Alkire v. United States

In the United States Court of Federal Claims

No. 20-1654C

(Filed: February 25, 2022)

FOR PUBLICATION

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RYAN ALKIRE, 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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Molly A. Elkin, McGillivary Steele Elkin LLP, Washington, D.C., for Plaintiffs.

With her on briefs was Sarah M. Block, McGillivary Steele Elkin LLP, Washington,

D.C.

Bret R. Vallacher, Trial Attorney, Commercial Litigation Branch, Civil

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

United States. With him on briefs were Brian M. Boynton, Acting Assistant Attorney

General, Robert E. Kirschman, Jr., Director, Martin F. Hockey, Jr., Acting Director,

Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil

Division, United States Department of Justice, Washington, D.C, as well as James

Sellars, Assistant General Counsel, Employment Law Branch, Federal Bureau of

Prisons, United States Department of Justice, Atlanta, GA, and Nathan M. Atkinson,

Assistant General Counsel, Employment Law Branch, Federal Bureau of Prisons,

United States Department of Justice, Kansas City, KS.

OPINION AND ORDER

Plaintiffs — current and former Federal Bureau of Prisons employees at

Federal Correctional Institution Herlong (“FCI Herlong,” “the Institution,” or “the

Prison”) — seek overtime compensation under the Fair Labor Standards Act

(“FLSA”), plus related forms of relief, for allegedly uncompensated pre- and post-shift

activities. The government’s motion to dismiss is ripe for disposition.1

1Pls.’ Compl. (ECF 1) (“Compl.”); Def.’s Mot. to Dismiss (ECF 12) (“Def.’s Mot.”); Pls.’ Opp. to Def.’s

Mot. to Dismiss (ECF 13) (“Pls.’ Opp.”); Def.’s Reply in Supp. of Its Mot. to Dismiss (ECF 14) (“Def.’s

Reply”). I heard oral argument on December 21, 2021. Tr. of Oral Arg. (ECF 22).

Although some aspects of the Complaint fail as a matter of law — in particular,

Plaintiffs’ claims involving time spent in pre-shift security screenings and certain

claims over which this Court lacks jurisdiction — the remainder of the Complaint

sets out well-pleaded facts sufficient to state claims upon which relief can be granted.

See RCFC 12(b)(6). The motion is therefore GRANTED IN PART and DENIED IN

PART.

BACKGROUND

In their Complaint, Plaintiffs request backpay and liquidated damages under

FLSA, as well as interest on their backpay under the Back Pay Act, see 5 U.S.C.

§ 5596, and attorneys’ fees. Compl. ¶¶ 36–47. The Complaint alleges the following

facts.

Plaintiffs are current or former correctional workers at FCI Herlong in

Herlong, California. Compl. ¶ 4.2 FCI Herlong is a medium-security facility housing

over 950 male inmates convicted of federal crimes. Id. ¶ 8. Plaintiffs, as correctional

workers, are charged with maintaining the Prison’s safety and security:

The correctional officers’ primary job duty is to maintain the safety and

security of the Institution, staff and inmates. They are charged with

performing this job duty every moment that they are within the

Institution from the moment they begin [security] screening prior to

their shifts until they exit the Institution after their shifts end. The

plaintiffs perform their primary job duty by, among other things,

maintaining constant vigilance to ensure that nothing out of the

ordinary is occurring, immediately addressing any safety or security

issues that they see no matter the location and time of day that it occurs,

including before their paid shifts begin and after they end.

Id. ¶ 9.

Plaintiffs’ workdays are organized into 8-hour shifts at assigned duty posts.

“Most of the posts are staffed for 16 or 24 hours per day, although some are staffed

for only 8 hours per day.” Id. ¶ 10. At the 16- and 24-hour posts, “[t]here is no

scheduled overlap” between 8-hour shifts. Id. ¶¶ 18–19. Plaintiffs allege that when

working shifts at 16- or 24-hour posts, they must “perform work both before their

scheduled paid start time and/or after the end of their scheduled paid shifts.” Id. ¶ 13.

Plaintiffs allege that the pre- and post-shift activities are unpaid and take

approximately “15-30 minutes each shift, and sometimes more[.]” Id. ¶ 14.

2 Some Plaintiffs are “non-custody” workers temporarily assigned to custodial roles, but Plaintiffs

allege the difference is not factually material. Compl. ¶¶ 34–35.

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The pre- and post-shift activities at issue include (1) pre-shift security

screening,3 (2) donning equipment, (3) clearing the “sally port” and checking into the

Prison, (4) walking to the assigned post, (5) obtaining equipment and information

from the outgoing officer, and (6) leaving the post at the end of the day. I set out

Plaintiffs’ principal allegations concerning those activities in turn.

Security Screening

On arrival at the Prison, Plaintiffs must pass through a screening site in the

Prison lobby and participate in a “mandatory staff security screening.” Id. ¶ 21.

Without the screening, “cell phones and other contraband could enter the Institution

which would put the staff, inmates and Institution at risk of security breaches.” Id.

Plaintiffs allege that undergoing the security screening is an essential part of their

work “because, among other things, in performing this task, plaintiffs ensure that no

contraband enters the Institution, thereby ensuring the safety and security of the

Institution, staff and inmates.” Id.

Donning Equipment

Once through security, Plaintiffs must “collect and don their duty belts and

other required equipment …, including required metal chains and chits.” Id. ¶ 22.

The chains are used “to fasten keys”; the chits “contain the names of the officers and

are required to access and account for important equipment[.]” Id. According to

Plaintiffs, collecting and donning the equipment is essential to their work because it

allows them to “access necessary equipment” and “ensur[es] that [Plaintiffs’] keys and

other equipment can be affixed to their person and secured from the reach of

inmates.” Id. ¶ 23. Plaintiffs allege that they can only don their equipment after the

security screening “because the plaintiffs cannot wear their duty belts and metal

chains as they walk through the upright metal detector without sounding the alarm.”

Id. ¶ 22.

Clearing the Sally Port

After donning their equipment, Plaintiffs are “visually identified by the

appropriate Control Center officer,” “flip their accountability chit” — a personal

marker for each employee showing whether the employee is in or out of the Prison —

and “clear the front lobby sally port.” Id. ¶ 26. Plaintiffs then walk to a “locked slider

gate,” which they pass through to the area where inmates are housed. Id. Plaintiffs

allege that this process “assur[es] that only authorized individuals enter the secured

3 The Complaint seeks compensation for time in a pre-shift health screening that the Prison has

required since the outbreak of the COVID-19 pandemic. Compl. ¶ 24. Plaintiffs have since abandoned

that claim. Tr. of Oral Arg. at 58.

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confines of the Institution and that the employees in the Control Center and

management know exactly who is inside the Institution at all times.” Id.

Proceeding to the Duty Post

When Plaintiffs reach the secure area, they must stop by the “Lieutenants’

office” to “check in with a supervisor and discuss any pertinent information from the

previous tour.” Id. ¶ 27.4 They may then walk to their posts.

