Petition for Writ of Certiorari — Adams v. United States (No. 07-116)

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No OFFICE OF THE CLERK

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IN THE

Supreme Court of the United States

STEPHEN S. ADAMS, ET AL.,

Petitioners,

V.

UNITED STATES,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Jules Bernstein David T. Goldberg

Linda Lipsett Counsel of Record

BERNSTEIN & LIPSETT DONAHUE & GOLDBERG, LLP

1920 L Street, NW, Suite 303 99 Hudson Street, 8th FI.

Washington, D.C. 20036 New York, N.Y. 10013

(202) 296-1798 (212) 334-8813

Edgar James Sean H. Donahue

JAMES & HOFFMAN DONAHUE & GOLDBERG, LLP

1101 17th St., NW, Suite 510 2000 L Street, NW, Suite 808

Washington, D.C. 20036 Washington, D.C. 20036

(202) 496-0500 (202) 466-2234

Counsel for Petitioners

QUESTIONS PRESENTED

Petitioners are federal law enforcement officers who, as a

condition of employment, are required to drive specially-

equipped vehicles from home to work and back to enable them

to respond at any hour to emergencies in these vehicles.

Petitioners are on duty during such drives and are forbidden

from making personal stops or carrying non-work-related

passengers. In the decision below, the Federal Circuit, applying

recent Circuit precedent (but disregarding decades of practice

and directly contrary administrative interpretation) held that this

employer-required driving is not compensable “work” under the

Fair Labor Standards Act, as amended by the Portal-to-Portal

Act of 1947.

The questions presented are:

1. Whether the term “principal activity or activities” in

Section 4(a)(1) of the Portal Act embraces driving that is an

integral and indispensable part of work an employee is hired to

perform?

2. Whether Section 4(b)(2) of the Portal Act entitles

employees to compensation for an activity treated as

compensable by their employer’s “custom or practice,” even

though they personally had not previously been compensated

therefor?

(11)

LIST OF PARTIES

Petitioners are Stephen S. Adams and 6,609 individuals who

are current and former employees of the United States. The

names of all petitioners were filed with the Court of Federal

Claims and are part of the record in the Court of Appeals for

The Federal Circuit. Upon consultation with the Clerk’s Office

of this Court, petitioners do not list each petitioner’s name.

Should the Court require such information, petitioners will

provide it forthwith.

The Respondent is the United States.

TABLE OF CONTENTS

QUEST HI PREGGIEEES cscs cccsecccevdsesesens (I)

3k go es |. See een gee me ere (II)

py) Fae Fay). as ee er V

CPE hiv cence pena cenceeuesterenaeess ]

Pe FI aoe ehv k eck ae ack cweders ences l

STATUTORY AND ADMINISTRATIVE

PROV eee UVES cee ceecevervesvuvsereres |

EROS. vb cio % creed cese sasae eae 2

REASONS FOR GRANTING THE PETITION ........ 11

I. The Court Should Resolve Whether

the “Integral And Indispensable” Standard

Governs Cases in which Employers Invoke the

GEE) I ys i ok ko kk oad aeSeen sews cet. 13

A. The Federal Circuit Decision Conflicts Squarely

And Sharply with Those of Other Federal Courts .... 13

B. The Federal Circuit Rule Disregards

Longstanding Administrative Interpretations

of the FLSA and the Portal Act .................. 20

C. The Two-Tiered Approach to Section 4(a) Is

Inconsistent With This Court’s Decision in A/varez .. 23

-}V-

D. The Federal Circuit Rule Also Conflicts

With The Court’s Exposition of the

FLSA’s “De Minimis” Doctrine ................. 24

E. The Issue Presented Is Of Large Practica!

SA IO HERE ih ea ee re ee 27

Ij. Review Of The Federal Circuit's

Construction of The “Custom or Practice”

Provision Is Also Warranted .................... 28

SE 3 oe a cing yi ha ode 8 Caso Re ae

30

ms

TABLE OF AUTHORITIES

CASES

Adams v. Hinchman,

Se Feta A., G SOMS he ie cs oh eewewere een 7

nt i ts Ga ack nies 7

AFGE v. OPM,

Bed Wee FOE AA: COGS) okt ccc rece ieccs 21, 26

Aiken v. City of Memphis,

SR ie FPA UG COPD ccccccrnrescuans 14,17

Anderson v. Mount Clemens Pottery Co.,

Rye BUR A Oe re 12, 24, 25, 26, 29

Baker v. Barnard Const. Co., Inc.,

146 F.3d 1214 (10th Cir. 1998) ....... 9, 14, 15, 19, 27

Baker v. GTE North Inc.,

927 F. Supp. 1104 (N.D. Ind. 1996) .............. 19

Barrentine v. Arkansas-Best Freight System, inc.,

fe pee bye eA | | a rarer 18

Bobo v. United States,

FF CAE? 0 b.s Ch aercnn ds dbapaan eee: 3

Bobo v. United States,

136 F.36 1465 (Fed. Civ. 1998) .. 0... 0c cee passim

-Vi-

Bonilla v. Baker Concrete Const., Inc.,

487 F.3d 1340 (11th Cir. 2007) .............. 16, 18

Boudreaux v. Banctec, Inc.

366 F. Supp. 2d 425 (E.D. La. 2005) .............. 27

Burton v. Hillsborough County,

181 Fed. Appx. 829, 2006 WL 1374493

Se NS io rk sy diy eek whee os Bes 16, 20

Christofferson v. United States,

Pc SUED hi eo ee crabs se cesb pes beee es 5

Coke v. Long Island Care at Home,

ee a fp hw ae See 21

DA&S Oil Well Servicing, Inc. v. Mitchell,

Be We Se POO) nko dss civexacvases ‘14

Doe v. United States,

372 F.3d 1347 (Fed. Cir. 2004) Doe, .............. 6

Dole v. Enduro Plumbing, Inc.,

1990 WL 252270 (C.D. Cal. 1990) ......... 7, ds 02

Dole v. Flint Engineering and Const. Co.,

914 F.2d 262 (9th Cir. 1990) (table) ........ 16, 18, 19

Dooley v. Liberty Mut. Ins. Co.,

307 F. Supp. 2d 234 (D. Mass. 2004) ............. 27

Dunlop v. E. R. Field, Inc.,

495 F.2d 749 (ist Cir. 1974) ..........@.. 14.17.19

-Vii-

Dunlop v. City Electric, Inc.,

S27 F.2d S94 (SG Cor. 1976) oon cece cece: 16, 18, 25

Fox v. General Tel. Co.,

271 N.W.2d 161 (Wis. App. 1978) ............... 17

Graham v. City of Chicago,

818 F. Supp. 576 (N.D. Ill.1993) ....... 14, 17,18, 22

IBP, Inc. v. Alvarez,

Se ae ike RE CE x b's ose 6 ee ees. 8 koe VObuws passim

Karr v. City of Beaumont,

950 F. Supp. 1317 (E.D. Tex. 1997) ........ 14,15, 17

Knowles v. United States,

ee Sk Pe COED bs hc oo bce ca hebonewes 18, 25

Levering v. District of Columbia,

869 F. Supp. 24 (D.D.C. 1994) .................. 19

Lindow v. United States,

rf a Rly dy 2S 3) |) nines 25

Mitchell v. King Packing Co.,

ao as Ni we a ees rs OS +

Mitchell v. Mitchell Truck Line, Inc..,

ZOO. 20 T2t (SG Cor. 1961) wn ccc cence 14,17

NLRB v. Rutter-Rex Mfg. Co.,

Be a ETON he che ons bin hceecknews een 30

-Viil-

Raper v. lowa,

Se ae AED a iia vere cstseeetneeene 17

Reich v. Brenaman Elec. Serv.,

DPT WL 106759 (EE. FO FFT) vce cca vetees 17

Reich v. New York City Trans. Auth.,

GBF. SRG CC Fe ik oak ee es ie as passim

Reich v. New York City Trans. Auth.,

839 F. Supp. 171 (E.D.N.Y. 1993),

ee ae Se 8s Ad ca ae ee 17

Republican Publishing Co. v. American Newspaper

Guild, 172 F.2d 943 (ist Cir. 1949)... 2.2... 2.6e.. 20

Smith v. Aztec Weil Servicing Co.,

462 F.36 1274 (1G Cw. 200GH oe ihc tecees 16

Spencer v. Auditor of Special Accounts,

1990 WL 8034 (E.D. Ky.1990) ..............006- 23

Steiner v. Mitchell,

FOR OO G 456 ie Ke Ewe eee passim

United Transp. Union Local 1745 v. Albuquerque,

178 F.3d 1109 (i0th Cir. 1999) ow ce cee eee 15, 19

Vega v. Gasper,

FOF ae Set COG. TOP nc ig evdas ta vesditen 15

Wicker v. Hoppock,

Fo Ur POLSOED ceviosbdake depen eeyseeieaee 30

-iX-

STATUTES & LEGISLATIVE MATERIALS LAWS

I Ege ee ee 6

er a Sy 2s

Gey Nektar eceseveeceeeeseecrss 5

eee k see e ee weseteensecess 3

Ee 3

EE ese s eee eeevevevev ecto. 6

ee ee Sayyed sees se sgacceuse ce 6

Ie 2 ar eee 27

I a Pear rae i

SEED, oven nec ec cee Fee teee Neves passim

TE cc sec ett eee ees ee mens passim

ee 29

EEE eee a 27

|.) a Old or 7

rg ores Dx eens sey seo TOR 7

Pub. L. No. 103-329, 108 Stat. 2382 (1994) ............ 6

-X-

Pub. L. No. 104-52, 109 Stat. 468 (1995) ..............

Pub. L. 104-188, 110 Stat.1755 (1996), ....:.. 3,23, 24,

Ree Wee on fot ee

H.R. Rep. No. 93-913, 93rd Cong., 2d Sess. (1974) ..... )

REGULATIONS & ADMINISTRATIVE MATERIALS

CORR OIE noes ksb votes

SOIR CS |. oo cicsictesss cee

OCP TE CU ooo orcas cere

Te. | * ni Cr ena lec n. |

WOVE 65S eee 5,15,

WMEPESEES ....:.

WCPR. CTA ©. oe cicccc nccvecectsees

WOE PR ATOR: 5 coc forces ee rer

CUR WENM.. oo 5650 ce 5,

MOVER SMEG ... 5k ee

fe SO eS Eee Pre wee Cer rer rhs ne,

CER AWERS 8

-—

~

21

-XI-

i cia cucens 21

U.S. Civil Service Commission,

Federal Personnel System Manual (FPM)

Letter No. 551-10 (April 30, 1976) ........... passim

U.S. Dept. Of Labor, Bur. Lab. Stats.,

American Time Use Survey Summary,

ey SR nr rr 27

U.S. Department of Labor, Wage and Hour Div.,

Wage and Hour Advisory Mem. No. 2006-2 at |

eo a ee es hy 5 aay x AG's ow Os 26

U.S. Department of Labor, Wage and

Hour Div., Field Operations Handbook ............ 23

U.S. Department of Labor, Wage and

Hour Div., Wage-Hour Op. Letter

Pe, hea cdeaeew serve ee 19

Br. Amicus Curiae of the U.S.,

Tum v. Barber Foods, Inc., No. 04-66 (2005) ....... Pan

Br. Amicus Curiae of the U.S., /BP, Inc. v. Alvarez,

Sn a a ee ale 25

OPINIONS BELOW

The decision of the Federal Circuit, reported at 471 F.3d

1321, is reprinted in the Appendix (“App.”) at la. ‘The opinion

of the Court of Federal Claims, reported at 65 Fed. Cl. 217, is

reprinted at 11a. The order denying rehearing aud rehearing en

banc may be found at 59a.

JURISDICTION

The Court of Appeals denied rehearing and rehearing en

banc on March 14, 2007. The Chief Justice extended the time

to file to July 27, 2007. This Court’s jurisdiction is invoked

pursuant to 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

Section 4 of the Portal-to-Portal Act (“Portal Act”) provides

(a) Activities not compensable

Except as provided in subsection (b) of this section, 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

activities * * *-

(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 postitminary iv 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 * * * *

(b) Compensability by contract or custom

Notwithstanding the provisions of subsection (a) * * * the

employer shall not be so relieved if such activity is

bh

compensable by * * * *

(2) acustom or practice in effect. at the time of such activity.

at the establishment or other place where such employee 1s

employed, covering such activity * * * *

29 U.S.C. § 254.

Federal Personnel Manual! System (PM) Letter No. 551-10,

entitled “Travel Time as ‘Hours of Work’ Under FLSA,” (April

30, 1976) provides (at Table 1):

HOME TO WORK TRAVEL AS “HOURS OF WORK”

UNDER FLSA

Kind of Travel Involved: Is travel time “hours of work”?

