Tobin v. Edward S. Wagner Co., Inc, 187 F.2d 977 (2d Cir. 1951). · Go Syfert
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Tobin v. Edward S. Wagner Co., Inc, 187 F.2d 977 (2d Cir. 1951). Cases Citing This Book View Copy Cite
31 citation events across 12 distinct courts.
Strongest positive: Powell v. Heckler (ca3, 1986-05-02)
Treatment trajectory · 1952 → 2026 · click a year to view as-of
1952 1989 2026
Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (rule) Powell v. Heckler
3rd Cir. · 1986 · confidence medium
"In fairness to the regulated, the provisions of the regulations should not be deemed to include what the administrator, exercising his delegated power, might have covered but did not cover." Tobin v. Edward S. Wagner Co., 187 F.2d 977, 979 (2d Cir.1951). 19 Additionally, statutes and regulations should be read and construed as a whole and, wherever possible, given a harmonious, comprehensive meaning.
discussed Cited as authority (rule) Powell v. Heckler
3rd Cir. · 1986 · confidence medium
“In fairness to the regulated, the provisions of the regulations should not be deemed to include what the administrator, exercising his delegated power, might have covered but did not cover.” Tobin v. Edward S. Wagner Co., 187 F.2d 977, 979 (2d Cir.1951).
discussed Cited as authority (rule) Exxon Corp. v. Department of Energy
N.D. Tex. · 1981 · confidence medium
According to TECA, when inquiring whether an interpretive position is arbitrary and capricious, the weight to be given an agency’s interpretation of its own regulations “depends upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all of those factors which give it power to persuade, if lacking power to control.” Standard Oil Co. v. DOE, 596 F.2d 1029, 1056 (Em.App. 1978), quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 , 65 S.Ct. 161, 164 , 89 L.Ed. 124 (1944); see also, Udall v. Tallman, 380 U.S…
discussed Cited as authority (rule) Standard Oil Co. v. Federal Energy Administration
N.D. Ohio · 1978 · confidence medium
True, in deciding what they do cover, we must not regard their literal terms merely, but must also give much weight to administrative interpretive rulings which have been published and of which the regulated are thus on notice. 187 F.2d at 979 (emphasis added).
discussed Cited "see" Getty Oil Co. v. Department of Energy of United States
C.D. Cal. · 1978 · signal: see · confidence high
See Tobin v. Edward S. Wagner Co., 187 F.2d 977, 979 (2d Cir. 1951) (holding that a regulation should not be deemed to include what the administrator might have covered but did not.) 7 DOE also relies on its prior interpretive ruling of the regulation, Ruling 1974-27,39 Fed.Reg. 44415 (1974).
discussed Cited "see" Standard Oil Co. v. Federal Energy Administration (2×)
N.D. Ohio · 1978 · signal: see · confidence high
See 187 F.2d, at 979 . 209 .
cited Cited "see" United States v. Standard Oil Co.
2d Cir. · 1959 · signal: see · confidence high
See Tobin v. Edward S. Wagner Co., 2 Cir., 1951, 187 F.2d 977 .” ECA itself realized that Regulation 1 needed further clarification and amendment when it promulgated Amendment 5.
cited Cited "see" United States v. Standard Oil Company Of California
2d Cir. · 1959 · signal: see · confidence high
See Tobin v. Edward S. Wagner Co., 2 Cir., 1951, 187 F.2d 977 .' 32 ECA itself realized that Regulation 1 needed further clarification and amendment when it promulgated Amendment 5.
cited Cited "see" United States v. Standard Oil Co. of California
S.D.N.Y. · 1957 · signal: see · confidence high
See Tobin v. Edward S. Wagner Co., 2 Cir., 1951, 187 F.2d 977 .
cited Cited "see, e.g." Mobil Oil Corp. v. Department of Energy
S.D.N.Y. · 1979 · signal: see, e.g. · confidence medium
See, e. g., Tobin v. Edward S. Wagner Co., 187 F.2d 977, 979 (2d Cir. 1951).
Retrieving the full opinion text from the archive…
TOBIN
v.
EDWARD S. WAGNER CO., Inc.
112, Docket 21793.
Court of Appeals for the Second Circuit.
Mar 21, 1951.
187 F.2d 977
Benjamin L. Lasky, Brooklyn, N. Y. (Charles M. Joseph, New York City, of counsel), for defendant-appellant., John A. Hughes, Regional Attorney, Office of Solicitor, U. S. Dept, of Labor, New York City (William S. Tyson, Solicitor, Bessie Margolin, Asst. Solicitor, and Helen Grundstein, Attorney, U. S. Dept, of Labor, all of Washington, D. C., of counsel), for plaintiff-appellee., The facts (except those added in the opinion of this court) are stated in the opinion of the District Court, 89 F.Supp. 304.
Hand, Swan, Frank.
Cited by 24 opinions  |  Published
FRANK, Circuit Judge.

