Amicus Curiae Brief — IBP, Inc. v. Alvarez

No. 03-1238

Jn the Supreme Court of the Cinited States

IBP, INC., PETITIONER

GABRIEL ALVAREZ, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

THOMAS G. HUNGAR

Deputy Solicitor General

HOWARD M. RADZELY IRVING L. GORNSTEIN

Solicitor of Labor Assista we lo the Solicitor

General

Department of Justice

Washington, D.C. 20520-0001

MICHAEL P. DOYLE (202) 514-2217

Attorney

Department of Labor

Washington, D.C. 20210

ALLEN H. FELDMAN

Associate Solicitor

QUESTIONS PRESENTED

1. Whether the Portal-to-Portal Act of 1947, 29 U.S.C.

254(a), excludes from compensation the time an employee

must spend walking between the location at which he dons

and doffs required protective gear and his work station,

when such donning and doffing is an integral and

indispensable part of the employee’s principal work

activities.

2. Whether the Court should reexamine its holding in

Christensen v. Harris County, 529 U.S. 576 (2000), that

opinion letters issued by the Administrator of the Wage and

Hour Division of the Department of Labor are not entitled to

deference under Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984).

(I)

TABLE OF CONTENTS

Page

III ccccnsnccssessesssensssvssrssesmansssssnsrsersemncsessenesesonscsascemnencsenessseeese 1

Discussion 7

Conclusion 20

TABLE OF AUTHORITIES

Cases:

| Anderson vy. Mt. Clemens Pottery Co., 328 U.S. 680

(1946) : 2

Barnhart v. Walton, 535 U.S. 212 (2002) ........ccccccceeseeeseees 17

Bejil v. Ethicon, Inc., 269 F.3d 477 (5th Cir.

2001) _ 19

Chao v. George's Processing, Inc., No. 6:02-CV-03479-

RED (W.D. Mo. filed Nov. 20, 2002) .........cccsssecseeseseseeseees 11

Chao v. Tyson Foods, Inc., No, 02-CV-1174(N.D. Ala. _

filed May 9, 2002) . 11-12

Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984) dheeseeenen s

Christensen v. Harris County, 529 U.S. 576

(2000) 8, 16

Evitts v. Lucey, 469 U.S. 387 (1985) ............. ; 14

Herman vy. Fabri-Centers of Am., Inc., 308 F.3d 580

(6th Cir. 2002), cert. denied, 537 U.S. 1245 (200%) ........... 18

Houston Police Officers’ Union v. City of Houston,

330 F.3d 298 (5th Cir.), cert. denied, 124 S. Ct. 300

(2003) . 18

Jewell Ridge Coal Corp. v. Local 6167, United

Mine Workers, 325 U.S. 161 (1945) .........cccccccsssssseeseseseeees l

Reich v. IBP, Inc.:

38 F.3d 1123 (10th Cir. 1994) 00... ccccccccseseeeeseeeeees » mit

820 F. Supp. 1315 (D. Kann. 1993) .......ccccsessessssseseesesenesenees 11

Skidmore v. Swift & Co., 323 U.S. 134 (1944)... 16, 17, 18-19

Sommerville v. United States, 376 U.S. 909

(1964) snes 15

(IIT)

IV

Cases—Continued: Page

South Dakota v. Kansas City S. Indus., Inc., 880

F.2d 40 (8th Cir. 1989), cert. denied, 493 U.S. 1023

(1990) 15

Steiner v. Mitchell, 350 U.S. 247 (1956) 3

Tennessee Coal Co. v. Muscoda Local 123, 321 U.S.

590 (1944) 1-2

The Monrosa vy. Carbon Black Export, Inc., 359

U.S. 180 (1959) 14, 15

Tum v. Barber Foods, Inc., 360 F.3d 274 (1st Cir.

2004), petition for cert. pending, No. 04-66

(filed July 8, 2004) 9, 10, 15, 20

United States v. Mead Corp., 533 U.S. 218

(2001) 16, 17

Constitution, statutes and regulation:

U.S. Const. Art. III 14

Act of Oct. 26, 1949, ch. 736, § 3(0), 63 Stat. 911 (29

U.S.C. 203(0)) 3

Fair Labor Standards Act of 1938, 29 U.S.C. 201

et seq. l

29 U.S.C. 203(0) . 3

29 U.S.C. 204(a) . 17

29 U.S.C. 206 1

29 U.S.C. 207 1

29 U.S.C. 216(b) 5

Portal-to-Portal Act of 1947, 29 U.S.C. 251 ef 8€q. .cccccseoes 2

29 U.S.C. 251(a) 2

29U.S.C. 251(b) 2

29 U.S.C. 252 2

2% U.S.C. 254 2

29 U.S.C. 254(a) 2,7

29U.S.C. 25%a) 17

Wash. Rev. Code Ann. § 49.46 (West 2000) 13

29 C.F.R. 578.3(b) 14

Miscellaneous:

Robert L. Stern et al., Supreme Court Practice

(8th ed. 2002)

In the Supreme Court of the Gnited States

No. 03-1238

IBP, INC., PETITIONER

v.