Home to Work - Normal Situation

Normal home to work (work to home) travel No

Employee drives a Government vehicle home

(as a requirement Of the employing agency)

to respond to emergency calls immediately

from his/her home. Yes!’

see *

“All time spent driving the vehicle home to work (work to

home) is hours worked.

These and the other pertinent statutory and administrative

materials are reproduced in the Appendix, beginning at 61a.

STATEMENT

This case involves claims for Fair Labor Standards Act

(FLSA) overtime pay by 6,610 criminal investigators employed

by five federal law enforcement agencies. The court below held

that under the Federal Circuit's interpretation of § 4(a)(1) of the

Portal Act, see Bobo v. United States, 136 F.3d 1465 (Fed. Cir.

1998), time Petitioners were required to spend driving

government vehicles. for purposes deemed essential to

performance of their iaw enforcement duties, was not

compensable.

A. The Statutory Background

1. The FLSA entitles employees who fall within the Act's

broad coverage provisions to be paid a minimum wage for each

hour worked, 29 U.S.C. § 206, and pay at one and one-half

times the reguiar rate for each hour of overtime work, id. § 207.

The statute does not expressly define terms such as “work” and

‘workweek,” see JBP, Inc. v. Alvar: 1, 126 S. Ct. 514, 518

(2005), and early judicial decisions. which interpreted those

terms in ways that resulted in large and unanticipated employer

liabilities, led Congress to enact the Portal Act in 1947. See

Bobo, 37 Fed. Cl. 690, 692 n.3 (1997) (noting that decisions

“expanded employer pay liability for activities such as opening

windows, switching on lights, and walking to * * * work

stations”), aff'd, 136 F.3d 1465.

Section 2 of the Portal Act, 29 U.S.C. § 252, extinguished

most then-existing FLSA claims. Section 4. which governs

post-enactment cases, is more narrow: it “except[s] two

activities that had been treated as compensable under [prior]

cases: walking on the employer’s premises to and from the

actual place of performance of the principal activity of the

employee [§ 4(a)(1)], and activities that are ‘preliminary or

postliminary’ to that principal activity [§ 4(a)(L)].” Alvarez,

126 S. Ct. at 520. See Reich v. New York City Trans. Auth., 45

F.3d 646, 649 (2d Cir. 1995) (Reich) (provision was “intended

to relieve employers from liability for preliminaries, most of

them relatively effortless, that were thought to fall outside the

conventional expectations and customs of compensation’”).'

' In 1996, Congress enacted the Employee Commuting Flexibility Act

(“ECFA”), 110 Stat.1755, 1928, which has been codified at the end of 29

U.S.C. § 254(a). It provides:

For purposes of this subsection, the use of an employer's vehicle for

travel by an employee and activities performed by an employce 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 trave} is within the norma) commuting area for the employer's

business or establishment and the use of the employer's vehicle is subject

4

Otherwise excludable preliminary activities are compensable

where the employer has so treated them by contract,

§ 254(b)(1), or “custom or practice,” id. § 254(b)(2).

By its terms, the Portal Act has no bearing on the

compensability of activities that occur during work. i.e..

“{subsequent] to the time * * * at which [an] employce

commences, or [prior] to the time * * * at which he ceases” his

principal activities, see Alvarez, 126 S. Ct. at 520-21. And

apart from the exceptions enumerated in § 4(a), the 1947

legislation “did not purport to change this Court's earlier

descriptions of the terms ‘work’ and ‘workweek.”” /d. at 520.

2. The Court addressed the § 4(a) exemption in two 1956

decisions, Steiner v. Mitchell, 350 U.S. 247, and Mitchell v.

King Packing Co., 350 U.S. 260, in which employers

maintained that particular pre- and post-shift activities

(showering and donning and doffing protective gear by battery

workers in Steiner and knife sharpening by butchers in King

Packing) were excludable as “preliminary or postliminary”

under § 4(a)(2). ‘he Court held that both activities remained

compensable. Canvassing the text, structure and history of the

1947 Act and Department of Labor regulations, the Court held

that § 4(a) does not relieve employers of pay obligations with

respect to pre- or post-shift activities that are “integral and

indispensable,” 350 U.S. at 255, to the work the employee is

hired to perform. See Alvarez, 126 S. Ct at 522 (describing

Steiner as “accepted as settled law for several decades”).

3. The Court revisited Section 4(a) in Alvarez, where the

employer claimed that time employees spent walking to

production areas after putting on safety gear was excludable

under § 4(a)(1). Rather than dispute that “donning” was a

compensable “integral and indispensable” activity — or that

traveling between “principal activities” during the workday is

beyond the reach of § 4(a)(1) — the employer maintained that

to an agreement on the part of the employer and the employee or

representative of such employee.

5

Steiner should be read as establishing “a third category of

activities — those that are ‘integral and indispensable’ to a

‘principal activity’ and thus not excluded from coverage by

§ 4(a)(2), but that are not themselves ‘principal activities’ as

that term is defined by § 4(a)(1).”. 126 S. Ct. at517. The Court

rejected that submission, holding that “any activity that is

‘integral and indispensable’ to a ‘principal activity” is itself a

‘principal activity’ under § 4(a),” id. at 525, and that the

continuous workday principle therefore controlled.

4. The Department of Labor has promulgated a body of

rules, many of which were issued contemporaneously with the

Portal Act, defining the meaning and scope of the § 4(a)

exception, see 29 C.F.R. §§ 790. 1-790. 12, including provisions

bearing on when driving to or from a worksite is “travel”

excluded by § 4(a)(1) and when it is a “principal activity,” see

id. §§ 790.7(c)-(e); 785.35, 785.38 & 785.4}.

5. Federal employees were brought within the FLSA in 1974,

and responsibility for administering the Act in the federal sector

is now assigned to the Office of Personnel Management (OPM),

as successor to the U.S. Civil Service Commission (CSC). See

29 U.S.C. § 204(f). In addition to issuing regulations

interpreting the FLSA, see, eg. 5 C.F.R. §§ 552.401,

§52.122(b), CSC and OPM issued a series of Federal Personnel

System Manual (FPM) Letters, providing detailed, government-

wide instructions concerning the application of the statute.’

FPM Letter 551-10 (quoted supra, p. 2), titied “Travel Time

as ‘Hours of Work’ Under FLSA,” states, inter alia, that when

an FLSA-covered employee drives a “[g]overnment vehicle

home (as a requirement of the employing agency) to respond to

emergency calls immediately from his/her home is

compensable,” “{a]ll time spent driving the vehicle home to

work (work to home) is hours worked.” /d. Table | & n.1; see

’ Although the Federal Personnel Manual was “sunsctted™ at the end of 1993

and 1994, courts continue to cite and rely on FPM Letters. Sec, e.g.,

Christofferson v. United States, 64 Fed. Cl. 316, 322 (2005).

6

also id. (“normal home to work * * * travel” is not

compensable).

B. Facts and Proceedings Below

|. Petitioners, thousands of individuals employed as criminal

investigators by the Bureau of Alcohol. Tobacco and Firearms,

the Customs Service, the Drug Enforcement Administration, the

Internal Revenue Service, and the Secret Service, are part of an

even larger group of federal law enforcement officers who filed

a series of suits under FLSA’s collective action provision, 29

U.S.C. § 216(b), asserting that the Government had wrongly

treated them as FLSA-exempt, thereby denying them pay for

overtime work in accordance with that statute.’

2. As part of their job duties, Petitioners were assigned

government vehicles, equipped with two-way radios, as well as

(depending on the agency and position) firearms, ammunition,

leg irons, night vision equipment, crowbars, drug testing

equipment, and sirens, which they were required to have at the

ready, see C.A. Br. 24-25, and they were required to complete

advanced driving training, C.A. App.A120. It was undisputed

> Plaintiffs had been paid under the Federal Employees Pay Act, 5 U.S.C.

§ 5541 et seqg., which calculates hours of work and awards overtime pay

differently (and less generously) than does FLSA. See Doe v. United States,

372 F.3d 1347, 1360 (Fed. Cir. 2004). Consistently with controlling

regulations, plaintiffs’ suits sought the difference between the two amounts.

From the start, the Government’s response has not been limited to the

courtroom. In 1994, the Government sought — and secured — from Congress

a provision (prospectively) placing federal criminal investigators outside the

FLSA, 29 U.S.C. § 213(a)(16), and sought to limit plaintiffs’ recovery by

retroactively shortening the limitations period for administrative claims. See

Adams v. United States, 391 F. 3d 1212, 1215 (Fed. Cir. 2004). Congress

at first rejected that effort, enacting a law providing that the new limitations

rule be applied only prospectively, see Pub. L. No. 103-329 § 640 (1994);

the Government then sought to have that \egislation reversed — and simply

refused to process Petitioners’ claims until a new, more restrictive measure

was enacted, as it eventually was, Pub. L. No. 104-52. Adams v. Hinchman,

154 F.3d 420(D.C. Cir. 1998) (addressing constitutionality of this course of

events) cert. denied., 526 U.S. 1158 (1999); 391 F.3d at 1225 (addressing

further constitutional issues), cert. denied, 126 S. Ct. 330 (2005).

7

that the vehicles are “‘a necessary tool whereby an Agent carries

out * * * his assigned criminal investigative and protective

duties and responsibilities,” id. A119 (Secret Service).

Because Petitioners’ duties require them to respond to

emergency calls from home at al! hours — in official vehicles -

they were required, as a condition of employment, to drive the

vehicles between home and work daily. Consistent with agency

determinations that such driving was “essential for the safe and

efficient performance of * * * [Petitioners’] intelligence,

counter-intelligence protective services [and] criminal law

enforcement duties,” 31 U.S.C. § 1344(a)(2)(B), Petitioners

were not permitted to leave the vehicles at work sites or to

commute by other means.

Both federal law (31 U.S.C. § 1349) and agency policies

strictly forbid the agents from making personal stops while

driving these vehicles between home and work and prohibit

them from carrying family members or friends as passengers.

While driving, they are obliged to monitor and respond to radio

calls and perform other law enforcement duties.

3. After decisions of the Court of Federal Claims, 27 Fed.

Cl. 5, 28-29 (1992), and the Federal Circuit, 1998 WL 804552

(Sep. 23, 1998), holding that some plaintiffs had established

their status as FLSA “non-exempt” (i.e., covered) as a matter of

law, see 27 Fed. Cl. at 28-29 (GS-9s and I 1s had wrongly been

exempted) and others were entitled to further litigate that

question, see 1998 WL 804552 at *4 (reversing summary

judgment on claims by GS-12 and -13s), the parties entered into

settlement negotiations.

4. The first settlement agreements the Government entered

into (with plaintiffs who are not Petitioners here) did not

distinguish between the time spent in home-to-work driving and

other unpaid hours worked. After the Federal Circuit’s 1998

Bobo decision — which held that § 4(1) allowed the Government

to require border patrol agents to board drug detection dogs at

their homes and transport them to their posts and back each day,

8

without treating the driving as time worked — the Government

took the position that Petitioners’ driving likewise should be

excluded from “hours worked” in settling their claims.

Three groups of plaintiffs (Petitioners here) reached partial!

settlement agreements with the Government, each of which

reserved their rights to litigate the driving time issue.’ The third

of these, an August 2003 agreement settling claims of GS-12

employees at all five agencies, provides that “[s]olely for the

purposes of litigating the plaintiffs’ claims to recover for

driving time, it is agreed and stipulated herein that * * *

plaintiffs while employed by the agencies as GS-12[s] were

FLSA non-exempt.” C.A. App. 105.

5. In the Court of Federal Claims, the Government and the

GS-12 Petitioners moved for summary judgment. Petitioners

maintained that the Letter 551-10 rule correctly interpreted the

FLSA and the Portal Act, and that the undisputed evidence —

drawn mostly from the agencies’ official materials and from the

deposition testimony of Rule 30(b)(6) witnesses representing

the Government — established that the driving is a “principal

activity” to which the § 4(a)(1) exclusion does not apply.

The GS-12 officers also sought judgment based on § 4(b)(2).

Citing (1) evidence that their agencies had (consistently with

the rule laid down in Letter 551-10) treated time FLSA-covered

employees spent driving law enforcement vehicles between

home and work as compensable, and (2) the stipulation that, for

purposes of the driving claims, they would be treated as non-

exempt, plaintiffs urged that they were entitled to pay in

accordance with “custom or practice.”

