author: JOYCE, District Judge.

text:
    ANDERSON et al. v. FEDERAL CARTRIDGE CORPORATION.
    Civil Action No. 1109.
    District Court, D. Minnesota, Fourth Division.
    June 11, 1945.

      Harrison E. Fryberger, of Minneapolis, Minn., for plaintiffs.
    Victor E. Anderson, U. S. Atty., and Linus J. Hammond, Asst. U. S: Atty., both of St. Paul, Minn., and Bert E. Church, of Kansas City, Mo., for defendant.
   JOYCE, District Judge.

This is an action by Frode Anderson and eleven other plaintiffs for recovery of varying amounts of overtime compensation, liquidated damages, attorney’s fees and costs, under the Fair Labor Standards Act of 1938, 52 Stat. 1060, 1063, 29 U.S. C.A. §§ 201-219. The action is in the nature of a class suit in which there are some 164 individual plaintiffs, employees and former employees of defendant, but pursuant to an order of the court plaintiffs’ counsel has selected these twelve individual plaintiffs for trial. The remainder will be held until the determination here.

Defendant is a cost-plus-a-fixed-fee contractor with the United States Government for the manufacture of small arms ammunition. These operations are carried on at the Twin Cities Ordnance Plant near New Brighton, Minnesota. Construction of the plant was commenced in August, 1941, but production .did not get under way until March 9, 1942. Defendant selected certain of its employees for special training at the Frankford Arsenal at Philadelphia, Pa. If also conducted a training school of its own at Minneapolis. Several of these plaintiffs spent some time at either or both of these places where they were trained or assisted in the training of others prior to commencement of production at the plant.

The ordnance plant is divided into two main branches, — production and inspection. As the names imply, the first is concerned with the production of ammunition and the second is concerned with the inspection of the component parts and the finished product, a sort of check on production to make certain the product is according to Government specifications. Final acceptance rests with the ordnance department representatives at the plant site. There are ancillary general branches or departments such as maintenance, plant protection, and personnel. There are a number of main production buildings on the plant site, each a separate manufacturing unit. Each of these buildings has certain well defined production departments such as loading, guage and weigh, wash and dry, bullet, charging, and packing. Each production building also has its own personnel office. The plaintiffs here held various titles, such as Building Superintendent, Assistant Building Superintendent, Fire Department Chief, Inspector I, II, and III, Personnel Technician II, and General Foreman and Shift Foreman of the various departments above named. They were all paid straight weekly salaries regardless of the number of hours worked in a work week. Theip salaries ranged from $58.40 to $104 per week.

The first point in issue is whether those plaintiffs who were employed before production of ammunition commenced on March 9, 1942, are entitled to the benefits of the Act. Some of plaintiffs were so-called “key men” and were sent to the Frankford Arsenal for training. There they learned the technique of small arms ammunition manufacture, and the plaintiff Klug spent some time in the East purchasing machinery for use at the Twin Cities Ordnance Plant. Before production actually commenced machinery had to be installed and assembled as the plant prepared for production activities. The question is whether plaintiffs engaged in these preliminary activities were “engaged in commerce or in the production of goods for commerce” within the meaning of the Wage and Hours provision of the Fair Labor Standards Act, 29 U.S.C.A. §§ 206, 207. Section 3 of the Act, 29 U.S.C.A. § 203, contains these definitions:

“(i) ‘Goods’ means goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof.
“(j) ‘Produced’ means produced, manufactured, mined, handled, or in any other manner worked on in any Staté; and for the purposes of this, chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State.”

So if an employee were engaged in an occupation necessary to the production of goods for commerce, he is entitled to the benefits of the Act. This burden of proof is on the employee, Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. 83, and whether the Act applies depends on the nature of his activities, Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638.

It is my opinion that plaintiffs have not met that burden of proof. The plant was not in production during this period although it was preparing to go into production of small arms ammunition. It had “produced” no “goods” for commerce. No case has been called to my attention where an employee has been held engaged in an occupation necessary for the production of goods for commerce when the employer is not engaged in commerce or in the production of any goods at all. In Warren-Bradshaw Drilling Co. v. Hall, supra, employees of an independent contractor engaged in drilling oil wells to a depth short of striking oil were held to be covered by the Act as being in a “process or occupation necessary to the production” of oil for interstate commerce. The court pointed out that “oil is obtained only by piercing the earth’s surface ; drilling a well is a necessary part of the productive process to which it is intimately related.” 317 U.S. 91, 63 S.Ct. 126, 87 L.Ed. 83. (Italics supplied). In other words, the drilling was considered as a part of the productive process and the Supreme Court considered employees so engaged as covered by the Act. The distinguishing fact here is that plaintiffs’ activities in receiving ¿raining and assembling machines were before there was any “productive process” at all. They were preparatory to but not a necessary part of such process. Suppose such plaintiffs had resigned or were found not to meet the standards required in their training and were terminated before any productive process was commenced. Or suppose that defendant’s contract was suspended or for some other reason the plant never commenced manufacture; should it then be said that such employees were engaged in the production of goods for commerce?

In Belzano v. Williams, D.C.Cal. plaintiffs, who were the maintenance men engaged in the care and cleaning of equipment, and machinists who were working on machines being built in a film laboratory which was under construction but not yet in production, were held not to be in commerce or in the production of goods for commerce.

In Wells v. Ford, Bacon & Davis, D.C. W.D.Ky., inspectors of materials going into buildings being constructed for manufacture of synthetic rubber intended for interstate commerce and where the defendant specialized in the construction of such buildings, were held not to be within the coverage of the Fair Labor Standards Act. This case was affirmed without opinion, 6 Cir., 145 F.2d 240.

Tlie same question arose in Lyons v. H. K. Ferguson Co., La.App., First Circuit, 16 So.2d 587, 593. Plaintiff was employed as a guard of the building construction activities of defendant, which was an agent of the defendant’s plant corporation. It was intended that the buildings would be used to process raw materials for the manufacture of synthetic rubber which was expected to be shipped in interstate commerce. The court analyzed the problem carefully, distinguishes the Warren-Bradshaw case, and concludes:

“Therefore the Act- does not apply to employees engaged in the original construction of buildings, even though the buildings, when completed, will be used to produce goods for interstate commerce.”

The same conclusion was reached by our Circuit Court of Appeals in Noonan v. Fruco Construction Co., 8 Cir., 140 F.2d 633. The very question before me was before Judge Dewey in Timberlake v. Day & Zimmerman, D.C., 49 F.Supp. 28. Defendant was the contract operator of the Iowa Ordnance Plant engaged in the manufacture of ammunition. Plaintiffs were members of the guard force during the plant’s construction and became employees of the defendant contractor on July 3, 1941. However, defendant did not commence the processing and manufacturing of materials intended for interstate commerce until August 21, 1941. It was held that after the latter date plaintiffs were engaged in work necessary to the production of goods for commerce-but not before then. I come to the same 'conclusion here. The evidence does not support a finding that any plaintiffs are^entitled to the benefits of the Act before production commenced at the Twin Cities Ordnance Plant on March 9, 1942. It has been stipulated that after that date they were engaged in commerce within the meaning of the Act.