While on the way to their posts, “[P]laintiffs are in uniform and identifiable to

the inmates as on-duty correctional officers.” Id. On their walks, Plaintiffs must

“observe and correct inmate behavior, respond to inmate questions, check for security

breaches in the perimeter fence and elsewhere in the Institution, check for

contraband, run to locations where body alarms sound, and respond to other

emergencies as they arise.” Id. Plaintiffs allege on that basis that they perform their

ordinary duties as correctional workers when walking to their posts. Id.

Equipment and Information Exchange

Upon arriving at their posts, Plaintiffs exchange information and equipment

“including radios, batteries, keys, and OC pepper spray” with the outgoing officer.

Id. ¶ 28. “The plaintiffs cannot do their jobs without this equipment. ... [T]hey need

the radio to communicate with other officers, the lieutenants, and the Control Center

concerning important security information and inmate counts. The radio also

contains the body alarm which they need to sound ... if there is an emergency.” Id.

The outgoing officer tells the incoming officer about any significant security incidents

or concerns from the prior shift, which officers allegedly must know about in order to

do their work. Id. Although it is not clear whether Plaintiffs intend to pursue the

issue, Plaintiffs also allege that they must “don personal protective equipment and

sanitize their unit’s shared plastic face shield” when they are working “in housing

units being used as COVID-19 units” to avoid COVID-19 exposure and transmission.

Id. ¶ 30.

Post-Shift Activities

Plaintiffs lastly allege that they perform many of the same activities, also

without compensation, when their shifts end. Plaintiffs allegedly must “exchang[e]

information and equipment on the assigned post with oncoming staff[.]” Id. ¶ 31.

They must then “remain[] vigilant, alert, and ready to respond to emergencies” while

headed back to the exit, “observing and correcting inmate behavior, looking for

contraband, [and] responding to body alarms and other emergencies” on the way. Id.

4 Plaintiffs also allege that when assigned to 16-hour posts they “must obtain equipment or paperwork

from the Control Center.” Compl. ¶ 25.

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Plaintiffs allege that the post-shift walk involves the same responsibilities as the pre-

shift walk. Id. ¶¶ 32–33. Plaintiffs then must “return[] equipment to the Control

Center” before leaving. Id. ¶ 31.

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 … 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).5 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 requires 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 work time arise under FLSA, which is a

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

(Fed. Cir. 2014).6 Because Plaintiffs are government employees seeking backpay and

related relief, they have standing to raise those claims. Compl. ¶¶ 1, 45.

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

requires” that timeliness be considered a jurisdictional question, calling for “sua

sponte consideration.” 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

5 Plaintiffs also assert jurisdiction under the “Little Tucker Act,” 28 U.S.C. § 1346(a)(2), and FLSA, 29

U.S.C. § 216(b). Compl. ¶ 2. The Little Tucker Act, which grants “district courts … original jurisdiction,

concurrent with the United States Court of Federal Claims,” over certain lawsuits, see 28 U.S.C.

§ 1346(a)(2), is irrelevant in this case because of the Tucker Act’s broader grant of jurisdiction to this

Court specifically. FLSA, which authorizes “[a]n action … in any Federal or State court of competent

jurisdiction,” 29 U.S.C. § 216(b), does not confer jurisdiction on any court at all. Zumerling v. Devine,

769 F.2d 745, 749 (Fed. Cir. 1985); Brooks v. Weinberger, 637 F. Supp. 22, 23–24 (D.D.C. 1986); Saleen

v. Waste Mgmt., Inc., 610 F. Supp. 2d 1026, 1029–30 (D. Minn. 2009).

6 Jurisdiction over Plaintiffs’ allegations related to the Back Pay Act and Declaratory Judgment Act is

discussed below.

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three years if the violations were willful. 29 U.S.C. § 255(a). Plaintiffs allege

continuing willful violations through the day the Complaint was filed, and up to three

years before. Compl. ¶¶ 39, 43–44. Some of the Plaintiffs were allegedly employed by

the Prison when the Complaint was filed, and so have claims that accrued within the

statute of limitations. Id. ¶ 4. At least some of Plaintiffs’ claims therefore appear to

be timely.7

II. Merits

A. Legal Standards

Under FLSA, employees are entitled to compensation for hours worked,

including work “suffer[ed] or permit[ted]” by their employer. 29 U.S.C. §§ 203(g),

207(a)(1); see also 5 C.F.R. § 551.401(a). The Portal-to-Portal Act clarifies that

compensable hours do not include travel and other “activities which are preliminary

to or postliminary to [the employee’s] 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). But if an employee performs

his principal activities, including tasks integral and indispensable to his work, before

or after his shift — and if the time he spends is more than de minimis —

compensation is generally required.8 The question is thus whether Plaintiffs have

adequately pleaded that the various ways they allegedly spend time before reaching

and after leaving their duty posts are (1) part of their principal activities, and

(2) more than de minimis.

7 The government has not challenged the individual standing of any Plaintiff or the timing of any

individual Plaintiff’s claims. Each Plaintiff must, of course, personally establish jurisdiction in order

to prevail on the merits. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (“[Standing] must be

supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e.,

with the manner and degree of evidence required at the successive stages of the litigation.”).

8 Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 33 (2014) (quoting IBP, Inc. v. Alvarez, 546 U.S. 21,

29–30 (2005) (itself quoting Steiner v. Mitchell, 350 U.S. 247, 252–53 (1956))); Bobo v. United States,

136 F.3d 1465, 1468 (Fed. Cir. 1998); 5 C.F.R. § 551.412(a)(1) (requiring compensation for activities

taking more than ten minutes per workday that are “closely related to an employee’s principal

activities, and … indispensable to the performance of the principal activities”). The regulation, it

should be noted, diverges slightly from the Supreme Court’s formulation by substituting the phrase

“closely related” for “integral.” Compare 5 C.F.R. § 551.412(a)(1), with Integrity Staffing, 574 U.S. at

33. The parties have not suggested that those terms mean different things. Because the “integral and

indispensable” test is the Supreme Court’s gloss on the Portal-to-Portal Act, the regulation might be

in conflict with the statute if it means something different. I will therefore assume that the regulation’s

standard is identical to what the Supreme Court has derived from the Portal-to-Portal Act.

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I consider that question under the familiar standards of RCFC 8 and 12(b)(6),

which are modeled on the analogous Federal Rules of Civil Procedure. 9 A complaint

in this Court must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief[.]” RCFC 8(a)(2). The allegations need not be “detailed,”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007)), but must be “sufficient …, [when] accepted as true, to ‘state a

claim to relief that is plausible on its face,’” id. (quoting Twombly, 550 U.S. at 570).

“A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. A court considers whether to make that inference in light of

“its judicial experience and common sense.” Id. at 679.

The inference must be stronger than “a sheer possibility that a defendant has

acted unlawfully.” Id. But the inference does not need to be probable. Rather, “a well-

pleaded complaint may proceed even if it strikes a savvy judge that actual proof of

those facts is improbable.” Twombly, 550 U.S. at 556 (emphasis added). Any facts —

as distinct from legal conclusions — pleaded in a complaint must be “accepted as

true.” Iqbal, 556 U.S. at 678. The court “must draw all reasonable inferences in favor

of the claimant.” Call Henry, Inc. v. United States, 855 F.3d 1348, 1354 (Fed. Cir.