* Another substantial subgroup, consisting of some 6,000 GS-13s, did not

settle, and in 2004 prevailed on their claim that they were FLSA non-

exempt. These individuals’ backpay-for-driving claims are currently

pending in the Court of Federal Claims.

* All plaintiffs opposed the Government’s motions, on the ground that the

Government had failed to adduce any evidence supporting the contention

that Petitioners’ driving was subject to the § 4(a)(1) exclusion.

9

The Court of Federal Claims Decision. The trial court

granted summary judgment for the Government, holding that

Petitioners could not prevail under the Federal Circuit's

controlling interpretation of § 4(a)(1). The court described

Bobo and Reich — a Second Circuit decision rejecting the

Secretary of Labor’s claim that police canine handlers’ were

performing compensable work by transporting dogs between

work and home - as settling that “the mere act of driving a

vehicle to and from the workplace [does] not itself constitute

work,” and that time spent driving is “not * * * compensable

unless it involve[s] some additional burdens that [are] more

than de minimis,” App.35a. The court then concluded that the

restrictions on Petitioners’ driving and their additional activities

during their drives were no more substantial than those held

insufficient as a matter of law in Bobo, App.36a.°

The court turned aside Petitioners’ contentions that they

should prevail under decisions such as Baker v. Barnard Const.

Co., Inc., 146 F.3d 1214 (10th Cir. 1998), which held that

driving that meets the “integral and indispensable” test is

beyond the reach of the § 4(a)(1) exclusion. Those cases, the

court reasoned, were “[u}nlike Reich and th[is} case” — because

they did not arise “in a law enforcement context,” App.33a;

and, “[t]o the extent that the Tenth Circuit in Baker could be

read to apply a more easily met standard for compensable travel

time under FI.SA than that applied by the Second Circuit in

Reich, * * * the Reich analysis is contro}ling !aw in this circuit.”

id. (footnote omitted).

The trial court then addressed [etter 551-10. Acknowledging

that OPM’s interpretation applied directly and unambiguously

to Petitioners’ situation ~ and had been equally clearly

inapplicable in Bobo (which had not involved driving to

facilitate emergency responsc), the court expressed doubt that

° The court also considered whether ECFA, sce n. |, supra, applied to the

case, concluding that it did not, because there has been no proof (or even

claim) of the requisite employer-employce agreement. App.27a.

10

the “Bobo || court would have deferred to the FPM Letter’s

guidance” even if it had been applicable to that case, App.52a.

See id. 53a (asserting that following Letter 551-10 would have

precipitated a “direct conflict with Reich” a step “the Federal

Circuit would not have lightly [taken]}”).’

The court ruled that evidence that Petitioners’ agencies

“followed a practice of compensating agents for home-to-work

driving” did not entitle them to relief under § 4(b)(2). That

provision, the court stated, authorizes rclief only “for those

employees who directly benefitted from that custom or

practice,” App.49a, and not for Petitioners, who could not show

the agencies’ practice “‘[]ever extended to agents who were,

rightly or wrongly, classified as exempt from the FLSA [at the

time],’” id. 40a (quoting Def.’s Mot., emphasis original).°

The Federal Circuit Decision. ‘he Court of Appeals

affirmed. Quoting the language added by ECFA, which it

described as stating the Portal Act’s “[s]pecific [rule for]

vehicular travel,” App.Sa, and Bobo’s conclusion that

“commuting done for the employer’s benefit. under the

employer’s rules, is noncompensable if the labor beyond the

mere act of driving the vehicle is de minimis,” the court held

Petitioners’ claim barred under § 4(a)(1), because they

performed no more “additional legally cognizable work while

driving” than the Bobo plaintiffs and because the prohibitions

on stops and carrying passengers were “basically identical to”

those held de minimis as a matter of law in Bobo. App.7a.°

’ The court also referenced a page on the OPM website, observing that

“OPM appears to now have adopted Bobo [] as the controlling interpretation

of commuting time claims under FLSA.” App. 56a.

* The opinion noted a number of issues raised by § 254(b)’s application to

the federal sector, but explained that it was unnecessary to address these to

decide Petitioners’ claim. See App.!9a-24a.

*The court held that employees bear “the burden of showing that [the

disputed activity]* * * does not fall into the set of activities excluded * * *

by the Portal-to-Portal Act,” describing the rule cited by Petitioners — that

the burden of establishing an FLSA exemption falls on the party asserting it

1]

The Federal Circuit did not discuss Petitioners’ contention

that their claims (unlike the Bodo plaintiffs’) were specifically

supported by the longstanding OPM rule, but in addressing the

“custom or practice” question, the opinion described Petitioners

as “correct[ly|” asserting “that under * * * Letter No. 551-10,

FLSA non-exempt officers were * * * compensated for their

commute time,” App.9a. The problem with the “custom or

practice” claim, the court then explained, was that “[p]rior to

this litigation * * * plaintiffs * * * were classified as exempt

from FLSA and were therefore not paid for their commutes.”

Id. The stipulation that Petitioners be treated as non-exempt for

purposes of the driving issue, the court reasoned, could not

make up for the “reality,” that “the government did not

compensate the[m]” at the relevant times. /d.; see id. (under

§ 4(b)(2),“hypothetical customs or practice[s} do not suffice”).

REASONS FOR GRANTING THE PETITION

This Court’s review is warranted to resolve a broad and

basic disagreement among the lower federal courts about the

meaning of the Portal Act’s § 4(a)(1) exception. ,

In cases dating back five decades, the First, Fifth, and Tenth

Circuits have held (as have the Ninth and Eleventh, in non-

binding decisions) that claims to the § 4(a)(1) exception are to

be tested under the same standard the Court held governs under

§ 4(a}(2}. As with other pre- and post- shift activities, these

courts hold, an employee’s driving is a “principal activity” —

and therefore outside the Portal Act’s ambit — when it is

“integral and indispensable to the performance of [his] principal

activities.” Steiner, 350 U.S. at 256.

The Federal Circuit and two other Courts of Appeals (and a

number of district courts) have embraced a starkly different

legal rule. Instead of treating driving “done for the employer's

— as applying to cases where the employer claims the worker is exempt from

coverage, but not to assertions that certain “activities [are exempted] from

the FLSA,” App.6a (emphasis original).

12

benefit [and] under the employer’s rules,” as beyond the reach

of § 4(4)(1), these decisions hold it “noncompensable” — unless

the employee performs substantial “labor beyond * * * driving

the vehicle” App.9a (emphasis added).

The gulf between these legal standards is as broad in practice

as itis on paper. Not only have factually identical cases yielded

Opposite results, but legally compelling claims, like this one,

have fared worse under the Federal Circuit rule than have cases

elsewhere with less one-sided facts.

The question on which these courts are divided is especially

worthy of the Court’s resolution because it arises in an area of

the law where the Court (and Congress) have long recognized

unpredictability to be particularly undesirable; because it

concerns a subject of broad and increasing practical importance;

and because the sharp divergence between the Federal Circuit's

interpretation of the FLSA and that governing elsewhere leaves

federal workers ina very different (substantially worse) position

than counterparts doing the exact same work in private (or

nonfederal) employment.

Review is further warranted because the construction of

§ 4(a)(1) applied by the Federal Circuit is seriously mistaken.

Both this Court’s decision in Alvarez and longstanding

administrative interpretations establish that “integral and

indispensable” driving is a compensable “principal activity” --

and neither the language of ECFA (cited by the court below)

nor dictum in the Steiner opinion (cited by other courts)

supports the Federal Circuit’s contrary rule.

The Federal Circuit’s decision is also irreconcilable with

another of this Court’s important precedents, Anderson v.

Mount Clemens Pottery Co., 328 U.S. 680 (1946), on a point of

large legal and practical significance. The expansive version of

the “de minimis” doctrine invoked below — whereby courts are

permitted to pronounce judgments (as a matter of law) about the

nature of the requirements employers impose and to do so

activity-by-activity -— bears no resemblance to the limited,

13

quantitative inquiry approved in Anderson, and conflicts with

other courts’ and the Labor Department’s understanding of the

de minimis rule.

The Court should also review the Federal Circuit’s

unprecedented and fundamentally mistaken construction of

§ 4(b)(2). The question here is not whether a “hypothetical”

practice suffices under that provision, but whether employces

who establish their employer’s actual practice of treating an

activity as “time worked” when paying FLSA-covered

employees should be denied payment for the same activity

because the employer wrongly classified them as FLSA-

exempt. Although Congress intended the § 4(b)(2) custom or

practice provision to have limited application, the requirement

added by the decision below — that the employer must

previously have paid the particular employee for the activity at

issue ~ is without support in statute or common sense.

I. The Court Should Resolve Whether the “Integral And

Indispensable” Standard Governs Cases in which

Employers Invoke the § 4(a)(1) Exemption

A. The Federal Circuit Decision Conflicts Squarely And

Sharply with Those of Other Federal Courts

In concluding that Petitioners’ employer could — without

paying them — compel them to drive government vehicles, to

facilitate performance of job duties from home, and direct and

contro! their activities during the drive, the decision below

rejected Petitioners’ arguments that Steiner should control, 7.e.,

that § 4(a) does not affect compensation for “integral and

indispensable” activities - and that the driving in this case so

qualified. The decision instead applied Circuit precedent

establishing a special rule for cases where the § 4(a)(1)

exception is invoked: that employer-required driving “done for

the employer’s benefit, under the employer's rules, is

noncompensable” — unless the employee “perform|s] additional

legally cognizable work while driving to the[] workplace.”

App.9a; see also Bobo, 136 F.3d at 1467 (employees had no

4

FLSA claim where “the restrictions placed upon the INS

Agents’ commutes are compulsory, for the benefit of the INS.

and closely related to the INS Agents’ principal work

activities,” because these “burdens” did not pass the “de

minimis threshold”).

The Federal Circuit is not alone in this two-tiered approach

to Section 4(a). The Sixth Circuit has likewise adopted a

special, unforgiving standard in a case involving employer-

required driving between home and work, see Aiken v. City of

Memphis 190 F.3d 753, 758 (6th Cir. 1999), and both that

decision and Bobo (and a number of federal district court

decisions) have claimed reliance on the Second Circuit’s

influential decision in Reich. See App.31a-34a (collecting

cases holding canine transportation to be excluded under §

4(a)(1) ); but see Graham v. City of Chicago, 818 F. Supp. 576

(N.D. Il1.1993) (granting judgment for canine handlers on

FLSA claim to compensation for transporting dogs); Karr v.

City of Beaumont, 950 F. Supp. 1317 (E.D. Tex. 1997) (same).

This rule, however, conflicts sharply with the legal standard

that other Circuits apply to employer assertions that § 4(a)(1)

renders driving to or from work non-compensable. In a case

decided two years after Steiner, D A & S Oil Well Servicing,

Inc. v. Mitchell, 262 F.2d 552 (10th Cir. 1958), the Tenth

Circuit held, in a suit brought by the Secretary of Labor, that the

time workers spent driving their employer’s trucks to and from

a job site was not within the § 4(a)(1) exclusion, applying the

same “integral and indispensable” standard Steiner had held to

govern under § 4(a)(2), id. at 554-55.

Precedent-setting decisions of the First and Fifth Circuits

adopted the same rule. See Mitchell v. Mitchell Truck Line,

Inc., 286 F.2d 721 (Sth Cir. 1961) (concluding that driving and

other pre- and post-shift “activities were * * * such an integral

part and so indispensable to the employees’ main job as to be

outside of the Portal-to-Portal exemption”): Dunlop v. E. R.

Field, Inc., 495 F.2d 749 (1st Cir. 1974) (holding that driving

15

employer’s trucks to and from work site was outside the

§ 4(a)(1) exclusion, citing DA & S and a factual finding that the

driving was “‘an integral and indispensable function of the

defendant business’”’).

Recent decisions have adhered to and amplified this

approach. Thus, in Baker, the Tenth Circuit reversed a verdict

for an employer who asserted that § 4(a)(1) relieved it of the

obligation to pay employees for time spent driving trucks home

from work each day. See 146 F.3d at 1216. “Because travel

time meeting the ‘integral and indispensable’ test must be

compensated pursuant to the FLSA,” the court heid, the

dispositive question was whether work-to-home driving met

that test — and was not “[n]ormal travel from home to work,” id.

at 1218 (quoting 29 C.F.R. § 785.35). Baker then identified the

considerations that should decide that question:

whether Plaintiffs were truly free to go where they wanted at

the end of the work day and to use whatever method of

transportation they chose * * * * whether Plaintiffs could

have left the rigs at the work site * * * or whether Plaintiffs

were required, by policy or practical reality, to transport the

rigs from the work site each day to refuel and restock.