The defenses are that plaintiffs were all employed in bona fide executive, administrative or professional capacities and were exempt under 29 U.S.C.A. § 213 (a) from the hours and wages provisions. This section of the Act must be construed strictly and the Administrator’s definitions of terms must be followed. Smith v. Porter, 8 Cir., 143 F.2d 292; Helliwell v. Haberman, 2 Cir., 140 F.2d 833. The Administrator’s definitions are set out in many of the cases and in 29 C.F.R. Sec. 541 and need not be repeated here. We are primarily concerned with the executive exemption.

Certain questions are common to all plaintiffs and will not need individual -comment. All received well over $30 a week for the periods in question. The evidence as to whether they had authority to hire or fire, or whether their recommendations as to advancement and promotion or any other change of status of other employees was given particular weight, is also common to all plaintiffs, as is the question of whether each was hired for a forty hour workweek.

Were Plaintiffs Employed on the Basis of a Forty-Hour «Workweek ?

To support their contention each plaintiff was shown a small booklet called “A Manual for Employees” which was published by defendant and' given to each plaintiff as well as all other employees at some time during his employment. Each plaintiff’s attention was then called to certain excerpts from the booklet, of which the following is a sample:

“D. Hours of Work
“1. Hours of work are at the regular schedule of forty hours per payroll week. For authorized and required hours in excess of forty in any payroll week, or in excess of eight in any day, payroll will be made pursuant to the provisions of the Wage-Hour and the Walsh-Healey Acts, on the basis of one and one-half times the regular per hour rate, or such other rate as may be established by law or by the President’s directive, provided the position is not exempt under the Wage-Hour Act or the Walsh-Healey Act,” [41 U.S.C.A. § 35 et seq.] (Italics supplied).

Plaintiffs’ attention was also called to the section in the manual which stated that for vacation purposes “one week” meant forty hours. Each plaintiff testified that he “relied” upon this language. There was no testimony as to what plaintiffs meant by this “reliance” but their counsel states in his brief that if plaintiffs had not thought they would recover the amounts asked for in this suit (which range from $2,713.54 to $15,820.90 in addition to their rather substantial salaries), “they would have quit the plant instanter.” There is no support in the evidence for such conclusion and the contention that these booklets, which cover a wide variety of informative material, constituted a contract of employment between defendant and these plaintiffs, in my opinion is unsound. It is specifically stated in the booklet that the forty hour week and overtime provisions do not apply to exempt employees. There is no serious question but that all of these plaintiffs were considered to be exempt by the defendant. Plaintiffs’ own actions during their term of employment disclose clearly what the contract was. When each was promoted to the straight salary classification he was given a definite job to do with supervisory duties and without particular reference to hours. All plaintiffs worked varying times from less than forty to more than sixty hours in a workweek, although the standard for non-exempt employees was usually forty-eight hours. Each week they received the same salary without complaint or any indication that such was not their agreement' with the company. That they later 'became dissatisfied with the arrangement, in no way changes its nature.

This same contention was urged in Landreth v. 'Ford, Bacon & Davis, 8 Cir., 147 F.2d 446, 448. The facts are strikingly similar. Defendant was a contract operator of a munitions plant. Plaintiff was first employed at an hourly rate with overtime and then promoted to a supervisory classification and paid a weekly salary on the theory that he was an exempt •employee under the Fair Labor Standards Act. On the trial it was conceded this classification was erroneous and the only •question was whether he was employed for a forty hour week or a variable workweek. In sustaining a finding that there was no contract for a forty hour week, our Circuit Court said:

“In this argument we think the appellant overlooks the fact that, although appellee erred in its interpretation of the Fair Labor Standards Act, it, nevertheless, classified the appellant and others like him as supervisory employees under a wage policy which definitely provided for the employment of employees in this classification for a workweek of unlimited hours. * * *
“But a policy of compliance with the Fair Labor Standards Act does not necessarily include the adoption of a forty hour workweek. The Fair Labor Standards Act does not limit an employee’s workweek to forty hours. On the contrary, it expressly permits employment for a workweek in excess of forty hours on condition that the employee receive compensation for time over forty hours at one and one-half times the regular rate at which he is employed. * * *
“It must be borne in mind that there is nothing in the Fair Labor Standards Act which denies to appellee the right to classify the jobs for which it hires its employees, and to classify the employees hired in accordance with the jobs assigned to them. The error of the appellee was not in the classification of employees but in its interpretation of the Fair Labor' Standards Act as applied to those employees, an error which requires for its correction only the proper computation and payment of the overtime compensation to which a given employee is entitled.”

This language is equally applicable here and I reach the same conclusion.

• The recovery of any of these plaintiffs will be determined by the variable workweek- formula as explained in Overnight Motor Transportation Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682, and as applied in Snyder v. Wessner, D.C., 55 F.Supp. 971.

Did Plaintiffs Have Authority to Hire or Fire Within the Meaning of the Regulations (29 C.F.R. Sec. 541.1(c)?

As might be expected of a plant with over 15,000 employees personnel procedures were standardized. Consequently the evidence applicable to each plaintiff was similar to others. All plaintiffs had supervisory duties. As part of those duties each was required to and regularly did rate and appraise his subordinates on forms furnished by the company. These records became part of the personnel files. The documentary evidence on this point is voluminous and a perusal of it convinces me that these plaintiffs conscientiously endeavored to follow the company’s policy in this regard. There is also evidence that in some departments, such as the Fire Department and Machine Shop, no hiring was done without approval of thé supérvisory head. Plaintiffs admit that one of their supervisory duties was to enforce company rules, particularly safety rules as some of the work was extremely hazardous. For infractions of these rules the supervisor could remove the offender from the premises in a serious case or suspend him to the grievance committee. That such instances may have been of infrequent occurrence does not alter the fact that the authority existed and that supervisors’ recommendations were given particular weight. Smith v. Porter, 8 Cir., 143 F.2d 292; Marshall-Wells Co. v. Haw-ley, D.C., 53 F.Supp. 295. No other conclusion is consistent with the circumstances. The supervisor was in a better position to inform his employer about the subordinates than anyone else, and, subject to seniority rules, the supervisor’s opinions and recommendations as expressed in his ratings and appraisals were given particular weight in cases of promotions or changes of status. In fact, the evidence disclosed the promotion of one of these plaintiffs shortly after favorable recommendation by his superior who is another plaintiff here. I conclude the defendant has sustained its burden of proof on this issue for all plaintiffs.

Joseph Klug.

This plaintiff held the titles of Assistant Superintendent and Superintendent of one of the large production buildings during the period for which overtime was claimed. His salary ranged from $300 per month to $104 per week. Immediately before working for defendant he earned $180 a month. As superintendent this plaintiff was the head supervisory officer over production in the building. He was furnished with a private office. At one time there were over 1600 production employees under his supervision including three assistant superintendents, seven general foremen and twenty-one shift foremen, all of whom were classified as supervisory personnel and some of whom are plaintiffs here.

