Mitchell v. Robert De Mario Jewelry, Inc./Dissent Whittaker

by Charles Evans Whittaker

United States Supreme Court

361 U.S. 288

Mitchell  v.  Robert De Mario Jewelry, Inc.

 Argued: Nov. 16, 1959. --- Decided: Jan 18, 1960

Mr. Justice WHITTAKER, with whom Mr. Justice BLACK and Mr. Justice CLARK join, dissenting.

I cannot agree with the Court's opinion. My disagreement rests on the belief that Congress has expressly withheld jurisdiction from District Courts to make awards against employers in favor of employees for 'wages' lost as a result of unlawful discharges, in injunction actions, such as this, brought by the Secretary of Labor under § 17 of the Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U.S.C. § 217, 29 U.S.C.A. § 217.

Several employees of the corporate respondent, believing that they had not been paid the minimum wages and overtime compensation prescribed by §§ 6(a) and 7(a) of the Act, 29 U.S.C. §§ 206(a), 207(a), 29 U.S.C.A. §§ 206(a), 207(a), requested the Secretary of Labor, in writing, to institute an action against the corporate respondent under § 16(c) of the Act, 29 U.S.C. § 216(c), 29 U.S.C.A. § 216(c), to recover the amount of their claims. The Secretary did so on November 16, 1956. Soon afterward, three of these employees were discharged. On May 17, 1957, the Secretary brought another suit against respondents in the same District Court-this time under § 17 of the Act, 29 U.S.C. § 217, 29 U.S.C.A. § 217-complaining that respondents had discharged the three employees in violation of § 15(a)(3) of the Act, 29 U.S.C. § 215(a) (3), 29 U.S.C.A. § 215(a)(3), and praying for an order enjoining respondents from violating the provisions of that section, reinstating the three employees, and awarding reparations to them for wages lost because of their wrongful discharge. The District Court found that the employees had been discharged, in violation of § 15(a)(3), for instigating the first action, issued an injunction against respondents from violating that section, and ordered respondents to offer reinstatement to those employees. But the district judge doubted that he had jurisdiction under § 17 to award reparations to the employees for their lost wages, and held that, even if he did have jurisdiction to do so, such an award of reparations should be denied as a matter of discretion. On the Secretary's appeal, the Court of Appeals affirmed, 5 Cir., 260 F.2d 929, holding that the District Court had no jurisdiction, in an injunction action brought by the Secretary under § 17, to award reparations for wages lost by the employees because of their wrongful discharge. We granted certiorari, 359 U.S. 964, 79 S.Ct. 879, 3 L.Ed.2d 833.

The question before us, then, is whether a District Court has jurisdiction in an injunction action brought by the Secretary of Labor under § 17 of the Act to make an award of reparations against an employer in favor of an employee, found to have been wrongfully discharged and entitled to reinstatement, for the 'wages' that he lost by being wrongfully excluded from his job.

The Court, heavily relying upon the long reach of unrestricted general equity powers, particularly as elucidated in Porter v. Warner Holding Co., 328 U.S. 395, 397-398, 66 S.Ct. 1086, 1088-1089, 90 L.Ed. 1332, ^[1] holds that a District Court does have such jurisdiction and power.

It is not to be doubted that an equity court, proceeding under unrestricted general equity powers, may decree all the relief, including incidental legal relief, necessary to do complete justice between the parties. Here, however, the District Court was proceeding, not under unrestricted general equity powers, but under a statute-s 17 of the Act-the proviso of which expressly denies to all courts jurisdiction and power, in an action brought by the Secretary for an injunction under that section, 'to order the payment to employees of unpaid minimum wages or unpaid overtime compensation or an additional equal amount as liquidated damages in such action.'