Id. at 1219."°

And in United Transp. Union Local 1745 v. Albuquerque,

178 F.3d 1109 (10th Cir. 1999), the court applied the standard

to plaintiffs’ claim that time spent riding their employer's

shuttle buses was compensable work. Time spent riding to and

from “split shifts,” the court held, was outside § 4(a)(1),

because it was “integral and indispensable to [the employer’s|

system of dispatching and relieving drivers,” but riding after the

last shift was not compensable work, because the employees

were free to “go home any way they choose, by any means they

'" See Civ. No. 93-140 (D. N.M. Nov. 18, 1998) at 18-19 (Unpublished

Opinion) (holding, on remand, that the work-to-home driving was

compensable “because it [was] integral and indispensable to [the] principal

activities for which they »*re hired”).

16

choose.” 178 F.3d at 1120. See also Vega v. Gasper, 36 F.3d

417, 425 (Sth Cir. 1994) (“Travel that is an indispensable part

of performing one’s job is a principal activity and is

compensable”); Karr, 950 F. Supp. at 1323 (holding, under

Fifth Circuit law, that plaintiffs’ transportation of police dogs

was “[a]n integral and indispensable part of [their] work” and

outside § 4(a)(1))."'

The law in the Eleventh Circuit appears to be the same. In

a recent, closély reasoned (though not precedential) decision.

Burton v. Hillsborough County, 18) Fed. Appx. 829 (1 1th Cir.

2006). that court stated the rule for FLSA claims for time spent

on pre- and post-shift driving: “where the activity is ‘an integral

and indispensable part of the principal activities for which [the

employees] are employed,” the Portal-to-Portal exemption [§

4(a)(1)} does not apply.” Jd. at 837 (quoting Steiner, 350 U.S.

at 256, and Dunlop v. City Electric, Inc., 527 F.2d 394 (Sth Cir.

1976)). The Eleventh Circuit affirmed summary judgment for

plaintiffs, emphasizing that “without the county vehicles the

employees could not perform the principal activities for which

they were employed” and that the requirement that they drive

the vehicles to secure parking sites at the end of their shift

“solely benefitted the [employer],” which “did not want its

vehicles left at unattended work sites overnight.” /d. Cf.

Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 &

n.7 (lith Cir. 2007) (distinguishing Burton on its facts)."*

'' Vega rejected compensation under the integral and indispensable test,

because the workers “were not required to use (the employer's] buses to get

to work in the morning,” 36 F.3d at 425, and “performed no work prior to

or while riding” them, id, and in light of a Labor Department rule

specifically on point, id. at 424 (citing 29 C.F.R. § 790.7(f)). Smith v. Aztec

Well Servicing Co., 462 F.3d 1274 (10th Cir. 2006), is to similar effect: the

decision recognized that “traveling * * * constitute[s}] ‘work’ if it is‘an

integral and indispensable part of the principal activities for which [plaintiff]

[is] employed,” but held the driving at issue did not qualify, because

employees were free to choose their means of traveling to the work site and

“free to spend (the drive] time as they wished,” id. at 1281.

'° Bonilla is somewhat opaque: although the decision only undertook a full

17

Accord Dole v. Flint Engineering & Const. Co., 914 F.2d 262

(9th Cir. 1990) (table) (applying “integral and indispensable”

test, holding that § 4(a)(1) did not relieve employer of

obligation to compensate workers for driving trucks home).

State court FLSA decisions have similarly treated “integral

and indispensable” driving as an “exception{] to the general

rule that drive time is non-compensable,” Raper v. Jowa, 688

N.W.2d 29, 46 (2004); see also Fox v. General Tel. Co., 271

N.W.2d 161 (Wis. App. 1978), as have a number of influential

district court decisions rendered — like Steiner, Field, Mitchell

Truck Line and Reich — in enforcement actions brought by the

Secretary of Labor, see, e.g., Dole v. Enduro Plumbing, Inc.,

1990 WI. 252270 (C.D. Cal. 1990); Reich v. Brenaman Elec.

Serv., 1997 WL 164235 (E.D. Pa. 1997).

These sharply divergent legai standards are outcome-

determinative. As noted, whereas Bobo and other courts have

held that, under § 4(a)(1), canine officers’ transporting dogs

between work and home — even when required by the employer,

in special vehicles, and subject to restrictions ~ does not raise

a “valid or even triable claim to compensation under the

FLSA,” 136 F.3d at 1468, courts adhering to the Steiner test

have ruled, on identical facts, that employees are entitled to

judgment as a matter of law. Sce Karr; Graham; see also

Reich, 839 F. Supp. 171 (E.D.N.Y. 1993), rev ‘445 F. 3d 646."

‘integral and indispensable” analysis with respect to activities claimed to be

exempt under § 4(a)(2) — concluding thai plaintitts’ bus riding fell squarely

within § 4(a)(1) and 29 C.F.R. § 790.7(f) — it elsewhere stated that “boarding

* * * buses,” would be compensable if it amounted to “work-related activity

that is ‘integral and indispensable,” and described the Burton decision as

having applied “the same ‘integral and indispensable’ analysis that is at issue

here,” id. at 1342, 1345 n.7.

ae Although the Bobo and Aiken courts treated their cases as on all fours with

Reich, that case did not involve restrictions during the drive, and the Second

Circuit decision can be read as attaching substantial significance to another

distinguishing fact — that the employer, though mandating ‘the canines be

transported by car, did not require the employees to do the driving. See 45

F.3d at 648 n.2: id. at 650.

18

Likewise, there can be no real argument that the facts

summarized in the decision below would entitle Petitioners to

judgment as a matter of law under any of the various

formulations of the “integral and indispensable” test:

The plaintiffs are issued government-owned police vehicles

and required as a condition of their employment to commute

from home to work in those vehicles. ‘This requirement

facilitates their employers’ law enforcement missions, since

the cars will be available to the officers for rapid response to

emergency calls at any time, whether the officers are at

home or proceeding on their commutes. The officers’ time

is not entirely their own during their commutes: they are

required to have their weapons and other law

enforcement-related equipment and to have on and monitor

their vehicles’ communication equipment. They are not

allowed to run any personal errands in their government

vehicles, so their commute must proceed directly from home

to work and back again without unauthorized detours or

stops.

App.2a. This does not describe an activity “undertaken ‘for

[employees’] own convenience, not being required by the

employer and not being necessary for the performance of their

duties for the employer.’” Barrentine v. Arkansas-Best Freight

System, Inc., 750 F.2d 47, 50 (8th Cir. 1984) (quoting Dunlop,,

527 F.2d at 398); Bonilla, 487 F.3d at 1344 (identifying “(1)

whether the activity is required by the employer, (2) whether the

activity is necessary for the employee to perform his or her

duties, and (3) whether the activity primarily benefits the

employer” as determinative factors).

Indeed, Petitioners’ driving falls more readily into the

“principal activity” categery than)activities other Circuits have

held compensable. notwithstanding § 4(a)(1). First, this case

involves driving — rather than merely “riding” — see Knowles v.

United States, 29 Fed. Cl. 393 (1993) (emphasizing “the

difference between traveling and driving’); see infra

19

(discussing 29 C.F.R. § 785.41).'* Second, Petitioners’ driving

is compulsory, see FJint, 1990 WL 134281, *3 (contrasting case

of employees “required to drive the company trucks to their

homes” with that of one permitted to “‘drive a truck to and from

his home for his own convenience’) (quoting Wage-Hour Op.

Ltr. No. 786 (Apr. 8, 1968)) (emphasis added by Ninth Circuit);

cf. Field, 495 F.2d at 751 (upholding compensation for

employee who could “have reached the jobsite by personal

transportation” — because he “was in fact performing services

for the benefit of the employer” by driving the employer's

truck). The requirement here is not merely a “practical reality,”

Baker, 146 F.3d at 1219, see also Flint, 1990 WL 134281, *3

(employer’s policies “amounted * * * in practice to a

requirement” that workers drive trucks home); it is a formal,

binding condition of Petitioners’ employment.

In Petitioners’ case, transporting the vehicles home was

specifically necessary and required so that Petitioners could

perform further job duties — i.e., emergency response in the

official law enforcement vehicle — there. Compare Baker v.

GTE North Inc., 927 F. Supp. 1104, 1113 (GTE) (N.D. Ind.

1996) (ruling for employees, but noting that “parking the

vehicles at home” was for the “employees’ convenience”),

rev'd on other grounds, 110 F.3d 28 (7th Cir.1997). Petitioners

in this case, like Bobo — but unlike the prevailing employees in

Flint or UTU — have job responsibilities during the drive, and

the restrictions on their siupping and on carrying “civilian”

passengers have no analog in those decisions. Cf. Levering v.

District of Columbia, 869 F. Supp. 24, 29 (D.D.C. 1994)

(employees who are “required to drive * * * without making

personal stops * * * [have] str[onger]| claim for compensation”).

Still other factors that have been considered in deciding

whether driving is “integral and indispensable” are also present

‘Notably, none of the decisions that prompted enactment of the Portal Act

involved required driving — or driving of any kind. See Graham. 828 F.

Supp. at 582 (“tume spent transporting police canines is more than merely

‘riding’ to work, which is excluded by the Portal to Portal Act”).

20

here: Petitioners’ driving is not treated as a benefit by the I.LR.S..,

C.A. App. 269-70, and they are considered in the line of duty

for purposes of workers compensation and death benefits, id.

See GTE, 927 F. Supp. at 1115, 1119 (citing similar evidence

as “further support{ing] the conclusion that [plaintiffs

were |‘ working’ under the FLSA and Portal Act”).

The lone factual distinction that might appear to belong on

the other side of the ledger — the benefit of departing directly

from (and arriving) home - is itself complicated by the

employer requirement that Petitioners proceed without stopping

and unaccompanied. Decisions like Burton have rightly taken

account of the inconvenience of switching cars at an employer-

designated lot, but it is not convenient for an employee needing

to pick up his child or do personal business to be required to

drive the official vehicle home and switch cars there. Of

course, even a significant, direct benefit to the employee does

not make an activity noncompensable under the FLSA (or the

Portal Act): the decisions in Alvarez and Steiner surely did not

depend on any finding that donning protective gear was not

beneficial to the employees. Cf. Republican Publishing Co. v.

American Newspaper Guild, 172 F.2d 943, 945 (1st Cir. 1949)

(theater reviewer is doing compensable work under FLSA when

attending performance).

B. The Federal Circuit Rule Is Irreconcilable With

Administrative Interpretations of the FLSA and the

Portal Act

The Federal Circuit made no effort to reconcile its

construction of § 4(a)(1) with those of OPM and the Labor

Department. This silence is initially remarkable because FPM

Letter 551-10 — the official, government-wide interpretation of

the FLSA that was in effect (and adhered to by federal agencies)

at all times relevant to this case — speaks to this precise

situation, stating unambiguously that time spent driving a law

enforcement vehicle between work and home is compensable

under the FLSA when pursuant to “a requirement of the

21

employing agency|] to respond to emergency calls immediately

from home.” See p.2, supra.'°

But whether or not the courts below accorded Letter 551-10

sufficient respect, the distinction drawn in that rule (and

disregarded below) — between normal-home-to-work driving

and that required by an employer, for the employer’s purposes

— is thoroughly consistent with the Labor Department’s

longstanding interpretations of the Portal Act, the legal

significance of which is beyond dispute. See AFGE v. OPM,

821 F.2d 761, 770-71 (D.C. Cir.1987) (federal sector FLSA

rules must cohere with those promulgated by the Labor

Department); see Alvarez, 126 S. Ct. at 521; cf. Coke v. Long

Island Care at Home, 127 S. Ct. 2339 (2007).

These rules, some in place since shortly after the Portal Act’s

enactment, not only provide for a unitary standard for both

subsections of § 4(a)—“[t]he term ‘principal activities’ includes

all activities which are an integral part of a principal activity,”

29 C.F.R. § 790.8(b) (emphasis added) — but they stand against

the central premise of the Federal Circuit’s rule: that, even

when required by the employer for its benefit, the “mere act of

driving” is not “cognizable work,” App.Sa.

These rules plainly state that travel “outside [an employee’ s}

regular working hours at the direction and on the business of his

employer * * * [is] not ordinarily” within the ambit of § 4(a)(1),

§ 790.7(d); that traveling which “is not segregable from the

The trial court opinion did address Letter 551-10, but did so in a highly

problematic way. First, the court hypothesized that the Federal Circuit might

not have followed the OPM interpretation if it had been in issue in Bobo —

though conceding it had no application on the facts of that case. App.52a.

