses under the Portal-to-Portal Act. Plaintiffs thereupon sought to review my action in the premises before the appellate court for this circuit. This effort failed inasmuch as the court ruled that my order was not appealable. March 30, 1948. 2 Cir., 167 F.2d 320. Judge Frank dissented. Defendant thereafter moved to clarify the original mandate, which had ordered the District Court to consider the Portal-to-Portal Act. The motion was denied, on the ground that the terms of court had expired, but the appellate court made clear that the District Court was to consider all questions presented under the new Act. 2 Cir., 170 F.2d 210, October 26, 1948.
In defendant's supplemental answer, six separate defenses are pleaded. They are as follows:
1. That under Section 2(a) of the Portal-to-Portal statute, neither the overtime nor any activity of plaintiffs was compensable according to custom, practice, or by express contract;
2. That under Section 2(d), the court was without jurisdiction, on the ground set forth above;
3. That under Section 3, the claims were compromised, settled, and released;
4. That under Section 9, defendant had relied in good faith on administrative rulings;
5. That under Section 11, the defendant acted in good faith with reasonable grounds for believing it had not violated the Act, and
6. That under the Constitution, in view of the findings and declarations of Congress incorporated in Part I of the Portal-to-Portal Act of 1947, the 1938 Act was unconstitutional.
Trial having been had on the merits of these defenses, the matter in issue must now be adjudicated.
No argument was made and no authorities cited in support of the contention that the Congressional findings incorporated into the Portal-to-Portal Act invalidate the 1938 Act. Indeed, no specific section of the Constitution is alleged to have been violated. In my opinion, this defense can not be sustained. U.S. v. ...