2017) (citing Bell/Heery v. United States, 739 F.3d 1324, 1330 (Fed. Cir. 2014)). And

“Rule 12(b)(6) does not countenance ... dismissals based on a judge’s disbelief of a

complaint’s factual allegations.” Neitzke v. Williams, 490 U.S. 319, 327 (1989) (quoted

in Twombly, 550 U.S. at 556).10

B. Plaintiffs’ “Principal Activities”

The first step is to define Plaintiffs’ principal activities, as set out in Plaintiffs’

factual allegations.11 Although Defendant objects that Plaintiffs fail to spell out

9 Kraft, Inc. v. United States, 85 F.3d 602, 605 n.6 (Fed. Cir.) (“The precedent interpreting the Federal

Rules of Civil Procedure applies with equal force to the comparable Rules of the Court of Federal

Claims.”), modified on denial of reh’g, 96 F.3d 1428 (Fed. Cir. 1996).

10 Plaintiffs, in addition to citing Twombly and Iqbal, cite an older case for the proposition that “a court

‘should not dismiss a complaint for failure to state a claim unless it is beyond doubt that the plaintiff

can prove no set of facts which would entitle him to relief.’” Pls.’ Opp. at 10 (quoting Sommers Oil Co.

v. United States, 241 F.3d 1375, 1378 (Fed. Cir. 2001)) (emphasis in original); see also id. at 24–25

(applying Sommers Oil). That is not the correct standard. The language Plaintiffs quote, which

originates in Conley v. Gibson, 355 U.S. 41, 45–46 (1957), is “best forgotten as an incomplete, negative

gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported

by showing any set of facts consistent with the allegations in the complaint.” Twombly, 550 U.S. at

563.

11 What Plaintiffs do during their day is a factual matter, and allegations on the subject are presumed

true. The significance of what Plaintiffs do — i.e., whether given functions are part of Plaintiffs’

principal activities — is a legal question. See Ballou v. Gen. Elec. Co., 433 F.2d 109, 111 (1st Cir. 1970)

(“[T]he issue whether or not the classroom program was an ‘integral and indispensable part’ of

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anything beyond the “generalized purpose” of their employment, Def.’s Mot. at 7–9, I

conclude that the Complaint contains factual detail sufficient to identify Plaintiffs’

principal activities. That makes it possible to determine whether Plaintiffs have

adequately pleaded that the pre- and post-shift tasks at issue are part of those

activities.

Plaintiffs, again, are entitled to compensation for their principal activities, a

term that includes the work they are “employed to perform,” 29 U.S.C. § 254(a)(1),

plus “all activities which are an ‘integral and indispensable part of the principal

activities.’” Integrity Staffing, 574 U.S. at 33 (quoting IBP, 546 U.S. at 29–30). An

activity is integral and indispensable to the employee’s principal activities — and

thus part of the principal activities, see IBP, 546 U.S. at 33 — “if it is an intrinsic

element of those activities and one with which the employee cannot dispense if he is

to perform his principal activities.” Integrity Staffing, 574 U.S. at 33. To meet that

test, it is not enough that a given activity is required by the employer or done for the

employer’s benefit. Id. at 36. Rather, the question is whether the activities are “tied

to” — that is, integral and indispensable to — “the productive work that the employee

is employed to perform.” Id.

A few examples illustrate the “integral and indispensable” test. On the one

hand, time meatpackers spend on knife-sharpening is integral and indispensable to

their work, because without it they could not cut meat safely and efficiently. Id. at 34

(citing Mitchell v. King Packing Co., 350 U.S. 260, 262 (1956)). Time battery plant

employees spend “showering and changing clothes” to protect themselves against

chemicals that are “toxic to human beings” is integral and indispensable to their work

as well: Poisoned employees cannot do their jobs. Id. (quoting Steiner, 350 U.S. at

249). On the other hand, time spent waiting to don protective gear is “two steps

removed from the productive activity,” and therefore not integral and indispensable.

IBP, 546 U.S. at 42. Most relevant to this case, the Supreme Court has also excluded

time warehouse employees spend being screened for theft after their shifts: The

employees’ principal activity was not “to undergo security screenings, but to retrieve

products from warehouse shelves and package those products for shipment,” and

appellants’ principal activity is not, as appellants suggest, a factual one. It is a question of law.”);

Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 910 (9th Cir. 2004) (“The nature of the employees’

duties is a question of fact, and the application of the FLSA to those duties is a question of law.”) (citing

Baker v. Barnard Const. Co., 146 F.3d 1214, 1216 (10th Cir. 1998)); Anderson v. Perdue Farms, Inc.,

604 F. Supp. 2d 1339, 1349 (M.D. Al. 2009) (“Whether a particular activity is integral and

indispensable under the FLSA is a question of law[.]”) (citing Birdwell v. City of Gadsden, 970 F.2d

802, 807 (11th Cir. 1992)); Brantley v. Ferrell Elec., Inc., 112 F. Supp. 3d 1348, 1371 (S.D. Ga. 2015)

(citing Anderson, 604 F. Supp. 2d at 1349). No presumption of truth applies to Plaintiffs’ legal

positions, Iqbal, 556 U.S. at 678, even when “couched as” allegations of fact. Kam-Almaz v. United

States, 682 F.3d 1364, 1368 (Fed. Cir. 2012) (quoting Twombly, 550 U.S. at 555).

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“[t]he security screenings … were not ‘integral and indispensable’ to the employees’

duties[.]” Integrity Staffing, 574 U.S. at 35.

Here, Plaintiffs allege that their principal activity is “to maintain the safety

and security of the Institution, staff and inmates.” Compl. ¶ 9. That activity allegedly

entails functions such as “maintaining constant vigilance to ensure that nothing out

of the ordinary is occurring, immediately addressing any safety or security issues that

they see no matter the location and time of day that it occurs,” id., “assuring that no

contraband enters the Institution,” id. ¶ 21, “removing contraband from the

Institution,” id. ¶ 27, “observ[ing] and correct[ing] inmate behavior, respond[ing] to

inmate questions, check[ing] for security breaches in the perimeter fence and

elsewhere in the Institution, check[ing] for contraband, run[ning] to locations where

body alarms sound, and respond[ing] to other emergencies as they arise,” id. The

Complaint alludes to other job functions as well. That Plaintiffs’ principal activities

involve those responsibilities is a factual allegation entitled to the presumption of

truth.

Defendant argues that maintaining safety and security is not a “specific

activit[y],” but rather the “general purpose” of Plaintiffs’ employment, and therefore

not a “principal activity” as the Supreme Court has defined the term. Def.’s Mot. at

7–8. And Defendant is correct that Plaintiffs’ principal activities must be determined

mainly with reference to the productive acts Plaintiffs perform as part of their

workday, not the employer’s purposes or needs. Integrity Staffing, 574 U.S. at 35–36.

But contrary to Defendant’s argument, “maintain[ing] … safety and security” can

readily be interpreted as an activity (or collection of activities), not just as a “purpose.”