There is considerable testimony as to the activities of this plaintiff, much of it documentary in the form of correspondence. His duties were many and varied and were apparently ably performed. His responsibility was heavy as ho was directly responsible for the production of ammunition in that building. There is no doubt but that his primary duty consisted of the management of the productive processes in the building and that he regularly and customarily directed the work of his subordinates and exercised discretionary powers. His testimony to the contrary and that he was merely a messenger boy verges on the ridiculous. As said of a similar plaintiff in Stanger v. Glenn L. Martin Co., D.C., 56 F.Supp. 163, 168, speaking of a change in viewpoint induced by this kind of litigation : “Had he then been treated as a mere clerk, he would have strongly repudiated any such disparaging designation of his status.” All of these plaintiffs apparently took the position that because there were certain well defined policies to be followed there was no opportunity for them to exercise discretion. If that were true, the statutory exemptions would be meaningless as no business could operate without well defined policies. This is especially true of the manufacture of ammunition where precision and accuracy of the manufactured product is literally a ’ matter of life and death. To hold that in order to qualify as exempt a supervisor would have to have unbridled discretion to initiate and .change contrary to common sense. . The fact is that the supervisors are bound by the company’s procedures and in addition have the responsibility of seeing that they are carried out and are obeyed by other employees. This involves the exercise of discretion in a high degree and is of the very essence of supervisory work.

There is some conflict in the evidence as to whether the plaintiff Klug spent more than 20% of his time doing work of the same nature as non-exempt employees. It appears that whenever there was trouble on the production floor Klug was present to help alleviate it. It seems obvious that this was part of his supervisory duties. That he worked hard and for long hours is in no way inconsistent with his supervisory responsibilities. The weight of the credible evidence is that Klug spent considerably less time than the 20% maximum in doing non-exempt work. His duties and abilities were unique and different from those of anyone else in the building. He was properly classified as exempt.

Harry F. Brown and Walter Hahanson.

Both of these men were in the inspection department and at different times held titles of Inspector I, and II, and Brown the title of Inspector III. An Inspector I had complete charge of the Inspection Department in a building for one shift. His duties included the training and placement of personnel, requisitioning help, initiating disciplinary actions and rating personnel, and in general he was responsible for the inspection processes on that shift. An Inspector II was something of a coordinator among the three shifts and acted as an assistant to the Inspector III. An Inspector III was the head supervisor of the inspection department in the building, similar to the superintendent in the production department.

The inspection department was a separate' department of defendant’s operations. It was independent of production and acted as a check thereon. There were some 300 inspectors under plaintiff Brown at one time. The primary work of all inspectors was to spot-check on production by taking samples of the components as they came fpom the production machines and either inspect them physically for patent defects or by using gauges to determine whether they met ordnance specifications. This work was of a routine nature and was done mostly by girls, one of whom gave an adept demonstration in the court room. From time to time both of these plaintiffs performed the same mechanical operations as did the girl “line inspectors.” But I cannot conclude it was “work of the same nature” within the meaning of the regulations. Both of these plaintiffs as part of their regular duties went from department to' department to check the work being done by their subordinates. There was no other way they could adequately supervise that work than by occasionally re-checking the work done by the line inspectors. While mechanically the same, it was a part of and incidental to the supervisory work. Both of these plaintiffs were highly skilled and had considerable inspection experience before being given the responsible positions they held. When there was doubt as to whether a group of components should pass inspection, these plaintiffs had the responsibility of making the determination. This involved the exercise of judgment and discretion in the highest degree. Their salaries reflected this responsibility, Hak-anson receiving more than $350 and Brown more than $400 a month. The credible evidence refutes their contention that 20% of their work consisted of that of the same nature as the non-exempt inspectors. They were both properly classified as exempt.

Walter W. King.

This plaintiff was chief of the fire department at the Twin Cities Ordnance Plant. In this State only the 'fire departments of Minneapolis and St. Paul are larger than defendant’s organization. King had served thirty years on the Minneapolis force and had been deputy fire chief. Due to this long experience King was employed by defendant to organize fire protection for the entire plant. That he did a good job is evidenced by the small number of fires and relatively insignificant fire loss. He interviewed and approved each new employee in the department and his recommendations as to transfer and promotion were given considerable if not controlling weight. His testimony that he exercised no discretion and spent half his time doing the same work as the other firemen, is entirely beyond credence, is against the weight of the evidence, and is contradictory. It is a disturbing commentary on human nature to hear testimony of this character. Otherwise honorable and respectable citizens seemingly,' at times, lose their perspective when they become plaintiffs in litigation of this kind. It is difficult to see what reasonable justification there was for bringing a suit in behalf of this plaintiff. He was obviously correctly classified.

Frode Anderson.

This plaintiff was general foremañ of the loading department in a production building. The loading department is a recognized sub-division of the production department. As the name implies, his work was concerned with the loading of the ammunition and powder. This was largely a machine operation. The non-exempt employees were classified as machine operators, adjusters and powder handlers. Each shift, of which there were three when the plant was on a twenty-four hour schedule, had a shift foreman in charge. The géneral foreman was in charge of all shifts in the department and the-shift foreman reported to him. He in turn was responsible to the production superintendent. He had no regular hours of work but arranged his time to supervise the activities of all shifts. At one time this plaintiff had 130 subordinate employees. His salary ranged from $69.60 to $80.80 per week.

In addition the evidence shows that this plaintiff had a natural inventive flair and was a highly skilled technician. He spent a considerable portion of his time in improving the production methods and simplifying operations. Many of his suggestions and improvements were adopted by the company. There was no evidence that anyone else did work of this nature. Certainly the subordinate employees in the loading department did not. The defendant has sustained the burden of proving this employee was exempt.

John B. Elliott and John F. Carlson.

Both of these men were shift foremen in the production department and Elliott was for a time general foreman. Elliott was in the “bullet draw” and “assembly” departments, Carlson in the “packing” and “guage and weigh” departments. They were paid at rates varying from $58.40 to $80.80 per week and both had worked as hourly paid employees before being promoted to foremen. The work in all of these departments is done principally by machinery. The work of a shift foreman differed in degree but not in kind from that of a general foreman. Each shift was independent of the others and qualifies as a sub-division of a department within the meaning and intent of the regulations. The foreman was directly in charge of the employees on his shift. He was their immediate supervisor. He rated the non-exempt employees, trained them or supervised their training. He had the responsibility for enforcing company rules, particularly with reference to safety. He had authority to recommend the disciplining of the employees and in general was directly responsible to the general foreman for the production of his shift. His duties and authority embraced the continued exercise of judgment and discretion.

There is a conflict in the evidence as to the amount of time these as well as other plaintiffs spent in work of the same nature as the noil-exempt employees under their direction. Much of this evidence is unreliable because of an apparent misunderstanding or misinterpretation by the witnesses as to what should be included as “work of the same nature.” Although the periods in question antedated the trial by some two years, many of these witnesses testified glibly to exact percentages of the time each plaintiff spent in doing exempt and non-exempt work. Assuming that such witnesses were engaged in doing some work while they were in defendant’s employ, it is difficult to conceive how there is sufficient foundation for such categorical opinions. In respect to similar testimony in a wage and hour suit against the contract operator of the Iowa ordnance plant, Judge Dewey said in Distlehorst v. Day & Zimmerman, D.C., 58 F.Supp. 334, 336:

“Percentages are difficult of determination where no records are kept and especially where all the witnesses know the percentages required, * * *”

There is the same difficulty here as most of the witnesses were apparently thoroughly rehearsed. Although it appears that these plaintiffs while acting as shift foremen assisted the ordinary employees particularly when a bottleneck developed, the weight of the credible evidence sustains the finding that defendant has met its burden of proof and that these plaintiffs did not spend more than 20% of their time in the work of the same nature as the non-exempt employees in their department and were therefore properly classified as exempt under the Act.

