Opposition Brief — Doyle v. BellSouth Communications Systems, Inc.

No. 98-359

—=Str 2s 1996

in The

OFFICE OF THE CLERK

Supreme Court of the United-States

October Term, 1997

+

BARNEY DOYLE, et al. and

JOSEPH CUNETTA, et al.,

Petitioners,

BELLSOUTH._TELECOMMUNICATIONS, INC. and

BELLSOUTH COMMUNICATION SYSTEMS, INC.,

Respondents.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

«

RESPONDENTS’ BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

*

MicHaet C. Towers

Counsel of Record

FisHeR & Puiturrs LLP

945 East Paces Ferry Road

Atlanta, Georgia 30326

(404) 240-4289

Attorney for Respondent BellSouth

Telecommunications, Inc.

THomas L. HENDERSON

Lewis, FisHeR, HENDERSON

& CLAxTon, PLLC

5050 Poplar Avenue, Suite 1717

Memphis, Tennessee 38157

(901) 767-6160

Attorney for Respondent BellSouth

Communication Systems, Inc.

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED:

May Petitioners raise before this Court an argument —

which they specifically waived before the United

States Court of Appeals for the Sixth Circuit?

Is certiorari appropriate to hear Petitioners’ constitu-

tional attack on a federal statute when neither Peti-

tioners, nor the District Court, nor the Circuit Court,

timely notified the Attorney General of the constitu-

tional attack to allow the United States to intervene,

in contravention of 28 U.S.C. § 2403(a) and Federal

Rule of Appellate Procedure 44?

Was the District Court’s application of existing law in

granting BST summary judgment a “retroactive”

application of the law, and, if so, was that “retroac-

tive” application of the law constitutional?

ii

LIST OF PARTIES

RESPONDENT BELLSOUTH TELECOMMUNICATIONS,

INC.

Its Parent company: BellSouth Corporation

Its Partially-owned

subsidiaries: Movicel S.A.

1155 Peachtree

Associates

RESPONDENT BELLSOUTH COMMUNICATION SYS-

TEMS, INC.

Its parent company: BellSouth

- Telecommunications, Inc.

Its partially-owned

subsidiaries: None

PLAINTIFFS/PETITIONERS (Note that there is a dispute

about which individuals are parties. Plaintiffs / Petitioners

filed approximately 2000 “opt-in” notices which Defen-

dants/Respondents moved to strike on a variety of

grounds. The District Court granted Defendants sum-

mary judgment without ruling on those motions to

strike.)

iil

TABLE OF CONTENTS

Page

Bs Bo Rs og 8 ge a ae i

REM Se Pe eC Chas sss ba ccaestcnvscerss ii

I. REASONS FOR DENYING THE WRIT....... 1

Il. FACTUAL BACKGROUND .................. 1

A. Description Of The Home-Dispatch Pro-

BTA onc cece ees eivs cece eencsereccees 1

B. The Department of Labor’s Vacillations On

The Compensability Of Travel Time And

The Resulting Passage Of The Employee

Commuting Flexibility Act............... 3

C. The Act States That It Applies To Pending

IE Cig abs sem eke wg deo | 0 ah ese 6 ae h 02 4

D. Plaintiffs/Petitioners Attack The Constitu-

tionality Of The Act In District Court,

Then Abandon Their Constitutional

Attack Before The Court Of Appeals.... 5

OEE. EGePas PARDUPIMEEIN DE och ccc wesc cscesees 7

A. Petitioners’ Failure To Raise Any Consti-

tutional Challenge Before The Court of

Appeals Prevents Them From Raising

Such A Challenge Before The Supreme

SOS NT ES GREE Pee ee ne ee 8

B. Petitioners’ Constitutional Argument Is

Not Properly Before This Court Because

The Attorney General Was Not Notified In

A Timely Manner .................52005- 10

C. Petitioners’ Retroactivity Argument Is

RE ec lict wi acespecasvgeitevevases 12

TABLE OF CONTENTS - Continued

Page

1. The Act Clarified Existing Law and

Did Not Retrospectively Reverse

Establighed Rigntsi:... is. cic ieikice 12

2. The Act Is A Constitutionally Sound

Exercise Of Congress’s Power To Pass

Retroactive Legislation; Petitioners’ Due

Process Argument Is Misplaced........ 13

3. The Act Does Not Effect A Taking

os” EE a ae neni se han be aes 15

4. This Court’s Opinion In Eastern Enter-

prises Does Not Alter The Prior Law.. 16

EV. SILA es PRL eases GORE RAING 46 ES 18

APPENDIX

October 19, 1994, Letter from Secretary of Labor

APES ths ER hs ee Ss Ca has ON aA ke a oe ee App. 1

April 3, 1995, Letter from Wage-Hour Division

Administrator Maria Echaveste ............... App. 3

Plaintiffs’ Memorandum of Law in Opposition to

Defendants’ Motions for Summary Judgment

Premised Upon P.L. 104-188, §§ 2101-2103..... App. 5

Vv

TABLE OF AUTHORITIES

Page

Cases

Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct.

Se, ae Bis ON SA A, BOOS OD 6 ion chancery e see ns <3 10

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

3d MAR p wee pee ow ree pene me ee ergy passim

Bradley v. School Board of City of Richmond, 416 U.S.

696, 94 S. Ct. 2006, 40 L. Ed. 2d 476 (1974)....... 12

Doyle et al. v. BellSouth Communications Systems,

Inc., et al., CA 97-5122, 1998 WL 165149 (6th Cir.

Aart DB FOGG) ois i Ra eae Ce eee eee ee 6

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

2131, 141 L. Ed. 2d 451 (1998)................ passim

Kaiser Aluminum & Chemical Corp. v. Bonjourno, 494

U.S. 827, 110 S. Ct. 1570, 108 L. Ed.2d 842 (1990) .... 14

Landgraf v. USI Film Products, 511 U.S. 244, 114

S.Ct. 24835, 128 £.. Sd. 20 229 (i99G).. ww sec aes: 13, 17

Penn Central Transp. Co. v. New York City, 438 U.S.

104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978)....... 15

Pennsylvania Dept. of Corrections v. Yeskey, __ U.S.

6 2116S. Ct. 1952, 141 L. Ed. 2d 215 (1996)..... 10

Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467

U.S. 717, 104 S. Ct. 2709, 81 L. Ed. 2d 601 (1984) .... 14

Railroad Retirement Bd. v. Alton R.R. Co., 295 U.S.

330, 55 S. Ct. 758, 79 L. Ed. 1468 (1935) ........ 9, 10

Stewart v. Keyes, 295 U.S. 403, 55 S. Ct. 807, 79

A, Ms A AO Sky bach wih du. Seow WR SERRA TM vet 9

Thorpe v. Housing Auth. of the City of Durham, 393

U.S. 268, 89 S. Ct. 518, 21 L. Ed. 2d 474 (1969) .... 13

vi

TABLE OF AUTHORITIES —- Continued

Page

Untermyer v. Anderson, 276 U.S. 440, 48 S. Ct. 353,

72 L. Bed. GAS Ce i ee Oa eer A, 9

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96

5. Ct. 2662, 49 4; Ba: Sa: Foe Cepia eee evs tah 14

STATUTES

28 US.C. § SOA aks ce ha ee aera as Fo ae passim

29 US. ORM eves eae CEO Ch hc 2

29 U.S.C. 5° SOGGRE «Sis cas ca ee has RO tae a ee ea 3

PL. 106-160; Ge Zia 208s is ince saan hagas ss oan a

OTHER AUTHORITIES

Federal Rule of Appellate Procedure 44........ ay ae an

I. REASON FOR DENYING THE WRIT

BellSouth Telecommunications, Inc., and BellSouth

Communication Systems, Inc., (collectively, “BST”)

respectfully submit that Petitioners’ Petition for Writ of

Certiorari should be denied for three reasons. First, Peti-

tioners improperly seek to raise before this Court an

argument that they specifically waived before the United

States Court of Appeals for the Sixth Circuit. Second, in

contravention of 28 U.S.C. § 2403(a) and Fed. R. App. P.