The court then pointed to material on the OPM website, App.55a, but even

ifthe cited webpage could be read as more than just the agency’s recognition

of Bobo as the law of the Federal Circuit (where federal sector FLSA cases

usually are adjudicated), it does not explicitly disavow (or even necessarily

contradict) Letter 551-10 —nor does it indicate an intention that any new rule

be applied retrospectively, to claims for work performed when Letter 551-10

was, indisputably, the definitive OPM interpretation.

22

simultaneous performance of * * * assigned work” is also

unaffected by § 4(a)(1), id § 790.7(c), and that:

Any work which an employee is required to perform while

traveling must, of course, be counted as hours worked. An

employee who drives a truck, bus, automobile, boat or

airplane, oran employee who is required to ride therein as

an assistant or helper, is working while riding.

Id. § 785.41 (emphasis added). Compare id. § 553.221(e)

(police officer “given a patrol car to drive home and use on

personal business, is not working during the travel time even

where the radio must be left on so that the officer can respond

to emergency calls”).

These regulations and judicial decisions applying them

distinguish between an employee’s driving to “get [himself] to

work” — i.e., commuting — and his driving the employer’s

equipment, including its vehicles, to or from a worksite, i.e.,

“transporting.” The former is a noncompensable “incident of

employment,” 29 C.F.R. § 785.35, while

[t}ravel time itself is compensable when work is performed

while traveling, such as in this case where * * * workers

* * * are responsible for picking up and transporting a truck

to the jobsite, not for the sole purpose of transporting only

himself alone but also for the purpose of transporting * * *

the truck (where getting the truck itself to the jobsite is one

purpose of the trip * * * because of [its] being

specially-equipped to aid at the jobsite in the performance of

jobsite work).

Enduro Plumbing, 1990 WL 252270, *6.

Petitioners’ entitlement to compensation draws strength from

yet another central Portal Act principle — that travel between

work activities — “all in the day’s work” — is compensable. See

Alvarez, 126 S. Ct. at 524 (citing 29 C.F.R. § 790.7(c)). The

driving at issue here (and in the canine handler cases) is not

simply for transportation purposes. The vehicles and equipment

are required at Petitioners’ homes to enable them to fulfill work

23

responsibilities there. See Graham, 828 F. Supp. at 582 n.4

(“the officer’s homes are actually work sites because a part of

their principal activity * * * takes place there”); cf. 29 C.F.R. §

785.12 (regulations pertaining to time worked apply “to work

performed * * * at home”).

Indeed, the incompatibility of the Federal Circuit’s rule with

the Labor Department's construction of the statute does not

require extrapolation from cold regulatory text. Not only was

Reich an enforcement action brought by the Secretary of Labor

— as were numerous other cases finding driving a “principal

activity” under the Steiner test, see supra, but the Department’s

current Field Operations Handbook contains a rule (albeit

addressing ambulances, rather than law enforcement vehicles)

that is strikingly similar to the one in Letter 551-10:

In the ordinary case where an employer permits an employee

to drive an ambulance to and from his home for the

employee’s own convenience, the time so spent is not hours

worked. If the employee is required to take the ambulance

home in order to respond to calls immediately, all the time

spent in driving would be hours worked.

Wage and Hour Div., F.0.H. § 31d00(a)(5) (citation omitted).

C. The Two-Tiered Approach to Section 4(a) Is

Inconsistent With This Court’s Decision in A/varez

Decisions extending the § 4{a)(1) exception to driving that

wouid qualify as a compensable “principal activity” under the

ordinary “integral and indispensable” test have advanced

different grounds for doing so. Some, like the one below, have

pointed to ECFA; others have suggested that language in

Steiner, or the statute itself, supports a two-tier rule. See, e.g.,

Spencer v. Auditor of Special Accounts,1990 WL 8034 *4 (E.D.

Ky.1990) (“the exception for “integral and indispensable’

activities is applicable only to § 254(a)(2), not § 254(a)(1)”)

(citing Steiner). See also App.33a (suggesting that special

§ 4(a)(1) standards apply in the “law enforcement context”).

None of these is tenable. As the Government acknowledged

24

below, see C.A. Rehear. Opp. 5, the Federal Circuit simply

erred in treating the language added by ECFA as supplying a

global rule for “vehicular travel” under the FLSA. As the trial

court held, this provision, whose plain terms direct that courts

not apply FLSA to override “agreement|s]” relating to

employees’ use of employer-owned vehicles, has no application

here, where no such agreement was claimed, let alone

established. See App.27a. Indeed, the import of that legislation

to this case is in precisely the opposite direction: as

confirmation that (absent agreement) the FLSA does require

compensation in some driving cases. Cf. Steiner, 350 U.S. at

255 (treating enactment of § 203(0) as evidence of Congress's

understanding that some clothes changing was compensable).

To the extent that language in the Steiner opinion might be

read as supporting a dual regime — where “integral and

indispensable” “preliminary” activities are beyond the reach of

4(a), but “integral and indispensable” “travel” is not. that

understanding could not survive Alvarez. Thus, while Steiner

(a case where §4(a)(1) was not in issue) at one point states,

somewhat enigmatically. that pre- and post-shift activities are

compensable if they are “‘an integral and indispensable part of

the principal activities for which covered workmen are

employed and are not specifically excluded by Section 4(a)(1),”

350 US. at 256, Alvarez unambiguously settled that the integral

and indispensable test is a gloss on “principal activity or

activities” — a term that appears in both subsections ~ and that

“[t]here is no plausible argument that these terms mean

different things in § 4(a)(2) and in § 4(a)(1).” 126 S. Ct. at 523.

D. The Federal Circuit Rule Also Conflicts with the

Court’s Exposition of the FLSA’s “De Minimis”

Doctrine

Although the defining error of the Federal Circuit rule is its

premise that employer-required driving cannot be “cognizable

work,” the court’s construction of the FLSA breaks with

controlling law in another significant respect. In Bobo, the

25

court, after narrowing its inquiry to activities and burdens

“beyond” the driving itself, then invoked the “de minimis” rule

announced in Anderson — that the FLSA, like the law generally,

does not concern itself with “trifles,” so claims “concern(ing |

only a few seconds or minutes of work,” 328 U.S. at 692 - to

conclude, as a matter of law, that none of the employer-imposed

restrictions and requirements sufficed to entitle plaintiffs to

compensation. Thus, after deciding that the restrictions on

plaintiffs’ driving did not “make this time compensable,” the

court concluded that the other “burdens, such as the need to

make [dog-care] stops * * * and the requirement to sign on to

the radio, d[id] not pass the de minimis threshold either,” 136

F.3d at 1468. The panel below relied on Bobo’s reasoning to

deem Petitioners’ responsibilities “de minimis” as a matter of

law. App.8a.

This version of the de minimis rule is fundamentally at odds

with Anderson itself and with other federal courts’

understanding of the doctrine (and Department of Labor’s). As

these authorities make plain, Anderson’s domain is narrow —

permitting courts to decide that the quantity of time an activity

consumes is so small that it may be disregarded; see 328 U.S.

at 692 (rule weeds out “split-second absurdities”); see Lindow

v. United States, 738 F.2d 1057, 1062 (9th Cir.1984); it

supplies no authority — or standard — for determining the legal

significance of employer restrictions, such as the prohibition on

makiny siops and carrying nassengers, see Knowles, 29 Fed. Cl.

at 395.n.3 (“The question there is whether the amount of time

spent is so short as to not require compensation * * * * The

question whether the character of the activity is work is a

different one”) (emphasis original); Enduro Plumhing, 1990

WL 252270, *6 (“the de minimis doctrine * * * become[s] an

issue only after it is first determined that the time is

compensable in character”’).

But even if the “de minimis” rule could be transplanted to

make these very different kind of determinations, settled law

26

establishes the error of the Federal Circuit's approach. As the

Fifth Circuit held, a court should ask whether “activities

combined still [involve] so slight an expenditure of the

employees’ time as to be de minimis,” Dunlop, 527 F.2d at 401,

not consider each activity (or restriction) separately, as the Bobo

version does. As the Labor Department explained in amicus

briefs in A/varez and Tum, an “activity-by-activity approach” to

the de minimis rule “thwart|s] the purposes of the FLSA,”

because “almost any activity can be broken down into

constituent parts that could be conceptualized as individual

[noncompensable] activities.” U.S. Amicus Br. No. 04-66 at

26-27; id. (de minimis “rule does not apply separately to each

particular activity viewed in isolation” but “instead requires

consideration of the aggregate amount of time for which the

employee seeks compensation”); accord U.S. Amicus Br., No.

03-1238 at 28. See also Dept. of Labor, Wage and Hour Div.,

Wage and Hour Advisory Mem. No. 2006-2 at 3 (May 31,

2006) (such matters are not appropriately resolved “*as a matter

of law””).

The Federal Circuit rule depends on an untenable revision of

Anderson’s de minimis rule. As framed by this Court and

applied by courts other than the Federal Circuit, that rule is a

straightforward, judicially manageable quantitative test: the

Federal Circuit has transformed it into a qualitative (and highly —

subjective) judgment turning on the perceived laboriousness of

components of work — a judgment reached casually. as a matter

of law, unmoored to any evidentiary or substantive standards.

the doctrine cannot coexist with FLSA if work is broken into

component parts and considered separately. as the court did

here. And the cumulative effect of the court’s revision of

Anderson is striking: no working person, previous!y free to get

to and from work as he pleased, who was abruptly required by

his employer to drive the employer's vehicle every day. placed

on-duty during the drive, and forbidden from carrying

passengers or making any personal stops, would possibly

consider the imposition to be a “trifle{].” 328 U.S. at 692.

27

E. ThelIssue Presented Is Of Large Practical Importance

This Court’s review is especially warranted in this case

because the issue that has divided the federal courts arises in a

statutory regime in which certainty and predictability are

recognized to be of great importance — to employers and

employees alike, see 29 U.S.C. § 251(a)(3); id. § 259(a), and

because the state of the law — in which the Federal Circuit

applies a narrow (and erroneous) view of the FLSA in federal

sector employment, while other Courts of Appeals (and the

Labor Department) apply a less restrictive (correct) rule of law

to the other employees’ substantively identical claims — is

precisely what Congress intended should not happen. See H.R.

Rep. 93-913, 93rd Cong., 2d Sess. (1974) 28; AFGE, 821 F.2d

at 770-71."°

The specific issues the case raises are also of large and

continuing practical importance. Multiple cases, involving

thousands of individual claims raising this precise issue, are

pending in the lower courts, see n.4, supra, and new cases

factually similar to Bobo and Baker continue to be filed.

Moreover, rights and liabilities related to driving between

“home” and “work” are taking on greater salience as more

workers are able (and, increasingly, required by their employer)

to perform work duties at home, sec, e.g, Boudreaux v.

Banctec, Inc., 366 F. Supp. 2d 425 (E.D. La. 2005); Dooley v.

Liberty Mut. Ins. Co., 307 F. Supp. 2d 234 (D. Mass. 2004);

U.S. Dept. Of Labor, Bur. Lab. Stats., American Time Use

Survey Summary, 07-0930 (June 28, 2007) (in 2006, “21

percent of employed persons did some or all of their work at

home”). and as more employers and employees consider

entering agreements of the sort provided for under ECFA.

Although Congress expected there to be instances when the FLSA would

need to be adapted to circumstances unique to federal employment, that

principle is in no way implicated here. Whatever OPM’s present views, it

plainly saw nothing unique to federal employment to prevent it from

adhering to the 551-10 rule for decades (including all the time for which

Petitioners seek backpay).

28

Finally, this case is not only a highly appropriate vehicle for

resolving the Circuit conflict — it presents the issue squarely and

on largely undisputed facts — it is also one where the direct

consequences of permitting an erroneous lower court rule to

stand are unusually serious: the Federal Circuit decision in this

case wrongly extinguished claims that the more than 6,000

individual law enforcement officers now before the Court have

labored to vindicate — in the face of determined (and

constitutionally extraordinary, see n.3, supra) Government

opposition — for nearly two decades.

Il. Review Of The Federal Circuit’s Construction of The

“Custom or Practice” Provision Is Also Warranted

Before the courts below, the GS-12 Petitioners sought

judgment on the alternative ground that § 4(b)(2), which

provides that the § 4(a) exclusion has no application to

preliminary activities that an employer has treated compensable

“by custom or practice in effect, at the time of such activity, at

the establishment or other place where such employee is

employed.”

