Petition for Writ of Certiorari — Doyle v. BellSouth Communications Systems, Inc.

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98 359 AVG 28 1098

OEEICE OF INE CLERK

Na .

In The

Supreme Court of the United States

October Term, 1997

BARNEY DOYLE, et al., and

JOSEPH CUNETTA, et al.,

Petitioners,

BELLSOUTH COMMUNICATIC N SYSTEMS, INC., and

BELLSOUTH TELECOMMUNICATIONS, INC.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

LAwRENCE R. METSCH ARTHUR W. TIFFORD

Counsel of Record ARTHUR W. TirrorD, P.A.

MetscH & Metscu, P.A. 1385 N.W. 15th Street

1385 N.W. 15th Street Miami, Florida 33125

Miami, Florida 33125 (305) 545-7822

(305) 545-6400 FAX: (305) 325-1825

FAX: (305) 545-7224 ts ti Pintoas

ARTHUR J. MORBURGER THomas & THOMAs,

Penthouse I Attorneys

155 South Miami Avenue 77 Adams Avenue

Miami, Florida 33130 Memphis, Tennessee

(305) 374-3373 38103-1709

FAX: (305) 358-1755 (901) 526-0000

FAX: (901) 526-0046

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does § 2103 of the Employee Commuting Flexibility

Act of 1996 (which retroactively amended § 4(a) of the

Portal-to-Portal Pay Act of 1947 and extinguished Peti-

tioners’ claims against Respondents for travel-related

overtime compensation under § 7(a)(1) of the Fair Labor

Standards Act of 1938) violate the Takings and Due Pro-

cess Clauses of the Fifth Amendment to the United States

Constitution?

PARTIES TO THE PROCEEDINGS

The following were parties to Case No. 97-5122, U.S.

Court of Appeals for the Sixth Circuit:

Plaintiffs/Appellants Barney Doyle, et al.

Barney Doyle

Samuel J. Carroll

A.W. Bearden

David A. Boshell

DJ. Pollefeyt

J.P. Clark

Keith G. Wickerham

Michael L. Garretson

Plaintiffs/Appellants Joseph Cunetta, et al.

Joseph Cunetta

Eli Luis Lopez

James L. Moran

Orestes Ponce

George Rodriguez

Bob Blast

David E. Clark

Ken Devau

James M. Donahue

Sante Ferrante

MacArthur Gordon

Charles L. Hart, Il

Jorge Rodriguez

Juan M. Rodriguez

Bill O'Neill

Stewart Thompson

Gregory A. Waldon

Joel S. Goldman

David R. Waters

John A. Glancy

Edward M. McDonald

Vincent Alan Jones

Michelle B. Correll

Harry R. Booth

Richard G. Bean, Jr.

L. Seward

Ivan S. Roberts

Dean A. Penman

Robert M. Snyder

Claudio F. Carano

Vicki Danelutti

Kenneth C. Attis

John W. Lacey

John C. Orr

James H. Libby, III

Alan C. Bader

Pedro E. Ramirez

Wayne M. Mallinger

PARTIES TO THE PROCEEDINGS - Continued

Joseph C. Poland

Kenneth Messina

David L. Gregory

William F. Wellman

Yun H. Kong

Jeffrey M. Cason

Cecilia M. Bravo

Terry L. Foster

Neil L. Smith

Edward E. Eichhorn

Catherine L. Trotman

Robert L. Roberts

Robert J. Mohl

Larry E. Richards

Donald E. Eyler

Arthur P. Boothe

Daniel F. Cadicamo

David E. Clark

Solomon Tillman

Timothy J. Behm

Donald R. Amiott

Willie J. Wright

Richard J. Kuemerie

Ralph P. Bower, III

Arthur J. Scott

Thomas J. O’Connor

William A. Walsh

Neil J. Hampton

Edward J. Miles

Brian P. Scott

Thomas C. Lyons

Richard L. Carnes

Michael R. Herbig

John V. Niglio

Wade H. Fletcher, III

William M. Nitsch

Alan A. LaPorte

Steven L. Bullard

Michael A. Schoenberg

R.A. Kaputa

Cheryl B. Didonna

Anthony J. Mody

Robert M. Halsey

Teri L. Smith

Timothy J. Weber

Allan D. Saar

Andrew M. Dolan

Gary A. Schulteis

David C. Phillips

Peter J. McGinnis

Kim E. Cadden

Paul E. Carrico

Leigh E. Zimmerman

Gregory J. Henock

Richard Sharp

T.R. Dawson

Anthony J. Plastini

George R. Smith

Daniel V. Nieroda

Mark J. Babcock

Richard R. Dechert

Otis T. Keeve

Dennis D. Spitaleri

Sharon E. Corcell

Richard P. Neely

Samuel E. Genovese

Jerry L. Richardson

William J. Reynolds, II

Loren J. Ringler

Barry W. Motyka

PARTIES TO THE PROCEEDINGS - Continued

Martin S. Priest Paul A. Messier

Richard L. Conner William L. Douglas

Eleanor C. Sloane Charles R. Apgar

Keith M. Belzeski Elaine M. Scott-Belzeski

Rogelio San Martin William J. Lawson

David E. Steele Brian Hunt

Andrew J. Wunder Ian B. Malloy

Philip E. Young Edward J. Mangan

Mike P. Retzler Janice A. Nauman

Duane F. Marshall Richard C. Cote

William E. Collins Ronald Gregory

William R. Dougherty J.J. Matthews

Alexander Sansone Melvin L. Scott

Thomas D. Lamberson Henry J. Norman

Robert J. Moore William D. Reed

Mark Van Wagner Robert H. Berger

Anne H. Delucca Craig V. Waring

Michael Minai William H. Baldwin, Jr.

Douglas R. Palmer Elizabeth R. Dore

D.K. Dore, Jr. John S. Tresize

Mark A. Praught Larry Clement

Stephen B. Finlan William A. Lewis

J.A. Dordo Wilfredo A. Perez

Stephen A. Fairbanks Victoria Ross

Douglas Gerry William Riling

Thomas Howard, Jr. Vincente Torres

Priscilla Attart Angel M. Rivera

Maureen Aughey Belinda B. Maynard

Reynaldo Koenfeld Chris Clendaniel

Lucas Rosado Hamehk Insaulgarat

W.D. Floyd Patrick L. Phifer

Joseph R. Rolier, Jr. Gabriel F. Eberle

Michael W. Albury Marrio Langisena

James E. Newman Richard J. Ferrin

Bobby O. Willis

PARTIES TO THE PROCEEDINGS - Continued

Respondents

BellSouth Communication Systems, Inc.

BellSouth Telecommunications, Inc.

TABLE OF CONTENTS

Page

Ouestion: Papi sion. c 5k 5 os eek Oo 03s HE Ee i

Parties To The Proceedings 02... 0.0 cc cece ii

Fabio: 430 Cs 55 ee eae. vi

Tab ae: CIE Rm oes ms a eee eee ots Vii

OpimiOns DOW ban ecicy soc bean anes ae bos teens nies 1

Statement Of Jurisdiction ... é BARR ee, Cerne ee 1

Constitutional And Statutory Provisions Involved... 2

Statement Cr "Fat Tee os cs ea ee cha ces 5

Reasons For Granting The Writ.................... 17

COmURe 5 aa si ee ec oe ee a ok 21

Opinion of the United States Court of Appeals for

the Sixth Circuit, Filed April 3, 1998......... App. 1

Order of the United States District Court for the

Western District of Tennessee, Western Divi-

sion, Filed May 22, T1995 ..<..65<isniu sees ies App. 4

Order of the United States District Court for the

Western District of Tennessee, Western Divi-

sion, Filed June 13, 1996... ccc0 sce cnsnud ese App. 9

Order of :*e Jnited States District Court for the

Western “%>trict of Tennessee, Western Divi-

sion, Filed December 3, 1996 ...............- App. 16

Vii

TABLE OF AUTHORITIES

Page

Cases

Baker v. GTE North Incorporated, 927 F. Supp. 1104

EE Rs Sin cehcccestn utah” eakgaavas tank 0aee 18

Baker v. GTE North Incorporated, 110 F.3d 28 (7th

Se... g SREP i ropereres cp erry a eee Pree 18

Calder v. Bull, 3 Dall. 386, 1 L. Ed. 648 (1798)....... 16

Eastern Enterprises v. Apfel, __ U.S. __, 118 S. Ct.