The Court does not dispute the fact that Congress by the proviso in § 17 deprived the courts of jurisdiction to 'order the payment to employees of unpaid minimum wages or unpaid overtime compensation * * *.' in an injunction action brought by the Secretary under that section, in a case where the wages have been earned by services rendered, but the Court seems to think that an award of reparations to an employee for wages lost because of a wrongful discharge is not one 'order(ing) the payment to employees of unpaid minimum wages or unpaid overtime compensation * * *.' and that, therefore, the court is not deprived by the proviso in § 17 of jurisdiction to make such an award in such a case. Here, I think, lies the fallacy. The only possible basis or theory under which a wrongfully discharged employee might recover his lost wages is that the attempted discharge, being unlawful, never became effective, and since he was unlawfully excluded from his job his wages continued to accrue. It would seem necessarily to follow that an award for those lost 'wages' would be as much one for 'unpaid minimum wages or unpaid overtime compensation' as would an award for 'wages' for services actually performed. If it may be thought that an award for loss wages should properly be called one for 'damages,' the result would be the same, for the sole measure of such 'damages' would be the lost wages. Hence, it seems inescapable that however viewed an award for wages lost because of an unlawful discharge is one for, or that at least embraces, unpaid minimum wages or unpaid overtime compensation or both.

Before Congress added subdivision (c) to § 16 and the proviso to § 17 in 1949, the Second Circuit had held in Walling v. O'Grady, 146 F.2d 422, that a District Court, acting under its unrestricted general equity powers, had jurisdiction, in a suit brought by the Secretary under § 17 of the Act as it then stood, to order not only an injunction against violation of the provisions of § 15(a)(3) of the Act, and reinstatement of employees wrongfully discharged, but also an award of reparations for wages lost by employees because of their wrongful discharge. Thereafter, following, as it said, the principles it announced in the O'Grady case, the Second Circuit held in McComb v. Frank Scerbo & Sons, 177 F.2d 137, that a District Court, proceeding under its unrestricted general equity powers, had jurisdiction, in an injunction action brought by the Secretary under § 17 as it then stood, to award reparations to employees for unpaid minimum wages and overtime compensation to which their past services entitled them.

Evidently dissatisfied with those decisions, Congress passed the Act of Oct. 26, 1949, 63 Stat. 919, by which it added subsection (c) to § 16 and the proviso to § 17 of the Act. By subsection (c) ^[2] of § 16, Congress provided, in effect, that when an employee files a written request with the Secretary claiming unpaid minimum wages or unpaid overtime compensation under § 6 or § 7 of the Act, 'the Secretary of Labor may bring an action in any court of competent jurisdiction to recover the amount of such claim * * *.' In such an action the Secretary, of course, sues as a trustee or use plaintiff for the benefit of the employee, and the action is one at law triable by a jury under the Seventh Amendment of the United States Constitution. That is the only remedy which Congress has provided for the recovery of unpaid minimum wages and overtime compensation by suit instituted and prosecuted by the Secretary. By the proviso to § 17, Congress provided: 'That no court shall have jurisdiction, in any action brought by the Secretary of Labor to restrain such violations, to order the payment to employees of unpaid minimum wages or unpaid overtime compensation or an additional equal amount as liquidated damages in such action.' The Conference Report that accompanied that bill, H.R.Conf.Rep.No. 1453, 81st Cong., 1st Sess., p. 32, said, respecting the proviso, that: 'The provision * * * will have the effect of reversing such decisions as McComb v. Scerbo * * *, in which the court included a restitution order in an injunction decree granted under § 17.' It seems evident from that statement of the Conference Committee that Congress intended the proviso to, in effect, reverse not only McComb v. Scerbo, but also all other 'such decisions.' Not only is it clear from the opinions themselves that the Second Circuit applied the same legal principles in Scerbo that it had earlier applied in O'Grady, but, moreover, that court said that it did so. In the Scerbo case the court said: 'Defendants attempt to distinguish the O'Grady case because the individual employee's right to sue for back pay lost by a discriminatory discharge is not explicit in the Act. We do not agree that the case is distinguishable * * *.' 177 F.2d at page 138. And, in his separate opinion concurring only in the result, Judge Learned Hand's opening sentence was: 'I agree that the decision below followed from what has been decided before * * *.' 177 F.2d at page 140. It thus seems quite clear, not only from the terms of the proviso but also from the legislative history declaring its purpose, that Congress intended not only to deny jurisdiction to District Courts, in injunction actions brought by the Secretary under § 17, to award reparations for unpaid minimum wages or overtime compensation, but also, in effect, to reverse 'such decisions as McComb v. Scerbo.' Surely Walling v. O'Grady, supra, was 'such (a) decision' as McComb v. Scerbo. ^[3]