GABRIEL ALVAREZ, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is submitted in response to the order of this

Court inviting the Solicitor General to express the views of

the United States.

STATEMENT

1. The Fair Labor Standards Act of 1938 (FLSA), 29

U.S.C. 201 et seq., generally requires covered employers to

pay their employees a minimum wage and to compensate

their employees for hours worked in excess of 40 in a given

workweek at a rate of one and one-half times the employees’

regular rate of pay. 29 U.S.C. 206, 207. Following enact-

ment of the FLSA, the Court held that underground travel

in mines to and from an employee’s place of work is

compensable work. Jewell Ridge Coal Corp. v. Local 6167,

United Mine Workers, 325 U.S. 161 (1945); Tennessee Coal

(1)

Co. v. Muscoda Local 123, 321 U.S. 590 (1944). In Anderson

v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), the Court

held that walking from an employer's time clock to the

employee's place of work and back is compensable work.

Anderson also held that certain pre-shift activities, such as

putting on garments and preparing equipment, is

compensable work. /d. at 692-693.

Congress viewed Anderson as “creating wholly unex-

pected liabilities, immense in amount and retroactive in op-

eration.” 29 U.S.C. 25l(a). To address that “existing emer-

gency,” 29 U.S.C. 251(b), Congress enacted the Portal-to-

Portal Act of 1947 (Portal-to-Portal Act), 29 U.S.C. 251 et

seq. That Act extinguished employer liability for failure to

pay minimum wage and overtime before May 14, 1947, for

any activity unless it was compensable by contract or

custom. 29 U.S.C. 252. For claims arising after that date,

the Act provides that, absent contract or custom, no

employer shall be liable for failure to pay minimum wage or

overtime for:

(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 work-

day 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).

In 1949, Congress added a provision that allows the com-

pensability of time spent changing clothes at the beginning

and end of a workday to be the subject of collective bargain-

ing. That provision excludes from the hours worked “any

time spent in changing clothes * * * at the beginning or

end of each workday which was excluded from measured

working time during the week involved by the express terms

of or by custom or practice under a bona fide collective-bar-

gaining agreement.” Act of Oct. 26, 1949, ch. 736, § 3(0), 68

Stat. 911 (29 U.S.C. 203(0)).

In Steiner v. Mitchell, 350 U.S. 247, 252-253 (1956), the

Court held that the phrase “principal activity or activities”

as used in the Portal-to-Portal Act embraces all activities

that are “an integral and indispensable part of the principal

activities” an employee is hired to perform. The Court ac-

cordingly held that the pre- and post-shift activities of

changing clothes and showering are compensable and not

excluded by the Portal-to-Portal Act when they are “an in-

tegral and indispensable part of the principal activities for

which covered worker|s] are employed.” Jd. at 256.

2. Petitioner IBP, Inc. operates a meat packing plant in

Pasco, Washington. Pet. App. 2a-3a. Petitioner requires its

employees to wear certain protective gear when performing

their jobs. /d. at 4an.2. All employees must wear hardhats,

hair nets, ear plugs, gloves, and boots. /bid. Employees who

use knives must also wear metal aprons, leggings, vests,

plexiglass arm guards, and protective sleeves. /bid. Under

petitioner’s work rules, employees “must gather their

assigned equipment, don that equipment in one of the [peti-

tioner’s} plant’s four locker rooms, and prepare work-related

tools before venturing to the slaughter or processing floors.”

Id. at 3a. After completing their shift on the floor,

employees “must clean, restore, and replace their tools and

equipment, storing all of it at the [pecitioner’s] plant itself.”

Id. at 3a-4a.

Respondents work in the slaughter and processing divi-

sions of petitioner’s Pasco plant. Pet. App. 6a. They filed

suit against petitioner under the FLSA and state law, chal-

lenging petitioner’s failure to pay them for the time spent

donning and doffing protective equipment and walking from

the locker room to their work stations and back. /bid.

After conducting a bench trial, the district court ruled in

respondents’ favor on most issues. Pet. App. 35a-82a. The

court found that the donning and doffing of unique protec-

tive gear, such as mesh gloves, metal aprons, leggings, vests,

plexiglass arm guards, and protective sleeves, is an “integral

and indispensable” part of respondents’ principal activities

and is therefore compensable work under the FLSA. /d. at

53a-54a. The court further determined that the reasonable

time spent walking from the locker room to the workstation

and back is compensable. /d. at 54a. The district court

rejected petitioner’s contention that such walking time is

non-compensable under the Portal-to-Portal Act. Jd. at 53a-

54a. The court reasoned that donning protective gear begins

the workday and doffing that gear ends it, and that the

Portal-to-Portal Act’s exclusion applies only to walking time

that occurs outside the workday. /bid.