SRR a 656 vk F Sb RASS Span MONE 4 15, 16, 18, 19

Eastern Enterprises v. Chater, 110 F.3d 150 (1st Cir.

ee a cha ges CUR AUN ESAS rene HAR VR RS Ana BOS ees 15

Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165

en ee ues Oa b NA sd 4 en A eee Ee ee eS es Cows 8, 9

Johnson v. United States, 520 U.S. 461 (1997) ......... 19

Landgraf v. USI Film Products, 511 U.S. 244 (1994) .... 13

Ott v. Midland-Ross Corporation, 523 F.2d 1367 (6th

ee OE ee aly id i anew bao hk Abbas 05 8, 11

Partlow v. Jewish Orphans’ Home of Southern Califor-

was. SOs Foe vor teem Cit. 296)). oo. seci cc ee ees 8, 9

Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392

Ss MERE eae 555s en As ORD WAR EO Re SAN ie deecses 9

United States v. Gaudin, 515 U.S. 506 (1995).......... 19

Walling v. Helmerich & Payne, Inc., 323 U.S. 37

POE Shc eV GeeWhi aces seh KeeKacbesW hes Sanne sipscis 17

U.S. ConstITUTION

Pe Be ee Oe AU PONE BORO) 5 ons cceescccencsenss 16

I i. ec ehewasdecs 2, 15, 16, 18, 19

viii

TABLE OF AUTHORITIES - Continued

Page

STATUTES

Tithe 26, U5... BS SPO Frakes iii eA Geena 15

pi ge eR Ca es errr eee areas ee 2

pe th oe Neer ree oe 7

FUE tes Macaig Me RD hs & «on S bos se bo oe os VE tBAS 2

TeGhe 2, Waa, | PAP GON): «5 occa si ce ens di ecvsncees 3, 6

pc Be eR Rs re Sear eer eee pa 3, 6

Pe MS eee 8. RS Coes ore pepe 2,4

TREE By She BD in 0 kx eee bonds ene vce 7, 8, 11

SE Ee as Cia hae 0o oe ieee cn eriEN eee 11

Pusuic Laws

§§ 2101-2103, P.L. 104-188, 110 Stat. 1755, August

20, 1996 (The Employee Commuting Flexibility

PER TE SOM es nh Son h bss eim es ea aes ai & Dy be 2 1S

RULES

ee ek rrr ere reer Se 16

supreme Court Bile 20.400). ooo c'scie'socceno de opine cere 2

Federal Rule of Appellate Procedure 38............. 13

Federal Rule of Criminal Procedure 52(b) ........... 19

LeGcIsLATIVE History

House Report 104-585, 104th Congress, 2d Session

RGN FOS. ko okbn coke sahs see ceeamreinshcve 18

PETITION FOR A WRIT OF CERTIORARI

Petitioners Barney Doyle, et al., and Joseph Cunetta,

et al. (“Petitioners”), respectfully request that a Writ of

Certiorari be issued to review the judgment of the United

States Court of Appeals for the Sixth Circuit in Case No.

97-5122.

OPINIONS BELOW

The Court of Appeals’ April 3, 1998, opinion in Case

No. 97-5122, which affirmed the District Court’s sum-

mary judgment (App. 1-3), has not been reported (see,

Table-142 F.3d 433), but can be found at 1998 WL 165149.

The District Court’s May 22, 1995, order of consolida-

tion and tolling statute of limitations (App. 4-8) has not

been reported.

The District Court’s June 13, 1996, order denying

Respondents’ motions for reconsideration of the May 22,

1995, order (App. 9-15) has not been reported.

The District Court’s December 3, 1996, order granting

Respondents’ motions for summary judgment in Case

No. 94-2978-D (App. 16-29) has not been reported, but

can be found at 1995 U.S. Dist. LEXIS 18874.

STATEMENT OF JURISDICTION

On April 3, 1998, the U.S. Court of Appeals, Sixth

Circuit, in Case No. 97-5122, affirmed the District Court’s

judgment in Case No. 94-2978-D. Justice Stevens, on June

30, 1998, extended, until August 31, 1998, the time for

Petitioners to petition for a Writ of Certiorari.

Section 1254(1), Title 28, U.S. Code, confers jurisdic-

tion on this Court to review on a Writ of Certiorari the

judgment of the Court of Appeals in Case No. 97-5122.

In accordance with 28 U.S.C. § 2403(a) and Supreme

Court Rule 29.4(b), Petitioners have notified the Solicitor

General of the United States of their intention to chal-

lenge the constitutionality of § 2103 (the retroactivity

provision) of the Employee Commuting Flexibility Act of

1996 (“the Commuting Act”), PL. 104-188, 110 Stat. 1755,

approved August 20, 1996, which amended 29 U.S.C.

§ 254(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fifth Amendment, United States Constitution:

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; not shall any person be subject

for the same offence to be twice put in jeopardy

of life or limb; nor shall he be compelled in any

criminal case to be a witness against himself,

nor be deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use, without just

compensation.”

Section 7(a)(1) of the Fair Labor Standards Act of 1938, as

amended (“the FLSA”), § 207(a)(1), Title 29, U.S. Code:

“Except as otherwise provided in this section,

no employer shall employ any of his employees

who in any workweek is engaged in commerce

or in the production of goods for commerce, or

is employed in an enterprise engaged in com-

merce or in the production of goods for com-

merce, for a workweek longer than forty hours

unless such employee receives compensation for

his employment in excess of the hours specified

at a rate not less than one and one-half times the

regular rate at which he is employed.”

Section 16(b) of the FLSA, 29 U.S.C. § 216(b):

“Damages; right of action; attorney’s fees and costs;

termination of right of action.

“Any employer who violates the provisions

of . . . section 207 of this title shall be liable to

the employee or employees affected in the

amount of . . . their unpaid overtime compensa-

tion . . . and in an additional equal amount as

liquidated damages . . . An action to recover the

liability prescribed . . . may be maintained

against any employer (including a public

agency) in any Federal or State Court of compe-

tent jurisdiction by any one or more employees

for and in behalf of himself or themselves and

other employees similarly situated. No

employee shall be a party plaintiff to any such

action unless he gives his consent in writing to

become such a party and such consent is filed in

the court in which such action is brought. The

court in such action shall, in addition to any

judgment awarded to the plaintiff or plaintiffs,

allow a reasonable attorney’s fee to be paid by

the defendant, and costs of the action... ”

Section 4(a) the Portal-to-Portal Pay Act of 1947 (“the

Portal Act”), § 254(a), Title 29, U.S. Code (prior to its

amendment by the Commuting Act):

“Activities not compensable. Except as pro-

vided in subsection (b), no employer shall be

subject to any liability or punishment under the

Fair Labor Standards Act of 1938, as

amended .. . , on account of the failure of such

employer to pay an employee . . . overtime

compensation, for or on account of any of the

following activities of such employee engaged

in on or after [May 14, 1947] -

(1) walking, riding, or traveling to and

from the actual place of performance of the

principal activity or activities which such

employee is employed to perform, and

(2) activities which are preliminary to or

postliminary to said principal activity or

activities, which occur either prior to the

time on any particular workday at which

such employee commences, or subsequent

to the time on any particular workday at

which he ceases, such principal activity or

activities.”

The Employee Commuting Flexibility Act of 1996 (“the Com-

muting Act”), §§ 2101-2103, PL. 104-188, 110 Stat. 1755,

1928, approved August 20, 1996:

“SEC.2101. SHORT TITLE.

“This section and sections 2102 and 2103 may be

cited as the ‘Employee Commuting Flexibility

Act of 1996’.

“SEC. 2102. PROPER COMPENSATION FOR

USE OF EMPLOYER VEHICLES.

“Section 4(a) of the Portal-to-Portal Act of 1947

(29 U.S.C. 254(a)) is amended by adding at the

end the following: ‘For purposes of this subsec-

tion, the use of an employer’s vehicle for travel

by an employee and activities performed by an

employee which are incidental to the use of such

vehicle for commuting shall not be considered

part of the employee's principal activities if the

use of such vehicle for travel is within the nor-

mal commuting area for the employer’s busi-

ness or establishment and the use of the

employer’s vehicle is subject to an agreement on

the part of the employer and the employee or

representative of such employee’.

“SEC.2103. EFFECTIVE DATE.

“The amendment made by section 2101 shall

take effect on the date of the enactment of this

Act and shall apply in determining the applica-

tion of section 4 of the Portal-to-Portal Act of

1947 to an employee in any civil action brought

before such date of enactment but pending on

such date.”

STATEMENT OF THE CASE

Respondent BellSouth Communication Systems, Inc.

(“BSCS”), is a wholly-owned subsidiary of BellSouth Cor-

poration, Atlanta, Georgia, which is publicly traded. At

all pertinent times, BSCS was engaged in the business of

providing “inside premises” telecommunications services

in Alabama, Florida, Georgia, Kentucky, Louisiana, Mis-

sissippi, North Carolina, South Carolina and Tennessee.

Respondent BellSouth Telecommunications, Inc.

(“BST”), also a wholly-owned subsidiary of BellSouth

Corporation, was at all pertinent times engaged in the

business of providing “outside premises” or “network”

telecommunications services in the same nine (9) states.

Petitioner Barney Doyle, on November 23, 1994,

brought suit under §§ 7(a)(1) and 16(b) of the FSA, 29

U.S.C. §§ 207(a)(1) and 216(b), against BSCS in the U.S.

District Court, Western District of Tennessee, to recover

overtime compensation for himself and other similarly

situated BSCS employees who, between 1991 and 1994,

had participated in BSCS’s Motor Vehicle Usage Program

(“the MVUP”). That suit was assigned Civil Action

94-2978. In his complaint, Petitioner Doyle claimed that

participating BSCS field service technicians had been

engaged in a “principal activity” (for which overtime

compensation had been due) when each working day

they had driven their stocked (with supplies), specially

equipped BSCS-owned trucks from their respective

homes to their respective first job assignments and from

their respective final job assignments to their respective

homes, where the trucks had been kept overnight.!

Petitioners Joseph Cunetta, et al., on January 27,

1995, brought suit under §§ 7(a)(1) and 16(b) of the FLSA,

29 U.S.C. §§ 207(a)(1) and 216(b), against BST in the

General Jurisdiction Division, Eleventh Circuit Court of

! The “consents to join” Civil No. 94-2978 of Petitioners S.].

Carroll, A.W. Bearded and David A. Boswell were filed on May

5, 1995. On May 15, 1995, those of Petitioners D.J. Pollefeyt and

}.P. Clark were filed with the Clerk of the Tennessee District

Court.

Florida (Miami-Dade County, Florida), to recover over-

time compensation for themselves and other similarly

situated BST employees who, between 1991 and 1994, had

participated in BST’s Home Dispatch Program (“the

HDP”). That suit was assigned Case No. 95-1706 (CA 02).