George R. Johnson

This plaintiff was employed by the defendant for several years before the ordnance plant opened. He was a skilled machinist and was superintendent and general foreman of the maintenance department. The maintenance department is a separate and distinct unit of defendant’s operations. It is concerned with the maintenance and repair as distinguished from minor adjustment of the heavy machinery. Its responsibility was to keep the machines operating. As head of this department Mr. Johnson was responsible only to the production manager of the entire plant. He was in complete charge of the maintenance activities in a building. He had a private office from which the work was assigned to the mechanics who worked under him. There is no substantial dispute that this plaintiff was in charge of his department, exercised discretion and directed the work of his subordinates. Like the other plaintiffs he testified to the contrary and that he was only a “messenger boy,” although his salary exceeded $300 per month. Such testimony needs little comment.

On the issue of how much time he spent doing the same work as the other mechanics there is the usual conflict of evidence. It is clear that in case of trouble he directly supervised the work and that his subordinates consulted him as to the best way to do the particular job. This would be natural in view of his experience and his position and is not inconsistent with his exempt classification. Sometimes he would actively assist one of the mechanics in a particularly difficult situation but most of the time that he spent on the floor was in going from one job to another, which was proper and necessary in view of his supervisory duties. He was not engaged in the same work as the ordinary mechanics for any appreciable portion of his working time and was properly classified as exempt.

Leo A. Day.

This plaintiff held the title of Personnel Technician II. He was in charge of the personnel office in various production buildings. His office was separate from the production activities of the building. He was responsible for seeing that the company’s personnel policies were followed and properly interpreted. He was assisted by clerks and stenographers and on the other shifts by Personnel Technician I, all of whom were classed as non-exempt. He performed the ordinary duties of a personnel man, which were non-manual in nature.

Defendant contends he was exempt as an administrative employee under the regulations. This regulation requires that to be exempt the employee must be one who is paid $200 per month salary and one “who performs only under general supervision responsible non-manual office or field work directly related to management policies or general business operations,- along specialized lines requiring special training, experience, or knowledge, and which requires the exercise of discretion and independent judgment.” 29 C.F.R. 541.2 (b) (2). Day’s salary was $58.40 per week so the only real question is whether he exercised discretion and judgment. On this the Department of Labor Bulletin of October 24, 1940, entitled “Report and Recommendations of the Presiding Officer at Hearings Preliminary to Redefinition,” is helpful. I quote:

“However, it may be reiterated here that a salary criterion constitutes the best and most easily applied test of the employer’s good faith in claiming that the person whose exemption is desired is actually of such importance to the firm that he is properly describable as an employee employed in a bona fide administrative capacity. * * *
“Employees exempted by the second alternative in the definition are those who can be described as staff rather than line employees, or as functional' rather than departmental heads. They include employees who act as advisory specialists to the management; many of them in the higher brackets are commonly described as consultants. * * * ‘ ‘
“Also included in this group are persons who are in charge of a so-called functional department, which may fre'quently be a one-man department. The work of these employees is directly related to general business operations. Typical examples are such employees as bank tellers, credit managers, purchasing agents, buyers, safety directors, personnel directors and labor relations directors * * *

It is apparent that the Administrator considered certain pérsonnel directors to be within the intent of the administrative exemption. This plaintiff was directly concerned with management policy. Of course he could not ex parte change or initiate personnel policies but he did take an active part in making recommendations as to personnel procedures. He was something of a trouble-shooter and seemed to have capably performed his duties. That he was engaged in personnel work both before and after his employment at the defendant’s plant, supports this. The fact that he received about $250 per month compared with the 760 or 880 per hour received by his subordinates, is also indicative of his position. It is my conclusion that this plaintiff’s work required and that he did exercise his discretion and judgment within the meaning of the administrative definition and that he was properly classified. It is therefore unnecessary to consider whether he would' have been exempt under the executive exemption.

Joseph L. Graen and George F. Owens.

Both of these men were shift foremen, Graen of the “wash and dry” and “IB and Tracer Charging” departments, and Owens of the “powder canning” department. Both admittedly spent considerable time doing manual labor of the same kind and nature as the other employees in their departments. Graen operated furnaces, washed walls, swept floors and operated and adjusted machines. Owens canned powder, moved railroad cars, drove trucks, cleaned up powder and took inventory. The amount of time each spent in this work is in dispute and is largely a question of degree. Upon all the evidence I am not satisfied that defendant sustained its burden of showing that these plaintiffs spent less than 20% of their time in work of the same nature as the non-exempt employees. They are therefore entitled to recover under the Act and it is unnecessary to consider whether they met the other tests of exemption.

Donald W. Stewart.

This plaintiff is still employed by defendant. He was shift foreman and general foreman of the “function and casualty” department. In this department the finished ammunition was tested by actually firing the cartridges and then inspecting the casing for defects. A report to the ballistics department was made for each round fired. The work in the department consisted of firing and care of the guns, inspecting the cases and making written reports. The testimony disclosed that the men in the ^department evolved a system whereby these duties were rotated among the gunners and that this plaintiff took his regular turn at the various duties that were performed by the other men. Defendant introduced a compilation which showed how many rounds each gunner fired in each day. This exhibit supports this plaintiff’s contention that he took his regular turn with the others in firing the guns. It is my conclusion that Stewart spent more than 20% of his time at the same work as the gunners in his department. He does not qualify as an exempt employee, nor is defendant’s contention that this plaintiff'is a professional employee a valid one. Although he had had some experience with - guns in the last war and was a rifle instructor in the Marine Corps, I am not convinced that his training meets the test of “a prolonged course of specialized intellectual training or study,” or that his work at the plant was “predominantly intellectu-. al and varied in character” within the meaning of the Administrator’s definition. 29 C.F.R. 541.3. He was therefore improperly classified and must be paid for overtime. His recovery will be limited in this suit to the period ending December 23, 1944. Stewart’s case is a good example of the unforeseen consequences of the application of the Fair Labor Standards Act.' In Section 2 of that Act, 29 U.S.C.A. § 202, Congress expresses its finding that there exists in industries engaged in interstate commerce “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers” and declares it to be the policy of this Act to remedy these unwholesome conditions through the exercise of the commerce power. It is difficult to see how anyone such as this plaintiff earning $75.20 a week, who is usually working forty-eight hours a week, is being paid a sub-standard wage that he cannot maintain a minimum standard of living. The employees under him received up to 920 per hour, or at the most $47.84 for a forty-eight hour week. Yet this plaintiff received not only a much larger salary for the same kind of work but now must be paid overtime and double damages, and his recovery is based on the fact that he did work for which he should have been paid not more than 920 per hour. At most defendant has improperly classified some of these plaintiffs. Had they been paid on an hourly basis with overtime, they would have received less than they did receive on a weekly salary basis. Under these facts the double damage provisions of the Act appear extremely severe. I cannot conceive that the Congressional intent in enacting this wholesome legislation, or the Administrator’s regulations in interpreting it, encompassed any such result as we have here; but it is not for the courts to change the law but only to apply it.