44, Petitioners attempt a constitutional attack on a federal

statute, yet neither Petitioners nor the District Court nor

Circuit Court timely notified the Attorney General of the

constitutional attack to allow the United States the oppor-

tunity to intervene. Third, the District Court’s application

of existing law to dismiss Petitioners’ pending case was

not “retroactive” application of the law, and was, in any

event, constitutionally correct.

BST also asks that the Court impose all costs and fees

which it legitimately can on Petitioners to discourage

frivolous petitions for writs of certiorari such as this one

and to defray BST’s expense in responding to this frivo-

lous petition.

Il. FACTUAL BACKGROUND

A. Description Of The Home Dispatch Program:

Respondent BST is a telephone company which oper-

ates in a nine-state area in the Southeast. Petitioners are

BST employees who borrowed BST vehicles to commute

to work. Petitioners who participated in this “home dis-

patch” program allege that the time they spent commut-

ing from home to work and from work to home in BST’s

vehicles constituted compensable hours worked under

the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.

Almost all home-dispatch participants were telephone

technicians whose work required them to travel to trou-

ble spots to make repairs. Home-dispatch participants

received their assignments on a hand-held computer ter-

minal at home in the morning or called in from home to

receive their assignments. They then got in their bor-

rowed BST trucks and traveled to their respective first

assignments. At day’s end they traveled home in their

BST trucks, which they parked at their homes for the

night.

Home dispatch was a negotiated provision of a col-

lective bargaining agreement between BST and Commu-

nications Workers of America, AFL-CIO, Petitioners’

Union. The Union agreed that the commuting time was

not compensable, and that provision was incorporated in

the contract.

Home dispatch was completely voluntary. Employees

who chose not to participate in the program drove their

persona) cars to a BST yard, where they received their

first assignments and picked up their BST trucks.

The home-dispatch program was popular with

employees because it saved commuting wear and tear on

their personal cars-and in many instances allowed house-

holds to manage with one fewer car. Employees were

even allowed to run personal errands in their borrowed

trucks on the way to and from work as long as those

errands did not significantly lengthen their commute.

BST benefitted too, because home dispatch increased pro-

ductivity and because BST could divest some vehicle

storage facilities. The Seventh Circuit, examining a home-

dispatch program operated by another telephone com-

pany which was in most respects identical to BST’s, pro-

nounced the program a “win-win” situation. Baker v. GTE

North, Inc., 110 F.3d 28, 29 (7th Cir. 1997).

B. The Department Of Labor’s Vacillations On

The Compensability Of Travel Time And The

Resulting Passage Of The Employee Commut-

ing Flexibility Act:

This case (and similar suits against other companies)

arose because of an August 5, 1994, Department of Labor

(“DOL”) opinion letter which contradicted the DOL’s

long-standing position that commuting time in an

employer-owned vehicle is not compensable hours

worked. That opinion letter was swiftly suspendect (Octo-

ber 19, 1994, letter from Secretary of Labor Robert Reich,

attached as Appendix pp. 1-2) and was superseded with a

new opinion letter which restored the status quo ante.

(April 3, 1995, DOL opinion, letter attached as Appendix

pp. 3-4.) However, many lawsuits — this one among them

~- were filed in the interim.

In response to this situation, Congress introduced

remedial legislation on a bipartisan basis in March, 1995.

That legislation, now enacted as the Employee Commut-

ing Flexibility Act (“the Act”), P.L. 104-188, §§ 2101-2103,

amends Section 4(a) of the Portal-to-Portal Act, 29 U.S.C.

§ 254(a), to make clear that commuting in an employer-

owned vehicle does not constitute compensable hours

worked. President Clinton signed the Act into law on

August 20, 1996.

Section 201 of the Act adds the following language to

the Portal-to-Portal Act:

For purposes of this subsection, 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 is within the normal commuting area for

the employer’s business 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.

C. The Act States That It Applies To Pending

Cases:

By its terms, the Act governs this pending action and

all actions pending at the time the Act was enacted. As

Section 202 of the Act states:

The amendment made by section 1 shall take

effect on the date of the enactment of this Act

and shall apply in determining the application 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.

(Emphasis added.)

The case at bar was pending on the date of the Act’s

enactment. Thus, the Act’s provision specifying the Peti-

tioners’ commutes in borrowed BST trucks are not princi-

pal activities under the Fair Labor Standards Act (and are

therefore noncompensable) applies to this action. As dis-

cussed below, it is debatable whether this language was

oO

even necessary in order for the Act to apply to cases

pending at the time of its passage; nevertheless, Con-

gress’ inclusion of this language removes all doubt about

Congressional intent.

D. Plaintiffs/Petitioners Attack The Constitu-

tionality Of The Act In District Court, Then

Abandon Their Constitutional Attack Before

The Court Of Appeals:

BST moved for summary judgment based on the Act.

Petitioners attempted to avoid summary judgment by

arguing that the Act’s mandate that it applied to any case

pending on the date of its enactment was unconstitu-

tional “retroactive” legislation. (See, Plaintiffs’ Memoran-

dum of Law in Opposition to Defendants’ Motions for

Summary Judgment Premised on P.L. 104-188,

§§ 2101-2103, filed November 15, 1996, District Court

Docket No. 195, Appendix pp. 5-26.) They contended

before the District Court that because of “the absence of

the requisite legislative findings, the Due Process Clause

of the Fifth Amendment. . . bars the [Act’s] retroactive

application. ...” (Id. at p. 6.) It is unclear what Peti-

tioners’ confusing reference to constitutional effect of

“the requisite legislative findings” means. In any event,

the District Court rejected this argument and granted BST

summary judgment on December 3, 1996.

On appeal, Petitioners completely abandoned their

constitutional attack on the Act. Instead, Petitioners pre-

sented to the appellate court a charge that the District__

Court misapplied the “normal commuting area” language

of the Act. Petitioners did not present this issue to the

District Court, and Petitioners candidly admitted in oral

argument before the Court of Appeals for the Sixth Cir-

cuit that they conceived the issue only after new counsel

joined them for the appellate brief.! The Court of Appeals

denied Petitioners’ appeal, ruling, “The failure to raise

the issue below [relating to the Act’s “normal commuting

area” language’s application to the Petitioners’ situation]

is fatal to plaintiffs’ appeal.” Doyle et al. v. BellSouth

Communications Systems, Inc. et al., CA 97-5122, 1998 WL

165149, at *3 (6th Cir., April 3, 1998).

Neither the District Court nor Petitioners notified the

United States Attorney General of Petitioners’ attack on

the Act’s constitutionality, in contravention of 28 U.S.C.

§ 2403(a). This statute requires the Attorney General to be

notified of any challenge to the constitutionality of any

federal statute so that the United States may intervene in

the action to defend the statute’s constitutionality. (This

point is discussed in more detail below.) Furthermore,

because Petitioners abandoned their constitutional attack

before the appellate court, they did not comply with Fed.

R. App. P. 44, which requires a party questioning a stat-

ute’s constitutionality “to give immediate notice in writ-

ing to the court of the existence of said question,” to

allow the court to certify the fact to the United States

Attorney General. Again, the United States was denied

notice to allow it to intervene in this action.

' Petitioners’ abandonment of their constitutional attack

likely was influenced by the Seventh Circuit’s opinion in Baker,

110 F.3d at 29, which ruled that the Act’s application to pending

litigation was completely proper and also ruled that such a

constitutional challenge to the Act on taking and due process

grounds could be disposed of “without ado.”

