W. Willard Wirtz, Secretary of Labor, United States Department of Labor, Appellant, v. Hines Realty Company and Jack Hines, Appellees, 361 F.2d 321 (5th Cir. 1966)

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US Court of Appeals for the Fifth Circuit - 361 F.2d 321 (5th Cir. 1966) May 17, 1966

Bessie Margolin, Associate Sol., William Fauver, Atty., Charles Donahue, Sol., Robert E. Nagle, Atty., Dept. of Labor, Washington, D. C., Beverley R. Worrell, Regional Atty., Dept. of Labor, for appellant.

C. A. L. Johnstone, Jr., Mobile, Ala., McCorvey, Turner, Johnstone, Adams & May, Mobile, Ala., Brooks, Garrett & Thompson, Brewton, Ala., of counsel, for appellees.

Before TUTTLE, Chief Judge, BELL, Circuit Judge, and KILKENNY,*  District Judge.


This appeal by the Secretary is from an order of the District Court granting summary judgment to appellees. The Secretary, proceeding under § 17 of the Fair Labor Standards Act, 29 U.S.C.A. § 217, was seeking, inter alia, to restrain appellees from withholding back wages alleged to be due under the Act. The judgment of the District Court was rendered prior to this court's opinion in Burk Builders, Inc. v. Wirtz, 5 Cir., 1966, 355 F.2d 451. The two are patently in conflict and Burk Builders is, of course, controlling.

Accordingly, we reverse and remand for further proceedings not inconsistent herewith.


Of Portland, Oregon, sitting by designation