On February 14, 1995, BST removed Case No. 95-1706

(CA 02) to the U.S. District Court, Southern District of

Florida, which assigned it Case No. 95-293-Civ-Atkins. In

their complaint, Petitioners Cunetta, et al., claimed that

participating BST field service technicians had been

engaged in a “principal activity” (for which overtime

compensation had been due) when each working day

they had driven their stocked (with supplies), specially

equipped BST-owned trucks from their respective homes

to their respective first job assignments and from their

respective final job assignments to their respective

homes, where the trucks had been kept overnight.

BST, on April 19, 1995, moved to transfer Case No.

95-293-Civ-Atkins to the Western District of Tennessee

pursuant to 28 U.S.C. § 1404(a). That motion was granted

on May 4, 1995. Thereafter, the Clerk of the Tennessee

District Court assigned Civil Action No. 95-2372 to the

transferred lawsuit.

On May 22, 1995, the District Court issued an order

consolidating Civil Actions No. 94-2978 and 95-2372

under the former docket number. In that order, the Dis-

trict Court also stated:

“On May 17, 1995, an initial scheduling confer-

ence was held in case no. 94-2978. At the confer-

ence, plaintiffs’ counsel indicated that pursuant

to 29 U.S.C. § 255(a), a two year statute of lim-

itations period continues to run against any

potential plaintiff until that individual files suit

or ‘opts into’ the class maintaining the action.

Plaintiffs’ counsel also indicated that the two

year period limits damages to the unpaid wages

that have accrued two years prior to the time of

filing suit or ‘opting into’ the class.

“It further appears that there is a dispute as to

who is a proper member of the class. Until this

issue is resolved, the potential plaintiffs cannot

be notified nor can it be determined whether

they wish to ‘opt into’ this litigation. Therefore,

based on the above, the Court is faced with

potential plaintiffs who may or may not wish to

‘opt into’ this litigation and a statute of limita-

tions that continues to run against these poten-

tial plaintiffs, if any, limiting their damages, if

any.

“The Court clearly possesses the authority to

manage this action including authorization to

send notice to any potential plaintiffs and

approval of such notice. See, Hoffman-La Roche,

Inc. v. Sperling, 493 U.S. 165, 110 S. Ct. 482, 107

L. Ed. 2d 480 (1989). The Court also has the

authority to require the defendant employers to

identify all potential plaintiff class members

through discovery. Id. It further appears that the

two year statute of limitation, 29 U.S.C. § 255(a),

is a procedural limitation rather than substan-

tive. See, Partlow v. Jewish Orphans’ Home of

Southern Cal., 645 F.2d 757, 760 (9th Cir. 1981);

cf., Ott v. Midland-Ross Corporation, 523 F.2d

1367, 1370 (6th Cir. 1975).

“The ADEA incorporates the enforcement provi-

sions of the Fair Labor Standards Act, 52 Stat.

1060, as amended, 29 U.S.A., § 201, et seq. (1982

ed. And Supp. V). Hoffman-La Roche, Inc. v. Sper-

ling, 493 U.S. 165, 167, 110 S. Ct. 482, 485, 107 L.

Ed. 2d 480 (1989). The district court, in Hoffman-

La Roche, Inc. v. Sperling, 493 U.S. 165, 110 S. Ct.

482, 107 L. Ed. 2d 480 (1989), concluded the

statute of limitations governing ADEA claims

could be tolled by equitable considerations. See,

Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392,

410 (1988). There, the Court found, although not

deciding the issue, that plaintiffs presented a

facially compelling case for equitable tolling, in

part, based on delay occasioned by the Court

issuing its ruling on the class membership issue.

Id. F.R.D. at 410-11.

“Based on the circumstances of this case and

upon review of the above case law, the Court

concludes that it should toll the statute of lim-

itations until the class membership issue is

resolved. The Court takes this action as a pre-

cautionary measure to avoid prejudice to those

potential plaintiffs who are not currently before

the Court. The Court also finds that the purpose

of the statute of limitation will not be frustrated

by the Court’s action as the statute is designed

to ensure fairness to defendants and to notify

them of claims that they must defend before the

claims grow stale. See, Partlow v. Jewish Orphans’

Home of Southern Cal., 645 F.2d 757 (9th Cir.

1981) (citation omitted). This ruling does not

preclude the Court from reviewing its decision

at a later time according to the facts and merits

as to each potential plaintiff/class member. See,

Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392,

410-411 (1988). Tolling the statute of limitations

at this time will allow both sides to properly

address and brief the issue and permit the Court

to more carefully consider the issue.

“Accordingly, the statute of limitations as to all

potential plaintiffs in both these actions shall be

tolled from date of entry of this order until the

class membership issue has been determined

and each prospective plaintiff receives notice of

this litigation. The parties will be allowed to

brief this issue and the Court may modify,

expand and/or vacate this decision at a later

time.” (Footnote omitted)

The District Court, on June 12, 1996, entered an order

denying Respondents’ motions for reconsideration of that

portion of the May 22, 1995, order which had tolled the

statute of limitations. In its June 12, 1996, order, the

District Court observed:

“The plaintiffs have sought discovery of all

potential plaintiffs (i.e., similarly situated

employees) in the ..ine-state area where the

defendants do business. According to the plain-

tiffs, the class of potential plaintiffs includes all

BellSouth employees in the entire nine-state

region who participated in the home dispatch

program at any time during the three-year

period preceding November 23, 1994, when the

earlier of the two cases consolidated into the

present case was filed. The defendants have dis-

closed at least 25 names of employees similarly

situated to the plaintiffs.

“The defendants claim that they have made a

good faith effort to comply with their disclosure

requirements by producing lists of the names

and whereabouts of employees similarly situ-

ated to the plaintiffs, both in the Memphis area

and in the Miami area. The defendants state,

furthermore, that they are painstakingly trying

to respond to the plaintiffs’ discovery request as

quickly as possible. The defendants assert that

they have no central historical database indicat-

ing home dispatch status for individual

employees for the relevant time period, and that

BellSouth is attempting to compile this informa-

tion through a search of historical fleet mainte-

nance records. The defendants claim to have

nearly completed a list of approximately 5,000

employees in the nine-state area who may have

participated in the home dispatch program dur-

ing the relevant time period. The defendants

represent that they are willing to produce the

list when complete, subject to a protective order

and pending a determination by the court of

who is similarly situated.

* * *

“In the administration of an FLSA action, this

court clearly possesses the authority to require

of the defendants disclosure of the names and

addresses of potential class members. To date,

the defendants have failed to produce, to the

satisfaction of the court, the names and

addresses of potential class members who

should receive notice of the pending action.

Although 29 U.S.C. § 257 does not provide by its

plain language tolling of the limitations period

under § 255 of the same title, with regard to an

individual not specifically named as a party

plaintiff, in any instance other than the filing of

a consent to become a party plaintiff, ‘[i]t is well

established that equitable tolling is read into

every federal statute of limitation’. Ott v. Mid-

land-Ross Corp., 600 F.2d 24 (6th Cir. 1979).

“After a thorough review of the record and law,

the court finds that the equities warrant tolling

of the limitations period as to all potential

claimants until such time as the defendants

comply with the court’s order to produce the

names and addresses of all potential class mem-

bers. The court herein defines ‘potential class

members’ as any of the defendants’ present or

former employees, in the nine-state area . .. who

were non-salaried and non-management during

the relevant period and engaged in the defen-

dant’s program generally referred to as ‘home

dispatch’. The court will then decide who is, and

who is not, similarly situated. Furthermore, the

May 23, 1995 Order Tolling Statute Of Limita-

tions is subject to review according to each

potential plaintiff/class member’s facts and

merits, and subject to be modified, expanded or

vacated, in whole or in part, at any time by this

court.”

On June 12, 1996, the “consents to join” of 1,870

additional former participants in BST’s HDP were filed

with the Clerk of the District Court. The District Court at

no time:

(a) determined that BSCS and BST had

complied with its order to produce the names

and addresses of all potential class members;

(b) held that the individuals who had filed

“consents to join” were “similarly situated”; and

class members.

The Commuting Act was signed by the President on

August 20, 1996. BSCS, on September 19, 1996, moved for

summary judgment of dismissal on the ground that the

Commuting Act had retroactively amended the Portal Act

and extinguished Petitioners’ claims for travel-related

overtime compensation under the FLSA. BST filed a simi-

lar motion on September 24, 1996.2

One of the arguments advanced by Petitioners in

opposition to the BSCS and BST motions for summary

judgment was that, in the absence of explicit legislative

findings, the Commuting Act’s retroactivity provision,

§ 2103, violated Petitioners’ rights under the Fifth

Amendment's Due Process Clause. The District Court, on

December 3, 1996, rejected Petitioners’ Due Process

Clause challenge to the Commuting Act? and directed

entry of final summary judgment for BSCS and BST.

Petitioners appealed. In the absence of a single

reported decision declaring a federal statute unconstitu-

tional by reason of its retroactivity, and concerned that

sanctions could be imposed against them pursuant to

Rule 38, Federal Rules of Appellate Procedure,‘

2 Neither BSCS nor BST moved for leave to file pleadings

invoking the Commuting Act.

3 The District Court stated:

“Finally, Plaintiffs contend that in the absence of

legislative findings, the due process clause bars the

retroactive application of the [Commuting] Act. The

court finds this argument to be contrary to well

settled law, and therefore without merit. Congress

has the power to enact legislation that has

retrospective application. Landgraf v. USI Film

Products, 511 U.S. 244 (1994).”