Now Petitioners seek to resurrect their constitutional

attack on the Act before this Court, even though they did

not present the issue to the Court of Appeals. The sole

basis for their Petition for Writ of Certiorari is that the

alleged “retroactive” application of the Act to this litiga-

tion is allegedly an unconstitutional taking of a property

without due process, contrary to the United States Con-

stitution.

lil. LEGAL ARGUMENT

There are three independent grounds on which the

Petition for Writ of Certiorari should be denied. First,

Petitioners seek certiorari to raise an issue which they

specifically abandoned before the Court of Appeals and

which that court neither considered nor ruled upon. This

issue may not now be raised before this Court. Second,

Petitioners failed to take the steps necessary to notify the

United States Attorney General in a timely manner that

Petitioners sought to attack the constitutionality of a fed-

eral statute, as required by 28 U.S.C. § 2403(a) and Fed. R.

App. P. 44. Third, Petitioners’ assertion that the Act is a

“retroactive” taking without due process is mistaken, and

the case which Petitioners cite in support of this position

is inapposite to this case. Each of these points is

addressed in turn below.

A. Petitioners’ Failure To Raise Any Constitutional

Challenge Before The Court of Appeals Pre-

vents Them From Raising Such A Challenge

Before The Supreme Court:

Petitioners contend before this Court that the Act’s

express application to pending cases (which Petitioners

incorrectly call a “retroactivity provision”) is unconstitu-

tional because it effects a taking without due process in

contravention of the Fifth and Fourteenth Amendments.

Petitioners specifically abandoned this constitutional

challenge on appeal before the Court of Appeals, and it

should be deemed waived. Petitioners frankly admit that

had they pursued their constitutional challenge before

the Court of Appeals, they would have been “concerned

that sanctions could be imposed against them [for a frivo-

lous appeal] pursuant to Rule 38, Federal Rules of Appel-

late Procedure. ...” (Petition for Writ of Certiorari, p. 13;

hereafter, “Petition, p. __.”)

Petitioners attempt to excuse their failure to raise

their constitutional challenge in the court below by argu-

ing that, until this Court’s recent decision in Eastern

Enterprises v. Apfel, ___ U.S. ___, 118 S. Ct. 2131, 141 L. Ed.

2d 451 (1998), there was not “a single reported decision

declaring a federal statute unconstitutional by reason of

its retroactivity. ... ” (Petition, p. 13.) Petitioners assert

that they could not raise their retroactivity issue until the

Supreme Court decided Eastern Enterprises, which Peti-

tioners contend created “new law” on the subject of

retroactivity.2 As the Petition states at pp. 18-19, “Eastern

Enterprises stands as this Court's first invalidation of fed-

eral legislation by reason of its retroactivity. 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.”

As an initial matter, it is interesting that Petitioners

felt no compunction against presenting the constitutional

issue to the District Court, even though Petitioners now

allege that their issue had no legal support until Eastern

Enterprises was decided more than a year after the District

Court granted BST summary judgment, and even though

Petitioners state that they could not argue retroactivity to

the Court of Appeals without risking sanctions for pursu-

ing a frivolous appeal. (Petition, p. 13.)

Leaving that point aside, however, Petitioners’ asser-

tion that Eastern Enterprises was the first time the

Supreme Court had struck down a retroactive statute on

takings and due process grounds is flatly wrong. Many

cases have struck down a retroactive statute on takings

and due process grounds. See, e.g., Untermyer v. Anderson,

276 U.S. 440, 48 S. Ct. 353, 72 L. Ed. 645 (1928); kailroad

Retirement Bd. v. Alton R.R. Co., 295 U.S. 330, 55 S. Ct. 758,

79 L. Ed. 1468 (1935); Stewart v. Keyes, 295 U.S. 403, 55 S.

Ct. 807, 79 L. Ed. 1507 (1935). In light of these cases,

2 As is discussed below, Petitioners’ reliance on Eastern

Enterprises is misplaced.

10

Petitioners’ allegation that they could not raise the retroac-

tivity issue until this Court decided Eastern Enterprises is

specious.*

Finally, regardless of the reason for Petitioners’ aban-

donment of their constitutional attack, the fact that they

did abandon it means Petitioners may not resurrect the

issue before the Supreme Court. It is axiomatic that an

issue not presented to the Court of Appeals may not be

raised before the Supreme Court. “Where issues are nei-

ther raised before nor considered by the Court of

Appeals, this Court will not ordinarily consider them.”

Pennsylvania Dept. of Corrections v. Yeskey, __ U.S. ___, 118

S. Ct. 1952, 1956, 141 L. Ed. 2d 215 (1998), quoting Adickes

v. S.H. Kress & Co., 398 U.S. 144, 147, n.2, 90 S. Ct. 1598, 26

L. Ed. 2d 142 (1970).

Because Petitioners seek to present an issue to the

Supreme Court which the Court of Appeals for the Sixth

Circuit did not consider, their Petition for Writ of Cer-

tiorari is improper and should be denied.

B. Petitioners’ Constitutional Argument Is Not

Properly Before This Court Because The Attor-

ney General Was Not Notified In A Timely

Manner:

As described above, Petitioners argued and lost the

constitutional issue before the District Court. However,

this issue was not even properly raised before the District

3 The issue in Railroad Retirement Board was in fact very

similar to that in Eastern Enterprises: whether Congress could

impose retroactive pension liability on a company.

11

Court because neither Petitioners nor the District Court

notified the Department of Justice prior to challenging

the statute’s constitutionality, as is required by 28 U.S.C.

§ 2403(a). Because of this failure to notify the United

States of the constitutional challenge, the United States

did not have the opportunity to intervene at the District

Court level* and present its arguments in favor of the

statute’s constitutionality.

Petitioners also did not certify their constitutional

question to the Sixth Circuit, in contravention of Fed.

Rule App. P. 44. This failure too is fatal to their quest for

certiorari. In a case attacking the constitutionality of the

same statute which is at issue in the present matter, the

Seventh Circuit noted that the failure to comply with

Rule 44 created doubt as to whether the constitutional

attack could even be presented before the Court of

Appeals. Baker, 110 F.3d at 30.5

The record is thus not fully developed and this mat-

ter is not ripe for certiorari. This failure te provide stat-

utorily-required notice to the United States at either the

District Court or Court of Appeals level militates against

this Court hearing Petitioners’ constitutional attack on

the Act.

4 Petitioners belatedly notified the Department of Justice of

their constitutional challenge only after they took the initial

steps to obtain a Writ of Certiorari before this Court.

5° The Seventh Circuit nevertheless ruled that it could

dispose of the constitutional attack “without ado.”

12

C. Petitioners’ Retroactivity Argument Is Merit-

less:

1. The Act Clarified Existing Law and Did Not

Retrospectively Reverse Established Rights:

Although Petitioners claim that the Act is “retroac-

tive” and also claim that the statute’s alleged retroactive

effect is unconstitutional, Petitioners’ use of the word

“retroactive” is incorrect in the context of this case. The

Act did not undo a final court decision or otherwise reach

back in time to upset parties’ established legal rights or

expectations. Instead, Petitioners sued to establish a new

right, alleging that ambiguities in the Portal-to-Portal Act

and inconsistent enforcement by the Wage-Hour Division

of the DOL should be resolved in Petitioners’ favor to

entitle them to an undeserved windfall, even though

Petitioners: (a) volunteered to borrow company vehicles;

(b) knew their Union agreed that the commuting time

was not compensable hours worked; and (c) themselves

benefitted from home dispatch by not having to use a

personal vehicle for commuting.

In rejecting Petitioners’ claims, the District Court

simply applied the law which was in effect at the time of

its decision. It has long been established that courts must

apply the then-current law absent some direction to the

contrary from Congress; the fact that the law was enacted

after a case was filed is of no moment. Bradley v. School

Board of City of Richmond, 416 U.S. 696, 711, 94S. Ct. 2006,

40 L. Ed. 2d 476 (1974) (“We anchor our holding in this

case on the principle that a court is to apply the law in

effect at the time it renders its decision, unless doing so

would result in manifest injustice or there is a statutory

13

direction or legislative history to the contrary.”). See also,

Thorpe v. Housing Auth. of the City of Durham, 393 U.S. 268,

281, 89 S. Ct. 518, 21 L. Ed. 2d 474 (1969) (same).