The district court also rejected petitioner’s contention

that the donning and doffing of protective gear is non-com-

pensable as a result of collective bargaining pursuant to the

FLSA’s “changing clothes” exclusion. Pet. App. 64a-65a.

The court reasoned that the items of safety gear at issue are

not “clothes” within the meaning of that exclusion. Jd. at

65a.

The district court determined, however, that the donning

and doffing of “non-unique protective equipment”—

hardhats, earplugs, frocks, safety goggles, hair nets, and

boots—is not compensable under the FLSA because it is

“not integral and indispensable to the job.” Pet. App. 54a.

Alternatively, the court concluded that the donning and

doffing of non-unique gear is not compensable because the

“time it takes to complete such work is de minimis as a

matter of law.” Jd. at 54a & n.6.

The district court also ruled in respondents’ favor with re-

spect to certain of their state-law claims. Pet. App. 7la-77a.

The court rejected, however, the largest monetary compo-

nent of respondents’ state law claims, namely, their assertion

that state law entitled them to receive overtime compensa-

tion for the entirety of their 30-minute meal breaks when-

ever any portion of their meal breaks was spent working. /d.

at 74a.

The district court envered a judgment awarding respon-

dents damages of $3,098,517, comprised of $1,751,126 in

FLSA overtime damages, $156,344 in state law overtime

damages for a period preceding the FLSA limitations period,

$286,119 in state law minimum wage damages, and $904,928

in state law rest break damages. Resp. Br. in Opp. App. 2a.

The award of FLSA overtime damages reflected the court’s

determination that FLSA damages should be doubled

pursuant to the Aci’s liquidated damages provision, 29

U.S.C. 216(b). Pet. App. 78a-79a.

In keeping with the court’s rejection of respondents’ state

law meal break claim, the judgment did not award damages

for that claim. Pet. App. 74a. Anticipating that its determi-

nation on that state law issue might be reversed on appeal,

however, the district court announced that “[{i]f the Court is

reversed on appeal on its meal break ruling,” respondents

would then “be able to recover $7,297,517,” comprised of

$5,487,561 in state law overtime damages, $905,028 in state

law minimum wage damages, and $904,928 in state law rest

break damages. /bid.

The court’s initial judgment and its proposed alternative

disposition both reflect the court’s view that, when FLSA

and state law claims are “duplicative,” respondents should

recover on only one of the claims. Pet. App. 80a. Under the

court’s calculations, total FLSA overtime damages initially

exceeded state law overtime damages for the same period

because FLSA damages were doubled but state law

overtime damages were not. Once full meal breaks damages

were added, however, total state law overtime damages

exceeded FLSA overtime damages. Based on that method

of calculation, the court awarded overtime damages under

the FLSA in its initial judgment but only under state law in

its alternative disposition.

3. The court of appeals affirmed the district court’s

judgment as to the FLSA issues, but reversed that court’s

denial of respondents’ state law meal break claims. Pet.

App. la-34a. The court of appeals held that donning and

doffing of unique sanitary and protective equipment is an

“integral and indispensable” part of the respondents’ princi-

pal activities and is therefore work that is compensable un-

der the FLSA. 7d. at 1la-12a.

The court of appeals also held that respondents are enti-

tled to compensation for “the reasonable walking time from

the locker to work station and back . . . for employees re-

quired to don and doff compensable personal protective

equipment.” Pet. App. 18a. The court reasoned that re-

spondents’ work day begins when they don required safety

gear and that “any activity occurring thereafter in the scope

and course of employment” is not excluded by the Portal-to-

Portai Act. Jd. at 17a-18a. The court concluded that the

walking time at issue is done in the scope and course of em-

ployment because respondents cannot perform their job

without walking between the locker room and their work

stations. Jd. at 19a. The court added that “[tJhere is nothing

in the statute or regulations that would lead to the conclu-

sion that a workday may be commenced, then stopped while

the employee is walking to his station, then recommenced

when the walking is done.” bid.

The court of appeals further held that donning and doffing

protective gear is not subject to the FLSA’s “changing

clothes” exclusion. Pet. App. 14a-17a. The court concluded

that the FLSA’s exclusions must be narrowly construed and

7

that the items of protective gear at issue are not “plainly and

unmistakably” clothes. Jd. at 15a-16a. The court noted that

the Administrator of the Wage and Hour Division of DOL

had issued a June 2002 opinion letter interpreting “clothes”

to include protective safety equipment, but it rejected the

Administrator’s interpretation on the ground that it con-

flicted with previous interpretations by the Administrator.

