Bridges v. United States

In the United States Court of Federal Claims

No. 18-727C

(Filed: October 7, 2021)

FOR PUBLICATION

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ROBERT BRIDGES, et al., *

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Plaintiffs, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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David Ricksecker, McGillivary Steele Elkin LLP, Washington, D.C., for

Plaintiffs. With him on briefs was Gregory K. McGillivary, McGillivary Steele Elkin

LLP, Washington, D.C.

Robert R. Kiepura, Trial Attorney, Commercial Litigation Branch, Civil

Division, United States Department of Justice, Washington, D.C. for Defendant,

United States. With him on briefs were Joseph H. Hunt, Assistant Attorney General,

Jeffrey Bossert Clark, Acting Assistant Attorney General, Ethan P. Davis, Acting

Assistant Attorney General, Robert E. Kirschman, Jr., Director, Reginald T. Blades,

Jr., Assistant Director, Lauren S. Moore, Trial Attorney, and Jana Moses, Trial

Attorney, Commercial Litigation Branch, Civil Division, United States Department

of Justice, Washington, D.C, as well as Kathleen Haley Harne, Assistant General

Counsel, Employment Law Branch, Office of General Counsel, Federal Bureau of

Prisons, Washington, D.C.

OPINION AND ORDER

Plaintiffs — current and former Federal Bureau of Prisons employees at

Federal Correctional Institution Milan (“FCI Milan” or “the Prison”) — seek overtime

compensation under the Fair Labor Standards Act (“FLSA”) for time spent traveling

between their regularly scheduled shifts at the Prison and voluntary overtime shifts

guarding inmates at area hospitals. Plaintiffs also seek compensation for mileage

accumulated on their personal vehicles in transit between regular and overtime

shifts. The parties’ cross-motions for summary judgment are ripe for disposition.1

1Pls.’ Mot. for Partial Summ. J. (ECF 33) (“Pls.’ Mot.”) and Pls.’ Mem. ISO Mot. for Partial Summ. J.

(ECF 34) (“Pls.’ Mem.”); Def.’s Resp. to Pls.’ Mot. for Partial Summ. J. & Cross-Mot. for Partial Summ.

There are no genuine disputes of material fact. Rather, the case turns on how

the relevant regulations define Plaintiffs’ workday. Those regulations rule out

compensation for the travel time at issue. Accordingly, Defendant’s motion is

GRANTED, and Plaintiffs’ motion is DENIED. The case is DISMISSED.

BACKGROUND

FCI Milan inmates with medical needs that cannot be handled at the Prison

are admitted to nearby hospitals, where correctional workers guard the inmates at

all times. Pls.’ Mem. App. at PA9–10.2 Hospital posts are staffed by Prison employees

on overtime assignments. PA9.

Work schedules at the Prison and the relevant hospitals are organized into

shifts. At the hospitals where FCI Milan inmates are most commonly treated, shifts

are usually staggered an hour later than Prison shifts. PA17, PA21, PA161–64,

PA272, PA274, PA277. The hospitals are approximately 15 miles away from FCI

Milan, or about a 20-minute drive. PA13, PA18, PA40. As a result, Prison workers

doing hospital assignments typically complete their Prison shift, then travel to a

hospital for an overtime shift. PA21. Other arrangements for scheduling Prison and

hospital shifts are possible, see, e.g., PA22–23, but the parties agree that the legal

analysis is the same.

Hospital and Prison shifts are both tracked in the Prison’s roster. PA31, PA41,

PA101. But they are scheduled differently. FCI Milan employees normally bid on

quarterly posts at the Prison, with posts scheduled two weeks in advance. PA9, PA28.

Hospital shifts are not assigned in that way. PA8–9, PA28, PA101, PA114. Instead,

employees voluntarily sign up for overtime availability and leave a phone number

“for management to call.” PA250, PA 253. When overtime shifts need to be assigned,

the lieutenant on duty contacts employees by phone according to their order on a

rotation. PA18, PA28, PA 250, PA253. Employees can accept or decline the overtime

when contacted. If necessary, the Prison assigns workers to mandatory hospital

overtime, but employees usually volunteer. PA22.