* Rule 38, Federal Rules of Appellate Procedure, is entitled

“Damages and Costs for Frivolous Appeals” and provides:

“If a court of appeals determines that an appeal is

frivolous, it may, after a separately filed motion or

notice from the court and reasonable opportunity to

Petitioners did not pursue their Due Process Clause chal-

lenge to § 2103 of the Commuting Act before the Sixth

Circuit. Instead, Petitioners contended that the District

Court had erroneously determined that the Respondents

had satisfied the Commuting Act’s “normal commuting

area for the employer’s business or establishment” crite-

rion.°

On April 3, 1998, the Court of Appeals affirmed the

District Court’s final summary judgment for BSCS and

BST. Judge Merritt’s opinion for the Sixth Circuit rea-

soned:

“Plaintiffs’ primary argument on appeal is that

the district court improperly interpreted the

requirement of the Employee Commuting Flex-

ibility Act that the plaintiffs’ commute be within

the ‘normal commuting area for the employer's

business’ if overtime compensation is to be

respond, award just damages and single or double

costs to the appellee.”

5 The District Court found and concluded that:

“Next, the court must examine whether the use is

‘within the normal commuting area for the

employer’s business’. Pursuant to the CBA, home

dispatch participants’ commute to their first

assignment was limited to 35 miles . . . For trips above

35 miles, the CBA provided that home dispatch

employees would be paid a travel premium . . . Thus

from the pleadings, affidavits, and undisputed facts,

the court finds that the commute for home dispatch

employees would not be any longer than for non

home dispatch employees. Where the commute

exceeded the negotiated range, the contract provided

for a travel premium. Thus, the court finds that this

prong of the test has been satisfied.”

denied. Plaintiffs did not raise the present argu-

ment below, and defendants correctly contend

that the argument is waived. Counsel for plain-

tiffs candidly advised the court at oral argument

that new lawyers have ceme into the case and

have substantially changed the theory of their

case. If this court now adopted plaintiffs’ new

arguments, the court would have to remand to

the court below a new fact issue about the scope

of the ‘normal commuting area’ and new legal

issues concerning the burden of proof on this

question. These issues were not litigated in the

court below, and the parties agree that millions

of dollars in damages may ride on how these

issues are decided. This is not a class action, but

our determination of these new issues could

become a precedent binding thousands of

employees of the defendants. Under these cir-

cumstances we believe it unwise and inap-

propriate to consider plaintiffs’ new theory for

the first time on appeal.”

This Court, on June 25, 1998, issued its decision in

Case No. 97-42, Eastern Enterprises v. Apfel, _ U.S. __,

118 S. Ct. 2131, reversing Eastern Enterprises v. Chater, 110

F.3d 150 (1st Cir. 1997) (hereinafter referred to as “Eastern

Enterprises”). In an opinion written by Justice O’Connor

and joined by the Chief Justice and Justices Scalia and

Thomas, a plurality held that the Coal Industry Retiree

Health Benefit Act of 1992 (“the Coal Act”), P.L. 102-486,

Title XIX, Subtitle C, 106 Stat. 3036, codified as 26 U.S.C.

§§ 9701-9722 (1994 ed. and Supp. II), violated the Takings

Clause of the Fifth Amendment to the U.S. Constitution

because it had improperly placed “a severe, disproportio-

nate and extremely retroactive burden on Eastern.”

US. at -, 118 3S. Ct. at 2158.

Justice Thomas, ir a concurring opinion, expressed a

willingness to reconsider Calder v. Bull, 3 Dall. 386, 1 L.

Ed. 648 (1798), and to hold that the Ex Post Facto Clause

of the Constitution, Art. I, § 9, cl. 3, applies outside the

criminal context. ____~ U.S. at __, 118 S. Ct. at 2154.

Finally, Justice Kennedy, concurring in the judgment

and dissenting in part, concluded that the Coal Act was

invalid under the Fifth Amendment’s Due Process

Clause. ____ U.S. at __, 118 S. Ct. at 2154-2160.

Petitioners, on June 26, 1998, applied under Supreme

Court Rule 13.5 to Sixth Circuit Justice John Paul Stevens

for a 60 day extension of time in which to file a petition

for writ of certiorari directed to the Sixth Circuit’s deci-

sion in Case No. 97-5122. In that application, Petitioners

in pertinent part stated:

“7. The Court, on June 25, 1998, issued its deci-

sion in Eastern Enterprises v. Apfel, _. U.S. __

(Docket No. 97-42), holding unconstitutional the

retroactivity provisions of the Coal Industry

Retiree Health Benefit Act of 1992 (‘the Coal

Act’), 26 U.S.C. 9701-9722 (1994 ed. and Supp.

II). Petitioners believe that the rationale of the

Court’s decision in Eastern Enterprises, supra,

applies to and renders unconstitutional § 2103 of

P.L. 104-188. However, Petitioners will be unable

to prepare and file a petition for writ of cer-

tiorari advancing that argument by their July 1,

1998, deadline.”

Justice Stevens, on June 30, 1998, in Application A-9,

extended until August 31, 1998, the time within which

Petitioners may file a petition for writ of certiorari

directed to the Sixth Circuit’s decision in Case No.

97-5122.

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD PERMIT PETITIONERS TO

CHALLENGE THE CONSTITUTIONALITY OF § 2103

OF THE COMMUTING ACT.

In Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 42

(1944), this Court stated:

“It is no answer that the artificial regular rate

was a product of contract or that it was in excess

of the statutory minimum. The [FLSA] clearly

contemplates the setting of the regular rate in a

bona fide manner through wage negotiations

between employer and employee, provided that

the statutory minimum is respected. But this

freedom of contract does not include the right to

compute the regular rate in a wholly unrealistic

and artificial manner so as to negate the statu-

tory purposes. Even when wages exceed the mini-

mum prescribed by Congress, the parties to the

contract must respect the statutory policy of requir-

ing the employer to pay one and one-half times the

regular hourly rate for all hours actually worked in

excess of 40. Any other conclusion in this case would

exalt ingenuity over reality and would open the door

to insidious disregard of the rights protected by the

[FLSA].” (Emphasis supplied)

In § 2102 of the Commuting Act, Congress modified the

foregoing principle. Congress’ directions (in § 2103) that

the Commuting Act be given retroactive effect® and that

pending claims for travel-based overtime compensation

under the FLSA be extinguished have posed three (3)

important questions under the Takings and Due Process

Clauses of the Fifth Amendment to the Constitution, as

interpreted in Eastern Enterprises:

First, has § 2103 of the Commuting Act forced a

considerable economic or financial burden upon those

whose claims for travel-based overtime compensation

have been extinguished?

Second, has § 2103 of the Commuting Act interfered

with the reasonable investment-backed expectations of

those whose claims for travel-based overtime compensa-

tion have been extinguished?

Third, does § 2103 of the Commuting Act implicate

fundamental principles of fairness underlying the Tak-

ings and Due Process Clauses of the Fifth Amendment to

the Constitution?

Eastern Enterprises stands as this Court's first invalida-

tion of federal legislation by reason of its retroactivity.

Ind. 1996), the District Court held that the participants in an

HDP identical to those of Respondents were entitled to travel-

related overtime compensation under the FLSA. As noted in

House Report 104-585, 104th Congress, 2d Session, May 20,

1996, in enacting the Commuting Act, Congress intended to

overrule that decision, which was reversed in Baker v. GTE North

Incorporated, 110 F.3d 28 (7th Cir. 1997). The Seventh Circuit held

that the Commuting Act was retroactive and had extinguished

the claimants’ entitlements to travel-related overtime

compensation under the FLSA.

ee —

Petitioners, in prosecuting their appeal to the Sixth Circuit,

could not have anticipated such a dramatic development

in this Court’s approach to the Takings and Due Process

Clauses of the Fifth Amendment to the Constitution.’

Prior to the expiration of their time in which to seek

review of the April 3, 1998, judgment of the Court of

Appeals, Petitioners (in their application to Justice

Stevens for an extension of time) signaled to this Court

their reliance upon the decision in Eastern Enterprises for

the proposition that § 2103 of the Commuting Act is

unconstitutional. Under these circumstances, Petitioners

should be permitted to challenge the constitutionality of

that statute.

Because this Court has established clear criteria in

Eastern Enterprises, Petitioners believe that the constitu-

tionality of § 2103 of the Commuting Act under the

Takings and Due Process Clauses of the Fifth Amendment

to the Constitution should be addressed, in the first

instance, by the Sixth Circuit.®

7 Analogously, in Johnson v. United States, 520 U.S. 461

(1997), this Court held that for purposes of Rule 52(b), Federal

Rules of Criminal Procedure, due to the intervening decision in

United States v. Gaudin, 515 U.S. 506 (1995), the District Court’s

failure to submit to the jury the issue of materiality in a perjury

prosecution constituted “plain error”, which was reviewable on

appeal notwithstanding the absence of a timely objection.

8 The Court of Appeals could, in its discretion, remand the

cause to the District Court for the entry of Eastern Enterprises-

based factual findings upon which Petitioners’ constitutional

claims would thereafter be evaluated.

Il.

BY GRANTING THE WRIT, THIS COURT WOULD

PRESERVE THE TRAVEL-BASED OVERTIME COM-

PENSATION CLAIMS OF THE AS YET UNIDEN-

TIFIED AND UN-NOTIFIED POTENTIAL MEMBERS

OF THE PLAINTIFF CLASS.

Between ten thousand (10,000) and twenty thousand

(20,000) current and former employees of BSCS and BST

participated in the MVUP and the HDP between 1991 and

1994. Of those, fewer than two thousand (2,000) have

filed “consents to join”. The remaining participants are as

yet unidentified and un-notified.

The result of the District Court’s entry of final sum-

mary judgment in favor of BSCS and BST was the nulli-

fication of its orders equitably tolling the FLSA’s statute

of limitations with respect to the travel-based overtime

compensation claims of the as yet unidentified and un-

notified potential members of the plaintiff class.