The hours worked by those plaintiffs entitled to recover will be determined by the defendant’s time records which are in evidence. As above indicated, the computation of their damages will be determined by the application of the formula expressed in Overnight Motor Transportation Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682. In making this computation the regular rate and overtime rate for each of the plaintiffs in each of the workweeks shall be computed to the tenth of a cent per hour as indicated in Snyder v. Wessner, D.C., 55 F.Supp. 971.

The defendant has already submitted Findings and Conclusions. Findings and Conclusions for the plaintiffs Graen, Owen and Stewart may be submitted by their counsel. The amount of attorney’s fees will be left undetermined until the court ascertains the amount of recovery of the plaintiffs Graen, Owens and Steward.

There will he an exception to the parties aggrieved.

       No opinion for publication.

       No opinion for publication.


source: Caselaw Access Project

author: LITTLETON, Judge.

license: Public Domain

text:
    WHITE v. UNITED STATES.
    No. 45955.
    Court of Claims.
    Nov. 5, 1945.
    Plaintiff claims and seeks to recover the difference in retired pay from December 1, 1941, of a major in the Regular Army credited with twenty-one years’ service and such pay of a lieutenant colonel credited with more than twenty-three years’ service.
    Special Findings of Fact.
    1. Plaintiff had enlisted service from May 15, 1918, to August 25, 1918. He was a commissioned officer in the Army from August 26, 1918, to October 30, 1919. On July 1, 1920, plaintiff was appointed a second lieutenant, Infantry, Regular Army, and he accepted the commission October 5, 1920. He was promoted to a first lieutenant, dating from July 1, 1920. He was promoted to captain October ,1, 1934, and to major July 1, 1940. Plaintiff had continuous active commissioned service ■ from. August 26, 1918, to October 30, 1919, and from October' 5, 1920, to November 30, 1941.

      2.i Plaintiff received the following letter of October 2, 1941, from The Adjutant General:
    “The Secretary of War directs that Major James C. White, Infantry, now on leave of absence in Washington, D. C., report to The Adjutant General, Room 1522, Munitions Building, at 9:00 A. M., October 9, 1941 on temporary duty for the purpose of appearing before a board of general officers convened under the provisions of Public Law 190, 77th Congress, and upon completion of this temporary duty he will revert to a leave status.”
    3. October 9, 1941, plaintiff appeared before the Board of General Officers appointed under authority of Joint Resolution of July 29, 1941, 55 Stat. 606, 10 U.S. C.A. § 571 note, and the board at that time conducted a hearing pursuant to the provisions of this statute. At the hearing plaintiff resisted retirement.
    The Adjutant General sent plaintiff the following communication on November 12, 1941:
    “1. The Board of General Officers appointed under authority of Public Law No. 190, 77th Congress, has recommended your removal from the active list of the Regular Army.
    “2. By par. 1, S. O. 262, W. D. 1941, you were granted leave of absence for 23 days effective on or about November 10, 1941, and it is contemplated issuing your retirement order this month effective November 30, 1941.
    ‘■‘3. It is desired that this letter be acknowledged giving address to which you desire your retirement order to be sent when issued. In this connection attention is invited to the fact that a retirement order received while on leave of absence at a place other than the last station allows mileage from the place of receipt of the order by the officer to the designated home1 only and never for a distance greater than from the last station to home selected. (Par. 1, AR 35-4840, W. D., December 15, 1924).
    “By order of the Secretary of War.”
    The Secretary of War issued the following order November 27, 1941:

      “The action of the Board Of General Officers convened under the provisions of Section 2 of the Act of Congress approved July 29, 1941, recommending that Major James C. White, Infantry, be removed from the active list of the Regular Army, is approved and he will be retired from active service on November 30, 1941, under the provisions of the above mentioned act.”
    4. The Adjutant General addressed the following communication to plaintiff on November 27, 1941:
    “Major James C. White (0-1166) Infantry, is retired from active service, to take effect November 30, 1941, after more than twenty-two years’ service, under the provisions of Section 2 of the Act of Congress approved July 29, 1941, (Public Law 190, 77th Congress), in the grade of lieutenant colonel under the provisions of Section 3 of the Act of Congress approved June 13, 1940 [10 U.S.C.A. § 971b], He is relieved from his present assignment and duty at Fort Leonard Wood, Missouri, on November 30, 1941, and at the proper time will proceed to his home. The travel directed is necessary in the Military service.
    “FD 1401 P 1 — 06 A 0410 — 2.
    “By order of the Secretary of War.”
    5. In accordance with the above-mentioned orders plaintiff was placed on the retired list effective from November 30, 1941, in the grade of lieutenant colonel with the retired pay of a major credited with more than 21 years of service.
    6. Plaintiff was removed and retired under the provisions of Joint Resolution of July 29, 1941, 55 Stat. 606, referred to in the retirement order quoted in finding 4 as “the Act of Congress,” which provides as follows:
    “That during the national emergency announced by the President on May 27, 1941, section 24b of the National Defense Act, as amended [June 4, 1920], is hereby suspended.
    “Sec. 2. That duripg the time of the national emergency announced by the President on May 27, 1941, the Secretary of War, for such causes and under such regulations as he may prescribe, may remove any officer from the active list of the Regular Army: Provided, That such removal be made from among officers whose performance of duty, or general efficiency, compared with other officers of the same grade and length of service, is such as to warrant such action, or whose retention on the active list is not justified for other good and sufficient reasons appearing to the satisfaction of the Secretary of War: Provided further, That each officer so removed from the active list shall have been recommended for removal by a board of not less than five general officers convened for this purpose by the Secretary of War: Provided further, That such officer is allowed a hearing before said board. The action of the Secretary of War in removing an officer from the active list shall be final and conclusive. Officers removed from the active list who have less than seven completed years of commissioned service at the time of removal shall be honorably discharged. Officers removed from the active list who have seven or more completed years of commissioned service at the time of removal shall be retired with retirement pay computed as follows: Any officer so retired who has over thirty years’ service or any officer so retired who served in any capacity as a member of the military or naval forces of the United States prior to November 12, 1918, shall be retired with annual pay equal to 75 per centum of his active duty annual pay at the time of his retirement; any other officer so retired shall be retired with annual pay equal to 2% per centum of his active duty annual pay at the time of his retirement, multiplied by a number equal to the number of complete years of his service counted for pay purposes under existing laws not in excess of thirty years. All officers retired under the provisions of this section shall be placed on the unlimited retired list.”
    Fred W. Shields, of Washington, D. C. (King & King, of Washington, D. C., on the brief), for plaintiff.
    Clay R. Apple, of Washington, D. C., and Francis M. Shea, Asst. Atty. Gen., for defendant.
    Before WHALEY, Chief Justice, and LITTLETON, WHITAKER, JONES, and MADDEN, Judges.
   LITTLETON, Judge.