Employees who work a shift at FCI Milan and then a volunteer overtime shift

at a hospital are compensated for the time they spend at their posts, but not for their

travel time between work locations. In contrast, Prison employees are paid for travel

when they are assigned to mandatory overtime shifts, or when they must travel to a

J. on the Issue of Liability (ECF 38) (“Def.’s Resp. & Cross-Mot.”); Pls.’ Reply & Opp. to Def.’s Mot. for

Summ. J. (ECF 40) (“Pls.’ Reply & Opp.”); Def.’s Reply to Pls.’ Resp. to Def.’s Cross-Mot. for Partial

Summ. J. (ECF 41) (“Def.’s Reply”). I heard oral argument on June 11, 2021. Tr. of Oral Arg. (ECF 46).

2 Further citations to Plaintiffs’ Appendix will be to “PA.” Neither party has submitted declarations

authenticating the exhibits submitted in support of the cross-motions, but nor has either party objected

to the other’s failure to do so. RCFC 56(c)(2).

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hospital during their regular Prison shift. PA22, PA50. Employees are also

compensated when they transport prisoners or drive a government vehicle to the

hospital. PA19, PA33, PA42, PA100.

Overtime for Prison-to-hospital travel has been a matter of controversy at FCI

Milan before. Three memoranda of understanding between FCI Milan and the Prison

employees’ union (the “MOUs”) contain language covering overtime assignments: “[I]f

the assignment is located away from the official duty station within the local

commuting area (i.e. outside hospital), time spent traveling will not be considered

hours of work, unless the employee is required to drive a government vehicle or

perform work while traveling.” Def.’s Resp. & Cross-Mot. Exh. B at 1 (ECF 39-2);

PA251, PA254.

DISCUSSION

I. Jurisdiction

The United States Court of Federal Claims has jurisdiction under the Tucker

Act to adjudicate “any claim against the United States founded either upon … any

Act of Congress or any regulation of an executive department … in cases not sounding

in tort.” 28 U.S.C. § 1491(a)(1). Because the Tucker Act is “a jurisdictional statute

[that] does not create any substantive right enforceable against the United States for

money damages,” United States v. Testan, 424 U.S. 392, 398 (1976) (citing Eastport

S.S. Corp. v. United States, 178 Ct. Cl. 599, 605–07 (1967)), parties asserting Tucker

Act jurisdiction must “identify a substantive right for money damages against the

United States, separate from the Tucker Act itself.” Todd v. United States, 386 F.3d

1091, 1094 (Fed. Cir. 2004). That entails identifying a “money mandating” source of

law, i.e., a statute or regulation that “can fairly be interpreted as mandating

compensation by the Federal Government for the damage sustained and is reasonably

amenable to the reading that it mandates a right of recovery in damages.” Jan’s

Helicopter Serv., Inc. v. F.A.A., 525 F.3d 1299, 1307 (Fed. Cir. 2008) (quotes and

citations omitted) (quoting United States v. Mitchell, 463 U.S. 206, 217 (1983), and

United States v. White Mountain Apache Tribe, 537 U.S. 465, 473 (2003)).

Plaintiffs’ claims for uncompensated travel time are based on FLSA, which is

a money-mandating source of law. See Abbey v. United States, 745 F.3d 1363, 1369

(Fed. Cir. 2014). Their claims for mileage reimbursement rely on other sources of law

that require non-discretionary payment by the United States to particular recipients.

See 5 U.S.C. § 5704(a)(1) (“[A]n employee who is engaged on official business for the

Government is entitled to a rate per mile established by the Administrator of General

Services, instead of the actual expenses of transportation, for the use of a privately

owned automobile when that mode of transportation is authorized or approved as

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more advantageous to the Government.”); Program Statement 2200.04 at 23–24, BOP

Temporary (TDY) Travel Regulation (Dec. 1, 2016) (ECF 49-1) (providing that

employees “must receive a mileage reimbursement” for travel in personal vehicles

when requirements are met). Those terms are money-mandating as well. See, e.g.,

Jan’s Helicopter Serv., Inc., 525 F.3d at 1307.3 The Court therefore has jurisdiction

over both claims.

“[T]he special statute of limitations governing the Court of Federal Claims

requires” that timeliness be considered a jurisdictional question. John R. Sand &

Gravel Co. v. United States, 552 U.S. 130, 132 (2008). FLSA claims must be brought

within two years of alleged violations, or within three years of willful violations. 29

U.S.C. § 255(a). Plaintiffs allege that the challenged payment practices have

continued “on an ongoing basis to date,” Am. Compl. ¶ 7 (ECF 2), and the summary

judgment record bears that out. Plaintiffs’ claims are therefore timely.