The Sixth Circuit purported to act in the interests of

those as yet unidentified and un-notified members of the

plaintiff class when it declined to consider Petitioners’

challenge to the District Court’s finding that the Com-

muting Act’s “normal commuting area for the employer’s

business” criterion had been satisfied. However, in so

ruling the Court of Appeals also permanently time-barred

the claims of those very persons.

Only by granting the Writ of Certiorari could this

Court insure that the as yet unidentified and un-notified

members of the plaintiff class would not be time-barred

from challenging the constitutionality of § 2103 of the

ea Te Teen nem

Commuting Act and from prosecuting their claims for

travel-related overtime compensation under the FLSA.

CONCLUSION

This Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit (Case No.

97-5122) should be granted.

Respectfully submitted,

LAWRENCE R. MeTscH

Counsel of Record

Metscu & Metscn, P.A.

1385 NW 15th Street

Miami, Florida 33125

(305) 545-6400

FAX: (305) 545-7224

ArTHUR W. TIFFORD

ArTHUR W. TirrorD, P.A.

1385 NW 15th Street

Miami, Florida 33125

(305) 545-7822

FAX: (305) 325-1825

ARTHUR J. MORBURGER

Penthouse I

155 South Miami Avenue

Miami, Florida 33130

(305) 374-3373

FAX: (305) 358-1755

Ira M. THomas

THomas & THOMAS, ATTORNEYS

77 Adams Avenue

Claridge House Apt. Building

Memphis, Tennessee 38103-1709

(901) 526-0000

FAX: (901) 526-0046

App. 1

NOT RECOMMENDED FOR PUBLICATION

No. 97-5122

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BARNEY DOYLE, et al.,

Plaintiffs-Appellants, ON APPEAL FROM

THE UNITED STATES

V. DISTRICT COURT

BELLSOUTH ie Maso det a gp

MMUNICATIONS

po a peal TENNESSEE

SYSTEMS, INC., et al.,

Defendants-Appellees. (Filed Apr. 3, 1998)

tll i i i i i i

Before MERRITT, CLAY, Circuit Judges; and BELL, Dis-

trict Judge*

MERRITT, Circuit Judge. Plaintiffs seek overtime

compensation under the Fair Labor Standards Act for

commuting in company-owned vehicles between home

and work sites. Plaintiffs are a group of installation and

repair technicians for the phone company who participate

in a voluntary “home dispatch program” that allows

them to travel to their first job directly from home and

from their last job directly to home without going to an

“office” to receive their assignments.

Specifically, this appeal concerns statutory construc-

tion of the Employee Commuting Flexibility Act of 1996,

* The Honorable Robert Holmes Bell, District Judge, United

States District Court for the Western District of Michigan, sitting

by designation.

App. 2

which amended Section 4(a) of the Portal-to-Portal Act of

1947, 29 U.S.C. § 254. Section 254 now provides that “the

use of an employer’s vehicle for travel by an employ-

ee . . . shall not be considered part of the employee’s

principal activities if the use of such vehicle for travel is

within the normal commuting area for the employer’s

business. . . . ” The amendment was expressly made

applicable to pending cases. 29 U.S.C. § 254(a) (“no

employer shall be subject to liability under the Fair Labor

Standards Act . . . on account of any of the following

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

1947... .”). The district court granted summary judg-

ment for defendants on the plain language of the statute.

Plaintiffs’ primary argument on appeal is that the

district court improperly interpreted the requirement of

the Employee Commuting Flexibility Act that the plain-

tiffs’ commute be within the “normal commuting area for

the employer’s business” if overtime compensation is to

be denied. Plaintiffs did not raise the present argument

below, and defendants correctly contend that the argu-

ment is waived. Counsel for plaintiffs candidly advised

the court at oral argumnemt that new lawyers have come

into the case on appeal and have substantially changed

the theory of their case. If this court now adopted plain-

tiffs’ new arguments, the court would have to remand to

the court below a new fact issue about the scope of the

“normal commuting area” and new legal issues concern-

ing the burden of proof on this question. These issues

were not litigated in the court below, and the parties

agree that millions of dollars in damages may ride on

how these issues are decided. This is not a class action,

but our determination of these new issues could become

App. 3

a precedent binding thousands of employees of the

defendants. Under these circumstances we believe it

unwise and inappropriate to consider plaintiffs’ new the-

ory for the first time on appeal.

The failure to raise the issue below is fatal to plain-

tiffs’ appeal. In general, issues not presented to the dis-

trict court but raised for the first time on appeal are not

properly before the Court. Taft Broadcasting Corp. v. United

States, 929 F.2d 240, 243-45 (6th Cir. 1991); J.C. Wyckoff &

Assoc. v. Standard Fire Ins., 936 F.2d 1474, 1488 (6th Cir.

1991). In cases where there are unusual circumstances or

where the failure of this Court to address the issue would

result in a miscarriage of justice we may deviate from the

general rule. Taft, 929 F.2d at 245. This case presents no

such situation. Accordingly, we affirm the judgment of

the district court. -

App. 4

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT FOR TENNESSEE

WESTERN DIVISION

BARNEY DOYLE, for and in ]

behalf of himself and other ]

employees similarly situated, ]

]

Plaintiff,

vs. Civil No.

BELLSOUTH COMMUNICATION! 94-2978-H/A

SYSTEMS, INC., a subsidiary of !

BELLSOUTH CORPORATION, !

d/b/a BELLSOUTH

TELECOMMUNICATIONS,

Defendants.

JOSEPH CUNETTA, et al.,

Plaintiffs,

vs.

BELLSOUTH

TELECOMMUNICATIONS, INC.,

d/b/a SOUTHERN BELL

TELEPHONE AND TELEGRAPH, !

Co., .

Defendant. ]

No.

]

J 95-2372-H/BRE

JOINT ORDER OF CONSOLIDATION AND

ORDER TOLLING STATUTE OF LIMITATIONS

(Filed May 22, 1995)

In accordance with Rule 42(a) of the Federal Rules of

Civil Procedure, the Court concludes the above actions

App. 5

share common questions of law and fact and should be

consolidated for pretrial proceedings. It further appears

these actions may share the same or related corporate

entities as defendants. Accordingly, the Court hereby

CONSOLIDATES these cases for pretrial proceedings.

The Court may review this ruling at a later time should

circumstances warrant such action.

The parties are instructed to file all pleadings using

the lead case style of Doyle et al., v. BellSouth, et al., No.

94-2978, USDC (W.D.Tenn.). The parties should only use

the docket number for the Doyle case, No. 94-2978-H/A,

on all pleadings. The Clerk shall make the appropriate

changes to the docket sheets and see that all the attorneys

for both cases receive copies of any orders or action taken

in these cases. Out of town counsel may participate in

any pretrial scheduling conferences by telephone upon

request and where appropriate.

Tolling the Statute of Limitations

These cases involve a dispute over compensation

allegedly due plaintiffs for work done in excess of their

regularly scheduled forty hour work week. Plaintiffs and

others similarly situated employees of the defendants

claim they are entitled to compensation for the time spent

traveling to and from their residences to different work

locations using company vehicles under defendants’

“Motor Vehicle Usage Program” (“MVUP”). Plaintiffs

also seek compensation for time spent preparing to go on

these job sites and other activities. Plaintiffs filed this

App. 6

action pursuant to Section 16(b) of the Fair Labor Stan-

dards Act of 1938 (the “Act” or “FLSA”), 29 U.S.C.

§ 216(b) as amended.

On May 17, 1995, an initial scheduling conference

was held in case no. 94-2978. At the conference, plaintiffs’

counsel indicated that pursuant to, 29 U.S.C. § 255(a)!, a

two year statute of limitation period continues to run

against any potential plaintiff until that individual files

suit or “opts into” the class maintaining the action. Plain-

tiffs’ counsel also indicated that the two year period

limits damages to the unpaid wages that have accrued

two years prior to the time of filing suit or “opting into”

the class.

It further appears that there is a dispute as to who is

a proper member of the class. Until this issue is resolved,

the potential plaintiffs cannot be notified nor can it be

determined whether they wish to “opt into” this litiga-

tion. Therefore, based on the above, the Court is faced

with potential plaintiffs who may or may not wish to “opt

into” this litigation and a statute of limitations that con-

tinues to run against these potential plaintiffs, if any,

limiting their damages, if any.

The Court clearly possesses the authority to manage

this action including authorization to send notice to any

potential plaintiffs and approval of such notice. See,

Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 110 S.Ct.

1 The Court assumes this section of the Act provides the

applicable statute of limitation period as neither the attorneys

or the Court have had the opportunity to brief or review this

issue. It is agreed upon that a two year statute of limitation

period is running against potential plaintiffs.

App. 7

482, 107 L.Ed.2d 480 (1989). The Court also has the

authority to require the defendant employers to identify

all potential plaintiff class members through discovery.

id. It further appears that the two year statute of limita-

tion, 29 U.S.C. § 255(a), is a procedural limitation rather

than substantive. See, Partlow v. Jewish Orphuns’ Home of

Souther [sic] Cal., 645 F.2d 757, 760 (9th Cir. 1981), cf., Ott

v. Midland-Ross Corporation, 523 F.2d 1367, 1370 (6th Cir.

1975).

The ADEA incorporates the enforcement provisions

of the Fair Labor Standards Act, 52 Stat. 1060, as

amended, 29 U.S.C. § 201 et seq. (1982 ed. and Supp. V).

Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 167, 110

S.Ct. 482, 485, 107 L.Ed.2d 480 (1989). The district court,

in Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 110

S.Ct. 482, 107 L.Ed.2d 480 (1989), concluded the statute of

limitations governing ADEA claims could be tolled by

equitable considerations. See, Sperling v. Hoffmann-La

Roche, Inc., 118 E.R.D. 392, 410 (1988). There, the Court

found, although not deciding the issue, that plaintiffs

presented a facially compelling case for equitable tolling,

in part, based on delay occasioned by the Court issuing

its ruling on the class membership issue. Id. ER.D. at

410-11.