Id. at 17a n.9. |

The court of appeals also affirmed the district court’s con-

clusion that the donning and doffing of “non-unique” gear

is not compensable. The court of appeals reasoned that

the time required to don and doff non-unique gear is “de

minimis as a matter of law.” Pet. App. 12a-13a.

The court of appeals reversed the district court’s denial of

respondents’ meal-break claims under state law. Pet. App.

30a-32a. Recognizing that the district court’s ruling was

“perhaps consistent with the FLSA,” the court of appeals

held that it was inconsistent with “mandatory language” in

the state administrative code. Jd. at 3la. Accordingly, the

court of appeals “remand[ed] for recalculation of damages

consistent with this full thirty-minute remuneration ap-

proach.” Jd. at 32a. Issuance of the mandate of the court of

appeals has been stayed pending disposition of the petition

for a writ of certiorari.

DISCUSSION

The first question raised in the petition is whether the

Portal-to-Portal Act, 29 U.S.C. 254(a), excludes from com-

pensation the time an employee must spend walking be-

tween the location at which he dons and doffs protective

gear and his work station, when such donning and doffing is

an integral and indispensable part of tie employee’s princi-

pal work activities. Because there is a conflict in the circuits

on that issue, and the issue is one of recurring importance

under the FLSA, this Court’s review would be warranted in

an appropriate case. This case, however, may not be a

suitable vehicle for resolving that issue. It appears likely

that the Court’s resolution of that issue would not affect the

judgment that would ultimately be entered by the district

court on remand in this case. That circumstance counsels

against review of the walking time issue in this case.

Petitioner’s second question asks whether an interpreta-

tion of the FLSA’s “changing clothes” exclusion expressed in

an opinion letter issued by the Administrator of the Wage

and Hour Division of DOL is entitled to deference under

Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). In Christensen v. Harris County,

529 U.S. 576 (2000), the Court held that the Administrator’s

opinion letters are not entitled to Chevron deference, and

petitioner has not made out the kind of compelling case

necessary to justify overruling a decision of this Court. In

any event, it appears likely that the Court’s resolution of

that issue, like the resolution of the first issue, would not af-

fect the judgment that would be entered by the district court

on remand.

A. 1. There is a conflict in the circuits on the question

whether the Portal-to-Portal Act excludes from compensa-

tion walking time associated with the donning and doffing of

safety gear, when such donning and doffing is an integral and

indispensable part of the employee’s principal work activi-

ties. The Ninth Circuit in this case correctly held that the

Portal-to-Portal Act does not exclude walking time that oc-

curs after an employee dons required safety gear. The court

reasoned that the donning of safety gear commences an em-

ployee’s work day, and that the Portal-to-Portal Act does not

exclude from compensation walking time that occurs after

the work day begins. Pet. App. 18a-19a. As the court ex-

plained, “[tJhere is nothing in the statute or regulations that

would lead to the conclusion that a workday may be com-

menced, then stopped while the employee is walking to his

station, then recommenced when the walking is done.” /d. at

19a.

The Ninth Circuit’s holding and reasoning on this issue is

inconsistent with the First Circuit’s decision in Tum v. Bar-

ber Foods, Inc., 360 F.3d 274 (2004), petition for cert. pend-

ing, No. 04-66 (filed July 8, 2004). The First Circuit held in

Tum that the Portal-to-Portal Act excludes from com-

pensation walking time associated with the donning and

doffing of required safety gear. Jd. at 279-281. That court

reasoned that while donning of required safety gear is an

integral and indispensable part of an employee’s primary

activities and is therefore itself compensable (id. at 279), it

does not start the workday for purposes of the walking time

exclusion in the Portal-to-Portal Act. Jd. at 280-281.

The two cases are capable of being reconciled on their

facts. The Ninth Circuit unambiguously held that walking

time is compensable when it follows donning of protective

gear that consumes an amount of time that is not de minimis.

Pet. App. 18a-19a. The court did not clearly resolve the

question whether walking time would also be compensable

when it follows donning that, taken alone, consumes a de

minimis amount of time. See id. at 13a (finding time spent on

donning non-unique gear to be “de minimis” and therefore

“not compensable”); compare id. at 18a (district court prop-

erly required compensation for walking time following “com-

pensable” donning and doffing), with id. at 14a (“donning

and doffing’ and ‘waiting and walking’ constitute com-

pensable work activities except for the de minimis time as-

sociated with the donning and uoffing of non-unique protec-

tive gear”). Because all of the walking at issue in 7'um fol-

lowed donning that consumed what the jury found to be a de

minimis amount of time, 360 F.3d at 278, it is unclear

whether that time would have been compensable under the

Ninth Circuit’s interpretation of the FLSA.