II. Merits

A. Summary Judgment Standard

A party seeking summary judgment must show “that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” RCFC 56(a). “[A]ll evidence must be viewed in the light most favorable to the

nonmoving party, and all reasonable factual inferences should be drawn in favor of

the nonmoving party.” Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202

(Fed. Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and

Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)). Summary judgment should

be granted “against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Cross-motions for summary judgment should be evaluated as independent

motions. “[T]he court must evaluate each party’s motion on its own merits, taking

care in each instance to draw all reasonable inferences against the party whose

3 In Agwiak v. United States, the Federal Circuit held that a different statute providing that given

individuals were “entitled” to money was money-mandating. 347 F.3d 1375, 1380 (Fed. Cir. 2003).

Likewise, as a rule courts treat the word “must” as mandatory. See O’Farrell v. Dep’t of Def., 882 F.3d

1080, 1085 (Fed. Cir. 2018) (referring to word “must” as a “mandatory term”), and K-Con, Inc. v. Sec’y

of Army, 908 F.3d 719, 725 (Fed. Cir. 2018) (similar) (both citing Kingdomware Techs., Inc. v. United

States, 136 S. Ct. 1969, 1977 (2016)). “[U]se of the word ‘shall’ generally makes a statute money-

mandating,” see Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 877 (Fed. Cir. 2007) (quoting

Agwiak, 347 F.3d at 1380), and “must” means the same thing here. See J.H. Miles & Co. v. United

States, 3 Cl. Ct. 10, 13 (1983) (defining “shall” as “must”); Contreras v. United States, 64 Fed. Cl. 583,

592–93 (2005) (holding a statute not money mandating because it did not use the terms “‘shall’ or

‘must,’ which very obviously connote[] mandatory action”), aff’d, 168 F. App’x 938 (Fed. Cir. 2006).

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motion is under consideration.” Mingus Constructors, Inc. v. United States, 812 F.2d

1387, 1391 (Fed. Cir. 1987) (citing Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 313–

14 (2d Cir. 1981)). “[T]he court is not relieved of its responsibility to determine the

appropriateness of summary disposition in a particular case,” even if the parties

agree that no material facts are disputed and summary disposition is appropriate.

Williams v. United States, 144 Fed. Cl. 218, 230 (2019) (citing Prineville Sawmill Co.

v. United States, 859 F.2d 905, 911 (Fed. Cir. 1988)).

B. Analysis

FLSA requires compensation for hours worked, including work “suffer[ed] or

permit[ted]” by the employer. 29 U.S.C. §§ 203(g), 207(a)(1); see also 5 C.F.R.

§ 551.401(a). The Portal-to-Portal Act limits that mandate with a general rule

excluding time spent in travel to and from work:

[N]o employer shall be subject to any liability or punishment under the

Fair Labor Standards Act of 1938, as amended … on account of the

failure of such employer to pay an employee minimum wages, or to pay

an employee overtime compensation, for or on account of any of the

following activities of such employee engaged in on or after May 14,

1947—

(1) walking, riding, or traveling to and from the actual place of

performance of the principal activity or activities which such employee

is employed to perform, and

(2) activities which are preliminary to or postliminary to said principal

activity or activities,

which occur either prior to the time on any particular workday at which

such employee commences, or subsequent to the time on any particular

workday at which he ceases, such principal activity or activities.

29 U.S.C. § 254(a). Plaintiffs argue, rather, that travel between FCI Milan and

volunteer overtime shifts at a hospital occurs within a “continuous workday” —

running from the start of the regular shift to the end of the overtime shift — during

which all Plaintiffs’ time is compensable work. Pls.’ Mem. at 14. To succeed, Plaintiffs

must show that Office of Personnel Management (“OPM”)4 regulations establish a

4 Except as to employees of certain named agencies, “the Director of the Office of Personnel

Management is authorized to administer the provisions of [FLSA] with respect to any individual

employed by the United States[.]” See 29 U.S.C. § 204(f)); see also 5 C.F.R. §§ 551.102, 551.103. OPM

is required to do so consistently with “the rulings, regulations, interpretations, and opinions of the

Secretary of Labor which are applicable in other sectors of the economy,” see Billings v. United States,

322 F.3d 1328, 1333 (Fed. Cir. 2003) (quoting Fair Labor Standards Amendments of 1974, H.R. R EP.

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“workday” mandating compensation for travel between the Prison and overtime shifts

at hospitals. That argument is inconsistent with the relevant regulations, and

therefore fails.5

First, Plaintiffs’ “continuous workday” theory does not account for how OPM

regulations treat non-work time during the workday. Plaintiffs rely heavily on a

Department of Labor (“DOL”) interpretation of FLSA providing that “[t]ime spent by

an employee in travel as part of his principal activity, such as travel from job site to

job site during the workday, must be counted as hours worked.” 29 C.F.R. § 785.38.