Based on the circumstances of this case and upon

review of the above case law, the Court concludes it

should toll the statute of limitations until the class mem-

bership issue is resolved. The Court takes this action as a

precautionary measure to avoid prejudice to those poten-

tial plaintiffs who are not currently before the Court. The

Court also finds that the purpose of the statute of limita-

tion will not be frustrated by the Court's action as the

App. 8

statute is designed to ensure fairness to defendants and

to notify them of claims that they must defend before the

claims grow stale. See, Partlow v. Jewish Orphans’ Home of

Souther [sic] Cal., 645 F.2d 757 (9th Cir. 1981) (citation

omitted). This ruling does not preclude the Court from

reviewing its decision at a later time according to the

facts and merits as to each potential plaintiff/class mem-

ber. See, Sperling v. Hoffmann-La Roche, Inc., 118 F.R.D. 392,

410-11 (1988). Tolling the statute of limitations at this time

will allow both sides to properly address and brief the

issue and permit the Court to more carefully consider the

issue.

Accordingly, the statute of limitations as to all poten-

tial plaintiffs in both these actions shall be tolled from

date of entry of this order until the class membership

issue has been determined and each respective plaintiff

receives notice of this litigation. The parties will be

allowed to brief this issue and the Court may modify,

expand and/or vacate this decision at a later time.

IT IS SO ORDERED, this the 22 day of May, 1995.

/s/ Odell Horton

ODELL HORTON, JUDGE

UNITED STATES DISTRICT COURT

App. 9

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

BARNEY DOYLE,-et al.,

Plaintiffs,

Vs. No. 94-2978-D

BELLSOUTH COMMUNICATION

SYSTEMS, INC., a subsidiary of

BELLSOUTH CORPORATION,

d/b/a BELLSOUTH

TELECOMMUNICATIONS, et al.,

Defendants.

ORDER ON DEFENDANTS’ MOTIONS FOR

RECONSIDERATION OF STATUTE OF

LIMITATIONS TOLLING ISSUE

(Filed Jun. 13, 1996)

Before the court are the motions of defendants

BellSouth Communication Systems, Inc. (BCS) and

BellSouth Telecommunications, Inc. (BST) (collectively,

“the defendants” or “BellSouth”), for reconsideration of

the court’s May 23, 1995 Joint Order Of Consolidation

And Order Tolling Statute Of Limitations.

FACTS AND PROCEDURAL POSTURE

This consolidated case involves a dispute over com-

pensation allegedly due the plaintiffs for time spent trav-

eling to and from their residences and different work

App. 10

locations in company vehicles under the defendants’

home dispatch program, as well as time spent preparing

to go on these job sites. The underlying action is brought

under section 16(b) [29 U.S.C. § 216(b)] of the Fair Labor

Standards Act of 1938, as amended, 29 U.S.C. § 201, et

seq., (FLSA).

The plaintiffs have sought discovery of all potential

plaintiffs (i.e., similarly situated employees) in the nine-

state area where the defendants do business.'! According

to the plaintiffs, the class of potential plaintiffs includes

all BellSouth employees in the entire nine-state region

who participated in the home dispatch program at any

time during the three-year period preceding November

23, 1994, when the earlier of the two cases consolidated

into the present case was filed. The defendants have

disclosed at least 25 names of employees similarly situ-

ated to the plaintiffs.

The defendants claim that they have made a good

faith effort to comply with their disclosure requirements

by producing lists of the names and whereabouts of

employees similarly situated to the plaintiffs, both in the

Memphis area and in the Miami area. The defendants

state, furthermore, that they are painstakingly trying to

respond to the plaintiffs’ discovery request as quickly as

possible. The defendants assert that they have no central

historical database indicating home dispatch status for

individual employees for the relevant time period, and

that BellSouth is attempting to compile this information

1 Alabama, Florida, Georgia, Kentucky, Louisiana,

Mississippi, North Carolina, South Carolina and Tennessee.

App. 11

through a search of historical fleet maintenance records.

The defendants claim to have nearly completed a list of

approximately 5,000 employees in the nine-state area who

may have participated in the home dispatch program

during the relevant time period. The defendants repre-

sent that they are willing to produce the list when com-

plete, subject to a protective order and pending a

determination by the court of who is similarly situated.

In its sua sponte Order, the court tolled the two year

statute of limitations under 29 U.S.C. § 255(a). In so

ruling, the court weighed the harm to the defendants in

tolling the statute of limitations against the harm which

would be occasioned upon the entire class of potential

plaintiffs should the statute of limitations be allowed to

run. The court found that, because the § 255(a) limitation

was fundamentally procedural rather than substantive in

nature, and because the defendants were not prejudiced

by the tolling in that they were on notice of the nature

and extent of the potential claims against them, tolling

the statute of limitations was warranted as an equitable,

precautionary measure to avoid prejudice to those poten-

tial plaintiffs who were not currently before the court,

until the class certification issue could be determined and

each potential plaintiff received notice of the pending

litigation was warranted. The court reserved the right to

review and modify or vacate its decision in light of the

parties’ briefs, the totality of facts and circumstances

surrounding this case, and the facts and merits of each

potential plaintiff/class member as these persons came to

be known.

App. 12

DISCUSSION

The court maintains that it clearly possesses the

authority to manage the action, including the power of

approval over any proposed notice and even the power to

send notice to any potential plaintiff. See Hoffman-La

Roche, Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482, 107

L.Ed.2d 480 (1989). Sperling was [an] action brought

under the Age Discrimination in Employment Act of

1967, as amended, 29 U.S.C. § 621, et seq., (ADEA). Plain-

tiffs allegedly discharged or demoted on account of their

age attempted to “certify” a class under 29 U.S.C.

§ 216(b), as incorporated into the ADEA by 29 U.S.C.

§ 626(b). The district court held that it was not inconsis-

tent with the Congress’ restrictive intent behind the Por-

tal-to-Portal Act of 1947, 29 U.S.C. § 251, et seq., and

broad remedial intent behind the FLSA and the ADEA to

equitably toll the two-year statute of limitations in 29

U.S.C. § 255(a) or to send notice to putative class mem-

bers. Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392,

410, aff'd 862 F.2d 439 (3rd Cir. 1988), aff'd, 493 U.S. 165

(1989), supra. On a certified interlocutory appeal, the

court of appeals stated that the notice issue “arises under

both the FLSA and the ADEA.” 862 F.2d at 444. The court

of appeals went on to posit that “there is no legal impedi-

ment to court authorized notice in an appropriate case.”

Id. at 447; see Braunstein v. Eastern Photographic Labs, 600

F.2d 335 (2nd Cir. 1978) (per curiam), cert. denied, 441 U.S.

944, 99 S.Ct. 2162, 60 L.Ed.2d 1046 (1979); see also United

States v. Cook, 795 F.2d 987 (Fed. Cir. 1986). The Supreme

Court went one step further than the court of appeals, to

state decisively that, pursuant to Fed. R. Civ. P. 83, district

App. 13

courts have a managerial responsibility to assure that

joinder of additional parties in representative or class

action is done in an efficient and proper way. 493 U.S. at

170-74. Furthermore, the Court opined that, because the

trial court is inevitably involved in cases where there are

numerous plaintiffs entering written consents, early judi-

cial intervention in case management (e.g., notice require-

ments) better defines the contours of the action and

thereby benefits the parties. Id. at 171-72. Important con-

siderations of benefit to the court include (1) avoiding a

multiplicity of duplicative suits, (2) promoting settling,

and (3) expediting the disposition of the action. Id. at 172.

The defendants argue that a later disposition of Sper-

ling by the Third Circuit Court of Appeals in 1994, at 24

F.3d 463, drawing a distinction between the opt-in provi-

sions of section 7 [29 U.S.C. § 257] of the Portal-to-Portal

Act and the opt-out provisions of Fed. R. Civ. P. 23

incorporated into class actions brought under Title VII, a

progenitor of ADEA, see Sperling, 24 F.3d at 470, should

persuade the court that legal tolling under the FLSA in a

non-ADEA action is contrary to Congressional intent. The

court is not so persuaded.

In its 1947 enactment of the Portal-to-Portal Act, the

Congress responded to the Supreme Court's decision in

Anderson v. Mount Clemens Pottery Co., 328 US. 680, 66

S.Ct. 487, 90 L.Ed. 1515 (1946). See 29 U.S.C. § 251 (Con-

gress included, within section 1 [29 U.S.C. § 251] of the

Portal-to-Portal Act, a statement of its findings and policy

regarding the perceived need for the act); see also Cook,

795 F.2d at 990-91. Courts have generally construed the

Congressional intent in the Portal-to-Portal Act as an

emergency measure meant to foreclose retroactively the

App. 14

thousands of FLSA suits filed in the wake of the Court’s

1946 Anderson decision, which decision the Congress

found to extend beyond the scope of legislative intent in

the 1938 passage of the FLSA. See 29 U.S.C. § 251; Sper-

ling, 493 U.S. at 173, 110 S.Ct. at 488; see also Cook, 795 F.2d

at 990-91.

The Cook decision is illustrative of the majority view

that, although the Congress intended the Portal-to-Portal

Act to eliminate champertous representative actions

brought under the FLSA following Anderson, the act does

not evidence any intention on the part of Congress to

curb courts’ authority to order production of names and

addresses of potential class members to facilitate notify-

ing them of a pending FLSA action. Cook, 795 F.2d at 991;

accord Sperling, 493 U.S. at 173, 110 S.Ct. at 488; Partlow v.

