Rafael E. Bennett v. The Panama Canal Co., 475 F.2d 1280 (D.C. Cir. 1973). · Go Syfert
Rafael E. Bennett v. The Panama Canal Co., 475 F.2d 1280 (D.C. Cir. 1973). Cases Citing This Book View Copy Cite
“ordinarily 'may' is a permissive not a mandatory term.”
70 citation events (15 in the last 25 years) across 24 distinct courts.
Strongest positive: State of New York v. Donald J. Trump (dcd, 2022-10-06)
Treatment trajectory · 1973 → 2026 · click a year to view as-of
1973 1999 2026
Top citers, strongest first. 15 distinct citers.
discussed Cited as authority (verbatim quote) State of New York v. Donald J. Trump (2×) also: Cited "see"
D.D.C. · 2022 · signal: see · quote attribution · 1 verbatim quote · confidence high
ordinarily 'may' is a permissive not a mandatory term.
discussed Cited as authority (verbatim quote) Cook Inlet Tribal Council, Inc. v. Mandregan
D.D.C. · 2019 · quote attribution · 1 verbatim quote · confidence high
ordinarily 'may' is a permissive not a mandatory term.
cited Cited as authority (rule) Uni-Top Asia Investment Limited v. Sinopec International Petroleum Exploration and Production Corporation
D.D.C. · 2022 · confidence medium
But although “may” is a permissive term, see Bennett v. Panama Canal Co., 475 F.2d 1280, 1282 (D.C.
discussed Cited as authority (rule) Kettey v. Saudi Ministry of Education
D.D.C. · 2014 · confidence medium
Nov. 16, 1990) (holding that the parties’ use of the permissive “may” instead of “shall” indicates that they did not intend to be forced into arbitration); Bennett v. Panama Canal Co., 475 F.2d 1280, 1282 (D.C.Cir.1973) (“Ordinarily ‘may’ is a permissive not a mandatory term.”); Emory v. Secretary of the Navy, 708 F.Supp. 1335, 1338 (D.D.C.) (“‘shall’ denotes a mandatory action when used in *55 statutes and contracts”), aff'd mem., 1989 WL 201552 (D.C.Cir.1989).
discussed Cited as authority (rule) Formula v. Margaret M. Heckler, Secretary of Health and Human Services
D.C. Cir. · 1985 · confidence medium
Although the word “may" ordinarily is a permissive word and not mandatory, Bennett v. Panama Canal Co., 475 F.2d 1280, 1282 (D.C.Cir.1973), this presumption may change in light of the relevant legislative history.
discussed Cited as authority (rule) Leist v. Simplot
unknown court · 1980 · confidence medium
See Electric Storage Battery Co. v. Shimadzu, 307 U.S. 5, 14 , 59 S.Ct. 675, 684 , 83 L.Ed. 1071 (1930); Lorillard v. Pons, 434 U.S. 575, 580-81 , 98 S.Ct. 866, 871 , 55 L.Ed.2d 40 (1978); Bennett v. Panama Canal Co., 475 F.2d 1280, 1282 (D.C.Cir.1973) (Wyzanski, J.) (“the almost irrebuttable presumption which followed from reenactment with knowledge [of the Fifth Circuit’s interpretation of “may” as permissive]”).
cited Cited "see" National Association for the Advancement of Colored People v. United States Postal Service
D.D.C. · 2020 · signal: see · confidence high
See Bennett v. Panama Canal Co., 475 F.2d 1280, 1828 (D.C.
cited Cited "see" State of New York v. Donald J. Trump