Even in the absence of the so-called “retroactivity”

provision in the Act which Petitioners challenge, the

result in this case would have been the same. The District

Court would have applied the new legislation to the then-

pending case, in accordance with Supreme Court prece-

dent, and the case would have been dismissed on sum-

mary judgment. Petitioners’ allegations regarding

“retroactivity” are thus mispl.-ed. Retroactivity is actu-

ally not even an issue in this matter, and there is certainly

no colorable argument that application of the then-cur-

rent law to a pending case in any sense implicates consti-

tutional taking or due process. Petitioners’ Petition for

Writ of Certiorari should be rejected on this independent

basis.

2. The Act Is A Constitutionally Sound Exer-

cise Of Congress’s Power To Pass Retroac-

tive Legislation; Petitioners’ Due Process

Argument Is Misplaced:

Even assuming the Act is “retroactive,” it is still

valid. Its application to the present matter was proper,

and Petitioners’ due process argument is meritless.

Petitioners correctly state that it has long been

Supreme Court precedent that Congress may pass legisla-

tion with retrospective effect. (Petition, p. 13.) There is a

well-established line of cases holding that Congress has

the constitutional authority to enact retrospective legisla-

tion. See, e.g, Landgraf v. USI Film Products, 511 U.S. 244,

14

114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994) (“Where the

Congressional intent [regarding retroactivity] is clear, it

governs. ...”), quoting Kaiser Aluminum & Chemical Corp.

v. Bonjourno, 494 U.S. 827, 836-837, 110 S. Ct. 1570, 108 L.

Ed. 2d 842 (1990). The Act is one of myriad “legislative

Acts adjusting the burdens and benefits of economic life.”

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S. Ct.

2882, 49 L. Ed. 2d 752 (1976). Such legislation “come[s] to

the Court with a presumption of constitutionality,

and ... the burden is on one complaining of a due

process violation to establish that the legislature has

acted in an arbitrary and irrational way.” Id. “[T]he

strong deference accorded legislation in the field of

national economic policy is no less applicable when that

legislation is applied retroactively.” Pension Benefit Guar.

Corp. v. R.A. Gray & Co., 467 U.S. 717, 729, 104 S. Ct. 2709,

81 L. Ed. 2d 601 (1984). Retrospective application of eco-

nomic legislation meets the test of due process simply if

“retroactive application of the legislation is itself justified

by a rational legislative purpose.” Id. at 730 “[|JJudgments

about the wisdom of such legislation remain within the

exclusive providence of the legislative and executive

branches,” and should not be second-guessed by courts.

Id. at 729.

Petitioners did not make any effort to show that

Congress acted irrationally in passing the Act, and that

omission alone is fatal to their constitutional attack and

their Petition for Writ of Certiorari. Indeed, far from

being irrational, there are many rational legislative pur-

poses for the Act. Judge Easterbrook, writing for the

Seventh Circuit and approving the Act’s constitutionality

against an attack on due process grounds, identified two

15

such rational purposes: the Act conforms law to contract

(remember that Petitioners’ collective bargaining contract

stated that home-to-work commuting in borrowed BST

trucks was non-compensable), and the Act resolves an

ambiguity in the Portal-to-Portal Act’s use of the words

“principal activities.” Baker, 110 F.3d at 30. Other rational

purposes for the Act include conforming the law to the

DOL’s long-standing enforcement position and clarifying

that employees and employers may take advantage of the

“win-win” benefits of borrowing an employer’s vehicle

for commuting.

Petitioners’ inability to make even the slightest show-

ing that Congress acted irrationally dooms their constitu-

tional attack on due process grounds. Because their

constitutional attack is frivolous, their Petition for Writ of

Certiorari to review this constitutional question should be

denied.

3. The Act Does Not Effect A Taking Under

The Law: ;

Even assuming that the Act does not conform to due

process, Petitioners’ constitutional attack is still meritless

as there is no evidence in the record that the Act effects

an unconstitutional taking. The Court identified three

factors in Penn Central Transp. Co. v. New York City, 438

U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978), for

determining when a law effects a taking. The factors

examine the economic impact of the regulation, the extent

to which it interferes with investment-backed expecta-

tions, and the character of the governmental action. Id. at

124. Petitioners presented no evidence at any stage of this

16

litigation that the Act had any economic impact on them

or that the Act interfered with Petitioners’ investment-

backed expectations. Indeed, it would be extraordinary if

Petitioners could make even the slightest showing on

either point because Petitioners volunteered for the home

dispatch program with the contractual understanding

that they would not be paid for their commuting time.

The existence of the contract answers the inquiry into the

Petitioners’ expectations. The contract's agreement that

commuting time would not be paid was in conformity

with the then-current DOL enforcement position. The Act

took notiing from Petitioners. Indeed, the Act prevented

Petitioners from receiving an unanticipated windfall.°

Because there was no taking, Petitioners’ constitu-

tional attack is frivolous on this separate ground and a

writ of certiorari should be denied.

4. This Court’s Opinion In Eastern Enterprises

Does Not Alter The Prior Law:

Despite the plethora of Supreme Court decisions

holding that retrospective legislation is entirely proper,

Petitioners now assert that the Court’s recent plurality

opinion in Eastern Enterprises v. Apfel, _ U.S. __, 118 S.

Ct. 2131, 141 L. Ed. 2d 451 (1998), reverses established

precedent and justifies certiorari in this case. This asser-

tion that Enterprises overturns all prior Supreme Court

precedent regarding Congress's ability to pass retroactive

legislation is incorrect. Eastern Enterprises addresses an

® BST questions whether a lawsuit, short of a final

judgment, is even property which can be the subject of a taking.

17

entirely different point from the alleged retroactivity of

the legislation in this case, namely, whether Congress

may force a company to pay the unbargained-for health

and pension benefits of employees who worked for it

twenty to fifty years earlier. Eastern Enterprises does not

overturn prior precedent regarding Congress’s ability to

pass retroactive legislation. Indeed, Eastern Enterprises

approvingly cites Landgraf — the case on which the Dis-

trict “ ourt relied in rejecting Petitioners’ claims.

The instant case also is a particularly poor vehicle to

elaborate on the plurality opinion in Eastern Enterprises,

both because of Petitioners’ procedural errors in this case

and because none of the factors which informed the

Court’s opinion in Eastern Enterprises is present here.

Specifically, the plurality in Eastern Enterprises found the

Coal Industry Retiree Health Benefit Act (the “Coal Act”)

unconstitutional because it imposed a severe, dispropor-

tionate, and extremely retroactive liability on a limited

class of parties who could not have anticipated the lia-

bility. In the instant case, there was no retroactive liabiuty

imposed. Here, also, the collective bargaining agreement

es'*blished the parties’ expectation that Petitioners

would not receive pay for commuting time. The Act

merely confirmed the lawfulness of the relationship

established by the collective bargaining agreement. Thus,

none of the factors that led the plurality to declare the

Coal Act unconstitutional is present in the instant matter.

Because Petitioners’ cited caselaw is inapposite, cer-

tiorari should be denied.

18

IV. CONCLUSION

For the reasons described above, Petitioners’ Petition

for Writ of Certiorari is not well-taken and should be

denied. BST also asks that the Court impose costs and

fees on Petitioners to discourage frivolous petitions for

writs of certiorari such as this one.

Respectfully submitted,

Micnaet C. Towers

Fisher & Pups LLP

1500 Resurgens Plaza

945 East Paces Ferry Road

Atlanta, GA 30326

(404) 240-4289

Attorney for Respondent BellSouth

Telecommunications, Inc.

THomas L. HENDERSON

Lewis, Fisher, Henperson & CLAxton, PLLC

5050 Poplar Avenue, Suite 1717

Memphis, Tennessee 38157

(901) 767-6160

Attorney for Respondent BellSouth

Communication Systems, Inc.

