Swygert, Chief Judge, Knoch, Senior Circuit Judge and Kiley, Circuit Judge. Knoch, S. C. J. (dissenting in part).
Plaintiffs, central office employees of the defendant Board of Education, brought this class action to recover overtime wages and corresponding liquidated damages under Section 216(b)*fn1 of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. The district court granted overtime wages for only part of the period for which they were sought and denied liquidated damages in toto. We reverse.
Plaintiffs' suit was filed December 18, 1967, seeking recovery of overtime wages since February 1, 1967, the effective date of 1966 amendments to the Act. These amendments brought central office employees of school boards within the overtime provision, and brought school boards within the definition of "employers." The constitutionality of the amendments was challenged by the State of Maryland which was joined by twenty-six other states including Illinois. A three-judge court sustained the amendments on June 13, 1967. Maryland v. Wirtz, 269 F. Supp. 826 (D. Md. 1967).
While Maryland's appeal from the district court's judgment was pending, the Wage and Hour Administrator on September 22, 1967 issued a bulletin indicating his "tentative opinion" that central office school employees "would not seem to be within the coverage of the [Fair Labor Standards] Act." On October 19, 1967, and December 12, 1967, the Administrator issued further bulletins expressing the same "tentative" opinion.
On June 10, 1968, the Supreme Court affirmed the ruling of the three-judge court upholding the constitutionality of the amendments as applied to school employees. Maryland v. Wirtz, 392 U.S. 183, 20 L. Ed. 2d 1020, 88 S. Ct. 2017 (1968). On October 18, 1968 the Administrator rescinded his earlier tentative opinion and stated that central office clerks of school boards were covered by the Act.
The district court's judgment before us was entered June 3, 1969. The district court found that defendant had failed to pay overtime from February 1, 1967 to the date of judgment, but that under Section 10(a) of the Portal-to-Portal Act, 29 U.S.C. § 259,*fn2 the Board was not liable for overtime wages prior to October 18, 1968, the date of the Administrator's final opinion. The district court decided, however, that the Board was clearly liable for overtime after the October 18, 1968 bulletin of the Administrator.
The bar to recovery of overtime under Section 10(a) of the Portal-to-Portal Act is limited by the requirement that an employer plead and prove that his failure to pay "was in good faith conformity with and reliance on . . . any written administrative regulation, order, ruling, approval or interpretation" of the Administrator.
We think the district court clearly erred in denying overtime relief for the period prior to October 18, 1968. The record discloses that the defendant did not learn of the existence of the administrative bulletins upon which it allegedly relied until January 25, 1968 and that it did not invoke the bar of Section 10(a) based on these bulletins until May 22, 1968 when it filed its third amended answer. But we need not rest our decision upon consideration of these facts. We prefer, instead, to base our conclusion on the grounds that the bulletins of the Administrator allegedly relied upon formed no proper basis for the invocation of the bar of Section 10(a).
The bulletins were vague and ambiguous. They could not have served to aid school administrators during the period of litigation concerning the 1966 amendments. The Administrator hedged his tentative opinion with qualifications: "does not appear appropriate for us to issue interpretations . . . until the court has ruled," "we are not in a position to give anything other than tentative opinions," "would not seem." It is clear from this language that the Administrator did not reach a definitive opinion until October 18, 1968. Although the Board might have acted prudently in delaying payment of the overtime until this date, we hold that such a "tentative opinion" did not provide the Board with the statutory bar to plaintiffs' recovery of the overtime.
Defendant Board also argues that it was relieved, under Section 10(a), from paying the overtime for the period prior to October 18, because it acted in good faith and prudently, given the extensive constitutional attack on the 1966 amendments. Section 10(a), however, requires more than good faith conduct; to be relieved of paying overtime under the Act there must be good faith reliance upon a written administrative order, etc. The Board's reliance on General Electric Co. v. Porter, 208 F.2d 805, 817 (9th Cir. 1953), cert. denied 347 U.S. 951, 98 L. Ed. 1097, 74 S. Ct. 676 (1954), and Kelly v. Ballard, 298 F. Supp. 1301 (S.D. Cal. 1969), is misplaced. The claims there were for liquidated damages, which the trial court may, under Section 11*fn3 of the Portal-to-Portal Act, 29 U.S.C. § 260, refuse to award if the employer acts in good faith and with reasonable grounds for believing that his conduct is not in violation of the Fair Labor Standards Act. Section 11 does not apply to claims for overtime wages.
We conclude that the district court erred in holding the plaintiffs were not entitled to the overtime wages claimed for the ...