But whatever that language might mean, DOL’s interpretations do not govern

Plaintiffs; OPM’s do. An OPM regulation — which Plaintiffs ignore — uses different

language:

A preparatory or concluding activity that is not closely related to the

performance of the principal activities is considered a preliminary or

postliminary activity. Time spent in preliminary or postliminary

activities is excluded from hours of work and is not compensable, even if

it occurs between periods of activity that are compensable as hours of

work.

5 C.F.R. § 551.412(b) (emphasis added). Far from establishing the “continuous

workday” Plaintiffs envision, that regulation specifically excludes compensation for

activities that are not “closely related” to an employee’s principal activities, even

during the course of a workday.6

NO. 93–913, at 28 (1974), reprinted in 1974 U.S.C.C.A.N. 2811, 2837), and OPM regulations are invalid

if they depart from the Secretary’s official positions without justification, see id. at 1334; see also Am.

Fed’n of Gov’t Employees v. Office of Pers. Mgmt., 821 F.2d 761, 770 (D.C. Cir. 1987); Plaintiff No. 1 v.

United States, No. 19-1019C, 2021 WL 2283858, at *3 (Fed. Cl. May 20, 2021). Plaintiffs do not

challenge the validity of OPM’s regulations. Plaintiffs suggest in passing that the OPM regulations

should be interpreted in light of Federal Personnel Manual Letter No. 551–10 (1976), see Pls.’ Mem.

at 22, but do not explain what the letter says or why it is entitled to deference in light of subsequent

regulations.

5 Plaintiffs concede that their mileage claim falls with their claim for uncompensated travel time. Tr.

of Oral Arg. at 38. That is consistent with the relevant statute, which requires mileage compensation

for employees “engaged on official business for the Government[.]” 5 U.S.C. § 5704(a)(1). Given that

Plaintiffs do not perform any work during the travel time at issue, they plainly are not conducting

official business. The statute is consistent with the superseded travel regulation Plaintiffs rely upon.

See U.S. Department of Justice, Federal Bureau of Prisons Directive 2200.01 (May 5, 2000) (PA387).

It also appears to be consistent with the current version of the regulation, Program Statement 2200.04,

though Plaintiffs have forfeited any argument based on the new version to the extent it differs from

the prior one. Therefore, Plaintiffs are not entitled to mileage reimbursement.

6 That reading tallies with the underlying OPM definition of “workday,” which provides that an

employee’s “hours of work” include “[a]ll time spent by an employee in the performance of [principal]

activities,” 5 C.F.R. § 551.411(a), and thus impliedly exclude other kinds of activities. Meals and rest

breaks are governed by their own rules. 5 C.F.R. § 551.411(b), (c).

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The parties appear to agree that a Prison employee’s principal activity is

guarding prisoners, whether at the Prison or a hospital. See Pls.’ Mem. at 3–4; Def.’s

Resp. & Cross-Mot. at 2–3; Def.’s Reply at 9. But under the Portal-to-Portal Act,

travel to the place of work is generally separate from the work itself, see IBP, Inc. v.

Alvarez, 546 U.S. 21, 41 (2005); 29 U.S.C. § 254(a), and Plaintiffs do not argue that

their travel is “closely related” to guarding.7 5 C.F.R. § 551.412(b); cf. Integrity

Staffing Solutions, Inc. v. Busk, 574 U.S. 27, 36 (2014) (explaining that in

determining what activities are “integral and indispensable” to principal activities,

the question is not “whether an employer required a particular activity” but what

“productive work … the employee is employed to perform”). Plaintiffs pause their

guarding responsibilities at the end of their Prison shifts, so even though they resume

similar activities at the hospital, travel to the second worksite is “excluded from hours

of work and is not compensable[.]” 5 C.F.R. § 551.412(b).

