183 F2d 445 Spencer v. Porter

183 F.2d 445

SPENCER et al.
PORTER et al.

No. 13683.

United States Court of Appeals Eighth Circuit.

July 18, 1950.

Appeal from the United States District Court for the Eastern District of Arkansas; Thomas C. Trimble and Harry J. Lemley, Judges.

Before SANBORN, THOMAS, and RIDDICK, Circuit Judges.


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The judgment in this action to recover overtime compensation under the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201-219, was affirmed by this Court (174 F.2d 731) upon the authority of United States Cartridge Co. v. Powell et al., 8 Cir., 174 F.2d 718. The mandate in the instant case was withheld pending review of the Powell case by the Supreme Court, and the time within which a petition for rehearing might be filed was extended. The appellants, in view of the reversal of the Powell case by the Supreme Court — Powell et al. v. United States Cartridge Co., 339 U.S. 497, 70 S.Ct. 755 — have now petitioned for a rehearing and a vacation of the judgment.


This Court held in the instant case that, insofar as the appellants' claims were based on services rendered by them in connection with the construction of the Pine Bluff Arsenal, in Arkansas, the appellants were not within the coverage of the Act. We adhere to that ruling. We think, however, that it does not conclusively appear from the record that the appellants rendered no services in the actual production of ammunition at the Arsenal. It is our opinion that the questions whether the appellants rendered services in connection with the actual operation of the Arsenal and the production of ammunition, which would bring them within the coverage of the Act, and whether, if so, they received less pay than the Act required, should be tried and determined by the District Court upon a more complete record than that which formed the basis for the summary judgment of dismissal from which this appeal was taken.


The petition for rehearing is granted, the judgment appealed from is vacated, and the case is remanded for a new trial, limited to the issues above stated.