App. 1

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR

WASHINGTON, D.C.

OCT 19 1994

The Honorable William D. Ford

Chairman, Committee on

Education and Labor

U.S. House of Representatives

Washington, D.C. 20515

Dear Mr. Chairman:

Thank you for your interest in the Department's

interpretation of the Fair Labor Standards Act (FLSA) on

the compensability of certain travel time between home

and work of employees who drive employer’s vehicles to

transport equipment needed to perform their job. | appre-

ciate your calling to our attention the potential conse-

quences of this interpretation of the law.

As you may know, the Department of Labor’s Wage

and Hour Division published an opinion letter on August

5, 1994, which sets forth our interpretation of the FLSA in

certain circumstances. While this opinion reflects a long-

standing interpretation of the Department, dating at least

to 1967, the recent opinion letter was published to clarify

issues that arose in complaint-based investigations

involving home heating oil service technicians in the New

York metropolitan area. Thus, the current concerns seem.

to arise not from the promulgation of a new Departmen-

tal policy, but rather the application of an existing policy

in an industry where established employment practices

had not previously been reviewed.

App. 2

Nonetheless, in light of the concerns you have raised

and the possible effects of applying this interpretation in,

among others, the home heating oil industry, I have

decided to defer any Departmental efforts to enforce this

policy while we undertake a review. You should know,

however, that while this review goes on, employees retain

their private right to litigate to obtain compliance with

the requirements of the FLSA.

Again, thank you for bringing these important issues

to my attention. I hope that you will find this action

responsive to your concerns.

Sincerely,

/s/ Robert B. Reich

ROBERT B. REICH

— a

App. 3

U.S. Department of Labor [LOGO]

Employment Standards Administration

Wage and Hour Division

Washington, D.C. 20210

APR 3 1995

Gary J. Klein, Esq.

Lawrence Z. Lorber, Esq.

Verner, Liipfert, Bernhard,

McPherson and Hand

901 15th Street, N.W.

Washington, D.C. 20005-2301

Gentlemen:

This is in further regard to the Department of Labor’s

interpretation under the Fair Labor Standards Act (FLSA)

of the compensability of time spent by employees volun-

tarily driving their employers’ vehicles between home

and customers’ work sites each day, transporting parts,

tools, equipment, etc., needed to perform their jobs. Our

interpretation was set forth in an opinion letter dated

August 5, 1994.

We have continued to review this matter since issuance of

the August 5 opinion letter. We note that driving between

work sites is a necessary component of the job which is

performed throughout the day and is a principal activity

of the employees. Furthermore, the employee may not

leave the employer's vehicle at the site of the last service

call, but must drive it to a location satisfactory to the

employer for security — the employer’s establishment, a

garage, or the employee’s home.

We are also aware, however, that driving from home to

work is an activity which is not ordinarily compensable,

App. 4

and that the employees in question have chosen to drive

the employer’s vehicle home rather than to the

employer’s yard for their own personal convenience and

benefit.

We have, therefore, concluded that a balancing of the

interests of employers and employees is appropriate.

Accordingly, where the following circumstances exist,

time spent traveling between the employee’s home and

the first work site of the day and between the last work

site of the day and the employee’s home need not be

compensated: (1) driving the employer’s vehicle between

the employee’s home and customers’ work sites at the

beginning and end of the workday is strictly voluntary

and not a condition of employment; (2) the vehicle

involved is the type of vehicle that would normally be

used for commuting; (3) the employee incurs no costs for

driving the employer’s vehicle or parking it at the

employee’s home or elsewhere; and (4) the work sites are

within the normal commuting area of the employer’s

establishment.

Our opinion letter of August 5, 1994, is hereby with-

drawn.

Sincerely,

/s/ Maria Echaveste

Maria Echaveste

Adntinistrator

App. 5

N94233

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION AT MEMPHIS

——-

—

(1) BARNEY DOYLE, for and in

behalf of himself and other

employees similarly situated,

(2) JOSEPH CUNETTA, et al., No

Plaintiffs, 94-2978 D

VS.

(1) BELLSOUTH

COMMUNICATION SYSTEMS,

INC., a subsidiary of BELLSOUTH

CORPORATION, d/b/a

BELLSOUTH

TELECOMMUNICATIONS,

(2) BELLSOUTH

TELECOMMUNICATIONS,

INC., etc.,

Defendants.

PLAINTIFFS’ MEMORANDUM OF LAW IN

OPPOSITION TO DEFENDANTS’

MOTIONS FOR SUMMARY JUDGMENT

PREMISED UPON P.L. 104-188, §§ 2101-2103

I. INTRODUCTION

Relying upon P.L. 104-108, §§ 2102-2103, August 20,

1996, which amended § 4(a) of the Portal-To-Portal Pay

Act (“the Portal Act”), 29 U.S.C. § 254(a), Defendants

BellSouth Communication Systems, Inc. (“BSCS”) and

App. 6

BellSouth Telecommunications, Inc. (“BST”), have moved

in the above styled, related overtime compensation law-

suits for summary judgments of dismissal.

As established in this memorandum of law, the sum-

mary judgment motions of BSCS and BST should be

denied because:

(A) there exist genuine issues of material

fact whether the Plaintiffs, as participants in the

BSCS and BST “Home Dispatch Programs”,

(1) used company vehicles for a pur-

pose, other than “for travel”, which was

“integral and indispensable” to their “prin-

cipal activity,

(2) were “commuting” in company

vehicles, and

(3) were engaged in a “principal activ-

ity” when they received their daily first job

assignments by electronic means “off the

clock” (also known as “connect time”); and

(B) due to the absence of the requisite leg-

islative findings, the Due Process Clause of the

Fifth Amendment to the United States Constitu-

tion (“the Due Process Clause”) bars the retroac-

tive application of P.L. 104-188, §§ 2101-2103, to

Plaintiffs’ claims against BSCS and BST for over-

time compensation.

Il. THE HISTORICAL SETTING

Prior to the enactment of P.L. 104-188, supra, § 4(a) of

the Portal Act, 29 U.S.C. § 254(a), in pertinent part pro-

vided:

App. 7

“No employer shall be subject to any liability or

punishment under the [Fair Labor Standards

Act] on account of the failure of such employer

to pay an employee . . . overtime compensation,

for or on account of any of the following activ-

ities of such employee... .

(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 activ-

We

In Baker v. GTE North, Inc., 927 F. Supp. 1104, 3 Wage

& Hour Cases 2d (BNA) 527, 1996 U.S. Dist. LEXIS 6880

(N.D. Ind., February 21, 1996), the District Court exam-

ined a telephone company’s Home Dispatch Program

which was virtually identical to the BSCS and BST Home

Dispatch Programs and concluded that the participating

service technician employees were entitled to receive

overtime compensation under the Fair Labor Standards

Act for the time they spent travelling daily in company-

owned vehicles from their homes to their first job assign-

ments and from their last job assignments to their

homes.!

Six (6) months after the decision in Baker v. GTE

North, Inc., supra, Congress enacted §§ 2102 and 2103 of

P.L. 104-188, which read:

1 Plaintiffs contend that Baker v. GTE North, Inc., supra, was

correctly decided. BSCS and BST contend to the contrary.

App. 8

Ҥ 2102 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 sub-

section, 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 con-

sidered part of the employee's principal activ-

ities if the use of such vehicle for travel is within

the normal commuting area for the employer’s

business 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.

§ 2103 The amendment made by section 2102

shall take effect on the date of the enactment of

this Act and shall apply in determining the

application 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.”

Ill. THE PARTIES’ CONTENTIONS

In their motions for summary judgment of dismissal,

BSCS and BST contend that P.L. 104-188, §§ 2102-2103,

supra.

(1) as a matter of law, nullified Plaintiffs’

claims for overtime compensation; and

(2) is retroactively applicable to Plaintiffs’

claims against BSCS and BST for overtime com-

pensation pending herein, and is unaffected by

any limitations generally imposed on such retro-

activity by the Due Process Clause of the U.S.