The circuit court held that Petitioners’ unrefuted evidence

that their agencies did at relevant times (and consistently with

Letter 551-10) pay FLSA-covered employees for driving

official vehicles when such driving was mandated, to facilitate

emergency response, was insufficient — absent proof that

Petitioners themselves had been paid for that activity. The court

then held this further requirement could not be met by

defendants’ binding stipulation that, for purposes of deciding

this issue, the GS-12s would be treated as FLSA-non-exempt.

To allow recovery on this basis, the court stated, would be to

“rewrite history,” App.9a.

Although Petitioners can prevail here without the Court’s

reaching the issue — and disputes concerning § 4(b)(2) arise far

less frequently than ones involving § 4(a) — the “custom or

practice” concept operates in FLSA provisions other than

Section 4, see 29 U.S.C. § 252(a); id. § 203(0), and the Federal

29

Circuit’s construction of this term was so seriously flawed as to

also warrant this Court’s review.

First, there is no textual basis for the requirement that the

worker himself have been compensated. Ihe language of § 4(b)

focuses on whether the employer has treated the activity as

compensable — not whether the employee has been paid.

Although the statutory text makes clear that Congress did not

intend “custom or practice” to sweep broadly, Congress

effectuated its intent by enacting provisions expressly limiting

“customs” to those followed by (1) the particular employer; (2)

at the particular “establishment”; and performed (3) at the same

time of day, 29 U.S.C. § 254(c). Conspicuously absent from the

Statute, however, is the “requirement” the courts below held

unmet: that the plaintiff employees personally have been paid.

Any such restriction would render the provision almost

entirely superfluous — workers who are already receiving

compensation are not the ones in need of statutory protection —

and irrational: workers performing precisely the same activity

at the same establishment at the same time would have different

rights (depending on when and whether they had received a

paycheck for the activity).'’ Worse still, employers who did not

comply with the FLSA would fare better than those which

actually paid non-exempt workers according to its provisions.

Compare Anderson, 328 U.S. at 687 (construing statute to avoid

allowing employer “to keep the benefits of an employee’s

labors without paying due compensatioii”).

To the extent the custom provision contemplates some

element of similar-situatedness between plaintiff and those

customarily paid, any such (implied) limitation has no

application here. Petitioners’ activity is the same as the one

performed by those customarily compensated — the employer 's

reasons for treating the activity as compensable (the fact that

The provision would not be entirely superfluous because there could be

instances where an employer abruptly stops paying. but where a court would

hold the custom to have still been “in effect.”

30

driving was mandatory, so that vehicles would be in place for

emergency response), apply fully and identically to Petitioners.

In fact, the employer's customary criterion for exclusion also

supports Petitioners. The agencies did not purport to draw the

compensation line based on whether particular employees’

driving was especially “essential,” but rather based on their

status under FLSA; under Letter 551-10, all non-exempt

workers whose driving meets the specified conditions are to be

compensated. Once it is judicially determined - or, as here,

conceded by binding stipulation — that Petitioners were non-

exempt, the employer’s erroneous (unlawful) classification

decision can be no bar to their FLSA right to receive backpay

according to the practice in effect at their work establishment.

Indeed. the concerns invoked by the Federal Circuit about

“rewrit{ing] history” and “hypothetical” customs are oddly out

of place here. There was nothing “hypothetical” about the

practice — it is substantially undisputed. Similarly, what the

decision disparaged as “rewrit{ing] history” is an attribute

inherent in the process of adjudication — which seeks to place

the aggrieved party “as near as may be, in the situation he

would have occupied if the wrong had not been committed.””

Wicker v. Hoppock,73 U.S. 94, 99 (1867); NLRB v. Rutter-Rex

Mfg. Co., 396 U.S. 258, 263 (1969) (remedies aim to “restor{e}

the economic status quo that would have obtained but for the

company’s wrongful [act]”).

CONCLUSION

The petition for writ of certiorari should be granted.

¢ Respectfully submitted,

Jules Bernstein David T. Goldberg

Linda Lipsett Counsel of Record

BERNSTEIN & LIPSETT DONAHLE & GOLDBERG, LLLP

1920 L St., NW, Suite 303 99 Hudson Street, 8th FI.

Washington, D.C. 20036 New York, N.Y. 10013

(202) 296-1798 (212) 334-8813

Edgar James Sean H. Donahue

JAMES & HOFFMAN DONAHUE & GOLDBERG. LLP

1101 17th St., NW, Suite 510 2000 L Street, NW, Suite 808

Washington, D.C. 20036 Washington, D.C. 20036

(202) 496-0500 (202) 466-2234

JULY 2007

APPENDIX

la

United States Court of Appeals,Federal Circuit.

Stephen S. ADAMS, et al., Plaintiffs-Appellants,

, v.

UNITED STATES, Defendant-Appellee.

Nos. 2006-5040, 2006-5041.

Dec. 18, 2006.

Before LOURIE, SCHALL, and GAJARSA, Circuit Judges.

GAJARSA, Circuit Judge.

The plaintiffs-appellants (“plaintiffs”) in this case are

several thousand federal law enforcement officers who seek

compensation from the government for the time they spend

commuting to and from work in government-owned police

vehicles. The United States Court of Federal Claims issued

summary judgment in favor of the government, holding that the

driving time was not compensable under the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, as amended by

the Portal-to-Portal Act, 29 U.S.C. §§ 251-262. We affirm.

1. BACKGROUND

This case is the last piece of a larger employment dispute

between the government and law enforcement officers with the

United States Secret Service; United States Customs and

Border Protection (formerly United States Customs Service);

the Internal Revenue Service; the Bureau of Alcohol, Tobacco,

and Firearms; aiid the Drug Enforcement Agency. We have

ruled once before on an unrelated issue in the same case.

Adams v. United States, 39| F.3d 1212 (Fed. Cir.2004). Most

of the issues have settled, with the government ?greeing to

make a cash payment to the plaintiffs and to consider them

non-exempt employees under FLSA. However, the settlement

agreements left open for litigation the question posed by this

appeal: whether the plaintiffs’ commutes constitute

compensable work under FLSA.

The basic facts are undisputed. ‘Ihe plaintiffs are issued

-

2a

government-owned police vehicles and required as a condition

of their employment to commute from home to work in those

vehicles. This requirement facilitates their employers’ law

enforcement missions, since the cars will be available to the

officers for rapid response to emergency calls at any time,

whether the officers are at home or proceeding on their

commutes.’ The officers’ time is not entirely their own during

their commutes: they are required to have their weapons and

other law enforcement-related equipment and to have on and

monitor their vehicles’ communication equipment. They are

not allowed to run any personal errands in their government

vehicles, so their commute must proceed directly from home to

work and back again without unauthorized detours or stops.

The plaintiffs’ suit alleged, inter alia, that the time they

spent commuting was compensable under the Fair Labor

Standards Act. The Court of Federal Claims considered

cross-motions for partial summary judgment on the issue and

granted the government’s motion, deciding that the plaintiffs’

commute time was not compensable. Adams v. United States,

65 Fed. Cl. 217 (2005). Since all other issues in the case had

settled, the partial summary judgment disposed of the only

remaining issue, and the Court of Federal Claims issued a final

judgment. Many of the plaintiffs now appeal to this court.

We have jurisdiction to review a final judgment of the Court of

Federal Claims under 28 U.S.C. § 1295(a)(3).

II. DISCUSSION

A. Jurisdiction

The government argues that we lack jurisdiction due to a

defective notice of appeal; specifically, the notice in this case

does not enumerate the names of all 6.610 individual

‘This case does not require us to decide what FLSA mandates in the

particular instances when plaintiffs are actually called on to respond to an

emergency or otherwise deviate from their normal commutes. We address

only plaintiffs’ basic argument: that their normal commutes, without more,

constitute compensable work.

3a

appellants.” The government correctly notes that in Torres v.

Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101

L.Ed.2d 285 (1988), the Supreme Court held that Federal Rule

of Appellate Procedure 3(c) divested federal appeals courts of

jurisdiction over appellants not expressly named in the notice

of appeal. If Jorres were still good law, we would have

jurisdiction only over those plaintiffs whose names appear on

the notice. However, Rule 3(c) was amended in 1993, after the

Court's decision in Jorres. It now states:

The notice of appeal must ... specify the party or parties

taking the appeal by naming each one in the caption or

body of the notice, but an attorney representing more than

one party may describe those parties with such terms as

“all plaintiffs,” “the defendants,” “the plaintiffs A, B, et

al.,” or “all defendants except X.”

Fed. R.App. P. 3(c)(1). All of the appellants are represented

by the same counsel, and the notice of appea! is of the form

contemplated by the new Rule 3(c). The Notes of the Advisory

Committee on the 1993 amendments state that “[t]he test

established by the rule for determining whether such

designations are sufficient is whether it is objectively clear that

a party intended to appeal.” We accept that formulation of the

test. Here, all of the appealing plaintiffs are listed in an

appendix to their lead counsel’s notice of appearance, which

was duly served on the government soon after the notice of

appeal. It is objectively clear to us and to the government that

the plaintiffs listed on that appearance form intended to appeal.

Since the present version of Rule 3(c) has been satisfied by

appellants, we take jurisdiction over all plaintiffs named in the

appearance of counsel. Therefore, each appellant so listed

y J . .

“The case is not structured as a class action.

da

shall be bound by our decision here.’

B. Standard of Review

We review a grant of summary judgment by the Court of

Federal Claims de novo, drawing justifiable factual inferences

in favor of the party opposing the judgment. Winstar Corp. v.

United States, 64 F.3d 1531, 1539 (Fed. Cir.1995) (en banc).

The Court of Federal Claims applies the same summary

judgment standard as do federal district courts: summary

judgment is proper if the evidence demonstrates that “there is

no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Ct. Cl. R.

S6(c); cf Fed.R.Civ.P. 56(c).

C. The Portal-to-Portal Act

A few years after the enactment of FLSA, the Supreme Court

decided Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66

S.Ct. 1187, 90 L.Ed. 1515 (1946). That case involved industrial

workers who punched in at a time clock, but were not credited

for the time they spent walking from the clock to their posts.

Id. at 682-84, 66 S.Ct. 1187. The Supreme Court ruled that

“the time spent in walking to work on the employer's premises,

after the time clocks were punched, involved ‘physical or

mental exertion (whether burdensome or not) controlled or

required by the employer and pursued necessarily and primarily

for the benefit of the employer and his business.” ” /d. at

691-92, 66 S.Ct. 1187 (quoting Tenn. Coal, Iron & R.R. Co. v.

Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88

L.Ed. 949 (1944)).

Congress reacted to Anderson by enacting the

Portal-to-Portal Act of 1947, Pub.L. No. 80-49. 61 Stat. 84

(codified at 29 U.S.C. §§ 251-262). See 29 U.S.C. § 251(a)

(Congressional finding that FLSA “has been interpreted

judicially in disregard of long-established customs, practices,

*Counsel for appellants agreed at oral argument that everyone listed on

his notice of appearance would be so bound.

Sa

and contracts between employers and employees,” with various

negative consequences); /BP. Inc. v. Alvarez, 546 U.S. 21, 126

S.Ct. 514, 519, 163 L.Ed.2d 288 (2005); Unexcelled Chem.

Corp. v. United States, 345 U.S. 59, 61, 73 S.Ct. 580, 97 L.Ed.

821 (1953) (“The Portal-to-Portal Act was enacted to remedy

what were deemed to be some harsh results of our decision in

Anderson ....”). The Act pared back the broad definition of

compensable work initially promulgated by the Supreme Court

in Anderson. “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

activities which are preliminary to or postliminary to said

principal activity or activities” are excluded from FLSA’s

protections by the Portal-to-Portal Act; employers need not pay

employees overtime or minimum wage for such activity. 29

U.S.C. § 254(a). The question of what sorts of activities are

“preliminary or postliminary” was most recently addressed by

the Supreme Court in IBP, in which the Court held that the time

spent walking from a locker room where employees donned

required protective gear to the work site was compensable. 126

S.Ct. at 524.

The Portal-to-Portal Act speaks specifically to vehicular

travel:

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 ihe

employee's principal activities 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

employcr’s vehicle is subject to an agreement on the part

of the employer and the employee or representative of such

employce.

29 U.S.C. § 254(a). ‘Therefore, merely commuting in a

government-owned vehicle is insufficient, the plaintiffs must

perform additional legally cognizable work while driving to

6a

their workplace in order to compel compensation for the time

spent driving. The question in this appeal is whether the

requirements and restrictions placed on plaintiffs’ commutes

rise to that level.