10

The First Circuit, however, did not base its walking time

ruling on the jury’s finding in that case that the donning and

doffing at issue consumed a de minimis amount of time. Al-

though the rationale for its decision is less than clear, the

First Circuit’s opinion appears to hold as a categorical mat-

ter that walking time associated with donning and doffing is

simply not compensable. 360 F.3d at 280-281 (citing, inter

alia, Reich v. IBP, Inc., 38 F.3d 1123 (10th Cir. 1994)); but ef.

id. at 285-286 (Boudin, C. J., concurring) (raising question

whether de minimis donning and doffing can “be disregarded

as starting the workday,” and stating that “[i]t may be time

for the Supreme Court to have another look at the prob-

lem”). That holding is directly inconsistent with the holding

of the Ninth Circuit in this case. Indeed, the court below and

the First Circuit in Tum specifically acknowledged their dis-

agreement on the compensability of walking time that is as-

sociated with the donning and doffing of safety gear. Pet.

App. 19a n.10; Tum, 360 F.3d at 281.

In Reich v. IBP, Inc., supra, the Tenth Circuit also

addressed the compensability of walking time that occurs

after the donning of protective gear. In that case, the court

of appeals held that donning and doffing of protective gear is

an integral and indispensable part of a knife-worker’s

primary activities and is therefore compensable. 38 F.3d at

1125-1126. Because employees exercised discretion on when

they picked up their protective gear and on when and where

they put it on, however, the district court in that case had

been unable to conclude that donning and doffing “were the

first and last principal activities of the workday which would

commence and toll the running of the timeclock, including

‘wait and walk time.’” Jd. at 1127. Instead, the district court

held (and the court of appeals agreed) that the employees

were entitled to be compensated for donning protective gear,

but not for associated walking time occurring before or after

1]

the compensable workday. Jbid.' Because the Reich

decision relied on the personal discretion enjoyed by the

employees in that case, it is factually distinguishable from

the decision below. Nonetheless, the Tenth Circuit’s refusal

to require compensation for a portion of the walking time at

issue in that case is at least arguably in some tension with

the decision below, and enhances the need for resolution of

the question presented in the petition.

2. The question whether walking time associated with

the donning and doffing of protective gear is compensable

has considerable importance to the employers and employees

involved in the chicken and beef industries. See Br. of

National Chicken Council, et al. as Amicus Curiae (i)-(ii).

Because of that issue’s importance to the administration of

the FLSA, the Secretary of Labor has devoted considerable

attention to it. The Secretary filed suit seeking compensa-

tion for such walking time in Reich v. IBP, Inc., supra. The

Secretary filed amicus briefs in the courts below in both this

case and Tum, expressing the Secretary’s view that such

time is compensable. And the Secretary is currently en-

gaged in two district court proceedings outside the First and

Ninth Circuits in which the Secretary is seeking compensa-

tion for walking time associated with the donning and doffing

of safety gear. Chao v. Tyson Foods, Inc., No. 02-CV-1174

1 By contravt, the district court in Reich held that walking time

associated with pre-shift or post-shift activities was compensable when

those activities started the workday. In particular, the court found that

the workday commenced when employees picked up their knives at the

knife room, and ceased when they dropped off their knives at the knife

room after their shift, because “knives were an integral and indispensable

part of the production work of knife carrying employees.” Reich v. IBP,

Ine., 820 F. Supp. 1315, 1325 (D. Kan. 1993). Accordingly, the court held

that “the time spent walking from the knife room to the work station and

back to the knife room was compensable because it occurred during the

workday.” bid. That conclusion was not disturbed on appeal.

12

(N.D. Ala. filed May 9, 2002); Chao v. George’s Processing,

Inc., No. 6:02-C V-03479-RED (W.D. Mo. filed Nov. 20, 2002).

Because the circuits have divided on that issue and because

the issue is one of ongoing public importance, it warrants the

Court’s review.

8. This case may not be an appropriate vehicle to resolve

that issue, however, because it appears that the Court’s

resolution of that issue would not affect the judgment to be

entered by the district court. The reason is as follows: Re-

spondents filed suit under both the FLSA and state law.

The district court found both federal law and state law viola-

tions and entered a judgment awarding respondents

$3,098,517, more than half of which constituted damages un-

der the FLSA with the remainder being based on respon-

dents’ state law claims. Resp. Br. in Opp. App. 2a; see p. 5,

supra. The district court did not rule in respondents’ favor

on their state law claim seeking compensation for

petitioner’s failure to provide them with a 30-minute meal

break, and accordingly the court did not award damages on

that claim. Anticipating that its determination on that state

law issue might be reversed on appeal, however, the district

court announced that if respondents prevailed on that issue

on appeal, it would instead award respondents a total of

$7,297,517, comprised entirely of damages under state law.