Plaintiff brought this suit to recover the difference in the retired pay from December 1, 1941, of a lieutenant colonel entitled to a credit of 23 years of service in the Regular Army and the retired pay, which he has been and is being paid, of a major credited with 21 years of service.

As shown by the findings plaintiff was removed, after a hearing, from the active list of officers of the Regular Army on November 30, 1941, and was retired from active service by the Secretary of War under and pursuant to the Joint Resolution -of Congress, approved July 29, 1941, 55 Stat. 606, which made the action of the Secretary final and conclusive. At that time and since July 1, 1940, plaintiff held the rank of major in the Regular Army and was receiving the active-duty pay of the fourth-pay period provided by law for an officer with more than 14 years’ service and less than 23 years’ service. When plaintiff was removed from the active list he had less than 23 years of continuous service as a commissioned officer.

Plaintiff relies upon the provisions of section 2 of the act of June 13, 1940, 54 Stat. 379, 380, amending Sec. 3, act of July 31, 1935, 10 U.S.C.A. § 552a, and contends that under those provisions, which he insists were applicable even though he was removed under the act of July 29, 1941, he was and is entitled to receive as retired pay three-fourths of the active duty pay of a lieutenant colonel. This act of 1940 repealed section 2 of the act of July 31, 1935, entitled “An Act To promote the efficiency of national defense,” and amended sections 3 and 5 of such act which provided for a promotion list of commissioned officers and made provisions for their promotion and also for their retirement on their own application after a certain specified number of years of service. 10 U.S.C.A. § 971b. Section 24b, hereinafter referred to, as amended by the National Defense Act of June 4, 1920, 41 Stat. 773, 10 U.S.C.A. § 571, was in effect in 1935 and provided for removal from the active list and involuntary retirement of commissioned officers placed in Class B by a Board established by the President. Sections 3 and 5 of the act of July 31, 1935, supra, as amended by sections 2 and 3 of the act of June 13, 1940, supra, relied upon by plaintiff, provided, so far as material, as follows:

“Sec. 2. * * *.

“The number of promotion-list officers that shall be in the respective grades at any time after the effective date of this Act shall be such as results from the operation of the promotion system hereinafter in this section prescribed. Promotion-list second lieutenants and first lieutenants shall be promoted to the respective grades of first lieutenant and captain immediately upon completing respectively three years’ and ten years’ continuous commissioned service in the Regular Army, but not otherwise. Except as hereinafter provided promotion-list captains, majors, and lieutenant colonels shall be promoted to the respective grades of major, lieutenant colonel, and colonel immediately upon completing respectively seventeen years’, twenty-three years’, and twenty-eight years’ continuous commissioned service in the Regular Army: Provided, That at no time shall the number of promotion-list colonels exceed seven" hundred and five: Provided further, That promotion-list majors and lieutenant colonels shall not be promoted to the respective grades of lieutenant colonel and colonel until they shall have completed respectively six years’ and five years’ continuous commissioned service under permanent appointments in the grades of major and lieutenant colonel, except that for the purpose of determining years of such service in grade officers promoted to or serving in the respective grades of major and lieutenant colonel shall, in addition to receiving credit for all actual continuous commissioned service in the Regular Army in those grades, receive constructive credit of one-half the amount of their continuous commissioned service in the Regular Army in excess of seventeen and twenty-three years, respectively: Provided further, That each promotion-list officer shall be assumed to have, for promotion purposes, at least the same length of continuous commissioned service in the Regular Army and service in grade as any officer junior to him, in his grade, on the promotion list, * * *; Provided further, That no officer shall be promoted, under the provisions of this section, in advance of any officer in the same grade whose name appears above his on the promotion list, except that the promotion of an officer shall not be withheld by reason of the fact that an officer senior to him on the promotion list is for any reason not eligible for promotion : And provided further, That hereafter all promotion-list officers in any grade shall take' rank among themselves according to their standing on the promotion list.

“Sec 3. * * * That whenever any officer on the active list of .the Regular •Army or Philippine Scouts shall have completed not less than fifteen nor more than twenty-nine years’ service, he may upon his own application be retired, in the discretion of the Secretary of War with annual pay equal to 2% per centum of his active-duty annual pay at the time of his retirement, multiplied by a number equal to the years of his active service not in excess of twenty-nine years: Provided, That the numbers of years of service to be credited in computing the right to retirement ajid retirement pay hereinbefore pro-, vided in this section shall include all service now or hereafter credited for active-duty pay purposes, any fractional part of a year amounting to six months or more to be counted as a complete year: Provided further, That any officer on the active list of the Regular Army or Philippine Scouts who served in any capacity as a member of the military or naval forces of the United States prior to November 12, 1918, shall upon his own application be retired with annual pay equal to 75 per centum of his active-duty annual pay at the time of his retirement unless entitled to retired pay of a higher grade as hereinafter provided. * * *

“Provided further, That any promotion-list officer retired for any reason except by operation of section 24b, National Defense Act, or wholly retired, who has completed twenty-eight or more years of continuous commissioned service in the Regular Army and who has failed to reach the grade of colonel by reason of the limitation on the number of promotion-list officers in the grade of colonel or by reason of the restriction of years of service in grade of major ■or lieutenant colonel shall be retired in the grade of colonel with retired pay computed as otherwise provided by law for a colonel with the same length of service including all service now or hereafter credited for active-duty pay purposes, and any such officer who has completed more than twenty-three but less than twenty-eight years of ■continuous commissioned service in the Regular Army and who has failed to reach the grade of lieutenant colonel by reason of the restriction of years of service in grade of major shall be retired in the grade ■of lieutenant colonel with retired pay computed as otherwise provided by law for a lieutenant colonel with the same length of service including all service now or hereafter credited for active-duty pay purposes: Provided further, That each promotion-list officer shall be assumed to have for retirement purposes, at least the same length of continuous commissioned service in the Regular Army as any officer junior to him on the. promotion list: Provided further, That the number of years of service to be credited in computing the right to retirement and retirement pay in the case of officers retired by reason of having reached the age of sixty years or over shall include all service heretofore credited for retirement at age sixty-four: Provided further, That nothing in this Act shall operate to deprive any officer of the retired rank to which he is now entitled under the provisions of law: And provided further, That all officers retired under the provisions of this section shall be placed on the unlimited retired list.”