D. Burden of Proof

The plaintiffs argue that the burden of proof lies with the

government in this case, relying on a statement by the Supreme

Court that “the application of an exemption under the Fair

labor Standards Act is a matter of affirmative defense on

which the government has the burden of proof.” Corning Glass

Works v. Brennan, 417 U.S. 188, 196-197, 94 S.Ct. 2223, 41

L.Ed.2d 1 (1974). However, the Portal-to-Portal Act does not

create an “exemption” in the same sense as the Supreme Court

used the term in Corning. The cases the Court cited in support

for its statement in Corning all related to the total exclusion of

a particular worker or workers from certain FLSA protections.

See A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct.

807, 89 L.Ed. 1095 (1945) (issue was whether employees

worked in a “retail establishment” and hence were wholly

exempt from wage and hour requirements); Arnold v. Ben

Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393

(1960) (same); Walling v. General Indus. Co., 330 U.S. 545,

547-48, 67 S.Ct. 883, 91 L.Ed. 1088 (1947) (whether employee

was exempt due to being employed in “executive capacity”);

Mitchell v. Ky. Fin. Co., 359 U.S. 290, 295, 79 S.Ct. 756, 3

L.Ed.2d 815 (1959) (retail establishment). None of these cases

speak to the exclusion of only some activities from FLSA; they

all deal with the exempt status of a particular worker or

workers. By settlement, the government has agreed that these

plaintiffs are not FLSA-exempt. The issue of total FLSA

exemption of the sort that the Supreme Court decided in

Corning is therefore not before us.

Better guidance is found in Anderson, where the Court

said: “An employee who brings suit ... for unpaid minimum

wages or unpaid overtime compensation ... has the burden of

proving that he performed work for which he was not properly

7a

compensated.” Anderson, 328 U.S. at 686-87, 66 S.Ct. 1187."

Typically, this question relates to whether the plaintiffs worked

a certain amount of hours and whether those hours went

uncompensated by the employer. | However, there is an

additional, earlier premise at issue in this case: namely,

whether the alleged acts of the plaintiff constitute compensable

“work” at all. The burden to prove that such work was

performed necessarily includes the burden to demonstrate that

what was performed falls into the category of compensable

work. See, e.g. Baker v. Barnard Constr., 146 F.3d 1214,

1216 (10th Cir.1998) (in Portal-to-Portal Act case, jury

instruction “appropriately asks the jury whether Plaintiffs have

proved that their return travel is compensable” (emphasis

added)). Thus, the plaintiffs in this case had the burden of

showing that their drive time was compensable work for FLSA

purposes and of showing that it does not fall into the set of

activities excluded from the definition of compensable work by

the Portal-to-Portal Act as interpreted by our precedent.

Since the burden of proof is on the plaintiffs, we reject

their argument that summary judgment to the government was

improper because the government presented minimal evidence.

Since the plaintiffs’ evidence does not demonstrate any ground

for relief (for reasons discussed below), the government need

not present any evidence to rebut the documentary evidence

presented by the plaintiffs.

E. Merits

This court decided a similar case in Bobo v. United States,

136 F.3d 1465 (Fed. Cir.1998). In Bobo, Border Patrol dog

handlers raised a basically identical claim under FLSA. The

dog handlers were required to commute to and from work in

their government cars, monitor their vehicle radios, report

mileage, be on the lookout for suspicious activity, and refrain

‘Although Anderson's definition of compensable work was modified

by the Portal-to-Portal Act, Congress did not speak to the issue of the burden

of proof. This statement by the Court therefore remains good law.

8a

from. personal errands or detours. /d. at 1467. They were also

required to stop to walk their dogs as needed. /d the

government credited the handlers an extra hour each day for

dog care tasks at home but did not consider the driving time to

be compensable. The dog handlers sued to obtain

compensation for their commuting time.

In deciding Bobo, we noted with approval the Second

Circuit's decision in Reich v. N.Y. City Transit Auth., 45 F.3d

646 (2d Cir.1995), which stated that:

The more the preliminary (or postliminary) activity is

undertaken for the employer’s benefit, the more

indispensable it is to the primary goal of the employee’s

work, and the less choice the employee has in the matter,

the more likely such work will be found to be compensable

* * * *The ability of the employer to maintain records of

such time expended is a factor. And, where the

compensable preliminary work is truly minimal, it is the

policy of the law to disregard it.

Id. at 650, quoted in Bobo, 136 F.3d at 1467. We concluded

that though “the restrictions placed upon the INS Agents’

commutes are compulsory, for the benefit of the INS, and

closely related to the INS Agents’ principal work activities * *

* the burdens alleded are insufficient to pass the de minimis

threshold.” Bobo, 136 F.3d at 1468 (citing Anderson, 328 U.S.

at 692 (“When the matter in issue concerns only a few seconds

or minutes of work beyond the scheduled working hours, such

trifles may be disregarded.”)). Bobo is not identical but very

similar to the case before us. The primary difference between

the commuting conditions in Bobo and those in this case

militates against plaintiffs. who do not make uncompensated

dog-walking stops. Under the Portal-to-Portal Act, plaintiffs’

driving time is not compensable.

Some of the plaintiffs in this case argue that, unlike in

Bobo, there was a “custom or practice” of compensating them

for their commuting time. If such a “custom or practice”

existed, the Portal-to-Portal Act could be read not to allow the

9a

employer to cease compensating for the activity. See 29

U.S.C. § 252(a)(2). Those plaintiffs are correct that under

Federal Personnel Manual System Letter No. 551-10, FLSA

non-exempt officers were indeed compensated for their

commute time. Prior to this litigation, though, the plaintiffs

and other officers in the positions and grades at issue were

classified as exempt from FLSA and were therefore not paid for

their commutes. That exemption status has been changed by

the settlement agreement, in which the government stipulated

for the purpose of this case that the plaintiffs were non-exempt.

Plaintiffs seize on this provision of the settlement to argue that,

had the government not wrongly classified them as exempt, it

would have applied Letter 551-10 and thus a “custom or

practice” of compensation would have existed. However,

hypothetical customs or practices do not suffice. In reality, the

government did not compensate the plaintiffs for their

commuting time; the plaintiffs cannot now rely on the

settlement to rewrite history.

The plaintiffs also argue that 31 U.S.C. § 1344 should alter

the outcome of this case. That statute is a money allocation

provision that prohibits federal funds from being spent on

transportation for other than official purposes. It makes clear

that “transportation between the residence of an officer or

employee and various locations that is ... essential for the safe

and efficient performance of ... criminal law enforcement

duties[ | is transportation for an official purpose.” /d §

1344(a)(2). While the statute defines the commutes at issue

here to be essential to the agencies for budgetary purposes, it

does not follow that those commutes constitute compensable

work by the officers. The fact that the commutes are not an

illegal expenditure of government resources does not change

the result: Bodo still teaches that commuting done for the

employer's benefit, under the employer's rules, is

noncompensable if the labor beyond the mere act of driving the

vehicle is de minimis. That is the case here.

Neither these distinctions nor others advanced by the

ee

10a

plaintiffs are persuasive, and so the holding in Bodo controls

the legal conclusion in this case.

ill. CONCLUSION

Because Bobo entitles the government to judgment as a

matter of law on the facts advanced by the plaintiffs, the Court

of Federa! Claims correctly granted summary judgment to the

government. Its decision is therefore

AFFIRMED.

lla

Adams v. U.S.

Fed. Cl.,2005.

United States Court of Federal Claims.

Stephen ADAMS, et al., Plaintiffs,

v.

The UNITED STATES, Defendant.

No. 90-162C.

April 27, 2005.

OPINION

BUSH, Judge.

The court has before it three pending motions for partial

summary judgment on “driving time” overtime pay claims:

Defendant’s Motion for Partial Summary Judgment of August

12, 2002 (Def.’s 2002 Mot.), Plaintiffs’ Motion for Partial

Summary Judgment Regarding the “Driving Time” Issue of

August 2, 2004 (Pls.’ 2004 Mot.) and Defendant's Cross-

Motion for Partial Summary Judgment of September 22, 2004

(Def.’s 2004 Mot.). In this court’s recent opinion deciding

another partial summary judgment motion in this case, Adams

v. United States, No. 90-162C and Consolidated Cases, slip op.

at 2 (Fed. Cl. Dec. 1, 2004) (Adams I/II), the court held in

abeyance its determination of the 2002 and 2004 driving time

motions to permit the completion of briefing.’ Although the

three motions before the court present different factual and

legal issues, the common underlying issue of the

compensability or noncompensability of driving time for all of

the concerned plaintiffs compels the court to consider all of

these driving time claims, and defendant’s defenses to them, in

'The court also held in abeyance its decision on Defendant's Cross-

Motion for Partial Summary Judgment as to Certain Plaintiffs filed on June

26, 2002, which is issued in a separately published opinion of this date.

one opinion.

BACKGROUND

This matter has a long history, much of which has been

recounted in Adams vy. United States, 27 Fed. Cl. 5 (1992)

(Adams I), rev'd and remanded, 178 F.3d 1306, 1998 WL

804552 (Fed. Cir.1998) (Table and Unpublished Opinion)

(Adams Il), and Adams III. Only the facts relevant to the

motions at hand are related here. Of the many plaintiffs

pursuing Overtime pay claims under the Fair Labor Standards

Act of 1938, 29 U.S.C. § § 201-219 (2000) (FLSA), in these

consolidated cases, several thousand have settled their overtime

pay claims related to a prior classification as FLSA-exempt

employees but reserved their right to litigate additional

overtime pay claims for time spent driving to and from work in

government-issued vehicles. Three groups of plaintiffs,

defined most easily. by the settlement agreements that

encompassed their positions, are before the court on the driving

time motions.

Defendant’s 2002 motion addressed the driving time

claims of two groups of plaintiffs. The first group of plaintiffs

were United States Secret Service (USSS) employees, working

in “occupational codes 080 and 391 [as] non-supervisory GS-9s

and Ils, and occupational codes 072 and 1397[as] non-

supervisory GS-9s.” Def.’s 2002 Mot.App. at 1 (July 9, 1999

Settlement Agreement). The second group of plaintiffs were

United States Customs Service (USCS) employees, working in

“occupational code 1801, Marine Enforcement Officers, GS-9

through GS-11.” Def.’s 2002 Mot.App. at 12 (August 9, 2000

Settlement Agreement). Although the terms of the 1999 and

2000 settlement agreements vary regarding pay and other

matters specific to the USSS or USCS plaintiffs, the language

reserving the right to pursue driving time claims is identical:

Such back pay does not constitute compensation for time

spent driving a government vehicle from home to work

and from work to home, and this agreement does not cover

or affect any claim plaintiffs may have for additional back

13a

pay for such driving time, which shall be litigated in these

consolidated cases.

Def.’s 2002 Mot.App. at 3 (July 9, 1999 Agreement §, 3.A at

3), App. at 14 (August 9, 2000 Agreement § 3.A at 3 (where

the term “Agreement” is capitalized but the text is otherwise as

quoted)). Because the pertinent legal terms of the 1999 and

2000 settlement agreements are identical, the claims of the first

and second groups of plaintiffs at issue in defendant’s 2002

motion raise common legal issues as to the scope of the claims

preserved by the settlement agreements and the stipulations of

partial dismissal filed with this court related to those

agreements.

The third group of plaintiffs, those at issue in the 2004

cross-motions, were employed at the Bureau of Alcohol,

Tobacco and Firearms (BATF), USCS, the Drug Enforcement

Administration (DEA), Internal Revenue Service-Criminal

Investigation Division (IRS-CID) and USSS in occupational

series 1811 at grade GS-12, and settled their overtime pay

claims related to a prior classification as FILSA-exempt

employees on August 29, 2003. Pls.” 2004 Mot. at 1-2. The

language preserving driving time claims in the 2003 settlement

agreement differs from the 1999 and 2000 agreements in two

ways. First, the 2003 settlement agreement states that

Solely for the purposes of litigating the plaintiffs’ claims

to recover for driving time, it is agreed and stipulated

herein that such plaintiffs while employed by the agencies

[BATF, IRS-CID, DEA, USCS, and USSS] as GS-12-

1811s were FLSA non-exempt.