Constitution.

App. 9

Plaintiffs, however, contend that the entry of sum-

mary judgments in favor of BSCS and BST would be

erroneous because the August 20, 1996, amendment to

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

(1) did not, as a matter of law, nullify

Plaintiffs’ claims for overtime compensation;

and

(2) due to the absence of the requisite leg-

islative findings, cannot be retroactively applied

to Plaintiffs’ claims against BSCS and BST for

overtime compensation.

IV. DISCUSSION AND ARGUMENT

A. The Existence Of Genuine Issues Of Material

Fact

In Nichols v. City of Chicago, 789 F. Supp. 1438 (N.D.

Ill. 1992), canine patrol officers brought an action under

the Fair Labor Standards Act to recover compensation for

home dog-care activities. The City moved for summary

judgment. Denying that motion, Judge Alesia stated:

“Whether an activity is preliminary or post-

liminary to a principal activity is a question of

fact...” (Citations omitted)

789 F. Supp. at 1441.

The defendant’s motion for summary judgment was

denied in Lee v. Am-Pro Protective Agency, Inc., 860 F.

Supp. 325 (E.D. Va. 1994), in which security guards

sought overtime compensation for the time it took them

to change into and out of their uniforms, on site. Judge

Brinkema explained:

App. 10

“Summary judgment is only appropriate where

no genuine issue of material fact is in dispute

... In deciding whether to grant summary judg-

ment, all reasonable inferences must be drawn

in favor of the non-moving party. . .

“Drawing all inferences in the light most favor-

able to the non-moving party, there is ample

evidence in the record that would support a

finding that being in uniform, and therefore,

putting on the uniform, is an integral and indis-

pensable part of the Am-Pro security guards’

principal activity, because it is both done for the

benefit of the employer, and is necessary to the

performance of the guards’ principal activ-

ity ... ” (Citations omitted)

860 F. Supp. at 327-328.

In McGrath v. City of Philadelphia, 864 F. Supp. 466

(E.D. Pa. 1994), an action by city police department

employees of varying ranks for overtime compensation

under the Fair Labor Standards Act, the District Court

denied cross-motions for summary judgment. Judge Hut-

ton noted:

“In Count II of the Complaint, the plaintiffs

allege that the City has violated the FLSA over-

time provisions by failing to compensate certain

sergeants and lieutenants who routinely come to

work fifteen minutes early in order to prepare

roll call for the officers coming on duty for that

shift. The City argues that there is a genuine

issue of material fact of the issue of whether the

plaintiffs’ roll call activities constitute compens-

able work, and that, accordingly, summary judg-

ment is inappropriate. It is the plaintiffs’ burden

to establish that a given activity constitutes

ee en ee eee

App. 11

work. See McIntyre v. Division of Youth Rehabilita-

tion Services, 796 F. Supp. 668, 673 (D.Del. 1992).

“The Portal-to-Portal Act of 1947 provides in

relevant part than an employer need not com-

pensate its employees for activities that are ‘pre-

liminary to or postliminary to’ the ‘principal

activity or activities’ that an employee is

engaged to perform, unless the employer is oth-

erwise required to compensate its employees for

such work by custom, contract or practice . . . 29

U.S.C. § 254(a)(2). The term ‘principal activity or

activities’ includes all activities that are ‘integral

and indispensable’ to the principal activity. Stei-

ner v. Mitchell, 350 U.S. 247, 253, 76 S. Ct. 330,

334, 100 L. Ed. 267 (1956); Brusstar v. South-

eastern Pennsylvania Transportation Authority, 636

F. Supp. 1557, 1558 (E.D. Pa.1986). To determine

whether an activity is ‘integral and indispens-

able’ to the principal activity, the court must

inquire into “whether [the activities] are per-

formed as part of the regular work of the

employees in the ordinary course of business”,

Truslow v. Spotsylvania County Sheriff, 783 F.

Supp. 274, 177 (E.D. Va. 1992), quoting Dunlop v.

City Electric, Inc., 527 F. 2d 394, 401 (5th Cir.

1976)).

“There is a genuine issue of material fact pre-

cluding the entry of summary judgment on the

sergeants’ and lieutenants’ pre-shift roll call

claims. The plaintiffs have directed the Court to

evidence that sergeants and lieutenants do

‘occasionally’ arrive prior to roll call to prepare

and be ready to conduct roll call at the begin-

ning of the shift . . . This alone is insufficient to

establish that pre-shift roll call preparation was

‘integral and indispensable’ to sergeants’ and

App. 12

lieutenants’ principal activities. Further, the

Court cannot determine what sergeants’ and

lieutenants’ principal activity was from the evi-

dence adduced by the plaintiffs. Accordingly,

the Court cannot make any determination as to

the relationship between roll call activities and

sergeants’ and lieutenants’ other duties, let

alone a determination that there was an ‘integral |

and indispensable’ relationship between the

two.

3

“Moreover, there is evidence in the record that

the plaintiffs are responsible for reporting their

‘time in’ and ‘time out’ to personnel in the oper-

ations room, who then prepare a Daily Atten-

dance Report (‘DAR’) . . . Plaintiffs, usually

lieutenants, sign off attesting to the accuracy of

records demonstrating the amount of time they

spend engaging in pre-shift activities . . . The

City has produced evidence that the plaintiffs’

attendance records do not reflect the alleged

pre-shift activities for which they seek to |

recover in Count II . . . After reviewing the |

evidence currently in the record and identified

by the parties, the Court holds that a reasonable

trier of fact could find that the alleged pre-shift

activities are not an ‘integral and indispensable’

part of sergeant and lieutenant plaintiffs’ princi-

pal activity. Accordingly, the plaintiffs’ motion

for summary judgment on the issue of pre-shift

roll call preparation is denied.” (Footnote omit-

ted)

et a Te ee ee

864 F. Supp. 482-483.

For the reasons that follow, the enactment of P.L.

104-188, §§ 2102-2103, does not, by itself, entitle BSCS and

BST to summary judgments of dismissal in these lawsuits.

App. 13

(1) There Exists A Genuine Issue Of Material Fact

Whether Plaintiffs Used Company Vehicles For A

Purpose, Other Than “For Travel”, Which Was

“Integral And Indispensable” To Their “Principal

Activity” And Which Benefited BSCS And BST.

The 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 entitled to compensation

therefor under the Fair Labor Standards Act. By infer-

ence, 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 [over-

time] compensation under the Fair Labor Standards Act

for his or her performance of the latter function.

There exists a genuine issue of material fact whether

Plaintiffs, as participants in the BSCS and BST Home

Dispatch Programs, satisfied the “another purpose” crite-

rion when they transported tools and equipment in com-

pany vehicles to and from the work sites designated by

BSCS and BST. On this point, Judge Miller’s following

observations in Baker v. GTE North, Inc., supra, militate

against the entry of summary judgments in favor of BSCS

and BST in these cases:

“Under Dunlop's test, the plaintiffs’ driving is

principal if it is done ‘as part of the regular

work of the employees in the ordinary course of

business’, and is ‘necessary to the business and

is performed by the employees, primarily for

the benefit of the employer, in the ordinary

course of that business’. Dunlop, 527 F.2d at 401.

Transporting tools and equipment to work sites

is part of the plaintiffs’ regular work, done in

App. 14

the ordinary course of business. All facility

maintainers, not just those participating in the

HDP, must transport their tools and equipment

to the work site to perform their duties. The

transporting of tools and equipment in the GTE

vehicles is also necessary to the business’ of

repairing and maintaining telephone and trans-

mission equipment, and is done for the benefit

of GTE. The Home Dispatch Program benefits

the plaintiffs, but the transporting of necessary

tools and equipment is integral to the perfor-

mance of their duties, and primarily benefits

GTE.