The above-quoted amended section 3 provides only for retirement of an officer “upon his own application” under the length of service provision, and the section also provides that “All promotion-list officers shall be retired at the age of sixty years,” with certain exceptions. Plaintiff was not retired under the act of June 13, 1935; neither was he retired “upon his own application” or because of his age, but he was removed from the active list and placed on the retired list on the ground', as provided in the Joint Resolution of July 29, 1941, 55 Stat. 606, that his “performance of duty, or general efficiency, compared with other officers of the same grade and length of service” was such as to warrant such action in the opinion of the Secretary of War (finding 6). It will be noted also that the statute of July 29, 1941, also provides that: “Any officer so retired * * * who served in any capacity as a member of the military or naval forces of the United States prior to November 12, 1918, shall he retired with' annual pay equal to 75 per centum of his active duty annual pay at the time of his retirement; * * [Italics supplied.] The fact that plaintiff, upon being removed and retired, was given the retired rank of lieutenant colonel under section 3 of the act of June 13, 1940, is not, in the circumstances, controlling as to the retired pay to which he was and is entitled. Plaintiff contends that he was retired under both the act of June 13, 1940, and the Joint Resolution of- July 29, 1941, and that the act of June 13 controls as to retired pay, but the facts do not support this position. Sec. 3 of the act of June 13, 1940, specifically excluded from its provisions officers removed and retired under sec. 24b of the National Defense Act of June 4, 1920, 41 Stat. 773, and the Joint Resolution, which suspended sec. 24b during the National emergency, was a substitute for sec. 24b in effect when the act of June 13, 1940, upon which plaintiff relies, was enacted. This is shown by the fact that sec. 24b and the Joint Resolution were dealing with the same subject matter; i. e., involuntary removal and retirement of commissioned officers. In effect, the Joint Resolution was an amendment, during the period of the National emergency, of sec. 24b which it suspended during such period. Section 24b, as amended June 4, 1920, provided that: “The President shall convene a board, * * * which shall arrange all officers in 'two classes, namely: Class A, consisting of officers who should be retained in the service, and Class B, of officers who should not be retained in the service.” That section made further provision for either the discharge of Class B officers or for the retirement and for retired pay of such officers as were found eligible to be placed upon the retired list upon removal from the service.

Since plaintiff was removed and retired under the provisions of the Joint Resolution of July 29, 1941, the provisions of the act of June 13, 1940, are not applicable and he is entitled only to the retired pay of a major and not that of a lieutenant colonel. The petition is therefore dismissed. It is so ordered.

WHALEY, Chief Justice, and WHITAKER, Judge, concur.

MADDEN and JONES, Judges, took no part in the decision of this case.


author: MADDEN, Judge.

text:
    STOTT v. UNITED STATES.
    No. 45650.
    Court of Claims.
    Jan. 8, 1945.
    This case having been heard by the Court of Claims, the court, upon the evidence and the report of a commissioner, makes the following special findings of fact:
    1. Plaintiff was commissioned an ensign in the United States Navy on June 2, 1938, which rank he held until June 2, 1941, when he was commissioned lieutenant, junior grade. He held the latter rank until June 2, 1942, when he was commissioned lieutenant, senior grade, and which rank he has held since that time: He was a bachelor officer until July 17, 1942, when he was married.
    2. Plaintiff’s father died intestate April 9, 1925. He left $2,000 in insurance to his widow, plaintiff’s mother, and she and her three children inherited from him a house in Albuquerque, New Mexico. The house was heavily mortgaged and the widow received about $750 from her interest in it which was paid to her about 1926. The insurance money as well as the money realized from the interest in the house was spent by plaintiff's mother prior to 1939.
    3. Plaintiff’s mother’ is more than fifty-five years of age and is in poor health. Since September 1, 1939, she has held no gainful employment and has owned no income-producing personal property but has owned certain real estate as hereinafter shown.
    4. In April or May 1938, plaintiff’s mother purchased at public auction for $75 a fishing pier located in Lewes, Delaware, which belonged to her father’s estate. While she still owns the pier, a large part of it was destroyed by ice during January 1940 and she has not had the funds with which to repair it. Before its partial destruction she realized an income of from $350 to $400 a year from fees charged fishing parties using the pier. That income was earned during the summer months of 1938 and 193.9 but she has realized no income of any consequence from the pier since September 1939.
    5. In November 1938, plaintiff’s mother purchased at public auction from her father’s estate a house in Lewes, Delaware, for the sum of $3,201. She- made a cash payment of $701 and obtained a mortgage on the house for the balance of $2,500, which mortgage provided that it should be paid off at the rate of $25 a month. The ca-sh payment of $701 was made up in part from a small amount of cash received from her father’s estate and in part from money which she had realized from the operation of the fishing pier.
    6. Prior to the death of her father in 1934, plaintiff’s mother sold health, accident, and automobile insurance but she gave up this work after his death. Since 1934 and including the years involved in this claim she has realized approximately $5 a month as renewal commissions on insurance which ■she had sold in and prior to 1934.
    7. From September 1939 to June 1941, for nine months of each year, plaintiff’s mother received $35 a month from each of two school teachers to whom she furnished room and board. Since June 1941, she has rented rooms in her home from which she has received an average gross income of approximately $25 a month. How much of the amounts received in the foregoing ■.manner represented profit is not shown from the record other than that such amounts helped in the payment of fuel bills and other necessary expenses incurred in connection with the maintenance of the ■mother’s home.
    8. Since September 1, 1939, plaintiff’s mother has lived in her home at Lewes, Delaware, referred to in finding 5. Her living expenses have amounted to approximately $100 a month including payments on interest and principal of mortgage, food, •coal and oil, gas, electricity, telephone, taxes, insurance, medical expenses, clothing, and miscellaneous items.
    9. Plaintiff’s mother has two children 'besides plaintiff — a son, Robert, twenty-seven years of age, and a daughter, Elizabeth, twenty-four years of age. These two children are unmarried and neither has lived with the mother since September 1939.
    Robert was employed in the Lighthouse Service from sometime prior to 1938 until 1940 when that service was merged with the Coast Guard and he entered the latter service as an enlisted man. He now holds the grade of boatswain’s mate, first class. Prior to June 1938, he contributed approximately $30 a month to his mother and since plaintiff was commissioned an ensign in June 1938, Robert has contributed approximately $15 a month.
    Elizabeth finished college in June 1941 .and then taught school until about July 1943 when ishe was commissioned an ensign in the “Waves.” She has never contributed anything to her mother’s support except for occasional presents of clothing and items of that character during the period when she was teaching.
    10. Plaintiff regularly contributed $45 a month in cash toward his mother’s support from June 2, 1938 to June 2, 1941; $60 a month from June 3, 1941 to June 2, 1942; and $75 a month thereafter. In addition, plaintiff carried during all this time $10,000 in a Government insurance policy in which his mother was named as the beneficiary, and paid premiums on it of not less than $7 per month.
    11. Plaintiff’s contributions constituted his mother’s chief support from September 1, 1939 to July 17, 1942, the date of his marriage.
    Fred W. Shields, of Washington, D. C. (King & King, of Washington, D. C., on the brief), for plaintiff.
    Brice Toole, of Washington, D. C., and Francis M. Shea, Asst. Atty. Gen., for defendant.
    Before WHALEY, Chief Justice, and LITTLETON, WHITAKER, JONES, and MADDEN, Judges.
   MADDEN, Judge.

The plaintiff, an officer in the Navy, claims that he was, for the period September 1, 1939 to July 17, 1942, the chief support of his mother, and should have been paid the increased rental and subsistence-allowances which the statutes authorized for an officer with a dependent mother. The statutes relied on for the period before June 1, 1942, are Sections 4, 5, and 6 of the Act of June 10, 1922, 42 Stat. 625, as amended by the Act of May 31, 1924, 43 Stat. 250, 37 U.S.C.A. §§ 8-10. The pertinent -statutory provisions for the period after June 1, 1942, are Sections 4, 5, and 6 of the Act of June 16, 1942, 56 Stat. 359, 37 U.S.C.A. §§ 104-106.

