# Amicus Curiae Brief — IBP, Inc. v. Alvarez

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 21

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0745%3A05. Public record. Not legal advice.