As should be evident from the non-exhaustive examples in the preceding paragraph,

Plaintiffs have identified many specific functions that are part of maintaining safety

and security. Plaintiffs’ allegations must, of course, be interpreted in their favor. E.g.,

Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009).

Given the detail in Plaintiffs’ Complaint, there is no reason to penalize

Plaintiffs for using a general catch-all as shorthand for the variety of activities they

mention. To the extent Integrity Staffing requires me to do so, I interpret Plaintiffs’

references to maintaining Prison security as allegations about their activities rather

than their employer’s goals or purposes. I accordingly conclude that Plaintiffs have

adequately identified their principal activities.

C. FLSA Claim

Given that the Complaint adequately defines Plaintiffs’ principal activities, the

next question is whether it permits a reasonable inference that the allegedly

uncompensated functions at issue are part of those activities and more than de

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minimis. Abbey v. United States, 99 Fed. Cl. 430, 436 (2011). I consider the job

functions one at a time.

Security Screening

The first activity at issue is the security screening Plaintiffs undergo when

they arrive at work.12 Although the issue is complicated, I conclude that they have

not stated a plausible claim for compensation for that time.

The security screenings are not the “principal activity or activities which

[Plaintiffs are] employed to perform.” 29 U.S.C. § 254(a)(1). Much like the employees

in Integrity Staffing, Plaintiffs are not “employ[ed] … to undergo security screenings,”

but to maintain security once inside the Prison. 574 U.S. at 35. There is nothing

“productive” about the security screenings. Id. at 36.

Nor are security screenings integral or indispensable to Plaintiffs’ work, as the

Supreme Court has defined the Portal-to-Portal Act standard.13 One consequence of

the Portal-to-Portal Act is to separate “activities that are essentially part of the

ingress and egress process” from “activities that constitute the actual ‘work of

consequence performed for an employer[.]’” Integrity Staffing, 574 U.S. at 38

(Sotomayor, J., concurring) (quoting 29 C.F.R. § 790.8(a)). Pre-shift security

screenings, like post-shift screenings for employee theft and other arrival and

departure processes, “fall on the ‘preliminary or postliminary’ side of this line.” Id. at

38–39 (alteration omitted).

The Complaint gives no basis for a plausible inference that a security screening

is an “intrinsic element” of maintaining security inside the Prison any more than the

screening in Integrity Staffing was an intrinsic element of handling products inside a

warehouse. Removing contraband is allegedly one of Plaintiffs’ regular daily

activities, see Compl. ¶ 27; Tr. of Oral Arg. at 53, and excluding contraband is

allegedly “a chief objective” of the Prison, Pls.’ Opp. at 7. Plaintiffs also allege that

“assuring that no contraband enters the Institution” is a “primary duty” of Prison

employees. Compl. ¶ 21. I understand that to mean employees are personally

responsible for not bringing contraband into the Prison, and Prison guards screen

visitors and employees for contraband on arrival. I take those allegations as true, as

I must. But it does not follow that being screened to ensure compliance with

contraband rules is an intrinsic part of Plaintiffs’ job.

12 Plaintiffs have abandoned their claim for compensation for COVID-19 screening. Tr. of Oral Arg. at

58.

13 “As explained above, an activity is not integral and indispensable to an employee’s principal

activities unless it is an intrinsic element of those activities and one with which the employee cannot

dispense if he is to perform those activities.” Integrity Staffing, 574 U.S. at 35.

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On the contrary: Just as a theft screening is “not an intrinsic element of

retrieving products from warehouse shelves or packaging them for shipment,”

Integrity Staffing, 574 U.S. at 35, Plaintiffs can remove contraband from the Prison,

screen others for contraband, and refrain from bringing contraband in even if they

themselves are not screened. The acts are distinct in every way. They are certainly

not related in the way that sharpening a knife is connected with cutting meat, or that

wearing protective gear is connected with handling dangerous chemicals. Steiner, 350

U.S. at 249–50; King Packing, 350 U.S. at 262. The screening — like other kinds of

waiting time before or after shifts — is therefore “two steps removed” from the

activities the employees are employed to perform. IBP, 546 U.S. at 42. That means

the work and the screening are not “intrinsic” to each other. See Integrity Staffing,

574 U.S. at 38 (Sotomayor, J., concurring) (observing that screenings were not

principal activities even though they “in some way related to the work that the

employees performed”).

For similar reasons, Plaintiffs’ screenings are not “indispensable” to their work

because they are not activities “with which the employee cannot dispense if he is to

perform those activities.” Id. at 35 (majority opinion). Plaintiffs emphasize the

importance of preventing contraband from entering the Prison and argue on that

basis that contraband screenings are part of their principal activities. Compl. ¶ 21;

Tr. of Oral Arg. at 53–54. But even taking that allegation as true, it is not the

screening that makes it possible for Plaintiffs to do their jobs, but following Prison

rules that forbid contraband.

Suppose two Prison employees came to work at the same duty post on the same

day, neither one carrying contraband. Even if one was screened and the other was

not, nothing in the Complaint suggests they could not perform their own duties

equally well. Or suppose two hypothetical prisons, one of which screened all its

employees and one of which did not. The safety and effectiveness of the employees

inside the prison would depend on whether they introduced contraband, not on

whether they were screened. Precisely the same was true in Integrity Staffing:

Assuming warehouse employees refrained from stealing, whether they were screened

or not at the end of their shifts makes no difference in whether they could do their

jobs. The only inference is that like in Integrity Staffing, the Prison “could have

eliminated the screenings altogether without impairing the employees’ ability to

complete their work.” 574 U.S. at 35.14

14That also distinguishes this case from King Packing and Steiner. A meatpacker can cut meat if he

sharpens his knives, but not if he fails to do so. King Packing, 350 U.S. at 262 (“[A] knife to be of any

practical value in a knife job has to be sharp.”) (quotes and alteration omitted). A battery plant

employee can work if he wears protective clothing, but not if he is poisoned by lead and burned by

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There is no interpretation of Plaintiffs’ pleadings that avoids Integrity Staffing.

One way to construe Plaintiffs’ allegations is that a Prison employee who introduces

contraband into the Prison cannot safely do his job. Or perhaps Plaintiffs mean that

an employee cannot do his job if other employees have introduced contraband. Either

way, I take the allegation as true. But it is equally obvious that the employees in

Integrity Staffing could not have done their work of “retrieving products from

warehouse shelves or packaging them for shipment” if they (or their colleagues) were

stealing the products instead. Id. at 35. If that were enough to render a screening

indispensable, Integrity Staffing would have allowed the employees’ claims to

proceed.

Yet another construction of the Complaint is that excluding contraband is

essential to Prison management, and that doing so is impossible unless Plaintiffs are

not only prohibited from bringing contraband but screened at entry. I take that

allegation as true too. But even then, it is still irrelevant to the Integrity Staffing test,

which focuses solely on indispensability to “the employee.” 574 U.S. at 35 (emphasis

added). A warehouse, after all, could not function if its employees walked off with the

merchandise. That is presumably why the employer in Integrity Staffing required

post-shift screening. Just so here: The Prison may not be able to dispense with

screenings — as opposed to only a written policy on contraband — but nothing in the

Complaint suggests that Plaintiffs cannot.