Jewish Orphans’ Home of Southern California, Inc., 645 F.2d

757 (9th Cir. 1981); Braunstein, 600 F.2d at 336.

In the administration of an FLSA action, this court

clearly possesses the authority to require of the defen-

dants disclosure of the names and addresses of potential

class members. To date, the defendants have failed to

produce, to the satisfaction of the court, the names and

addresses of potential class members who should receive

notice of the pending action. Although 29 U.S.C. § 257

does not provide by its plain language tolling of the

limitations period under § 255 of the same title, with

regard to an individual not specifically named as a party

plaintiff, in any instance other than the filing of a consent

to become a party plaintiff, “[i]t is well established that

equitable tolling is read into every federal statute of

limitation.” Ott v. Midland-Ross Corp., 600 F.2d 24 (6th Cir.

1979).

App. 15

CONCLUSION

After a thorough review of the record and law, the

court finds that the equities warrant tolling of the limita-

tions period as to all potential claimants until such time

as the defendants comply with the court’s order to pro-

duce the names and addresses of all potential class mem-

bers. The court herein defines “potential class members”

as any of the defendants’ present or former employees, in

the nine-state area, supra note 1, who were non-salaried

and non-management during the relevant period and

engaged in the defendant’s program generally referred to

as “home dispatch”. The court will then decide who is,

and who is not, similarly situated. Furthermore, the May

23, 1995 Order Tolling Statute Of Limitations is subject to

review according to each potential plaintiff/class mem-

ber’s facts and merits, and subject to be modified,

expanded or vacated, in whole or in part, at any time by

this court.

IT IS SO ORDERED this 12th day of June, 1996.

/s/ Bernice Bouie Donald

BERNICE BOUIE DONALD

UNITED STATES DISTRICT JUDGE

App. 16

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

BARNEY DOYLE, et al.,

and Case No. 94-2978-D

JOSEPH CUNETTA, et al.,

Plaintiffs,

VS.

BELLSOUTH COMMUNICATIONS SYSTEMS,

INC., a subsidiary of BELLSOUTH

CORPORATION d/b/a BELLSOUTH

TELECOMMUNICATIONS,

and

BELLSOUTH TELECOMMUNICATIONS, INC.

d/b/a SOUTHERN BELL TELEPHONE

AND TELEGRAPH COMPANY,

Defendants.

ORDER ON DEFENDANTS’ BELLSOUTH

COMMUNICATION SYSTEMS, INC. AND

BELLSOUTH TELECOMMUNICATIONS, INC.;

MOTIONS FOR SUMMARY JUDGMENT

(Filed Dec. 3, 1996)

Before the court are motions for Summary Judgment

under Fed. R. Civ. P. 56(c) filed by Defendants BeilSouth

Communications systems, Inc., (“BSC”) and BellSouth

Telecommunications, Inc. (“BST”) alleging that Plaintiffs’

App. 17

claims are barred by the Employee Commuting Flexibility

Act of 1996.

The basic facts for purposes of this motion are undis-

puted and are set forth in Defendants’ memorandum. The

court accepts those as true for purposes of this motion.

STATEMENT OF UNDISPUTED MATERIAL FACT S

Plaintiffs are BST or BSC employees who borrowed

BST or BSC vehicles to commute to work. Plaintiffs who

participated in this “home dispatch” program allege that

the time they spent commuting from home to work and

from work to home in the company owned vehicle consti-

tuted compensable hours worked. (Complaint.)

Plaintiffs borrowed these vehicles pursuant to an

agreement reached in 1984 between the Communications

Workers of America (“CWA”) and BST. (Article 9.07, pp.

154 ff. of the Collective Bargaining Agreement (“CBA”);

excerpts from CBA attached as Exhibit 1)). This agree-

ment specified that participants in the home dispatch

program would not be paid for the drive between their

residence and their work locations. (CBA Article 9.07 F, p.

158).

Pursuant to the CBA, the home dispatch participants’

commute to their first assignment was limited to a maxi-

mum of 35 miles. (CBA Article 9.07 C.1 and 9.07 E, pp.

155, 157). This distance was negotiated to ensure that

home dispatch participants would not have to drive fur-

ther than non-home dispatch Participants. (Affidavit of

Ronald Fairbanks, { 13, attached as Exhibit 2). The CBA

also allowed the union and BST and BSC to negotiate a

App. 18

shorter maximum commute if warranted by urban con-

gestion or natural barriers. Id., (CBA Article 9.07 E. 1, 2,

pp. 157-58). Furthermore, a computer program was uti-

lized which gave home dispatch participants a first and

last assignment as close as possible to their home. (Fair-

banks Aff., { 13). As a result, home dispatch participants’

commutes were within the normal distances driven by

the BST employees who did not elect to borrow company

vehicles to commute from their homes to work and work

to home. Id.

SUMMARY JUDGMENT

Summary Judgment pursuant to Federal Rules of

Civil Procedure 56 is appropriate “if the pleadings, depo-

sitions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). The party moving for summary

judgment “bears the burden of clearly and convincingly

establishing the nonexistence of any genuine issue of

material fact, and the evidence as well as all inferences

therefrom must be read in a light most favorable to the

party opposing the motion.” Kochins v. Linden-Alimark,

Inc., 799 F.2d 1128, 1133 (6th Cir. 1986). The burden on the

party moving for summary judgment may be discharged

by pointing out that there is an absence of evidence to

support the nonmovinbg party’s case.” Kauffman v. Allied

Signal, Inc., Autolite Div., 970 F.2d 178, 182 (6th Cir.), cert.

denied, 113 S.Ct. 831 (1992) (the moving party need not

App. 19

support its motion with affidavits or other similar mate-

rials “negating” the opponent's claim) (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

When confronted with a properly supported motion

for summary judgment, the nonmoving party must set

forth specific facts showing that there is a genuine issue

for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A genuine issue for trial exists if the evidence is

such that a reasonable trier of fact could return a verdict

for the nonmoving party. Id. The party opposing the

motion must “do more than simply show that there is

some meta-physical doubt as to the material facts.” Mat-

sushita Electrical Industrial Co. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986). In short, the nonmoving party may

not oppose a properly supported motion for summary

judgment by mere reliance on the pleadings. Celotex, 477

U.S. at 324. “[I]n the ‘new era’ of summary judgments

that has evolved from the holdings of the Supreme Court

in Anderson, Celotex and Matsushita, trial courts have been

afforded considerably more discretion in evaluating the

weight of the nonmoving party’s evidence.” Cox v. Ken-

tucky Dep't of Trans., 53 F.3d 146, 150 (6th Cir. 1995). “If

the record taken in its entirety could not convince a

rational trier of fact to return a verdict in favor of the

nonmoving party, the motion must be granted. Id.

This case arose because of a determination or opinion

by the Department of Labor (“DOL”) that commuting

time for an employee is compensable. (August 5, 1994

DOL letter).

On August 2, 1996, Congress passed the Employee

Commuting Flexibility Act of 1996 (“The Act”), which

App. 20

was signed into law and became effective August 20,

1996. The Act amended Section 4(a) of the Portal-to-

Portal Act, 29 U.S.C. § 254. Section 254(a) makes clear that

commuting in an employer owned vehicle does not create

compensable time.

Specifically the Act provides:

Section 4(a) of the Portal-to-Portal Act of 1947

(29 U.S.C. 254(a)) is amended by adding at the

end the following: “For purposes of this subsec-

tion, the use of an employer’s vehicle for travel

by an employee and activities performed by an

employee which are incidental to the use of such

vehicle for commuting shall not be considered

part of the employee's principal activities if the

use of such vehicle for travel is within the nor-

mal commuting area for the employer’s busi-

ness or establishment and the use of the

employer’s vehicle is subject to an agreement on

the part of the employer and the employee or

representative of such employee.”

Congress expressly made the Act applicable to exis-

ting or pending cases, and thus retroactive. The instant

action was filed November 23, 1994, and is unequivocally

covered in time by the legislation.

The Act provides two criteria: (1) the use of [the

emy'.»yer’s] vehicle must be within the normal commut-

ing area for the employer’s business or establishment,

and (2) the use must be subject to an agreement on the

part of the employer and employee or representative of

the employer.

At all times relevant to the events in question, a

Collective Bargaining Agreement (“CBA”) was in effect

App. 21

between Plaintiffs and Defendants, and the CWA was the

duly authorized bargaining agent for the Plaintiffs’

claims. (Ex. 2, Defendants’ Memorandum of Law). The

subject activity, the home dispatch program, was covered

by the Collective Bargaining Agreement.

As a part of the 1992 CBA, Defendants implemented

a motor vehicle usage prograr. which was described with

particularity at Section 9.07 of tte CBA, and governed by

the CBA.

The motor vehicle usage or home dispatch program

was negotiated with the CWA in 1984. The program was

subsequently implemented at various intervals in dis-

tricts across the region. (Fairbank’s Affidavit { 3).

Thus, the requirement that the use be subject to an

agreement on the part of the employer/employee is satis-

fied.

Next, the court must examine whether the use is

“within the normal commuting area for the employer’s

business.” Pursuant to the CBA, home dispatch partici-

pants’ commute to their first assignment was limited to

35 miles. (CBA Art. 9.07 C.1 and 9.07 E; Fairbanks Affi-

davit { 13) For trips above 34 miles, the CBA provided

that home dispatch employees would be paid a travel

premium (Fairbank’s Affidavit { 13), and Ex 2 to BSC’s

motion for Summary Judgment. Thus from the pleadings,

affidavits, and undisputed facts, the court finds that the

commute for home dispatch employees would not be any

longer than for non home dispatch employees. Where the

commute exceeded the negotiated range, the contract

provided for a travel premium. Thus, the court finds that

this prong of the test has been satisfied.