D.D.C. · 2020 · signal: see · confidence high
See Bennett v. Panama Canal Co., 475 F.2d 1280, 1828 (D.C.
cited Cited "see" Conant v. Wells Fargo Bank, N.A.
D.D.C. · 2014 · signal: see · confidence high
See Bennett v. Panama Canal Co., 475 F.2d 1280, 1282 (D.C.Cir.1973) (“Ordinarily ‘may’ is a permissive not a mandatory term.”); PCH Mut.
cited Cited "see" State v. A.O.
N.J. · 2009 · signal: see · confidence high
See United States v. Zeiger, 475 F. 2d 1280 (D.C.Cir.1972).
cited Cited "see" State v. AO
N.J. · 2009 · signal: see · confidence high
See United States v. Zeiger, 475 F. 2d 1280 (D.C.Cir.1972).
discussed Cited "see, e.g." ca10 1983
10th Cir. · 1983 · signal: see, e.g. · confidence medium
See, e.g., Bennett v. Panama Canal Co., 475 F.2d 1280, 1282 (D.C.Cir.1973); United States v. Reeb, 433 F.2d 381, 383 (9th Cir.1970), cert. denied, 402 U.S. 912 , 91 S.Ct. 1391 , 28 L.Ed.2d 654 (1971); Wilshire Oil Co. v. Costello, 348 F.2d 241, 243 (9th Cir.1965).
discussed Cited "see, e.g." Nevada Power Co. v. Watt
10th Cir. · 1983 · signal: see, e.g. · confidence low
See, e.g., Bennett v. Panama Canal Co., 475 F.2d 1280 , 1282 (D.C.Cir.1973); United States v. Reeb, 433 F.2d 381, 383 (9th Cir. 1970), cert. denied, 402 U.S. 912 , 91 S.Ct. 1391 , 28 L.Ed.2d 654 (1971); Wilshire Oil Co. v. Costello, 348 F.2d 241, 243 (9th Cir. 1965).
discussed Cited "see, e.g." United States v. Grant (2×)
D.S.C. · 1979 · signal: see, e.g. · confidence low
See, e. g., United States v. Zeiger, 350 F.Supp. 685, 689 (D.D.C.), rev’d, 155 U.S.App.D.C. 11 , 475 F.2d 1280 (1972); United States v. Ridling, 350 F.Supp. 90 (E.D.Mich., 1972) (admitted on condition court appoint examiner; decision mooted when examination proved inconclusive); United States v. DeBetham, 348 F.Supp. 1377 (S.D.Cal.), aff’d, 470 F.2d 1367 (9th Cir., 1972), cert. denied, 412 U.S. 907 , 93 S.Ct. 2299 , 36 L.Ed.2d 972 (1973) (viewed tests positively but refused admission on basis of precedents); State v. Sims, 52 Ohio Misc. 31 , 369 N.E.2d 24 (1977); Commonwealth v. A Juvenile…
cited Cited "see, e.g." State v. Pleasant
Wash. Ct. App. · 1978 · signal: see, e.g. · confidence low
See, e.g., United States v. Zeiger, 350 F. Supp. 685 (D.D.C.), rev'd, 475 F.2d 1280 (D.C.
Rafael E. BENNETT Et Al., Appellants,
v.
the PANAMA CANAL COMPANY
71-1522.
Court of Appeals for the D.C. Circuit.
Jan 31, 1973.
475 F.2d 1280
Stanley B. Gruber, New York City, of the Court of Appeals of New York, pro hac vice, by special leave of court, for appellants. A. Fred Freedman, Washington, D. C., and Abraham E. Freedman, New York City, were on the brief, for appellants., George M. Beasley, III, Atty., Dept, of Justice with L. Patrick Gray, III, Asst. Atty. Gen., at the time the brief was filed, Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and Alan 5. Rosenthal, Atty. Dept, of Justice, were on the brief, for appellee.
McGowan, Robb, Wyzanski, Massachusetts.
Cited by 15 opinions  |  Published
WYZANSKI, Senior District Judge.