What Integrity Staffing suggests, in other words, is a distinction between an

employee’s principal activities, the rules the employee must follow at work, and the

processes the employer puts in place to enforce compliance with the rules —

particularly at ingress and egress.15 An employee might have to follow a rule at work,

and the compliance measures might be required by the employer, see Integrity

Staffing, 574 U.S. at 36, but it does not follow that the measures are indispensable to

sulphuric acid. Steiner, 350 U.S. at 249–50. In both cases, the specific use of time at issue was what

made the work possible.

15 See Sanford v. Preferred Staffing Inc., 447 F. Supp. 3d 752, 756 (E.D. Wis. 2020) (“Plaintiffs contend

that the preliminary processes required by the Staffing Defendants are indeed integral to the principal

activities they were hired to perform. … Plaintiffs’ view again conflates the requirements an employer

imposes upon its employees with the actual work the employees are meant to perform.”); Dinkel v.

MedStar Health Inc., 99 F. Supp. 3d 37, 40 (D.D.C. 2015) (“Plaintiffs argue that they have established

that the Class members’ uniform maintenance activities were part of their principal work duties

because their job descriptions required compliance with Defendants’ dress and appearance, patient

safety and inflectional control policies. … However, a requirement to comply with these several policies

is not enough to establish uniform maintenance as a principal work activity. An activity is only

compensable as a principal activity if the employee is ‘employed to perform’ that activity.”) (quotes and

citation omitted) (quoting Integrity Staffing, 574 U.S. at 34).

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the employee’s principal activities. Once again, compliance measures are “two steps

removed” from the work. IBP, 546 U.S. at 42.

The foregoing interpretation of Integrity Staffing tallies with the Court’s

reliance on a Department of Labor (“DOL”) opinion letter concluding that a pre-shift

search at a rocket-powder plant for “matches, spark producing devices such as

cigarette lighters, and other items which have a direct bearing on the safety of the

employees” was not compensable. See Integrity Staffing, 574 U.S. at 35–36 (citing

Opinion Letter from Dept. of Labor, Wage and Hour Div., to Dept. of Army, Office of

Chief of Ordnance (Apr. 18, 1951), pp. 1–2). If a pre-shift search for prohibited fire-

starters at an explosives factory is not integral or indispensable to those employees’

principal activities, it is hard to imagine why a search for contraband at a prison

would be: Both searches are directed at excluding items that would be dangerous in

the workplace.

It also tallies with the bulk of authority holding as a matter of law (either at

the pleadings or at summary judgment) that pre-shift security screenings generally

are not compensable. Gorman v. Consolidated Edison Corp., 488 F.3d 586, 592–93

(2d. Cir. 2007) (pleadings); Bonilla v. Baker Concrete Construction, Inc., 487 F.3d

1340, 1345 (11th Cir. 2007) (summary judgment); Whalen, 93 Fed. Cl. 579, 600 (2010)

(summary judgment); Henderson v. Cuyahoga Cty., No. 1:20-CV-1351, 2020 WL

5706415, at *3 (N.D. Ohio Sept. 24, 2020) (pleadings); Cinadr v. KBR, Inc., No. 3:11-

CV-00010, 2013 WL 12097950, at *7 (S.D. Iowa Feb. 15, 2013) (summary judgment);

Ceja-Corona v. CVS Pharmacy, Inc., No. 1:12-CV-01868, 2013 WL 796649, at *9 (E.D.

Cal. Mar. 4, 2013) (pleadings), on reconsideration in part, No. 1:12-CV-01868, 2013

WL 3282974 (E.D. Cal. July 2, 2013); Jones v. Best Buy Co., No. CV-12-95, 2012 WL

13054831, at *2–3 (D. Minn. Apr. 12, 2012) (pleadings); Phillips v. Washington Grp.

Int’l, Inc., No. 1:09-CV-00431, 2010 WL 11561237, at *5 (N.D. Ala. Sept. 29, 2010)

(summary judgment); Anderson, 604 F. Supp. 2d at 1359 (summary judgment);

Sleiman v. DHL Express, No. CIV.A. 09-0414, 2009 WL 1152187, at *4–5 (E.D. Pa.

Apr. 27, 2009) (pleadings); but see Fritz v. Corizon Health, Inc., No. 6:19-CV-03365,

2020 WL 9215899, at *9 (W.D. Mo. Jan. 31, 2020) (declining to dismiss claims

involving security screening for state prison nurses).

Plaintiffs’ principal contrary authority, Aguilar v. Management & Training

Corp., is against the weight of caselaw.16 948 F.3d 1270 (10th Cir. 2020). It is also

16Plaintiffs have also submitted, as supplemental authority, four recent decisions by this Court

denying motions to dismiss similar complaints. Pls.’ Notice of Suppl. Authority (ECF 17) (Adegbite v.

United States, No. 20-1183C, 2021 WL 5045268 (Fed. Cl. Oct. 29, 2021), and Alexander v. United

States, No. 21-1143C, 2021 WL 5045270 (Fed. Cl. Oct. 30, 2021)); Pls.’ Notice of Suppl. Authority (ECF

20) (Alvarez v. United States, No. 20-1533C, 2021 WL 6163405 (Fed. Cl. Dec. 30, 2021), and Adair v.

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wrongly decided. In that case, the Tenth Circuit held that a pre-shift security

screening for prison employees was part of the employees’ principal activities because

“the security screening and the officers’ work share the same purpose” and because

the screening was “tied to” the employees’ work. Id. at 1278 (quoting Integrity

Staffing, 574 U.S. at 36).

That test is incorrect. The question is not whether pre-shift activities align

with the “purpose” of employment. If it were, then virtually every pre- and post-shift

activity required by an employer would be compensable. Why would an employer

mandate a given activity in the first place if not to further the “purpose” of

employment? Integrity Staffing rejects that very approach: “If the test could be

satisfied merely by the fact that an employer required an activity, it would sweep into

‘principal activities’ the very activities that the Portal–to–Portal Act was designed to

address.” 574 U.S. at 36.17

Nor is it enough for an activity to be “tied to” the employee’s work. Aguilar, 948

F.3d at 1278. The Tenth Circuit took that test from Integrity Staffing’s reference to

activities “tied to the productive work that the employee is employed to perform.” 574

U.S. at 36. But it appears to have read the Integrity Staffing Court’s language in

isolation, not in the context of a detailed explanation of what it means for pre- or post-

shift activity to be part of the employee’s principal activities. Far from merely

directing lower courts to analyze in the abstract whether an activity is “tied to” an

employee’s principal activities, the Court requires analyzing whether the activity is

integral and indispensable — a more focused analysis, rooted in the words of the

Portal-to-Portal Act. The Supreme Court’s reasoning precludes the vague, atextual

search for relatedness that the Aguilar court used. See Integrity Staffing, 574 U.S. at

33; see also id. at 38 (Sotomayor, J., concurring).

By asking the wrong questions, the Aguilar court reached the wrong answers.

