The opinion of the court was delivered by: Sullivan, District Judge.
This is a motion by plaintiff to strike from defendant's
amended answer subparagraphs (1) and (3) of defense numbered 2,
defense numbered 3 except the last sentence thereof, defense
numbered 4, and defense numbered 9.
Plaintiff Maurice J. Tobin, Secretary of Labor, brings this
action for and on behalf of Joseph E. Wiley to recover from
defendant unpaid overtime compensation due to the said Joseph E.
Wiley under the provisions of the Fair Labor Standards Act of
1938, Act of June 25, 1938, c. 676, 52 Stat. 1060, 29 U.S.C.A. §
201 et seq.
On January 25, 1950, amendments to the Fair Labor Standards Act
of 1938 went into effect. In addition to provisions not in any
way affecting the issues in the instant case, Section 16 of the
Act was amended by the addition of subsection (c). Subsection (c)
provides in substance that the Administrator is authorized to
supervise the payment of the unpaid minimum wages or the unpaid
overtime compensation owing to any employee or employees. When a
written request is filed by any employee with the Administrator
claiming unpaid minimum wages or unpaid overtime compensation,
the Administrator may bring an action to recover the amount of
such claim: "Provided, That this authority to sue shall not be
used by the Administrator in any case involving an issue of law
which has not been settled finally by the courts, and in any such
case no court shall have jurisdiction over such action or
proceeding initiated or brought by the Administrator if it does
involve any issue of law not so finally settled."
It is plaintiff's contention that the defense in subparagraph
(1) of defense numbered 2 is insufficient in law. The defense
asserted was that because the Act under certain circumstances
provides an exemption from the operation of Section 6 and Section
7 of the Act, this Court is thus deprived of jurisdiction to hear
this cause. Thus, defendant, having raised a question as to
whether under the facts he is entitled to a 13(a)(2) exemption,
assumes that he is entitled to said exemption and within the said
subparagraph (1) pleads this as a bar to the Court's jurisdiction
under Section 16(c) of the Act.
Plaintiff asserts that the defense raised by defendant which is
provided by said section may be available, depending upon the
facts as they are developed at the trial, but it must be
affirmatively raised, the burden of proof borne by the defendant,
Helliwell v. Haberman, 2 Cir., 140 F.2d 833, and the issue
decided by the Court, a function which it could not perform
unless it has jurisdiction. The defendant cannot deprive the
Court of jurisdiction by raising a defense which is itself
dependent upon the exercise of jurisdiction. The Fair Labor
Standards Act is a law regulating commerce. United States v.
Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609. Since
plaintiff's right of action is given by section 16(c) of the Act,
it necessarily follows that this is an action arising under the
law regulating commerce. Thus the court has power to hear and
determine issues involved in this case. Martin v. Lain Oil & Gas
Co., D.C., 36 F. Supp. 252.
What defendant is actually contending is that plaintiff has
failed to state a cause of action, because he has not negatived
the applicability of section 13(a)(2). Since this defense goes
to the cause of action rather than jurisdiction, it is
insufficient at law and should be stricken. A plaintiff in order
to state a cause of action under the Fair Labor Standards Act is
not required to allege that its exemptions are inapplicable.
Schmidtke v. Conesa, 1 Cir., 141 F.2d 634.
Since the court has jurisdiction by virtue of section 16(c) of
the Act and title 28 U.S.C. § 1337, the defense of subparagraph
(1) of paragraph 2 has no merit and should be stricken.
In addition, subparagraph (3) of defense numbered 2 contains
two defenses raised by defendant. Defendant contends that this
court does not have jurisdiction over this action:
(A) because under Section 16(c) the Secretary of Labor may not
bring an action for violations occurring prior to January 25,
1950 — the effective date of the Fair Labor Standards Amendments
of 1949, and
Plaintiff submits that defense (A) above is insufficient in law
and should be stricken. The language of the Act in regard to the
retroactive effect of Section 16(c) is plain and leaves no room
for doubt as to what was intended. When Congress passed the Fair
Labor Standards Amendments of 1949, it made clear that an
employer's liability for any act or omission occuring prior to
the effective date of the Amendments continued after the
effective date thereof. Thus, Section 16(d) expressly provided:
"No amendment made by this Act shall affect any penalty or
liability with respect to any act or omission occurring prior to
the effective date of this Act * * *." 29 U.S.C.A. § 216 note.
In the instant case, the complaint charges a liability with
respect to acts or omissions occurring prior to January 25, 1950.
In other words, the defendant failed to pay overtime compensation
due employee Joseph E. Wiley for excessive hours worked during
said workweeks, which resulted in a liability of $248.01. By the
express terms of Section 16(d), supra, this liability is in
nowise changed by the Amendments. The defendant's liability is an
existing liability. The liability which was incurred as a
result of the overtime violations has not been changed. The
liability continues to exist by virtue of the express language of
the statute. What has been changed ...