Finding 8 shows the amount of the mother’s living expenses, and finding 10 the amount of the plaintiff’s contributions toward those expenses during the period on which this claim is based. The Government concedes that from June 3, 1941, the plaintiff was his mother’s chief -support, since he contributed $60 per month toward her living expenses of $100 per month. It urges that, up to June 3, 1941, he had only contributed $45 per month; hence was not her chief support for the period. The plaintiff urges that since his cash contributions, averaged over the entire period of the claim, constituted more than one-half of the mother’s living expenses for the entire period, he was her chief support within the meaning of the statute. The plaintiff also urges that even during the period preceding Juné 3, 1941, when he was contributing only $45 toward her expenses of $100, he was her chief support, though his contribution was less than one-half of her expenses. He further urges that there should be added to the amount of his cash contributions the amount, more than $7 per month, which he paid as premiums on a policy of Government insurance, of which his mother was the beneficiary.

We think the plaintiff was the mother’s chief support during the period in question. His cash contribution of $45 per month was substantially one-half of her expenditures, was her largest source of income and without it she would have been in financial distress. See Chester V. Freeland v. United States, 64 Ct.Cl. 364. We think there is some merit in the plaintiff’s other two asserted grounds of recovery, as we have stated them above, but it is not necessary for us to decide whether they or either of them would be sufficient.

The plaintiff is entitled to recover. The computation of the amount will be based upon our decision in Mumma v. United States, 99 Ct.Cl. 261. Entry of judgment will await the receipt of a report from the General Accounting Office showing that computation.

It is so ordered.

WHALEY, Chief Justice, and WHITAKER and LITTLETON, Judges, concur.,

JONES, Judge, took no part in the decision of this case.

       See the Veterans Administration Pamphlet, Insurance Form 398, Information and Premium Rates, National Service Life Insurance, August 1941.


author: ATWELL, District Judge.

text:
    Ex parte WILSON.
    No. 1844.
    District Court, N. D. Texas, Dallas Division.
    Oct 30, 1945.
    Robert Harry Wilson, in pro. per.
    Clyde G. Hood, Asst. U. S. Atty., of Dallas, Tex., and Cavett S. Binion, Asst. U. S. Atty., of Fort Worth, Tex., for respondent.
   ATWELL, District Judge.

{1] Ordinarily under our division of work in this district a suit growing out of a matter that happened in the Fort Worth Division would have been referred by this court to the judge of that division, Judge Wilson, who has heretofore handled this case. But the statute is such that it requires the judge to whom a writ of habeas corpus is addressed by a citizen who complains of illegal restraint to act upon it; that judge must act, and may not pass it over to another judge. That was determined in some cases arising from Alcatraz prison, and is well established in that circuit. Rutkowski v. Johnston, D. C., 52 F.Supp. 430. When Mr. Wilson forwarded his application for writ of habeas corpus it contained upon its face such serious allegations that it was necessary that he be given a hearing to determine whether or not he was being illegally restrained.

His complaint against the clerk about records which were in the clerk’s office seems to be sustained. The clerk seems to have overlooked those records; our clerks are human beings, and they sometimes make mistakes and there should have been a careful examination of the records to see whether there was a proceeding against the petitioner, Wilson, so that he could have been furnished a copy of the documents that have been presented in open court this morning, so that his mind would have been at ease. His application is granted under the statute which he cites, to-wit, the statute holding that indigent persons may come into court and the court is always open to them. The court’s eyes are always open to determine, and must be open, to determine whether or not there is a citizen being illegally deprived of his liberty. Therefore, the petitioner’s petition was granted, and the United States Attorney was notified and asked to furnish the petitioner with a copy of his, the United States Attorney’s, answer to that petition, which he did.

The Attorney General, who was made a party in the application, was not cited because it was not necessary; the United States Attorney under the statute represents the United States in this district, and nobody else could be given that authority except such special United States Attorneys or Special Attorneys General as come into this district, properly commissioned under another statute, which is junior in point of time. The older law was, and, still is, that the United States Attorney represents the United States.

Considering now the more serious aspects: We find that the original sentence was entered on an indictment in 1935 which had four counts in it; under the first and second counts the petitioner was given five years each, not to run concurrently but consecutively. Upon the third and fourth or the last two counts, he was given five years each, to run concurrently, such last ten years to be served in five years, was probated. That probation was legal, and is for the particular benefit of the prisoner, if and when he obeys the regulations laid down by the probating officers under the authority of the court and under the authority of the law. The petitioner served his first two five-year sentences, with the statutory right of good behavior and during such service was paroled — not probated, but paroled. What he means now, and it is a nice point, is, that the probation officer had nothing to do with a parolee, one of which he was, and that he was at liberty. If he saw fit to violate a local law upon being released as a parolee, that the penitentiary authorities still had jurisdiction over him as a parolee, and that even though he did do wrong, they were the only authorities who could pull him back into the penitentiary. That is a nice legal point. The matter was not discussed today by anyone, but that is the point in this case, and it is answered by the way those matters are practically handled. A parolee who comes back, we will say, to his own district from which he was sentenced or goes to some other district from which he was not sentenced, is under the jurisdiction of the parole officer who is usually the local probation officer and he is given jurisdiction over that parole who checks up on him, and makes a report to the penitentiary. In addition to that, the probation officer at Fort Worth had an order from the United States District Judge, Judge Wilson, probating the petitioner, when he had finished the ten-year term in prison. That must be legally construed to mean that when he again became a free man, and that phrase, “free man,” may be applied to the parolee, though he was not immune from the legal processes of his country. He could not run rough-shod over and violate laws merely because he was a parolee, and feel that he could not be returned to the penitentiary except by a parole officer from the penitentiary. The probation of the last five years was still in operation, and was legal. It was the duty of the probation officer at Fort Worth to report the matter, if there was a matter he thought should be reported, to the District Judge, who was Judge Wilson. The record now discloses that such report was made, and Judge Wilson gave the petitioner a hearing on some offense with which I am not familiar, but apparently it was admitted by the petitioner. Judge Wilson considered it of sufficient seriousness to undo the probation and he ordered him into the custody of the prison authorities to serve the last ten years, which could be served in five years. Those steps were legal. That is what he is now serving.

Now the next mental worry is what right» has the Leavenworth warden, or, Mr. Bennett, to send a hold order against him with reference to the unserved portion of the paroled part of the ten-year consecutive sentence. That right arises out of the alleged fact, — and the court does not pass on that, and it is not necessary to make any finding under that at the present time,— but that arises out of the alleged fact that during the time the petitioner was on parole on the first two five-year sentences, he did not do what he should have done as a paroled prisoner, to-wit, live legally and lawfully. Whether the warden at Leavenworth will see fit to detain him longer on that, is a matter the court is not required to act upon at this time. It is his duty to place that order, and the petitioner can talk with him and try to persuade him, or write to him and see what can be done about that. Fifteen years seems like quite a while for him to be detained, but I don’t know exactly what the offense was, perhaps the forging of some checks, or something of the sort, and the trial judge had ample jurisdiction to fix a sentence that he thought appropriate.

The petitioner is a wise man, and he is in an institution that is one of the prides of the nation, and I need not say to him that he will be taken care of while he is there.

The petitioner is remanded to the custody of the Seagoville authorities.