Plaintiffs argue that the “continuous workday” obliterates the distinction

between principal activities and preparatory or concluding activities: Travel, in their

view, “is actually part of the principal activities that are part [of] the continuous

workday.” Pls.’ Reply & Opp. at 8. But that ignores the critical OPM regulation,

which, again, requires distinguishing between “principal activities” and separate

“preparatory or concluding” activities — even in the course of a workday. 5 C.F.R.

§ 551.412(b). Because Plaintiffs’ travel falls in the latter category, the OPM

regulation rules out compensation.

Second, Plaintiffs are also mistaken in their premise that OPM regulations

define a “workday” that combines Prison and volunteer overtime shifts into a single

continuous unit. Plaintiffs’ travel occurs outside the workday, as OPM defines it. They

would thus lose even if they were right that OPM regulations require compensation

for all activities during a continuous workday. A close reading of the regulations

shows why.

OPM defines a “workday” as the time between the “commencement” and

“cessation” of “the principal activities that an employee is engaged to perform on a

given day[.]” 5 C.F.R. § 551.411(a); see Van Buren v. United States, 141 S. Ct. 1648,

1657 (2021) (“When a statute includes an explicit definition of a term, we must follow

that definition, even if it varies from a term’s ordinary meaning.”) (quoting Tanzin v.

Tanvir, 141 S. Ct. 486, 490 (2020) (quotes omitted)); Tesoro Haw. Corp. v. United

States, 405 F.3d 1339, 1346 (Fed. Cir. 2005) (noting that “[w]e construe a regulation

7 There are circumstances where travel is closely related to work. For example, time spent walking in

essential protective equipment between a locker room and a factory floor is compensable. IBP, Inc.,

546 U.S. at 37. But the Portal-to-Portal Act distinguishes those cases from simply traveling to a work

location, even at an employer’s direction.

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in the same manner as we construe a statute”). “Principal activities,” in turn, “are the

activities that an employee performs during his or her regularly scheduled

administrative workweek (including regular overtime work)[.]” 5 C.F.R.

§ 550.112(a).8 “Regularly scheduled administrative workweek” and “regular overtime

work” have regulatory definitions as well, both of which underscore that the work

must be “regularly scheduled.” Id. The former means “the period within an

administrative workweek … within which the employee is regularly scheduled to

work.” 5 C.F.R. § 550.103; 5 C.F.R. § 610.102 (similar language); see also 5

C.F.R. § 610.111 (prescribing agency authority to establish the workweek). The latter

means “overtime work that is part of an employee’s regularly scheduled

administrative workweek.” 5 C.F.R. § 550.103.

Reading those nested definitions together, it turns out that the bounds of an

employee’s “workday” depend not just on what he is doing, but on how his time is

scheduled. The workday begins and ends with the employee’s “principal activities,”

see 5 C.F.R. § 551.411(a), but “principal activities” by definition occur “during [a]

regularly scheduled” work period, see 5 C.F.R. § 550.112(a). Work and closely related

activities are still compensable when not regularly scheduled, see 29 U.S.C. § 203(g);

see also IBP, Inc., 546 U.S. at 33, but then they are not part of an employee’s principal

activities for purposes of defining a workday under OPM regulations. The “workday”

is thus a “regularly scheduled” unit of time, excluding compensable work time that is

not regularly scheduled.

It is important to acknowledge an alternative reading. It could be that

although the activities an employee is regularly scheduled to perform are his

“principal activities,” the workday includes all the time he spends performing those

activities, whether the time is “regularly scheduled” or not. That interpretation finds

some support from the statute, caselaw, and DOL interpretations. See IBP, Inc., 546

U.S. at 34 (noting that it is “unlikely … that Congress intended to create an

intermediate category of activities that would be sufficiently ‘principal’ to be

compensable, but not sufficiently principal to commence the workday”); see also 29

C.F.R. § 790.8 (DOL regulation defining “principal activities” without reference to

regular scheduling). But when it comes to the OPM regulations — which, again,

8 Principal activities also include “activities performed by an employee during periods of irregular or

occasional overtime work authorized under [5 C.F.R.] § 550.111.” 5 C.F.R. § 550.112(a). Plaintiffs

argue that voluntary Prison overtime meets that definition. Tr. of Oral Arg. at 25. But the overtime

authorization provisions of Section 550.111 implement the Federal Employees Pay Act (“FEPA”),

which covers overtime that has been “officially ordered or approved.” 5 U.S.C. § 5542(a); see generally

Doe v. United States, 372 F.3d 1347 (Fed. Cir. 2004). Those aspects of Section 550.111 are inapplicable

to federal employees covered by FLSA’s overtime provisions. See 5 C.F.R. § 550.101(c). And Plaintiffs

have not presented a FEPA claim.