“The plaintiffs’ driving is not merely pre-

liminary or postliminary to their principal

activities because it is not an activity ‘pre-

dominantly . . . spent in [the employees’]

own interests, from which no benefit [ ]

inure[s] to the company’. Dunlop, 527 F.2d

at 398. Transporting the necessary tools and

equipment is not an activity ‘undertaken

for [the employees’] own convenience, not

being required by the employer and not

being necessary for the performance of

their duties for the employer’. Id. Parking

the vehicles at home or other alternatives to

the facility is for the employees’ conve-

nience, but getting the vehicle and its con-

tents to and from the first and last work

sites is not for the employees’ convenience;

it is an integral and indispensable part of

their jobs. See Crenshaw v. Quarles Drilling

Corp., 798 F. 2d 1345, 1350 (10th Cir. 1986)

(oil rig mechanics’ driving of specially-

equipped trucks containing tools and

equipment necessary to servicing oil rigs

found compensable); Secretary of Labor v.

App. 15

E.R. Field, Inc., 495 F. 2d 749, 751 (1st

Cir.1974) (same; electrician driving back to

shop in truck containing tools and supplies

necessary for job); DA & S Oil Well Servic-

ing, Inc. v. Mitchell, 262 F.2d 552, 555 (10th

Cir.1958) (same; employees transporting

equipment for oil well servicing). And, as

in Dunlop, the activities are those for which

the employees would ordinarily have been

paid had been paid had such work been

performed during the normal workday’.

Dunlop, 527 F. 2d at 401; see also Graham, 828

F. Supp. at 582, n. 3. Importantly, all facility

maintainers are paid for the time they

spend driving between work sites during

the workday.”

927 F. Supp. at 1114.

House Report 104-585, May 20, 1996, issued by the

Committee on Economic and Educational Opportunities

to accompany H.R. 1227, stated:

“Merely transporting tools or supplies should

not change the noncompensable nature of the

travel...”

House Report No. 104-585, p. 5. Although perhaps indica-

tive of Congress’s desire to overturn the Federal Courts’

“transporting tools and equipment” decisions and the

Wage and Hour regulations upon which they were prem-

ised, the foregoing pronouncement has no corollary in the

text of the 1998 amendment, other than the ambiguous

phrase “incidental to the use of such vehicle for commut-

”

ing”.

Under these circumstances, whether Plaintiffs’ trans-

portation in company vehicles of tools, equipment and

App. 16

supplies to and from their daily work sites constituted a

“principal activity” or an “activity incidental to the use of

such vehicle” presents a genuine issue of material fact, to

be resolved by the jury following a trial.

(2) There Exists A Genuine Issue Of Material

Fact Whether Plaintiffs Were “Commut-

ing” While They Participated In The BSCS

And BST Home Dispatch Programs.

Prior to its amendment in 1996, § 4(a) of the Portal

Act, 29 U.S.C. § 254(a), did not employ the term “com-

muting”. The 1996 amendment to § 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 the amended § 4(a) of the Portal Act, 29 U.S.C.

§ 254(a), does not apply to their daily travels in BSCS 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.

BSCS and BST, however, asserts that Plaintiffs’ daily

travels in company vehicles from their homes to their

first work sites and from the last work sites to their

homes constituted “commuting” for purposes of the

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

House Report 104-585, supra, did not define “com-

muting”. Instead, at pp. 5-6, it provided the following

“guidance” on this subject:

“It is important to address two issues which are

not specifically covered by H.R. 1227 but which

have been raised in conjunction with it. The first

eee ee

App. 17

muting. To be considered noncompensable

travel time, the courts and the Department of

Labor have generally considered that driving a

company vehicle be similar to commuting in a

private vehicle. The fact that a vehicle may have

been modified for special purposes, displays

company logos, or is specially equipped does

not alter the nature of such travel.

issue concerns the type of vehicle used for com-

“While H.R. 1227 does not specifically address

this issue, it is the intent of the Committee that

the vehicle should be of a type that does not

impose substantially greater difficulties to oper-

ate than the type of vehicle which would nor-

mally be used for commuting. The fact that the

vehicle may have been modified to meet the

employer’s specifications or requirements

should not be considered a determining factor.

“The second issue concerns cost to the employee

for use of the employer’s vehicle. It is the intent

of the Committee that the employee incur no

| out-of-pocket or direct cost for driving, parking

) or otherwise maintaining the employer's vehicle

in connection with commuting in employer-pro-

vided vehicles. However, the employer shall not

) be responsible for unrelated expenses, such as

) an employee’s tax liability under the provisions

of the Internal Revenue Code which may result

:

from the employee’s personal use of the

employer’s vehicle or for traffic violations

resulting from the improper operation of the

vehicle by the employee.”

In the absence of a statutory definition of “commut-

ing”, the question whether Plaintiffs “commuted” daily

from their homes to their first work sites and from their

App. 18

last work sites to their homes in BSCS and BST vehicles

does not present an issue of law, but a genuine and

material factual one to be resolved by the jury following a

trial.

(3) 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

BSCS And BST By Electronic Means “Off

The Clock” (Also Known As “Connect

Time”).

In Baker v. GTE North, Inc., supra, Judge Miller stated:

“In Dunlop, the Fifth Circuit reversed the deci-

sion of the district court because it ‘gave a nar-

rower interpretation of the F.L.S.A. and a

broader interpretation of the Portal Act exemp-

tion that [it thought] warranted by the legisla-

tive history of the statutes or by the decisions

construing them’. Id. at 400. The Fifth Circuit

rejected the district court’s ‘directly related to’

test, and found that the plaintiff electricians’

pre-shift activities, including the filling out time

sheets, checking job locations, cleaning out and

loading their trucks with the necessary mate-

rials, fueling the trucks, and picking up the elec-

trical 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.

a

errr

App. 19

Plaintiffs contend that they are entitled to receive

overtime compensation for their “connect time”, which

they characterize as a “principal activity” for purposes of

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

However, BSCS and BST contend the Plaintiffs’ “con-

nect time” is noncompensable because it was “incidental”

to Plaintiffs’ use of BSCS and BST vehicles for commut-

ing.

“Connect time” was not addressed in P.L. 104-188,

§ 2101. However, House Report 104-585, supra, at page 5,

in pertinent part stated:

“Activities which are merely incidental to the

use of an employer-provided vehicle for com-

muting at the beginning and end of the workday

are similarly not considered part of the

employee’s principal activity or activities and

therefore need not be compensable. It is not

possible to define in all circumstances what

specific tasks and activities would be considered

incidental’ to the use of an employer's vehicle

for commuting. Communication between the

employee and the employer to receive assign-

ments or instructions, or to transmit advice on

work progress or completion, is required in

order for these programs to exist . . . The Com-

mittee expects that the Department of Labor will

provide guidance in this area, consistent with

the purposes of H.R. 1227.”

The foregoing committee pronouncement has no cor-

ollary in the text of the 1996 amendment to § 4(a) of the

Portal Act, 29 U.S.C. § 254(a), other than the ambiguous

phrase “incidental to the use of such vehicle for commut-

ing”. Under these circumstances, for purposes of the

App. 20

BSCS and BST motions for summary judgment, the ques-

tion whether Plaintiffs’ “connect time” was a compens-

able “principal activity” or a noncompensable activity

“incidental” to their use of company vehicles to commute

presents not a question of law, but a genuine issue of

material fact to be resolved by the jury following a trial.

B. Due To The Absence Of The Requisite Legislative

Findings, The Due Process Clause Bars The Retroac-

tive Application Of P.L. 104-188, §§ 2102-2103. To

Plaintiffs’ Claims Against BSCS And BST For Over-

time Compensation.

In Tennessee Coal Co. v. Muscoda Local, 321 U.S. 590

(194___), Jewell Ridge Co. v. Local No. 6167, 325 U.S. 161

(194___), and Anderson v. Mt. Clemens Pottery Co., 328 U.S.

