COLLET, Circuit Judge.
In our original opinion, 195 F.2d 67, when we considered appellant's contention relating to Section 2 of the Portal-to-Portal Act, 29 U.S.C.A. § 252, we assumed that appellant was basing its argument that recovery could not be had for the periods of time involved upon the proposition alone that the proof presented was inadequate to support a recovery for payment for such periods of time. It was upon that assumption that we denied appellant's contention and held that the evidence was sufficient to support a finding that the periods of time in question were compensable under Section 2 of the Portal-to-Portal Act. It now appears from appellant's Motion to Recall the Mandate and to Modify the Opinion that the opinion is being construed by appellees as holding that since the evidence submitted was sufficient to support a finding of compensability under the Portal-to-Portal Act, 29 U.S.C.A. § 251 et seq., the question of liability under Section 2 of that Act is settled and appellant may not now amend its pleading to submit any defense it may have under Section 2, or offer evidence in support of such defense. Appellant's statement in its motion of appellees' position in this regard is verified by appellees' Suggestions in Opposition to Appellant's Motion. We could have settled the question of liability on this issue only in the event there was no further evidence to be presented on the subject. If there was no further evidence to be offered, then the amendment of appellees' pleading which we suggested would be purely formal and the question of compensability under Section 2 could be treated as closed. But we had no more right to the conclusive presumption that appellant had no further evidence on any defense made available to it by any part of the Portal-to-Portal Act than the trial court had. And it would be improper for us to prevent appellant from making, or the trial court from considering, any such defense if there was a possibility of further evidence on retrial. Since appellant's motion indicates not only such a possibility but an intention on its part to offer further evidence on the subject on retrial, it should have the opportunity to do so.
"Comes now the appellant, the defendant herein, and respectfully moves the Court to recall its mandate herein, and upon such recall to modify the opinion by inserting after the paragraph ending on page seven (7) of the typewritten opinion, and following the words: `plaintiffs should have an opportunity on remand to make the appropriate amendment' the following: `, and defendant should have an opportunity to plead to any such amendment. Thereupon, both plaintiffs and defendant should be permitted to offer any Proper evidence which they may desire to introduce in support of their respective pleadings under Section 2 of the Portal-to-Portal Act.' or that such opinion he modified substantially as above set forth by such changes as to the Court may seem proper to the end that it shall direct that the defendant be permitted to plead and prove any denials or defenses it may have under Section 2 of said Portal-to-Portal Act.
"As grounds for the foregoing the appellant states that since the overruling of its prior motion for a rehearing or to modify the opinion herein, it is confronted with two possible courses of action, (1) a petition for certiorari to the Supreme Court of the United States, or (2) a prompt retrial in the District Court. In connection with the latter alternative, upon a study of the opinion as to the triable issues, it appears that such opinion is subject to the construction by the District Court that defendant is foreclosed as to any defense which it may have under Section 2 of the Portal-to-Portal Act, and that defendant may not be permitted to offer any evidence relating to the matters referred to therein. The portion of the opinion involved is that portion numbered 2, commencing on page 70 of 185 F.2d, which we quote for the convenience of the Court:
Complaint is made by appellees that the present motion is untimely after a motion for rehearing has been overruled. We do not agree. The erroneous construction of the opinion was not asserted until after the remand of the cause. It was not until then that the possible ambiguity of the opinion became a probable source of difficulty in the retrial of the cause. It was then appropriate, before preparation for the retrial of the cause, that request for clarification be made.
For the reasons heretofore stated, the motion is granted, our mandate is recalled, and the opinion is modified by inserting after the paragraph ending on Page 7 of the typewritten opinion [185 F.2d 71], following the words "Plaintiffs should have an opportunity on remand to make the appropriate amendment" — the following words and figures, to-wit: ", and defendant should have an opportunity to plead to any such amendment. Thereupon, both plaintiffs and defendant should be permitted to offer any proper evidence which they may desire to introduce in support of their respective pleadings under Section 2 of the Portal-to-Portal Act."
For the reasons and purposes stated in our original opinion, this cause is remanded for further action consistent with our opinion as modified herein.