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Plaintiffs do not challenge — that reading is inferior for at least two reasons. First,

OPM has provided that “[i]n determining what activities constitute hours of work

under the Act, there is generally a distinction based on whether the activity is

performed by an employee during regular working hours or outside regular working

hours.” 5 C.F.R. § 551.421(a). For example, OPM regulations explicitly tie

compensation for travel time to whether the travel is during “regular working hours.”

5 C.F.R. § 551.422 (discussed below); see also 5 C.F.R. § 550.112(g). It is not

surprising that non-regularly scheduled activities would also be excluded from the

definition of a “workday.” Second, OPM defines principal activities to include

“activities performed by an employee during periods of irregular or occasional

overtime work authorized under [5 C.F.R.] § 550.111,” but not other kinds of irregular

overtime, such as volunteer hospital shifts. See 5 C.F.R. § 550.112(a). Several aspects

of the OPM regulatory scheme, in other words, reinforce the conclusion that Plaintiffs’

principal activities end with the regularly scheduled day, not when Plaintiffs

ultimately stop guarding prisoners and go home.9

So how are the Prison shifts and voluntary hospital overtime shifts scheduled?

Plaintiffs’ counsel conceded at argument that the former are regularly scheduled,

while the latter are not. Tr. of Oral Arg. at 25–26.10 The record shows no genuine

issue of fact on the subject, even drawing all inferences in Plaintiffs’ favor. As

discussed above, Prison employees bid on their regular posts quarterly. See PA9,

PA95, PA270–79 (example of quarterly rosters that show an employee’s shift during

any given week). But with hospital overtime shifts, employees instead sign up on a

list to receive overtime assignments. PA18. FCI Milan’s Administrative Lieutenant

testified that he does not include the hospital shifts when preparing the schedule two

weeks in advance. PA28. The operations lieutenant running the day-to-day shift

monitors for overtime assignments, which are offered ad hoc on a rotational basis.

PA18, PA28, PA250, PA253.

The hospital shifts, in short, are not scheduled in the same way as the Prison

shifts, and they are not “regular” in any plausible sense. Prison employees therefore

do not perform their “principal activities,” as that term is defined by regulation, when

they work those shifts. 5 C.F.R. § 550.112(a). Their “principal activities” — and thus

their “workday” — begin and end with the Prison shift. Thus, even if OPM regulations

9 In any event, even if the alternative reading were better, Plaintiffs would still lose under 5 C.F.R.

§§ 551.412 and 551.422.

10 Defendant’s counsel stated that both Prison and hospital shifts are scheduled and recorded through

the same roster system, and expressed the view that both were part of the regularly scheduled

workweek. Tr. of Oral Arg. at 50. But counsel also recognized that the actual scheduling process is

different. Id. at 59. Even if the parties’ counsel both conceded the same issue against their clients’

interest, the record leaves no question that Plaintiffs’ concession was correct.

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established a continuous workday during which all time is compensable, contra 5

C.F.R. § 551.412(b), voluntary hospital overtime shifts would not be included within

the workday. Travel between Prison shifts and hospital shifts is preliminary or

postliminary to employees’ principal activity, and so noncompensable.

Third, OPM has promulgated a regulation on compensability of travel time.

For federal employees, “[t]ime spent traveling shall be considered hours of work if:

[inter alia] [a]n employee is required to travel during regular working hours [or] … is

required to drive a vehicle or perform other work while traveling[.]” 5 C.F.R.

§ 551.422(a)(1)–(2).11 That provision also precludes Plaintiffs from recovering

overtime.

Plaintiffs’ travel is not during “regular working hours.” “‘[R]egular working

hours’ means the days and hours of an employee’s regularly scheduled administrative

workweek established under part 610 of this chapter.” 5 C.F.R. § 551.421(a). And, as

discussed above, “[r]egularly scheduled administrative workweek … means the

period within an administrative workweek … within which the employee is regularly

scheduled to work.” 5 C.F.R. § 610.102; see also 5 C.F.R. § 550.103 (similar language).