This is a class action brought on behalf of approximately 800 linehandlers employed by Panama Canal Company. Appellants complain that appellee did not pay them wages at the level required by 5 U.S.C. § 5342(b), which they say directs that all “vessel employees” of appellee be paid in accordance with wage practices of the maritime industry. Appellants seek as relief three years of back wages and an injunction ordering that hereafter wages be paid at the statutory rate.

The District Court, Gesell J., in a characteristically able and pithy opinion, (see Learned Hand, The Spirit of Liberty (1952), Charles Neave, pp. 156-157) found these as facts.

When a vessel passes through the Panama Canal a crew of eight to twelve linehandlers is put aboard at different stages of transit to handle lines for towing and positioning the vessel. This task requires skill and training, is hazardous, and is highly specialized. Line-handlers on a ship are in contact with linehandlers on shore who hand lines to the towing machinery or belay. The ship linehandlers work under the direction of a boatswain or instruction from the Canal Officers, but are also under general supervision of the vessel’s regular officers.

Appellee determines the linehandlers’ wages hourly on the basis of local wages in the Panama Canal Zone. The rate is above the minimum required by the Fair Labor Standards Act. Appellee has changed that rate from time to time after periodic review in the light of local conditions. However, these rates have been only a fraction of the straight-time monthly pay received by able-bodied seamen in the maritime industry. Overtime rates are similarly disparate.

Appellants contend that they are “vessel employees” within the coverage of 5 U.S.C. § 5342(b), and that that statute must be given mandatory effect.

The District Court held that appellants perform a unique function and that there is no wage practice of the[*1282] maritime industry applicable to them. Supporting the first of those conclusions, the court noted that, unlike ordinary seamen, appellants do not go to sea, have more regular hours and stabler work conditions, and need not develop the variety of skills required of those who work at sea under wholly different conditions. The court further held that since there is not any wage practice of the maritime industry for linehandlers, appellee necessarily established its own pay level for them, and that appellee had proceeded in a far from arbitrary fashion inasmuch as the rates were in line with blue-collar labor rates and were occasionally carefully reviewed. Summarizing, Judge Gesell concluded that appellee had not been shown to have violated 5 U.S.C. § 5342(b).

We agree. The district court’s findings of fact are supported by substantial evidence. U.S.C. § 5342(b) does not require appellee to pay appellants in accordance with the wage practices of the maritime industry. The statute provides that “the employees of the Panama Canal Company may be paid in accordance with the wage practices of the maritime industry.” Ordinarily “may” is a permissive not a mandatory term. Farmers & Merchants Bank v. Federal Reserve Bank, 262 U.S. 649, 662, 43 S.Ct. 651, 67 L.Ed. 1157 (1923); John Reiner & Co. v. United States, 325 F.2d 438, 441, 163 Ct.Cl. 381, 388 (Ct.Cl.1963). Here the permissive interpretation is conclusively proven to be correct not merely by the fact that when in the same statute Congress intended a mandatory direction it used the auxiliary “shall” not “may” — a contrast which is generally significant, see United States v. TaporIdeal Dairy Co., 175 F.Supp. 678, 682 (N.D.Ohio, 1959), aff’d 283 F.2d 869 (6th Cir. 1960), but also the legislative history of the statute. In 1959 the Fifth Circuit had distinguished between “may” and “shall” in determining whether Canal Zone pilots holding security positions were to be paid rates related to those of similar government employees of the United States. Reinheimer v. Panama Canal Co., 413 F.2d 153 (5th Cir. 1969) [interpreting 2 C.Z.C. 144 (b)]. The court held that the auxiliary “may” was to be given a permissive interpretation. This holding was drawn to Congress’s attention by persons who in matters cognate to this case represented appellants, or at least the labor organization to which appellants belonged. Despite efforts of those persons, Congress declined to substitute “shall” for “may.” See H.R. 9092, 92nd Cong. 1st Ses.; S.Rep. No. 758, 92nd Cong., 2nd Sess. 6; Cong.Rep. No. 92, 1275 92nd Cong., 2d Sess. 3 (1972). (1972; 5 U.S.C. § 5342(b). In full awareness of the discretionary character of the auxiliary verb “may” as used in 5 U.S.C. § 5342(b), and of the judicial- interpretation which was in accord with that discretionary character, Congress reenacted the statute unchanged. That sewed up whatever loose ends might have been thought to have been previously left to pull. See Judge Gesell’s second starred footnote in his opinion in the District Court. We also consider the almost irrebuttable presumption which followed from reenactment with knowledge. Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 319, 76 S.Ct. 752, 2 L.Ed.2d 788 (1958). The defeat sustained in the halls of Congress is not to be undone by an unwarranted victory in the halls of Justice. The statute remains, as it was intended by Congress to be, permissive not compulsory.

There are other points raised which we prefer not to discuss inasmuch as they are unnecessary to dispose of appellants’ case which has already sustained a mortal wound.

Affirmed.