(a) In order to provide a defense under section 9 or section 10 of
the Portal Act, the regulation, order, ruling, approval, interpretation,
administrative practice or enforcement policy relied upon and conformed
with must be that of an ``agency of the United States.'' Insofar as acts
or omissions occurring on or after May 14, 1947 are concerned, it must
be that of the ``agency of the United States specified
in'' section 10(b), which, in the case of the Fair Labor Standards Act,
is ``the Administrator of the Wage and House Division of the Department
of Labor.'' However, with respect to acts or omissions occurring prior
to May 14, 1947, section 9 of the Act permits the employer to show that
he relied upon and conformed with a regulation, order, ruling, approval,
interpretation, administrative practice or enforcement policy of ``any
agency of the United States.'' 119
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119 The differences in the provisions of the two sections are
explained and illustrated in Sec. 790.13.
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(b) The Portal Act contains no comprehensive definition of
``agency'' as used in sections 9 and 10, but an indication of the
meaning intended by Congress may be found in section 10. In that
section, where the ``agency'' whose regulation, order, ruling, approval,
interpretation, administrative practice or enforcement policy may be
relied on is confined to ``the agency of the United States'' specified
in the section, the Act expressly limits the meaning of the term to the
official or officials actually vested with final authority under the
statutes involved.120 Similarly, the definitions of
``agency'' in other Federal statutes 121 indicate that the
term has customarily been restricted in its usage by Congress to the
persons vested under the statutes with the real power to act for the
Government--those who actually have the power to act as (rather than
merely for) the highest administrative authority of the Government
establishment.122 furthermore, it appears from the statement
of the managers on the part of the House accompanying the Conference
Committee Report, that the term ``agency'' as appearing in the Portal
Act was employed in this sense. As there stated (p. 16), the
regulations, orders, ruling, approvals, interpretations, administrative
practices and enforcement policies relied upon and conformed with ``must
be those of an `agency' and not of an individual officer or employee of
the agency. Thus, if inspector A tells the employer that the agency
interpretation is that the employer is not subject to the (Fair Labor
Standards) Act, the employer is not relieved from liability, despite his
reliance in good faith on such interpretations, unless it is in fact the
interpretation of the agency.'' 123 Similarly, the Chairman
of the Senate Judiciary Committee, in explaining the conference
agreement to the Senate, made the following statement concerning the
``good faith'' defense. ``It will be noted that the relief from
liability must be based on a ruling of a Federal agency, and not a minor
official thereof. I, therefore, feel that the legitimate interest of
labor will be adequately protected under such a provision, since the
agency will exercise due care in the issuance of any such ruling.''
124
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120 In regard to the Walsh-Healey Act, ``agency'' is defined
in section 10 of the Portal-to-Portal Act as including, in addition to
the Secretary of Labor, ``any Federal officer utilized by him in the
administration of such Act.'' The legislative history of the Portal-to-
Portal Act (93 Cong. Rec. 2239-2240) reveals that this clause was added
because of the language in the Walsh-Healey Act authorizing the
Secretary of Labor to administer the Act ``and to utilize such Federal
officers and employees * * * as he may find necessary in the
administration.''
121 Federal Register Act, 44 U.S.C. 304; Federal Reports
Act, 5 U.S.C. 139; Administrative Procedure Act, 5 U.S.C. 1001.
122 See Cudahy Packing Co. v. Holland, 315 U.S. 357
(1942); United States v. Watashe, 102 F. (2d) 428 (C.A. 10, 1939); 39
Opinions Attorney General 15 (1925). Cf. Keyser v. Hitz, 133 U.S. 138
(1890); 39 Opinions Attorney General 541 (1933); 13 George Washington
Law Review 144 (1945).
123 See also statement by Representative Gwynne, 93 Cong.
Rec. 1563; and statement by Senator Wiley explaining the conference
agreement to the Senate, 93 Cong. Rec. 4270.
124 Statement of Senator Wiley, 93 Cong. Rec. 4270.
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(c) Accordingly, the defense provided by sections 9 and 10 of the
Portal Act is restricted to those situations where the employer can show
that the regulation, order, ruling, approval, interpretation,
administrative practice or enforcement policy with which he conformed
and on which he relied in good faith was actually that of the authority
vested with power to issue or adopt regulations, orders, rulings,
approvals, interpretations, administrative practices or enforcement
policies of a final nature as the official act or policy of
the agency.125 Statements made by other officials or
employees are not regulations, orders, rulings, approvals,
interpretations, administrative practices or enforcement policies of the
agency within the meaning of sections 9 and 10.
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125 Statement by Representative Gwynne, 93 Cong. Rec.
1563; statements by Representative Walter, 93 Cong. Rec. 1496-1497,
4389; statement by Representative Robsion, 93 Cong. Rec. 1500; statement
by Senator Thye, 93 Cong. Rec. 4452.
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