169 F.2d 254 (1948)
Four separate suits were brought against the appellee in the District Court for the Western District of New York by and in behalf of its employees to recover overtime pay in accordance with the provisions of the Fair Labor Standards Act of 1938, as interpreted by the Supreme Court in Anderson v. Mt. Clemens Pottery Co. While these suits were pending without adjudication, Congress enacted the Portal-to-Portal Act of 1947.1 The appellee then moved to dismiss each of the complaints, which for present purposes may be treated as identical, on the grounds that no cause of action was alleged and that the court was without jurisdiction by virtue of section 2 of the Portal-to-Portal Act.2
As the appellants then questioned this statute upon constitutional grounds, notice of that was given the Attorney General and he was allowed to intervene in behalf of the government in support of the validity of the Act.3 The motions to dismiss were granted with leave to amend within a reasonable time fixed.4 The plaintiffs did not amend their complaints and after the expiration of their time to do so orders were entered granting the motions to dismiss each complaint.5 Appeals taken by the plaintiffs from each of those orders were consolidated for hearing.6
The complaints alleged a cause of action under section 16(b) of the Fair Labor Standards Act for overtime compensation and an additional equal amount as liquidated damages, together with reasonable attorney’s fees, for time upon the employer’s premises preliminary to, and after engagement in, the principal activities of the employees.7 This time was spent by the employees in walking to and from their work stations and walking out of their employers’ premises when their principal work was done.8 It was also spent in changing their clothes on their employer’s premises before and after their main activities, in receiving their orders, in obtaining on such premises their tools and other equipment before and in disposing of them after their main activities, in washing and cleansing themselves after their principal work was done, and in lunch and rest periods during which their time was not entirely at their own disposal.9
It was not alleged that the compensation sought was for activities which were compensable by an express provision of a written or non-written contract, or by a custom or practice, in effect at the time of the activities and at the place of employment.10
Whether the issue of the constitutionality of section 2 of the Portal-to-Portal Act was properly raised by motion in each case before trial?11
Under Rule 12(b) and Rule 12(h) of the Federal Rules of Civil Procedure, a defendant may challenge jurisdiction and the sufficiency of the complaint by motion before trial, and the court must determine whether it has jurisdiction prior to adjudicating the merits of the case.12
Yes. The four separate suits were brought in the District Court for the Western District of New York to recover overtime pay under the Fair Labor Standards Act.13 While the suits were pending, the appellee moved to dismiss each complaint on the grounds that no cause of action was alleged and that the court lacked jurisdiction under section 2 of the Portal-to-Portal Act.14 After the appellants raised constitutional challenges, the Attorney General intervened.15
The motions were granted with leave to amend.16 The plaintiffs declined to amend their complaints, and final dismissal orders were entered.17 The court held that the constitutional issue was properly presented by motion before trial. The duty to ascertain jurisdiction precedes any merits determination. The complaints contained no allegations that would permit recovery regardless of the Act's validity.
The issue of constitutionality was properly raised by motion before trial.18
Whether subdivision (d) of section 2 of the Portal-to-Portal Act may be sustained independently of subdivisions (a) and (b) without violating the Fifth Amendment?19
Congress possesses authority to confer, withhold, or restrict the jurisdiction of lower federal courts.20 This power is limited by the requirements of the Fifth Amendment.21 Jurisdiction may not be withdrawn in a manner that deprives any person of life, liberty, or property without due process or takes private property without just compensation.22
No. The court determined that subdivision (d), which withdraws jurisdiction over claims not meeting the conditions of subdivisions (a) and (b), cannot stand alone.23 If subdivision (d) were valid independently, it might still effect a deprivation of property without due process when considered together with the substantive limitations in subdivisions (a) and (b).24 Therefore the provisions must stand or fall together, and any analysis of the constitutionality of the jurisdictional limitation requires simultaneous examination of the substantive restrictions on employer liability.25
Subdivision (d) may not be sustained independently of subdivisions (a) and (b).26
Whether the Portal-to-Portal Act unconstitutionally deprives the appellants of any substantive rights under the Fair Labor Standards Act?27
Rights created solely by statute remain subject to congressional modification or extinguishment so long as they have not ripened into final judgment.28 Contracts are read to incorporate the reservation of Congress's power to regulate commerce.29 Legislation altering statutory or statutory-derived contractual rights in the field of interstate commerce does not violate the Fifth Amendment when enacted after reasonable investigation and for the purpose of protecting commerce.30
No. The complaints sought compensation for preliminary and postliminary activities that were not alleged to be compensable under any contract or custom.31 Whether the employees' rights are viewed as wholly statutory until the Portal-to-Portal Act, statutory until the Supreme Court decisions and contractual thereafter, or contractual from the enactment of the Fair Labor Standards Act, the Portal-to-Portal Act is constitutional.32 Congress exercised its commerce power after finding that the unexpected liabilities threatened financial ruin, impaired credit, burdened commerce, and created competitive inequalities.33 Because the contracts were subject to the Fair Labor Standards Act as it might be interpreted or amended, and because the reservation of sovereign power to regulate commerce is read into every contract, the elimination of liability for non-contractual portal-to-portal activities does not deprive the appellants of any vested constitutional right.34
The Portal-to-Portal Act does not unconstitutionally deprive the appellants of any substantive rights.35
Whether the Portal-to-Portal Act violates Article III of the Constitution or encroaches upon the separate power of the judiciary?36
Congress may enact regulatory legislation that affects the precedential force of prior judicial interpretations of a statute without violating Article III, provided the legislation does not direct courts to apply a rule of decision inconsistent with basic legal principles, does not require repayment of sums already paid, and leaves final judgments undisturbed.37
No. The Portal-to-Portal Act was passed to remedy conditions Congress found to burden commerce after thorough investigation.38 Although the Supreme Court decisions in Tennessee Coal, Jewell Ridge, and Mt. Clemens Pottery contributed to the liabilities Congress addressed, the Act does not alter those decisions as rules of decision or impose any new rule upon the courts.39 It leaves express and implied-in-fact contracts enforceable, does not require repayment of money already paid, and preserves valid final judgments.40 The incidental effect of preventing courts from applying the earlier interpretations to pre-Act activities therefore raises no Article III concern.41
The Portal-to-Portal Act does not violate Article III or encroach upon the judicial power.42