The Tenth Circuit held that the screenings were “‘an intrinsic element of’ the officers’

security work” because “the security screening and the officers’ work share the same

goal,” Aguilar, 948 F.3d at 1279 (quoting Integrity Staffing, 574 U.S. at 33) — a

United States, No. 20-1148C, 2021 WL 6163407 (Fed. Cl. Dec. 30, 2021)). Although I generally agree

with those decisions, I respectfully part from my learned colleagues on the issue of security screenings.

17 That does not necessarily mean I must ignore the purpose of employment. See Pls.’ Opp. at 18.

Identifying an employee’s “principal activities” and their relationship to other activities presumably

entails understanding what ends his employment is supposed to serve — much like interpreting

statutory terms might depend on knowing the statute’s subject matter or the problem the statute is

supposed to solve. Cf. ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF

LEGAL TEXTS 20 (2012); Samuel L. Bray, The Mischief Rule, 109 Geo. L.J. 967 (2021). The employer’s

purpose, however, is not an analytical substitute for the employee’s actual work tasks any more than

a statute’s purpose displaces its text.

- 14 -

mistaken test that conflates the employer’s purposes with the employee’s principal

activities. The court also concluded that the screenings were “indispensable” because

“an officer cannot safely and effectively maintain custody and discipline of inmates

and provide security while also bringing weapons or contraband into the prison,” id.

(quotes and alterations omitted) — which, as explained above, confuses the

employer’s requirements for the employee with the compliance measures the

employer chooses to implement.

Plaintiffs’ last defense of Aguilar is that there is something unique about the

security of prisons that justifies a special rule. Tr. of Oral Arg. at 56–58. But that is

no more than special pleading, unrooted in case authority or statutory text. It also

conflicts with the many cases involving other sensitive locations where security

screening time has not been compensable. See Whalen, 93 Fed. Cl. at 600 (air traffic

control tower); Gorman, 488 F.3d at 592–93 (nuclear power plant); see also Integrity

Staffing, 574 U.S. at 35 (discussing DOL letter involving pre-shift screenings at a

rocket-powder plant).18 The cases do not permit an arbitrary carve-out for Plaintiffs’

work environment. I therefore cannot follow the Tenth Circuit’s reasoning or agree

with its result.

Ordinarily, even weak claims should be tested through discovery if they meet

pleading standards. See, e.g., Twombly, 550 U.S. at 556 (“[O]f course, a well-pleaded

complaint may proceed even if it strikes a savvy judge that actual proof of those facts

is improbable, and that a recovery is very remote and unlikely.”) (quotes omitted);

Huon v. Denton, 841 F.3d 733, 742 (7th Cir. 2016). But Integrity Staffing itself was

decided on a motion to dismiss — indeed, it overturned a Ninth Circuit decision

reversing the district court’s grant of dismissal. 574 U.S. at 37; Busk v. Integrity

Staffing Solutions, Inc., 713 F.3d 525, 530–31 (9th Cir. 2013). It therefore follows that

the relationship between screenings and an employee’s principal activities is best

determined as a matter of law when the pleadings allow. In this case, there are no

facts consistent with the pleadings that Plaintiffs might adduce to show that

18 The Aguilar court distinguished the DOL letter, relied on in Integrity Staffing, that decided against

compensability for pre-shift safety screening at the rocket-powder plant. The basis for the distinction

appears to be that while there is no “clear or obvious connection” between a screening for fire-starters

and “the particular activities … employees [were] employed to perform” at the rocket-powder plant,

there is such a connection between screening for contraband at a prison and the activities of prison

employees. 948 F.3d at 1278. That is a stretch at best. Although the Integrity Staffing Court did not

“clearly outline[] the principal activities of the employees at the rocket-powder plant,” id., a faithful

reading of the opinion should not place much weight on the Court leaving it implicit that fire-starters

could lead to explosions that plant employees are presumably responsible for avoiding. The fact that

the Supreme Court analogized so readily from the rocket-powder plant to the warehouse — where the

Court did define employees’ principal activities, see 574 U.S. at 35 — suggests that the kind of detail

the Tenth Circuit apparently expected was unnecessary for the Supreme Court’s reasoning.

- 15 -

undergoing screening is part of their productive work, or that screening itself is

integral and indispensable to that work. See Twombly, 550 U.S. at 563. Even if

Plaintiffs proved that excluding contraband is essential to Prison administration and

that they cannot do their jobs if contraband were inside, we would end up right back

where we are, asking whether time spent in screenings is integral and indispensable

to Plaintiffs’ work — a legal question which must be answered in the negative. See

Rowe v. United States, 151 Fed. Cl. 268, 271 (2020) (“It is well-settled that a complaint

should be dismissed under RCFC 12(b)(6) ‘when the facts asserted by the claimant do

not entitle him to a legal remedy.’”) (quoting Lindsay v. United States, 295 F.3d 1252,

1257 (Fed. Cir. 2002)).

Donning Equipment

The second activity at issue, which Plaintiffs allege they perform as soon as

they pass through security, Compl. ¶ 22, is donning a security belt and other gear. I

conclude that Plaintiffs have stated a claim for relief for that time.

Defendant concedes that donning specialized items necessary to job functions

is generally part of an employee’s principal activities. Tr. of Oral Arg. at 22. That is

a correct reading of the many cases involving protective gear and similar items. See,

e.g., IBP, 546 U.S. at 40; Perez v. Mountaire Farms, 650 F.3d 350, 366–67 (4th Cir.

2011); compare Steiner, 350 U.S. at 248, 256. Defendant also concedes that at least

some of the items Plaintiffs allegedly must don for their jobs fall into that category.

Tr. of Oral Arg. at 25–26. That appears consistent with the allegations in the

Complaint, Compl. ¶¶ 22–23, which must be taken as true.

Defendant’s argument, rather, is that the Complaint leaves doubt about what

items Plaintiffs don, where the items are donned, why they are donned where they

are, and how much time donning takes. For example, Defendant argues that the time

spent donning a belt, chains, and chits immediately inside security is de minimis —

and therefore not substantial enough either to be compensable or to trigger the

beginning of Plaintiffs’ workday. Def.’s Mot. at 15 n.4; Def.’s Reply at 18; see Singh v.

City of New York, 524 F.3d 361, 371 n.8 (2d Cir. 2008); but see Butler v. DirectSAT

USA, LLC, 55 F. Supp. 3d 793, 817 (D. Md. 2014). Defendant also objects that

Plaintiffs have not adequately pleaded why they must don their gear inside security

and not elsewhere. Tr. of Oral Arg. at 23–25. Assuming that an employee’s first

principal activity starts his workday, see 29 U.S.C. § 254(a) — the argument goes —

it might not be correct that Plaintiffs’ compensable time begins immediately after the

security screening. Tr. of Oral Arg. at 24–25.