Pet. App. 74a. The court of appeals did reverse the district

court on the state law meal break issue. /d. at 30a-32a. It

thus appears that, once this case is returned to the district

court, that court will enter a monetary judgment of

$7,297,517 that is based entirely on state law. Jd. at 74a. See

pp. 5-6, supra (explaining why initial judgment awarded

overtime damages under the FLSA for overlapping state

and federal law periods, but alternative disposition rests

overtime award only on state law).

This Court’s resolution of the walking time issue would

have no apparent effect on the district court’s authority to

13

enter such a judgment. In its petition, petitioner challenges

the lower court’s authority to award walking time based on

federal law; it does not challenge the lower court’s authority

to award walking time based on state law. Nor would a de-

termination that walking time is excluded under federal law

carry over to state law, because the applicable state statute

does not contain any walking time exclusion that parallels

the Portal-to-Portal Act. Pet. App. 7la; Wash. Rev. Code

Ann. §§ 49.46.005 et seg. (West 2002 & Supp. 2004). Peti-

tioner argued in its reply brief in the court of appeals that

the Portal-to-Portal Act preempts state law to the extent

that it authorizes compensation for walking time that would

not be compensable under federal law (C.A. Reply Br. 37-41).

But the court of appeals held that petitioner waived that

argument by not presenting it in a timely manner, Pet. App.

15a, and petitioner has not sought review of that determina-

tion.

Because the court of appeals vacated the district court’s

judgment, on remand respondents could theoretically seek

entry of a judgment different than the proposed alternative

disposition suggested by the district court in its opinion. For

example, respondents could seek entry of a judgment award-

ing the same amount of damages, but urge that it be based

expressly on both federal law and state law, thereby maxi-

mizing their chances of receiving the collateral estoppel

benefits of the federal law rulings in their favor. Respon-

dents could also seek a judgment that awards pre- and post-

shift overtime damages based on the FLSA, together with

meal break overtime damages based on state !aw. Under the

district court’s prior rulings, that method of calevuiating dam-

ages would lead to an increase in the total amount of dam-

ages awarded to respondents, because the district court (as

affirmed by the court of appeals) has already held that re-

spondents’ FLSA damages are to be doubled pursuant to the

Act’s liquidated damages provision, but does not appear to

14

have doubled preliminary and postliminary donning, doffing,

and walking time damages under state law. Pet. App. 78a-

80a. Respondents have represented to us, however, that

they will seek entry of the alternative judgment proposed by

the district court and nothing more. It therefore appears

likely that the Court’s resolution of the walking time issue

would not affect the judgment that will be issued on remand.

That circumstance does not demonstrate that a ruling by

this Court on the walking time issue would be advisory and

therefore outside the scope of the Court’s Article III juris-

diction. A ruling by the Court that the FLSA does not re-

quire compensation for walking time associated with donning

and doffing safety gear would authoritatively foreclose the

district court from awarding or increasing walking time

damages based on federal law, and it would eliminate any

possibility that the district court’s and the court of appeals’

federal walking time rulings would have collateral estoppel

effects on petitioner in other cases. Such a ruling would also

eliminate any possibility that the FLSA violation found in

this case could serve as a basis for DOL to impose a civil

penalty in the event that petitioner violates the FLSA in the

future. See 29 C.F.R. 578.3(b) (authorizing the Secretary to

impose civil penalties upon “repeat” violators). Cf. Evitts v.

Lucey, 469 U.S. 387, 391 n.4 (1985) (a criminal defendant’s

completion of sentence does not moot case because of possi-

ble collateral consequences, such as an enhanced sentence for

a later conviction). Those consequences are sufficient to

prevent the Court’s ruling from being advisory in an Article

III sense. |

Nonetheless, because it appears that the district court is

likely to enter the same judgment regardless of how this

Court rules on the walking time issue, prudential considera-

tions may counsel against granting review on that issue in

this case. This Court ordinarily does not grant review in

cases unless a reversal would change the relative rights of

15

the parties in some concrete fashion. In The Monrosa v.

Carbon Black Export, Inc., 359 U.S. 180 (1959), for example,

the Court granted certiorari to decide whether a contract

provision that barred an in personam action was enforceable.

After it became clear that “in any event the [plaintiff] will be

able to try its claim in the District Court” because the con-

tract did not bar the plaintiff's parallel in rem action, the

Court dismissed the writ of certiorari as improvidently

granted. /d. at 183. The Court explained that it decides is-

sues of public importance only in the context of “meaningful

litigation,” and that a resolution of the question on which the

Court had granted review could “await a day when the issue

is posed less abstractly.” Jbid. The Court has also denied

review in other comparable circumstances. South Dakota v.