For the same reasons described above, the voluntary hospital shifts are not regularly

scheduled, so time between the hospital shifts and the Prison shifts is not within

Plaintiffs’ “regular working hours.” Section 551.422(a)(1) thus does not allow

compensation.12

Nor is Plaintiffs’ travel compensable as “work while traveling” under

Section 551.422(a)(2). For OPM-regulated federal employees, “work” means “time

spent by an employee performing an activity for the benefit of an agency and under

the control or direction of the agency[.]” 5 C.F.R. § 551.401(a). Travel can certainly be

work if it meets that description. Section 551.422(a)(2) mentions workers being

“required to drive a vehicle,” for example. As relevant here, Plaintiffs are in fact

11 See also 5 C.F.R. § 550.112(g) (“Time in travel status away from the official duty-station of an

employee is deemed employment only when: (1) It is within his regularly scheduled administrative

workweek, including regular overtime work; or (2) The travel— (i) Involves the performance of actual

work while traveling[.]”); 5 C.F.R. § 551.401(h) (“For the purpose of determining overtime pay for work

in excess of 40 hours in a workweek under this part, time spent in a travel status is hours of work as

provided in § 551.422 of this part and § 550.112(g) of this chapter or 5 U.S.C. [§] 5544, as applicable.”).

12 The parties argue at length over decisions by the Federal Labor Relations Authority (“FLRA”)

applying Section 551.422 and related regulations to fact patterns similar to this case. “FLRA decisions

are entitled to deference because of the FLRA’s expertise in the area of labor law” but should not be

followed when “inconsistent with a statutory mandate or the congressional policy underlying a

statute.” Albright v. United States, 26 Cl. Ct. 1119, 1124 (1992), aff’d, 10 F.3d 790 (Fed. Cir. 1993)

(citing Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 (1983), and NLRB v. Brown,

380 U.S. 278, 291–92 (1965)). Although the Court does not entirely endorse the FLRA’s reasoning, its

decisions reinforce the conclusions expressed in this Order.

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compensated if they have to transport a prisoner to the hospital, PA100, or drive a

government vehicle, PA108. But simply driving a personal vehicle from the location

of a regular shift to a voluntary second shift is not of that description. It is not “for

the benefit” of the Prison any more than other travel excluded from compensable work

hours by the Portal-to-Portal Act.

Plaintiffs dispute whether Section 551.422 applies at all. Pls.’ Mem. at 21. One

portion of the regulation authorizes agencies to “prescribe a mileage radius of not

greater than 50 miles to determine whether an employee’s travel is within or outside

the limits of the employee’s official duty station for determining entitlement to

overtime pay for travel under this part.” 5 C.F.R. § 551.422(d). Plaintiffs argue that

the regulation is wholly inapplicable to travel within 50 miles of the Prison, and

stipulate that the travel at issue in this case is within that radius. Pls.’ Mem. at 21.

Some aspects of Section 551.422 do involve travel away from an employee’s duty

station, and so depend on how a duty station is geographically defined. See 5 C.F.R.

§ 551.422(a)(3)–(4), (b). Those provisions are inapplicable here. The parts of the

regulation cited above, though, are not limited to duty stations and therefore govern

Plaintiffs’ entitlement to compensation for travel time. And none of them authorizes

compensation for travel between the Prison and voluntary overtime shifts.13

CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion for Partial Summary Judgment is

DENIED, and Defendant’s cross-motion is GRANTED. The case is DISMISSED.

The Clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ Stephen S. Schwartz

STEPHEN S. SCHWARTZ

Judge

13 Plaintiffs’ employment relationship with FCI Milan is also defined by their collective bargaining

agreement — specifically, several memoranda of understanding addressing this very issue. Since 2011,

the agreements have stated that travel between the Prison and an “outside hospital” is not

compensable unless an employee is required to perform other work or drive a government vehicle.

Def.’s Resp. & Cross-Mot. Exh. B at 1 (2011 MOU); see also PA251 (2015 MOU), PA254 (2017 MOU).

The MOUs cannot diminish Plaintiffs’ rights under FLSA, which are “nonwaivable” and therefore

“take precedence over conflicting provisions in a collectively bargained compensation arrangement.”

Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 740–41 (1981) (collecting cases). But nor

can an MOU obligate the government to pay more than Congress has authorized. See U.S. Const. art.

I, § 9, cl. 7; 31 U.S.C. §§ 1341(a)(1)(A), 1342. Although the MOUs are more consistent with the

government’s litigation position, the parties have not shown that the MOUs resolve any of the

underlying statutory and regulatory interpretation questions. I therefore interpret FLSA and the

relevant regulations, not the MOUs.

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