Those may be reasonable arguments, but they are not appropriate for the

pleadings stage. For purposes of a motion to dismiss, I must assume the truth of

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Plaintiffs’ well-pleaded facts and permit Plaintiffs to proceed if a reasonable inference

of liability arises. Iqbal, 556 U.S. at 678; United Pac. Ins. Co. v. United States, 464

F.3d 1325, 1327–28 (Fed. Cir. 2006). The pleadings suggest a reasonable inference

that donning equipment is one of Plaintiffs’ principal activities, and that Plaintiffs

must perform that task immediately after the security screening. Compl. ¶¶ 22–23.

As for how long donning takes, the parties disagree on the exact test for determining

whether time is de minimis. Pls.’ Opp. at 27–30; Def.’s Reply at 17–20. But whatever

the proper test is, applying it will depend on facts, and there is no good way to resolve

the abstract legal dispute without those facts. Similarly — because, as discussed

below, I cannot dismiss Plaintiffs’ claims as to any activities that follow donning — it

does not matter at this stage whether the donning time itself is de minimis. Whether

and how to aggregate time spent on different activities, some of which may be de

minimis, is now only a hypothetical inquiry that should await factual development

on the merits.

Clearing the Sally Port

The third activity at issue is clearing the sally port at the beginning of the day.

Although Plaintiffs’ claims appear questionable, I cannot dismiss them at this stage.

Plaintiffs do not disagree that checking in and waiting to check in are

ordinarily noncompensable preliminary and postliminary time, nor that clearing the

sally port fits within that definition. Tr. of Oral Arg. at 59, 63–64; see Integrity

Staffing, 574 U.S. at 34 (citing DOL regulations); id. at 39 (Sotomayor, J., concurring)

(reasoning that “checking in and out and waiting in line to do so” are “activities that

Congress clearly deemed to be preliminary or postliminary”). Instead, Plaintiffs

contend that because clearing the sally port occurs after Plaintiffs’ first principal

activity of the day, it is compensable under the “continuous workday rule.” Tr. of Oral

Arg. at 59. The continuous workday rule, Plaintiffs argue, “requires compensation

from the moment an employee performs their first principal activity of the day until

they finish performing their last principal activity of the day,” even when some

intervening activities are not otherwise compensable. Pls.’ Opp. at 5 (citing Perez, 650

F.3d at 373, and 29 C.F.R. § 790.6); Sandifer v. U.S. Steel Corp., 571 U.S. 220, 226

(2014). As just noted, Plaintiffs have adequately pleaded that the first principal

activity of the workday is donning their equipment, so if the continuous workday

applies, clearing the sally port could be compensable time.

There are still several hurdles Plaintiffs must clear in order to prevail on that

theory. One is authority explaining that for the continuous workday rule to come into

play, the initial principal activity must be more than de minimis. Singh, 524 F.3d at

371 n.8; but see Butler, 55 F. Supp. 3d at 817. Especially after dismissal of Plaintiffs’

- 17 -

claims regarding security screening, it seems doubtful that donning gear inside

security meets that threshold. But that, as explained previously, is a factual dispute

I cannot resolve on the pleadings. See Twombly, 550 U.S. at 556.

Another hurdle is that, as I have held elsewhere, the continuous workday rule

does not apply to federal employees in the same way that it applies to other workers.

See Bridges v. United States, 156 Fed. Cl. 129, 134 (2021), appeal filed, No. 22-1140

(Fed. Cir.). Plaintiffs’ understanding of the continuous workday rule derives from

FLSA regulations promulgated by DOL. See Pls.’ Opp. at 16 (citing 29 C.F.R. § 790.6);

id. at 30 (same). But it is the Office of Personnel Management (“OPM”), not DOL,

that administers FLSA for federal employees. See 29 U.S.C. § 204(f)); see also 5 C.F.R.

§§ 551.102, 551.103. OPM regulations, contrary to Plaintiffs’ position, “exclude[]”

preliminary and postliminary activity from compensable hours of work “even if it

occurs between periods of activity that are compensable as hours of work.” 5 C.F.R.

§ 551.412(b). If that regulation applies according to its terms, time clearing the sally

port might be excluded from compensation even if it follows a compensable principal

activity.

Nonetheless, I cannot dismiss for those reasons either. Defendant has not

moved to dismiss based on the OPM regulations, and it is possible that the relevant

OPM regulations would apply here differently from how they applied to the travel

and shift-scheduling at issue in Bridges. If the government did move to dismiss on

that basis, Plaintiff would have the opportunity to challenge the OPM regulations as

inconsistent with DOL regulations. See Billings v. United States, 322 F.3d 1328,

1333–34 (Fed. Cir. 2003); 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, 154 Fed.

Cl. 95 (2021). Because resolving these issues without further legal and factual

development would be premature, Plaintiffs may develop their claims on the merits.

Proceeding to and from the Duty Post

The next segment of Plaintiffs’ claims involves the time they spend walking

from the sally port to their duty stations, and then back to the sally port at the end

of the day. Plaintiffs have stated a plausible claim for relief as to that time.

Simply walking from a check-in location to a workstation is expressly excluded

from compensation under the Portal-to-Portal Act. 29 U.S.C. § 254(a)(1); IBP, 546

U.S. at 40–41. But Plaintiffs allege that when they walk from the sally port to their

duty stations, they are not just covering distance, but correcting inmate behavior,

responding to inmate requests, looking for security breaches, handling emergencies,

and so forth. Compl. ¶ 27. If those allegations are true — and they must be taken as

- 18 -

true — it is plausible that Plaintiffs perform some of their principal activities while

walking.

Defendant responds that not all the time spent walking to duty stations

involves such work, arguing that Plaintiffs are merely called upon to exercise

vigilance while walking and that Plaintiffs could seek overtime compensation for any

work they must do on their way to and from duty posts. Def.’s Mot. at 19–21; Tr. of

Oral Arg. at 28–30. Some cases have held that no compensation is required for time

when off-duty employees need to be on call or generally vigilant. See, e.g., Akpeneye

v. United States, 990 F.3d 1373, 1383–85 (Fed. Cir. 2021). The Eleventh Circuit,

moreover, has held that time police officers spend commuting in marked police

vehicles is noncompensable even if they have to respond to “accidents, disabled

vehicles, flagrant safety violations, or even routine traffic violations” on the way.

Llorca v. Sheriff, Collier Cty., Fla., 893 F.3d 1319, 1327 (11th Cir. 2018). But time on

“standby status” can be compensable work, see, e.g., Akpeneye, 990 F.3d at 1383

(citing Armour & Co. v. Wantock, 323 U.S. 126 (1944), and Skidmore v. Swift & Co.,

323 U.S. 134 (1944)), and of course compensable work can involve walking from place

to place.

Questions about what Plaintiffs actually must do on their walks are fact-

dependent, hard to consider in the abstract, and therefore unsuitable for resolution

on the pleadings. See Cheung v. United States, No. 18-48C, 2021 WL 5810472, at *23

(Fed. Cl. Aug. 27, 2021) (explaining that disputes over “whether an employee is in on-

call or on standby duty status are questions of fact”). It is not evident from the

Complaint that during their walks Plaintiffs are merely off-duty employees exercising

vigilance, as opposed to on-duty employees who happen to be walking. As for the

amount of the walk Plaintiffs spend performing their principal activities, even if the

entire walk is not compensable, that might only go to quantification of Plaintiffs’

unpaid time, not to whether they have stated a claim. See Reich v. New York City

Transit Auth., 45 F.3d 646, 648, 651–52 (2d Cir. 1995) (rejecting employer’s argument

“that the travel exemption immunizes it from liability for any tasks imposed on

[employees] to be performed during the commute” but disagreeing with DOL’s

argument that “the [employees’] entire commute should be compensated”).

