determined by the Supreme Court to be incorrect, as in a recent Supreme Court decision, it is my understanding that in such a case you feel that the employer should be still liable for the back pay but he relieved only of the liquidated damage feature?

Mr. WALLING. I think it is a legal question as to what you could do. I think the courts would undoubtedly, certainly under the present provision of the law, say the interpretation which they are making would have to stand and would be effective as of the effective date of the act, because they have power to interpret the statute, and the Administrator's opinions at the present time are only advisory. I think that we should at least go to the extent of saying that the employer who followed in good faith is not treated with the same severity as the willful violator is treated, who is now subject to the double liability provision or liquidated damage provision.

Mr. FEIGHAN. The question is, Do you feel in that situation that the employer should still be liable for the back pay and be relieved of the liquidated damage or the double liability feature? In other words, in my understanding, the witness stated that it was your opinion that the employer, having followed your interpretation honestly and with every desire to cooperate, should not have to pay back wages to the employee because, for some subsequent reason, your decision was incorrect.

Mr. WALLING. As I see it, there are two considerations here. One is the desirability of court review; the other is the desirability of protecting the employer who follows in good faith the law as the Administrator advises him he thinks it is. You have to reconcile those two considerations, and if you are going to allow complete court review, you have to say that the court decision will take the place of the Administrator's definition from the very beginning; or you can say that public policy is such that it is appropriate to protect an employer who follows in good faith the Administrator's interpretation, even though that is subsequently overturned by the court, and say even in that case that you will not apply retroactively the court decision as to that employer and employee.

Mr. FEIGHAN. That is what I wanted to get correct for the record. Mr. BOWDEN. I am very grateful to Mr. Walling for making that clear.

You understand that our people waited 6 years for this decision. If there is a new definition that comes out this summer, and we assume it will, after the hearings of this past winter, how can we be sure that the definition Mr. Walling makes this summer will not 6 years from now be declared invalid again and that we may not be in jeopardy again, not for 6 years but for 12 years of back pay, because the Administrators can make mistakes in their decisions.

Section 13 (a) (10) says "As defined by the Administrator." These areas of production are defined by him. Some of our elevators paid time and one-half overtime because they were not in an area as he had defined it.

We had various hearings. We were all considered to be out from under the act. We worked under that in good faith until the Supreme Court decision of last year, which was ordered to be put into effect retroactively. Now, we do not endeavor to try to anticipate what definition the Administrator will make this summer. We have never

asked in the hearings that further restrictions be taken away from us. We have asked that we be left out of-eliminated from-back wages under the definition that the other Administrator made. We would ask this Congress to protect these men who have gone along in good faith. This is a group of small American business that is closer to farming and closer to agriculture perhaps than any other business dealing anywhere in America. We think Congress properly considers them exempt and considers they should be exempt. We ask that you limit certainly, and somehow, the jeopardy that must fall on these men running small country elevators when your Administrator redefines the area of production this summer.

Under the different methods that he gave us this last winter for defining an area of production, if any one of them or any combination of them were to be written into the act as he proposed, it would be more restrictive than it has been in the past and would put under the act many who have not been under the act before. That will influence, in the State of Iowa, 1,100 elevators, in Kansas 1,700, and in North Dakota 1,800. Those are the Plains States, where they handle big crops directly from the farms. These elevators are almost exactly beside the farmer in their economy.

We respectfully urge you, gentlemen, to give some relief to these people who have gone along. They are not even accused of being violators; they are not accused of not being fair. We have made no complaint against the minimum wages. We were told we were exempt. Now we are facing a possible penalty for having listened to the Administrator's statement. We want to know how much faith we can place in his statement and how far we can go in conducting these small businesses out there.

Mr. FEIGHAN. Are the elevators that were subject to the category under the Administrator's ruling of the same size?

Mr. BOWDEN. Yes. Under his first ruling, Mr. Chairman, in February, 1938, he ruled that those having 10 or more employees were not exempt. A few of our elevators came under that and paid time and one-half for overtime. Then, in April 1941-it was seven employees in 1938-in April of 1941 he raised it to 7 employees on representations that many people made, including ourselves. He himself figured that more of our people should be exempt, and he raised the number to 10. He figured, and we joined in the estimate, that 95 percent of all elevators were exempt and should be exempt. Now, the Government possibly thought he could get all these little country elevators remaining to be thrown back under the coverage of this act with 6 years back-pay jeopardy.

Mr. SPRINGER. That is one of the most potent reasons for fixing some limitation, is it not?

Mr. BOWDEN. You know that when you punish these small country elevators, located on country sidings, for nonwilful violations, it is just going to hurt those little fellows. We introduced evidence in the hearings up in New York covering 825 elevators for 10 years, or 8,250 years of elevator operation. The average annual net profit per elevator was, I think, either $24 or $27 per elevator. You can see what you can do to those little fellows. We certainly ask you for some sort of relief under this act to free those people who have been in compliance to free them from jeopardy.

Mr. FEIGHAN. Your request would be more effective if the change were made in the substantive law rather than by a statute-of-limitations change?

Mr. BOWDEN. We wish you could in your amendment state something like this:

Provided, however, That any industry or any employer who has been in compliance with the definition or decision of an Administrator shall not be held in jeopardy for having complied with that definition or interpretation.

Otherwise, under your administrative law-and we are all working more under administrative law than statutory law today anyway-if you do not do that, what are we little fellows going to do, looking to Congress and not knowing what the Administrator will do, under a law of Congress, that will not stand up?

Mr. FEIGHAN. Thank you, Mr. Bowden.

The subcommittee will now adjourn subject to the call of the chair

man.

(At 4: 55 o'clock p. m., the subcommittee adjourned.)

LIMITING THE TIME FOR BRINGING CERTAIN ACTIONS UNDER THE LAWS OF THE UNITED STATES

MONDAY, JULY 2, 1945

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,

Washington, D. C.

The subcommittee met at 10 a. m., Hon. Michael A. Feighan presiding.

Mr. FEIGHAN. The committee will please be in order. Our first witness is Mr. Holtzoff.

STATEMENT OF ALEXANDER HOLTZOFF, SPECIAL ASSISTANT TO THE ATTORNEY GENERAL

Mr. HOLTZOFF. Mr. Chairman and gentlemen, H. R. 2788 is really divided into two parts. The first part is the sentence down to but not including the first proviso, and that relates to private litigation. The second part of this bill is in the first proviso that relates to actions by the Government.

Mr. SPRINGER. That is, in so-called public actions?

Mr. HOLTZOFF. Yes. I assume by "public actions" it is meant actions by the Government. I do not think that is a very felicitous phrase or a very accurate phrase, but I assume it means actions by the United States.

Mr. SPRINGER. We have so construed it since we have been conducting these hearings.

Mr. HOLTZOFF. This proviso would make a very drastic and radical change in respect to actions by the Government. It would introduce a statute of limitation of 2 years on all civil actions by the United States.

Traditionally the sovereign is not bound by a statute of limitation. And today the United States is not bound by any statute of limitation, except where it is expressly so provided. And this has been the law ever since 1789, and it was the law of England ever since the early days of the common law. It has been our law since the establishment of the Republic.

There are certain statutes, as, for example, certain provisions of the tax laws and certain other laws, that contain an express statute of limitations on actions by the Government.

Mr. SPRINGER. In some of these actions to which you now refer, Mr. Holtzoff, the Government is bound by the statute as fixed by the several States, where there is no definite or specific Federal statute, is that not true?

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