Kansas City S. Indus., Inc., 880 F.2d 40 (8th Cir. 1989), cert.

denied, 493 U.S. 1023 (1990) (certiorari denied on federal law

conflict where state law furnished an independent ground for

affirming court of appeals); Sommerville v. United States,

376 U.S. 909 (1964) (certiorari denied on conflict over

whether state or federal law applied when petitioner would

be liable under either); see Robert L. Stern et al., Supreme

Court Practice 231 (8th ed. 2002) (discussing cases). Peti-

tioner has not identified any case in which the Court has

granted review in circumstances like those presented here,

and we are not aware of any such case. Thus, while the

walking time issue warrants review in an appropriate case,

the Court may prefer to await a case in which the issue “is

posed less abstractly.””

2 A petition for a writ of certiorari is pending in Tum v. Barber Foods,

Inc., No. 04-66 (filed July 8, 2004), and also raises the walking time issue,

albeit in a somewhat different factual context in view of the jury's

conclusion that the associated donning and doffing time was de minimis.

That petition also raises another question of considerable significance to

the administration of the FLSA—whether ¢onning and doffing time

should be considered together with walking time in assessing whether the

16

2. The second question raised in the petition is whether

an opinion letter issued by the Administrator of the Wage

and Hour Division of DOL is entitled to Chevron deference.

In Christensen v. Harris County, 529 U.S. 576, 587 (2000),

the Court held that the Administrator’s opinion letters are

not entitled to Chevron deference, but instead are entitled to

weight under the factors set forth in Skidmore v. Swift &

Co., 323 U.S. 134, 140 (1944). According to petitioner (Pet.

19-20), however, the Court’s decision in United States v.

Mead Corp., 533 U.S. 218 (2001), calls into question the hold-

ing in Christensen, and this Court’s review is necessary to

resolve the resulting “confusion.”

That issue does not merit review. Mead held that classifi-

cation rulings issued by Customs officials are not entitled to

Chevron deference, a holding that is consistent with the re-

sult reached in Christensen. In its analysis of the deference

issue, Mead made clear that opinion letters are not categori-

cally barred from receiving Chevron deference. Instead,

Mead instructs that, in deciding whether opinion letters are

entitled to Chevron deference, a court should decide whether

an agency’s “generally conferred authority and other statu-

tory circumstances” make it “apparent” that “Congress

would expect the agency to be able to speak with the force of

law when it addresses ambiguity in the statute or fills a

space in the enacted law.” 533 U.S. at 229. Mead did not

indicate, however, that opinion letters issued by the Admini-

time devoted to those activities is de minimis, or whether donning and

doffing time should instead be examined in isolation. The respondent in

Tum has not filed a brief in opposition, but to the extent we have been

able to determine based on a review of the opinion in that case, it appears

that Tum would likely provide the Court an opportunity to resolve the

existing disagreement among the circuits over the walking time issue.

Because the cases raise closely related issues, the Court may wish to hold

the petition in this case pending its disposition of the petition for a writ of

certiorari in Tum.

17

strator are entitled to Chevron deference under that

standard. Indeed, Mead cited Christensen with apparent

approval. See id. at 236 n.17, 237-238.

Petitioner argues (Pet. 22-23) that the Administrator’s

opinion letter in this case is entitled to Chevron deference

under the Mead standard, because the Administrator is ap-

pointed with the advice and consent of the Senate and has

certain administrative responsibilities, 29 U.S.C. 204(a), and

because employers that rely in good faith on the Administra-

tor’s opinion letters are entitled to a defense against FLSA

liability. 29 U.S.C. 259(a). But reliance on those two factors

would lead to the conclusion that all opinion letters issued by

the Administrator are entitled to Chevron deference—a po-

sition that is at odds with Christensen and that would there-

fore require its overruling. See Skidmore, 323 U.S. at 140

(holding that Administrator’s interpretations of the FLSA

“are not controlling upon the courts by reason of their

authority” but “constitute a body of experience and informed

judgment to which courts and litigants may properly resort

for guidance”). Petitioner has not made out the kind of com-

pelling case that would be necessary to justify the overruling

of this Court’s precedents.

In Barnhart v. Walton, 535 U.S. 212 (2002), the Court held

that a particular Social Security Administration interpreta-

tion was entitled to Chevron deference because of “the in-

terstitial nature of the legal question, the related expertise

of the Agency, the importance of the question to administra-

tion of the statute, the complexity of that administration, and

the careful consideration the Agency has given the question

over a long period of time.” Jd. at 222. That decision

suggests a basis for arguing that some opinion letters issued

by the Administrator might warrant Chevron deference in

appropriate circumstances—a position that would require

qualifying Christensen and Skidmore, but not overruling

them. Barnhart, however, does not support petitioner’s

18

view that all opinion letters issued by the Administrator are

categorically entitled to Chevron deference.