App. 22

Plaintiffs contend that notwithstanding the legisla-

tion, there exists genuine issues of material fact such that

Summary Judgment would be improper. Specifically,

Plaintiffs aver that an issue exists as to whether the

Plaintiffs used company vehicles for a purpose other than

for travel which was integral and indispensable to their

principal activities and which benefitted BSC and BST.

Plaintiffs postulate:

[t]he plain meaning of the 1996 amendment to

the Portal Act is that an employee who uses an

employer’s vehicle solely “for travel” is not enti-

tled to compensation therefor under the Fair

Labor Standards Act. By inference, however, an

employee who uses an employer’s vehicle “for

travel” and for another purpose “integral and

indispensable” to his or her “principal activity”

which benefits his or her employer is entitled to

receive [overtime] compensation under the Fair

Labor Standards Act for his or her performance

of the latter function.

(Plaintiff’s Response to Defendants’ Summary Judgment

motion).

Plaintiffs argue that there exists a genuine issue of

material fact whether Plaintiffs, as participants in the BSC

and BST Home Dispatch Programs, satisfied the “another

purpose” criterion when they transported tools and

equipment in company vehicles to and from the work

sites designated by BSC and BST.

A fundamental rule of statutory construction is

where a statute is clear and unambiguous on its face, the

court should not resort to legislative intent. The wording

of the subject Act is clear and unambiguous in that it

App. 23

provides “the use of an employee’s vehicle for travel by

an employee and activities . .. which are incidental to the

use of such vehicle for commuting shall not be consid-

ered part of the employer’s principle activities . . . ” The

home dispatch policy and the CBA’s “defined” use is

consistent with the language of the Act. Plaintiff has not

provided any affidavits, or other statements to evince a

use contrary to that described in the CBA and contem-

plated by the Act.

In the fact of a properly supported motion for Sum-

mary Judgment, the non-moving party may not simply

rely on the pleadings or conclusionary statements. Celotex

v. Catrett, 477 U.S. 317, 324. The non-moving party must

set forth specific facts showing that there is a genuine

issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

Plaintiffs have sought to create a issue by construing

the language of the Act such that a heightened require-

ment is produced. However, having attempted to recast

the statute, Plaintiffs have failed to set forth any facts,

properly supported, on which a reasonable trier of fact

could find for Plaintiffs. Thus, the court finds that Plain-

tiffs have failed to show the existence of a genuine issue

of material fact.

Next, Plaintiffs argue there exists a genuine issue of

material fact whether plaintiffs were “commuting” while

they participated in the BSC and BST Home Dispatch

Programs. To support this position, Plaintiffs state that

prior to its amendment in 1996, § 4(a) of the Portal Act, 29

U.S.C. § 254(a), introduced, but did not define, that term.

Plaintiffs contend that the term “commuting”, as used in

App. 24

the amended § 4(a) of the Portal Act, 29 U.S.C. § 254(a),

does not apply to their daily travels in BSC and BST

vehicles from their homes to their first work sites and

from their last work sites to their homes because their

first and last work sites varied from day-to-day.

In construing the statute, words and phrases should

be given their ordinary meaning based on custom and

usage. The word commute is to, inter alia, “travel back

and forth regularly or frequently.” Webster's Third New

International Dictionary (3d ed. 1981). Thus, the fact that a

different synonym may have been sued in the Portal-to-

Portal Act does not negate the meaning of the Act. Thus,

no genuine issue of fact is created as to whether Plaintiffs

were in fact engage [sic] in commuting.

Next, Plaintiffs argue that there exists a genuine issue

of material fact whether plaintiffs were engaged in a

“principal activity” when they received their daily first

job assignments from BSC and BST by electronic means

“off the clock” also known as “commute time.”

Plaintiffs have produced no facts to support this

proposition. The affidavits of Max Logan, Ronald Fair-

banks, and the undisputed facts show that the activity

described by Plaintiffs as “commute time” is incidental to

the Plaintiffs use of the employer’s vehicle for commut-

ing. Plaintiffs cite and rely on Baker v. GTE North, Inc., 927

F. Supp. 1104 (N.D. Ind. 1966), however, the facts in Baker

v. GTE are distinguishable from the case at bar. Moreover,

Congress in enacting the subject litigation, overruled

Baker v. GTE, In Baker, the court found:

that the plaintiff electricians’ pre-shift activities,

including the filling out time sheets, checking

App. 25

job locations, cleaning out and loading their

trucks with the necessary materials, fueling the

trucks, and picking up the electrical plans for

the day’s jobs, were within the broad range of

“principal activities” performed at their

employer’s behest and for the benefit of the

business.” These activities would have been

compensable had they been performed during

the course of the workday.”

927 F. Supp. at 1112.

The objective proof as set forth in defense affidavits

militates against such a finding.

If a technician did not wish to borrow his BST

[or BSC] vehicle for commuting, he was

required to leave his vehicle overnight at a BST

{or BSC] marshaling yard. He would drive his

personal car to the yard in the morning, where

he would pick up his portable computer termi-

nal (with the first assignment) and his truck. His

compensable work time began at this point, He

would then proceed through the work day, peri-

odically receiving new assignment on his com-

puter. At the end of the day, he would drive his

truck back to the yard, where his compensable

work day ended. He would then commute home

in his personal car.

An employee who elected to borrow his BST [or

BSC] vehicle under the home dispatch program

parked his BST [or BSC] vehicle at home. He

received his first assignment at home on a porta-

ble computer — a process which took at most a

minute or two, and which on many computers

was completely automated and took no time at

all. He made no report to BST or [BSC]; he merely

received the location of his first work site for the day.

App. 26

He traveled to the first assignment in the bor-

rowed truck. His compensable work time star-

ted when he reached his first work site. He then

proceeded through his day like any other tech-

nician. His compensable time ended as he left

his last work site to drive the truck home.

(Emphasis added)

Home dispatch employees in almost all

instances drove ordinary mini-vans, vans, and

pickups. The BST [or BSC] vehicles’ complement

of options was similar to that which one might

find on any ordinary mini-van, or pickup. BST’s

[and BSC’s] vehicles had automatic transmis-

sions, power steering, power brakes, radios,

etc. ...

During the periods at issue in this lawsuit, home

dispatch had no duties related to the BST [or

BSC] vehicle while they were at home or during

the drive to/from work. They were expressly

instructed not to wash the truck, fuel the truck,

service the truck, inspect the truck, etc., at home

or during their commute. These tasks only were

to be performed during the work day while the

employee was on the clock.

The nature of the tools which each BST [and

BSC] vehicle carried varied with the driver’s job

duties. Some trucks carried ladders and wire, as

well as having built-in drawers for storage of

small parts. However, other trucks carried much

less. None of the tools or supplies which any

home dispatch employee carried made during

the BST [or BSC] vehicle in any way more diffi-

cult than the vehicle would have been without

the tools and supplies. None of the hand tools or

supplies required any attention or maintenance

App. 27

from the driver while the driver was commuting

to and from work.

** *

By agreement with the union, home dispatch

employees’ commute from home to their first

assignment or from their last assignment was

less than 35 miles. For trips above 35 miles, the

union contract specified that home dispatch

employees would be paid a travel premium. In

congested urban areas, the union had the option

to negotiate a shorter distance which would trig-

ger the travel premium. Furthermore, BST [and

BSC] programmed its job-assignment computer

to each home dispatch employee a first and last

job which was a [sic] close as possible to his

home. It was BST’s [and BSC] experience that by

virtue of this computer program, home dispatch

employees’ commutes were shorter than non-

home dispatch employees’ commutes to and

from the marshaling yards. BST’s [and BSC’s]

reason for this computer program was prag-

matic; it wanted to minimize the mileage on the

borrowed trucks.

Employees who borrowed a BST or [BSC] truck

were asked not to carry alcohol in the truck and

not to carry unauthorized passengers. The rea-

son for this was to minimize BST’s [and BSC’s]

additional liability exposure by virtue of letting

its employees borrow BST [or BSC] trucks for

commuting.

BST [nor BSC] employees were not required to

wear any sort of uniform during the period at

issue in this suit, either during the work day or

during their commute. BST [and BSC] subsi-

dized the purchase of work shirts for

employees, and many employees wore these

App. 28

shirts. However, wearing these shirts was at

each employee's discretion, and many chose not

to wear them.

(Affidavit of Ronald Fairbanks); See also, Affidavit of

Max Logan.

Based on the foregoing affidavits, the court finds that

Plaintiffs did not engage in any compensable activity

incidental to their use of the employer’s vehicle. Thus,

there exists no genuine issue of material fact as to this

point.

Finally, Plaintiffs contend that in the absence of legis-

lative findings, the due process clause bars the retroactive

application of the Act. The court finds this argument to

be contrary to well settled law, and therfore without

merit. Congress has the power to enact legislation that

has retrospective application. Landgraf v. USI Film Prod-

ucts, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed. 2d 229 (1994).

Where the temporal effect of a statute is manifest on

its face, there is no need to resort to judicial default rules

for determining retroactive effect, and the inquiry ends.

Lockheed v. Spink, 116 S.Ct. 1783 (1996). When Congress

includes a provision that specifically addresses the tem-

poral effect of the statute, that provision trumps any

inferences that may be drawn. Id. Congress stated

unequivocally that the Act applied to litigation pending

at the time of the legislation.

App. 29

CONCLUSION

Based on all the foregoing, there exists no genuine

issue as to any material fact such that defendants BSC

and BST are entitled to judgment as a matter of law. The

Clerk is ordered to enter judgment this 3rd day of Decem-

ber 1996.

/s/ Bernice B. Donald

BERNICE B. DONALD

UNITED STATES

DISTRICT JUDGE

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