Plaintiffs also allege that they “discuss any pertinent information” with a

supervisor in the Lieutenant’s office before proceeding to their shift. Compl. ¶ 27.

Defendant characterizes that interaction as part of “checking into and out of the

workplace.” Def.’s Mot. at 19. Perhaps so. But it is also reasonable to infer that

obtaining information from other officers is integral and indispensable to Plaintiffs’

security functions, as the Supreme Court has defined that test. The facts alleged in

the Complaint and the parties’ legal arguments do not permit resolution of the issue

- 19 -

against Plaintiffs on the pleadings. Even Defendant appears to acknowledge as much.

Tr. of Oral Arg. at 34. The exact nature of the Lieutenant’s office meeting, and its

importance to Plaintiffs’ principal activities, is thus a factual question to be explored

on the merits as well.

Equipment and Information Exchanges

Finally, Plaintiffs allege that they should be paid for time spent exchanging

equipment and information with the outgoing duty officer when arriving at a duty

station, and with the incoming duty officer when leaving. Compl. ¶ 31.19 Plaintiffs

have plausibly alleged that obtaining equipment and information is integral and

indispensable to their principal activities. Defendant objects, rather, that Plaintiffs

have not alleged the exchange involves more than a de minimis amount of time. Def.’s

Mot. at 22.

As mentioned above, the parties dispute the standard for determining whether

time is de minimis. Pls.’ Opp. at 27–30; Def.’s Reply at 17–20. But even assuming

that Defendant’s statement of the legal standard is correct — a question I do not

reach — Defendant’s arguments are practically self-defeating, for they involve a

complex array of factual questions about how long the exchange takes and the

administrative difficulty of recording the time. Def.’s Mot. at 22–23. There is no way

to resolve those questions in Defendant’s favor on the pleadings alone.

D. Other Issues

In addition to challenging Plaintiffs’ allegations about uncompensated time,

Defendant raises three other arguments — one directed at the FLSA claims as a

whole, and two at aspects of the relief Plaintiffs seek.

Defendant argues that if Plaintiffs’ claims as to any part of their pre- or post-

shift time is dismissed, the Complaint must be dismissed in its entirety because “this

Court would need to speculate to conclude that the remaining compensable time is

more than de minimis.” Def.’s Reply at 18. Because Plaintiffs no longer pursue their

COVID-19 screening claim and their security screening claim must be dismissed, I

consider whether the Complaint permits a plausible inference that the remaining

activities are more than de minimis.

OPM has provided by regulation that periods of “preparatory or concluding

activity” longer than 10 minutes are generally not de mimimis. 5 C.F.R.

§ 551.412(a)(1). (Although Defendant argues that some longer periods might be de

19Plaintiffs allege that time spent “exchanging information and equipment on the assigned post with

oncoming staff” is “unpaid” at the Prison. Compl. ¶ 31. But Plaintiffs also appear to allege that while

the incoming officer is not paid for the information exchange, the outgoing officer is. Id. ¶¶ 28–29. The

potential contradiction need not be resolved on the pleadings.

- 20 -

minimis as well, see, e.g., Def.’s Mot. at 6, I cannot reject Plaintiffs’ claims on that

basis without further factual development.) Plaintiffs allege that all the activities

mentioned in the Complaint take approximately 15 to 30 minutes each day. Compl.

¶ 14; Pls.’ Opp. at 29–30. Although the Complaint does not specifically address the

subject, it is plausible that the two screenings take no more than 5 to 15 minutes, and

that the remaining activities sometimes take 10 minutes or more — meaning that for

at least some Plaintiffs on some days, the remaining activities take longer than the

usual de minimis time. Contrary to Defendant’s argument, that is not “speculat[ion],”

Def.’s Reply at 18, but an application of “experience and common sense.” Iqbal, 556

U.S. at 679.

Defendant next objects that Plaintiffs seek a “declaratory judgment” under the

Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202. See Compl. ¶ 1; Def.’s Mot. at

25–26. Plaintiffs present no argument in response. Defendant is correct: This Court

lacks authority to issue declaratory judgments under the Declaratory Judgment Act,

see, e.g., United States v. King, 395 U.S. 1, 5 (1969), so any claims or requests for relief

Plaintiffs seek under that theory must be dismissed for lack of jurisdiction under

RCFC 12(b)(1).

Defendant finally moves to dismiss Plaintiffs’ claims under the Back Pay Act

(“BPA”), which authorizes attorneys’ fees and prejudgment interest for federal

employees who are “found by appropriate authority under applicable law … to have

been affected by an unjustified or unwarranted personnel action which has resulted

in the withdrawal or reduction of all or part of the pay, allowances, or differentials of

the employee[.]” 5 U.S.C. § 5596(b)(1)(A), (b)(2); see Compl. ¶¶ 1, 46–47. Defendant

argues that “[b]ecause plaintiffs fail to state an FLSA claim, their Back Pay Act claim

must also be dismissed.” Def.’s Reply at 20; see also Def.’s Mot. at 25. But the parties

agree that the BPA may entitle Plaintiffs to additional damages if they prevail on

their FLSA claim. See Def.’s Mot. at 25; Pls.’ Opp. at 32–33; Def.’s Reply at 20.20

20 The BPA “is merely derivative in application; it is not itself a jurisdictional statute,” United States

v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983), and it is not money-mandating on its own, see Semper

v. United States, 100 Fed. Cl. 621, 634 (2011). Rather, it becomes money-mandating “when based on

violations of statutes or regulations covered by the Tucker Act.” Worthington v. United States, 168 F.3d

24, 26 (Fed. Cir. 1999). When a federal employee is entitled to money because of violations of another

law, the BPA mandates payment of additional money, and is therefore money-mandating in that

contingent sense. See Dustin v. United States, 113 Fed. Cl. 366, 369 (2013) (“Acts of Congress and

executive agency regulations which command or can be interpreted to command the payment of money

are covered by the Tucker Act and thus trigger the Back Pay Act’s money-mandating effect.”).

- 21 -

Because aspects of Plaintiffs’ FLSA claims will proceed, Plaintiffs retain their rights

under the BPA.21

CONCLUSION

In summary, Defendant’s Motion to Dismiss is GRANTED as to Plaintiffs’

claims (1) related to Plaintiffs’ security and health screening, and (2) arising under

the Declaratory Judgment Act. It is DENIED in all other respects.

The parties are ORDERED to submit a joint status report proposing further

proceedings no later than March 28, 2022.

IT IS SO ORDERED.

s/ Stephen S. Schwartz

STEPHEN S. SCHWARTZ

Judge

21The nature and measure of compensation that might be available under the BPA involves separate

questions that the parties have not raised, and which it would be premature to address at this early

stage.

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