Nor is this case an appropriate one in which to decide

whether there are some opinion letters issued by the Ad-

ministrator that would warrant Chevron deference under

Barnhart. First, petitioner did not ask the court of appeals

to give the Administrator’s interpretation Chevron defer-

ence in light of the factors set forth in Barnhart. Accord-

ingly, the court of appeals did not purport to resolve the def-

erence issue in terms of the Barnhart factors. Pet. App. 17a

n.9.

Second, the question whether particular opinion letters is-

sued by the Administrator might be entitled to deference

under Barnhart would benefit from further ventilation in the

courts of appeals. Petitioner has cited only two recent court

of appeals decisions in which opinion letters issued by the

Administrator have been at issue. Both courts concluded

that they would reach the same conclusion regardless of the

level of deference accorded to the opinion letters. Accord-

ingly, neither court decided the precise level of deference

required. See Houston Police Officers’ Union v. City of

Houston, 330 F.3d 298, 304-305 (5th Cir.), cert. deniec, 124 S.

Ct. 300 (2003); Herman v. Fabri-Centers of Am., Inc., 308

F.3d 580, 592-598 (6th Cir. 2002), cert. denied, 587 U.S. 1245

(2003).

Petitioner also contends (Pet. 26) that, regardless of the

proper degree of deference due, “the Ninth Circuit below

erred by rejecting out of hand the agency’s ‘new’ interpreta-

tion.” We agree that the court of appeals was wrong to dis-

miss the Administrator’s comprehensive and carefully rea-

soned opinion letter setting forth the rationale for the

agency’s interpretation of the “changing clothes” exception.

Pet. App. 94a-100a. The court of appeals misapplied Skid-

more, failing even to acknowledge the “thoroughness evident

in [the opinion letter’s) consideration,” the “validity of its

19

reasoning,” and “its consistency with earlier * * * pro-

nouncements.” 323 U.S. at 140; see Pet. App. 17a n.9. The

court instead concluded that a temporary change in position,

standing alone, sufficed to justify its refusal to defer. Con-

sistency of interpretation is only one of the factors to be con-

sidered under Skidmore, however, and in any event the

Administrator in this instance was merely readopting the

agency’s previous enforcement practice. Jd. at 94a-95a. Not-

withstanding the Ninth Circuit’s error, however, the court’s

mere misapplication of Skidmore does not create a circuit

conflict or otherwise rise to the level of an issue requiring

this Court’s attention.

Petitioner briefly argues (Pet. 18) that review is also war-

ranted on the “changing clothes” issue because the decision

below “creates a conflict” with the Fifth Circuit’s decision in

Bejil v. Ethicon, Inc., 269 F.3d 477 (2001) (per curiam).

There is, however, no conflict. In Bejil, the Fifth Circuit

held that sanitary garments, such as lab coats, dedicated

shoes and shoe coverings, and hair and beard coverings fall

within the “changing clothes” exclusion. Jd. at 480 n.3. The

court of appeals in this case, however, did not address items

of that kind. Instead, it held that special protective gear

such as metal aprons and Kevlar gloves do not constitute

“clothes.” The court reasoned that the “changing clothes”

exclusion applies only to items that are “plainly and un-

mistakably” clothes, and that the items of special protective

gear at issue here are not “plainly and unmistakably”

clothes. Pet. App. 16a-17a. That analysis does not suggest

that the Ninth Circuit would reach the same conclusion

about the items at issue in Bejil.

Finally, review is unwarranted on the “changing clothes”

issue for the same reason that it may be unwarranted on the

walking time question. Because there is no state law

“changing clothes” exclusion, it appears that resolution of

20

that issue would not affect the judgment that will be issued

by the district court.

CONCLUSION

The petition for a writ of certiorari should be held pending

the Court’s disposition of the petition for a writ of certiorari

in Tum, No. 04-66. If the petition in Tum is granted, the

Court may wish to hold the petition in this case pending its

decision on the merits in Tum. If the petition in Tum is

denied, the petition in this case should also be denied.

Respectfully submitted.

PAUL D. CLEMENT

Acting Solicitor General

THOMAS G. HUNGAR

Deputy Solicitor General

IRVING L. GORNSTEIN

HOWARD M. RADZELY Assistant to the Solicitor

Solicitor of Labor General

ALLEN H. FELDMAN

Associate Solicitor

MICHAEL P. DOYLE

Attorney

Department of Labor

OCTOBER 2004