680 (194__), the Supreme Court held compensable under

the Fair Labor Standards Act time that employees were

required to be on their employers’ premises before and

after their shifts for the purposes of changing clothes and

walking to and from the places where the work was

carried on. Congress responded to those decisions by

enacting the Portal Act, which it indeed directed be appli-

cable to pending actions for overtime compensation. In

passing the Portal Act, Congress made the following fac-

tual findings:

“The Congress hereby finds that the Fair Labor

Standards Act of 1938, as amended, has been

interpreted judicially in disregard of long-estab-

lished customs, practices, and contracts between

employers and employees, thereby creating

wholly unexpected liabilities, immense in

amount and retroactive in operation, upon

employers with the results that, if said Act as so

App. 21

interpreted or claims arising under such inter-

pretations were permitted to stand, (1) the pay-

ment of such liabilities would bring about

financial ruin of many employers and seriously

impair the capital resources of many others

thereby resulting in the reduction of industrial

operations, halting of expansion and develop-

ment, curtailing employment and the earning

power of employees; (2) the credit of many

employers would be seriously impaired; (3)

there would be created both an extended and

continuous uncertainty on the part of industry,

both employer and employee, as to the financial

condition of productive establishments and a

gross inequality of competitive conditions

between employers and between industries; (4)

employees would receive windfall payments,

including liquidated damages, of sums for activ-

ities performed by them without any expecta-

tion of reward beyond that included in their

agreed rates of pay; (5) there would occur the

promotion of increasing demands for payment

to employees for engaging in activities no com-

pensation for which had been contemplated by

either the employer or employee at the time

they were engaged in; (5) voluntary collective

bargaining would be interfered with and indus-

trial disputes between employees and employers

and between employees and employees would

be created; (7) the courts of the country would

be burdened with excessive and needless litiga-

tion and champertous practices would be

encouraged; (8) the Public Treasury would be

deprived of large sums of revenues and public

finances would be seriously deranged by claims

against the Public Treasury for refunds of taxes

App. 22

already paid; (9) the cost to the Government of

goods and services heretofore and hereafter pur-

chased by its various departments and agencies

would be unreasonably increased and the Public

Treasury would be seriously affected by conse-

quent increased cost of war contract; and (10)

serious and adverse effects upon the revenues of

Federal, State, and local governments would

occur.

“The Congress further finds that all of the

foregoing constitutes a substantial burden on

commerce and a substantial obstruction to the

free flow of goods in commerce.

“The Congress, therefore, further finds and

declares that it is in the national public interest

and for the general welfare, essential to national

defense, and necessary to aid, protect, and fos-

ter commerce, that this Act be enacted... ”

Relying upon the foregoing legislative findings, the

Federal Courts consistently held that the Portal Act could

rationally and constitutionally be retroactively applied to

nullify pending claims for overtime compensation under

the Fair Labor Standards Act as long as certain circum-

stances exist. See, e.g., Seese v. Bethlehem Steel Co., 168 F.2d

58 (4th Cir. 1948), Darr v. Mutual Life Insurance Co. of New

York, 169 F.2d 262 (2nd Cir.), cert. denied, 335 U.S. 871,

(1948), and Markert v. Swift & Co., Inc., 173 F. 2d 517 (2nd

Cir. 1949).

In Rhinebarger v. Orr, 839 F. 2d 387 (7th Cir. 1988), the

Court of Appeals held that Congress’ amendment to the

Fair Labor Standards Act which stayed for one (1) year

ee

App. 23

the effect of the decision in Garcia v. San Antonio Metro-

politan Transit Authority, 469 U.S. 528 (1985), did not vio-

late the due process rights of Indiana State Police officers

who had filed suit prior to the amendment. Citing the

decision in Pension Benefit Guaranty Corp. v. R.A. Gray &

Co., 467 U.S. 717 (1984), for the proposition that congres-

sional legislation meets the test of due process if the

retroactive application of the legislation is itself justified

by a rational legislative purpose, the Seventh Circuit

declared:

“Plaintiffs have failed to meet their burden of

showing that the 1985 FLSA Amendment is irra-

tional. Plaintiffs make little effort to argue that

the 1985 Amendment does not fulfill a legiti-

mate and rational legislative purpose. The Sen-

ate Report to the Amendment explains the

purpose of the retroactive provisions: ‘The Com-

mittee has deferred application of the FLSA

overtime provisions until exactly one year after

the mandate in Garcia so that state and local

governments may make necessary adjustments

in their work practices, staffing patterns, and

fiscal priorities’. S.Rep. No. 99-159 at 15, 99th

Cong., Ist Sess. 2, reprinted in 1985 US. Code

Cong. & Ad. News 651, 663. Thus we conclude

that Congress acted for the rational purpose of

protecting the fiscal integrity of the states and

their political subdivisions.” (Footnote omitted)

839 F.2d at 388-389.2 See, also, Austin v. City of Bisbee, 855

F.2d 1429, 1434-1437 (9th Cir. 1988).

* Footnote 3 to the Seventh Circuit’s decision in Rhinebarger

v. Orr, 839 F. 2d at 389, quoted at great length the Senate

Committee’s discussion carefully balancing employee rights

under the Fair Labor Standards Act against the demands upon

App. 24

In enacting the 1996 amendment to the Portal Act,

Congress did not find that only retroactive application

would protect affected employers from unexpected hard-

ships. Instead, House Report 104-585, at p. 6, observed:

“Section 2 of H.R. 1227 makes the bill effective

upon enactment and applicable to civil actions

pending on the date of enactment, in which a

final decision has not been entered. It clarifies a

provision of the law that has been the subject of

inconsistent and contradictory interpretations

by the Department of Labor and the courts. The

purpose of H.R. 1227 is to clarify the intent of

the Portal-to-Portal Act as it applies to employee

use of employer-provided vehicles for commut-

ing at the beginning and end of the workday. It

is therefore appropriate to apply the clarifica-

tion to pending cases, as well as to future pro-

grams established by employers and employees.

H.R. 1227 addresses a provision of law that has

been ambiguous and the source of conflicting

and contradictory interpretations by the Depart-

ment of Labor. Thus, it is fair and reasonable to

apply the clarification to pending cases as well

as to any future situations.”*

the fiscal resources of the States and their political subdivision

as a consequence of the Garcia decision of the Supreme Court.

3 The Minority Views, which accompanied House Report

No. 104-585, at p. 13 observed:

“H.R. 1227 applies retroactively to pending litigation,

notwithstanding the fact that the bill bears little

relationship to the April 3 DOL opinion, or to any

other previous policy enunciated by the Department

of Labor regarding the treatment of time spent

commuting in an employer-owned vehicle. In snort,

the bill substantially modifies current law and

App. 25

The retroactive application of the 1996 amendment to

the Portal Act to terminate these lawsuits would violate

the Due Process Clause because, in 1989 and 1990, the

Wage and Hour Division, U.S. Department of Labor put

BST (and, by inference, its subsidiary, BSCS) on express

notice that BST’s failure to compensate its Home Dis-

patch Program participants for daily travel in company-

provided vehicles from their homes to their first work

sites and from their last work sites to their homes and for

“connect time” violated the Fair Labor Standards Act.

V. CONCLUSION

The motions of BSCS and BST for summary judg-

ments of dismissal in these lawsuits should be denied.

Respectfully submitted,

METSCH & METSCH, P.A.

By: Lawrence R. Metsch

19 W. Flagler Street, Suite 416

Miami, Florida 33130

(305) 358-7773

FAX: (305) 358-7877

ARTHUR W. TIFFORD, P.A.

By: Arthur W. Tifford

1385 N.W. 15th Street

Miami, Florida 33125

(305) 545-7822

FAX: (305) 325-1825

intentionally seeks to immunize employers who

violated the law.”

App. 26

THOMAS & THOMAS

By: Ira M. Thomas

77 Adams Avenue

Memphis, TN 38103-1709

(901) 526-0000

FAX: (901) 526-0046

ATTORNEYS FOR THE PLAINTIFFS

By: /s/ Ira M. Thomas

IRA M. THOMAS,

B.P.R. # 10134