This review seems plainly to show that Congress intended by § 16(c) to allow recovery of unpaid minimum wages and overtime compensation at the instance of the Secretary only in an action at law, brought under that subsection, and triable by a jury; and that it intended by the proviso to § 17 to deny jurisdiction to District Courts, in injunction actions brought by the Secretary under that section, to award reparations for 'wages,' including 'unpaid minimum wages (and) unpaid overtime compensation,' whether earned by the rendition of services or by unlawful denial of the opportunity to earn them.

I think a wrongfully discharged employee may maintain in his own right an action at law, triable by a jury, under either § 16(b) or the common law, or the Secretary may do so by an action at law under § 16(c), to recover wages lost by the employee as a result of his wrongful discharge. But, for the reasons hereinbefore stated, it seems to me that the Court of Appeals was correct in holding that the District Court was without jurisdiction to make an award of reparations for lost wages in this injunction action brought by the Secretary under § 17, and I would affirm its judgment.

Notes

1. Porter v. Warner Holding Co., supra, involved § 205(a) of the Emergency Price Control Act of 1942, 56 Stat. 23, 33, which authorized state and federal courts, upon complaint of the Administrator, to grant 'a permanent or temporary injunction, restraining order, or other order,' to enforce compliance with the Act and its policy. (Emphasis added.) There the Administrator had sued a landlord to enjoin collection of excessive rents and to require the landlord to tender to his tenants the excess rents collected. The District Court granted the relief prayed. This Court approved that action, saying that 'An order for the recovery and restitution of illegal rents may be considered a proper 'other order' * * *.' 328 U.S., at page 399, 66 S.Ct. at page 1089. It observed that the Report of the Senate Committee, submitted with the bill that became the Emergency Price Control Act, stated that under § 205(a) of that Act '* * * Such courts are given jurisdiction to issue whatever order to enforce compliance is proper in the circumstances of each particular case.' 328 U.S. at pages 400-401, 66 S.Ct. at page 1090. In the light of the provisions of § 205(a) and its legislative history, this Court held 'that the traditional equity powers of a court remain unimpaired in a proceeding under that section so that an order of restitution may be made.' 328 U.S. at page 400, 66 S.Ct. at page 1090.
2. Subdivision (c), added to § 16 of the Act by Congress in 1949, in pertinent part, provides:
3. When, in 1949, Congress adopted the proviso to § 17 there were only two decisions, in addition to the O'Grady and Scerbo cases, holding that a District Court had jurisdiction in an injunction action brought by the Secretary under § 17 to make an award of reparations for unpaid wages, namely, Fleming v. Warshawsky & Co., 7 Cir., 123 F.2d 622, and Fleming & Alderman, D.C.D.Conn., 51 F.Supp. 800. In neither the these cases did the employer contest the jurisdiction of the District Court to award reparations for unpaid wages. Instead, each employer appeared in the District Court and agreed to the entry of a consent decree awarding back pay to the employees. It was largely because of those agreements that those courts held that they had jurisdiction to enter the consent decrees. Thus, when Congress adopted the proviso to § 17, the only contested decisions on the point were the O'Grady and Scerbo cases. Hence, the reference in the House Conference Report, supra, to 'such decisions as McComb v. Scerbo' seems necessarily to have been intended to include the O'Grady decision as well as McComb v. Scerbo, for it was really the only other 'such decision' in the books. The separate concurring opinion of one of the judges in Walling v. Miller, 8 Cir., 138 F.2d 629, saying that a District Court had jurisdiction under § 17, as it stood prior to the adoption of the 1949 proviso, to make an award for unpaid wages did not express the view of the court.