In the light of Gemsco v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921, [1] and especially because of the subsequent addition of Section 11(d) of the Act [2] we think the Act sufficiently broad to authorize an administrative order or regulation including homeworkers engaged in activities such as those who dealt with the defendant here. That was the issue presented to the trial judge and chiefly argued on this appeal. Were there no more to the case, we would affirm.

However, in a footnote in defendant’s brief, and in its oral argument, in this court, it was also argued that the homeworkers here were not within the scope of the Administrator’s regulation. Those regulations contain this definition: “As used in these regulations, the term ‘industrial homework,’ means the production of any person in or about a home, apartment, tenement or room, in a residential establishment, for an employer of goods from[*979] material furnished directly by or indirectly for such employer.” [3] There is no evidence to show that the material was thus furnished by defendant. [4]

Plaintiff argues that this was an unintended loophole in the regulations; that the public hearings which preceded the issuance of the regulations disclose that the regulations were meant to cover such homeworkers as those here; and that, recognizing the administrative purpose, we should not construe the regulations too literally.

Were we interpreting a statute to ascertain what power it conferred on an administrative officer, much could be said for such an argument. Beginning at least with Aristotle, it has often been recognized that, as a legislature cannot foresee all possible particular instances to which legislation is to apply, it must therefore be reasonably so interpreted to fill in gaps. [5] But when the legislature delegates to an administrative official the authority, by “sublegislation”, to issue regulations, in order to fill in those gaps, then the regulations, precisely because they particularize, ought not be as generously interpreted as the statute. In fairness to the regulated, the provisions of the regulations should not be deemed to include what the administrator, exercising his delegated power, might have covered but did not cover. True, in deciding what they do cover, we must not regard their literal terms merely, but must also give much weight to administrative interpretive rulings which have been published and of which the regulated are thus on notice. [6][*980] But here there were no published rulings giving the construction for which plaintiff contends.

However, as the defendant’s argument based on the definition in the regulations was first made in this court, we will remand the case to afford plaintiff the opportunity to offer further evidence, if he so desires, showing that the workers fall within that definition.

Reversed and remanded.

SWAN, Circuit Judge, concurs in the result.

1

. See also the discussion in the opinions of this court in that case, 2 Cir., 144 F.2d 608, 155 A.L.R. 761.

2

. Section 11(d), 29 U.S.C.A. § 211 (d), added in 1949, reads as follows: “(d) The Administrator is authorized to make such regulations and orders regulating, restricting, or prohibiting industrial homework as are necessary or appropriate to prevent the circumvention or evasion of and to safeguard the minimum wage rate prescribed in this chapter and all existing regulations or orders of the Administrator relating to industrial homework are continued in full force and effect.”

3

. 7 F.R. 2593. 29 CFR 617.101. Emphasis added.

4

. At the trial, the following colloquy took place between Mr. Funston, for appellee, Mr. Lasky for appellant, and the court:

“Mr. Funston: Then Wagner continued to do business with the people who were making the yarn — making the infant’s wear, I mean, and they did, as Mr. Lasky says, purchase their materials. Now—

“Mr. Lasky: When you say they did purchase the material, you mean—

“Mr. Funston: The People.

“Mr. Lasky: The Workers.

“Mr. Funston: The people working in their homes, the workers, would write to the yarn companies- —

“Mr. Lasky: Yes.

“Mr. Funston: And purchase their materials.

“Mr. Lasky: Yes.

“Mr. Funston: At the present time every one that we have a deposition from purchased materials from the same source —Irving Cohen & Company. That has not been true in the past. There is documentary evidence and other evidence to show that Mr. Wagner has at times given the names of yarn companies to the defendants — I mean to the homeworkers. That is, places where they could buy yarn.

“Mr. Lasky: And it should be stated—

“Mr. Funston: All right.

“Mr. Lasky: —that Irving Cohen Yarn Company is in no way connected, directly or indirectly, with the defendants in this case. They are not known to each other.

“The inference there might be that we are working with the Irving Cohen Yarn Company. We don’t know them. We have never been there. We have never had any transactions directly with them. * * *

“The Court: Mr. Funston, do you claim that there is any connection between Cohen and Wagner in the sense of a controlling connection?

“Mr. Funston: I don’t know. I will not offer any testimony to that effect.

“The Court: If it were so the burden would be on you.

“Mr. Funston: The burden would be on us, and I will state that at this time I have no evidence to show it, no evidence that there was any control.

“The Court: If you say you don’t know, I will assume that there is none.”

The Court found: “9. All of the suppliers paid for their own yarn and for parcel post charges.”

5

. See Usatorre v. The Victoria, 2 Cir., 172 F.2d 434, notes 12—16; Guisseppi v. Walling, 2 Cir., 144 F.2d 608, 615 et seq., 155 A.L.R. 761; N. L. R. B. v. National Maritime Union, 2 Cir., 175 F.2d 686, 690 and notes 4-5.

6

. Walling v. Brooklyn Braid Co., 2 Cir., 152 F.2d 938, 940; Walling v. Cohen, 3 Cir., 140 F.2d 453, 455. See also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-414, 65 S.Ct. 1215, 89 L.Ed. 1700.