Bernstein Decl. Ex. 1 (August 29, 2003 Agreement) § 5.M at

8. Lhere was no stipulation as to the non-exempt status of the

plaintiffs for prior employment periods in the *220 1999 and

2000 agreements. Second, the description of the preserved

driving time claims evolved over time. In the 1999 and 2000

agreements, these claims are referred to as “time spent driving

a government vehicle from home to work and from work to

home.” Def.’s 2002 Mot.App. at 3 (July 9, 1999 Agreement {|

14a

3.A at 3). App. at 14 (August 9, 2000 Agreement € 3.A at 3).

In the 2003 agreement. the preserved driving time claims are

described as “time solely spent driving a government vehicle

from home to work and work to home.” Bernstein Decl. Ex.

1 (August 29, 2003 Agreement) 4 5.M at 8. Because of the

differences in the settlement agreement terms preserving the

driving time claims by way of stipulations of partial dismissal

with this court, the claims of the first two groups of plaintiffs

may raise different legal issues than those of the third group of

plaintiffs.

The 2002 and 2004 motions have been fully briefed. Oral

argument was held on the driving time issue on April 15, 2005.

Based on the record before the court and for the reasons set

forth herein, defendant’s 2002 motion is granted. Plaintiffs”

2004 motion for partial summary judgment on the driving time

issue is denied, and defendant’s 2004 motion for partial

summary judgment on the driving time issue is granted.

DISCUSSION

[. Standard of Review

This action is before the court on three motions for partial

summary judgment. Defendant’s 2002 motion concerns the

driving time claims of the first two groups of plaintiffs. The

2004 cross-motions regard the driving time claims of the third

group of plaintiffs. When the court considers cross-motions

for summary judgment, each motion is evaluated under the

same summary judgment standard. Cubic Def. Sys., Inc. v.

United States, 45 Fed. Cl. 450, 457 (1999).

The availability of summary judgment helps a federal court

“to secure the just, speedy. and inexpensive determination of

every action.” ~ Celotex Corp. v. Catrett, 477 U.S. 317, 327,

106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P.

1). Summary judgment is appropriate where there is no

dispute as to any material fact and the moving party is entitled

to judgment as a matter of law. Rule 56 of the Rules of the

United States Court of Federal Claims (RCFC); Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91

15a

L.Ed.2d 202 (1986). <A fact is material if it would affect the

outcome of the suit. Anderson vy. Liberty Lobby, 477 US. at

248, 106 S.Ct. 2505. The moving party bears the burden of

showing that there is an absence of any genuine issue of

material fact. Dairyland Power Coop. v. United States, 16 F.3d

1197, 1202 (Fed. Cir.1994) (citing Celotex, 477 U.S. at 325,

106 S.Ct. 2548). All doubt over factual issues must be

resolved in favor of the party opposing summary judgment.

Mingus Constructors, Inc. v. United States, 812 F.2d 1387,

1390 (Fed. Cir.1987).

However, the non-moving party has the burden of

producing sufficient evidence that there is a genuine issue of

material fact in dispute which would allow a reasonable finder

of fact to rule in its favor. Anderson v. Liberty Lobby, 477 U.S.

at 256, 106 S.Ct. 2505. Such evidence need not be admissible

at trial; nevertheless, mere denials, conclusory statements or

evidence that is merely colorable or not significantly probative

is not sufficient to preclude summary judgment. Celotex, 477

U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, 477

U.S. at 249-50, 106 S.Ct. 2505; Mingus, 812 F.2d at 1390-91;

see also Barmag Barmer Maschinenfabrik AG v. Murata

Machinery, Ltd., 73\ F.2d 831, 835-36 (Fed. Cir.1984) (in

making a determination as to whether genuine issues of

material fact exist, the court is not to accept a party’s bare

assertion that a fact isin dispute). “The party opposing the

motion must point to an evidentiary conflict created on the

record by at least a counter siaiemeni of a fact or facts set forth

in detail in an affidavit by a knowledgeable affiant.” Barmag,

731 F.2d at 836. Summary judgment must be granted against

a party who fails to make a showing sufficient to establish the

existence of an essential element to that party's case and for

which that party bears the burden of proof at trial. Ce/otex, 477

U.S. at 322, 106 S.Ct. 2548.

II. Compensable Driving Time Claims

A. Statutory and Regulatory Framework

1. FLSA Overtime Pay Requirement

16a

One purpose of the Fair Labor Standards Act of 1938 was

to ensure that a covered employee received compensation for

all hours worked for the employer:

The Fair Labor Standards Act was not designed to codify

or perpetuate those customs and contracts which allow an

employer to claim all of an employee’s time while

compensating him for only a part of it. Congress

intended, instead, to achieve a uniform national policy of

guaranteeing compensation for all work or employment

engaged in by employees covered by the Act.

Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 32)

U.S. 590, 602, 64 S.Ct. 698, 88 L.Ed. 949 (1944) (Tennessee

Coal). “All time spent by an employee performing an activity

for the benefit of an agency [of the federal government] and

under the control or direction of the agency is “hours of work.”

5 C.F.R. § 551.401(a) (2005). In addition, FLSA overtime

provisions require time and a half pay for hours worked beyond

a weekly maximum hour limit. 29 U.S.C. § 207. Under

FLSA, the federal government merely has to permit or suffer a

federal employee to work overtime-no specific overtime

authorization is needed for the extra hours to be compensable.

Doe v. United States, 372 F.3d 1347, 1360-61 & nn. 6-7 (Fed.

Cir.2004).

2. Early Travel Time Cases

The Supreme Court has interpreted FLSA to require

compensation for certain travel activities on the employer's

premises, such as travel underground from a mine entrance to

the location worked, Tennessee Coal, 321 U.S. at 603, 64 S.Ct.

698, or the time needed to walk from a time clock to an actual

work station, if more than a de minimis number of minutes, in

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690-91, 66

S.Ct. 1187, 90 L.Ed. 1515 (1946). Because Anderson and

similar cases expanded employer pay liability for activities

such as “opening windows, switching on lights, and walking to

* * * work stations,” Congress acted to reduce employer

liability. Bobo v. United States, 37 Fed. Cl. 690. 692 n. 3

17a

(1997) (Bobo I), aff'd 136 F.3d 1465 (Fed. Cir.1998) (Bobo II).

Congress amended FILSA by enacting the Portal-to-Portal Act

of 1947, now codified at 29 U.S.C. § § 251-62 (2000).

3. Portal-to-Portal Act Provisions and Their Interpretation

The relevant Portal-to-Portal Act provisions are set forth

at 29 U.S.C. § 254 and except the following activities from

FLSA liability because they are noncompensable:

(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* * * *

29 U.S.C. § 254(a)(1)-(2). The Supreme Court had occasion

to interpret the extent of these exceptions to compensable

activities under FLSA in two cases handed down on January

30, 1956. Neither case dealt with travel time, but these cases,

Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267

(1956) and Mitchell v. King Packing Co., 350 U.S. 260, 76

S.Ct. 337, 100 L.Ed. 282 (1956), provide the standard by which

courts may now measure whether an employee’s activity at the

beginning or end of the workday is noncompensable because of

the Porial-to-Portal Act.

In Steiner, the Supreme Court found that workers in a

battery plant that used caustic and toxic materials were

compelled by health, hygiene and safety considerations and

encouraged by state law to change their clothes immediately

before and after work, and to shower in the employer’s

facilities. 350 U.S. at 249-51, 76 S.Ct. 330. Because these

activities were “an integral and indispensable part of the

[employee’s] principal activities * * * and are not specifically

excluded by Section 4(a)(1) [now codified at 29 U.S.C. §

18a

254(a)(1) ],” the Supreme Court determined that the time spent

changing clothes and showering was compensable and did not

fit into any Portal-to-Portal Act exception. /d. at 256, 76 S.Ct.

330. In King Packing, the Supreme Court found that meat-

cutters who held positions as “knifemen” in a meat-packing

plant were required to keep their knives razor-sharp as a

condition of their employment. 350 U.S. at 262, 76 S.Ct. 337.

The time the meat-cutters spent sharpening these knives before

or after shifts or during lunch breaks was found by the Court to

be compensable under FLSA, because this activity was “an

integral part of and indispensable to the various butchering

activities for which they were principally employed.” /d. at

263, 76 S.Ct. 337. Thus, even activities which are preliminary

or postliminary to a work-shift may be compensable if these

activities are integral and indispensable to the employee's

principal work activities.

4. De Minimis Rule

Even if a preliminary or postliminary activity would be

compensable under the Steiner “integral and indispensable”

standard, inconsequential daily amounts of time in this

compensable category of activities will not create FLSA

liability. Bobo II, 136 F.3d at 1468 (citing Anderson, 328 U.S.

at 692, 66 S.Ct. 1187). The de minimis rule limiting FLSA

liability for preliminary or postliminary employee activity was

stated in Anderson:

When the matter in issue concerns only a few seconds or

minutes of work beyond the scheduled working hours,

such trifles may be disregarded. Split-second absurdities

are not justified by the actualities of working conditions or

by the policy of the Fair Labor Standards Act. It is only

when an employee is required to give up a substantial

measure of his time and effort that compensabie working

time is involved.

328 U.S. at 692, 66 S.Ct. 1187. The Federal Circuit has

adopted a three-factor analysis from Lindow v. United States,

738 F.2d 1057, 1063 (9th Cir.1984), for the proper application

19a

of the de minimis rule to FLSA claims: “(1) the practical

administrative difficulty of recording the additional time; (2)

the aggregate amount of compensable time; and (3) the

regularity of the additional work.” Bobo //, 136 F.3d at 1468.

5. Custom or Practice of Compensability

A limitation on the Portal-to-Portal Act exception of

preliminary and postliminary activitics from FLSA-

compensable work is found in section 254(b):

(b) Compensability by contract or custom

Notwithstanding the provisions of subsection (a) of this

section which relieve an employer from liability and

punishment with respect to any activity, the employer shall

not be so relieved if such activity is compensable by

either-

(1) an express provision of a written or nonwritten contract

in effect, at the time of such activity, between such

employee, his agent, or collective-bargaining

representative and his employer; or

(2) a custom or practice in effect, at the time of such

activity, at the establishment or other place where such

employee is employed, covering such activity, not

inconsistent with a written or nonwritten contract, in effect

at the time of such activity, between such employee, his

agent, or collective-bargaining representative and his

employer.

29 U.S.C. § 254(b). he application of section 254(b) io

federal employees is little discussed in cases before this court

or its predecessors. ‘he Federal Labor Relations Authority

(LRA) read section 254(b)(1) to support an arbitrator’s award

which had interpreted a collective bargaining clause to require

longer temporary duty commutes to be compensated for the

amount of time they excecded the IRS employee’s normal

commute. United States Dep't of the Treasury Internal

Revenue Sery. v. Nat'l Treasury Employees Union, 57 F.L.R.A.

444, 2001 WL 950798 (2001) (Treasury I). The FLRA also

20a

read section 254(b)(2) to support an arbitrator's award which

found that the Navy’s then existing custom of allowing

wharfbuilders to commute to job sites from the Navy

compound during their paid shifts. as opposed to a newer

practice of requiring these employees to take a ferry to a job

site on their own, unpaid time, created a duty for the Navy to

pay overtime for those ferry commutes. United States Dep't of

the Navy Public Works Ctr. Pearl Harbor, Haw. v. Int'l Ass'n

of Machinists Haw. Fed. Lodge 1998, 55 F.L.R.A. 487, 1999

WL 362325 (1999) (Navy).

The United States Court of Appeals for the District of

Columbia Circuit has also discussed section 254(b) in the

context of federal employees, at least tangentially. with an

interesting result. United States Dep't of the Air Force v. Fed.

Labor Relations Auth., 952 F.2d 446 (1991) (USAF). The

Circuit Court in USAF considered whether the Office of

Personnel Management (OPM) regulation characterizing

preliminary and postliminary activities not closely related to a

federal employee’s principal work activity as noncompensable,

5C.F.R. § 551.412(b), permitted negotiation for compensation

for these activities through the collective bargaining process.

Id. at 450-52. The Circuit Court decided, over a vigorous

dissent, that the regulation «prohibited such negotiated

compensation, and overruled the underlying FLRA decision. -

Id. at 451. USAF could be read to eliminate the availability of

section 254(b)(1) employer-employee agreements permitting

compensation for non-integral preliminary or postliminary

activities for federal employees, at least in the District of

Columbia Circuit. {t should be noted that the Circuit Court

declined to reach the issue of whether the OPM regulation was

in conflict with section 254(b). and suggested that “any

challenge to the legality of the OPM regulation under [section

254(b) | must be brought in an appropriate forum.” /d. at 453.

The United States Claims Court entertained a FLSA

overtime pay claim for federal employees based largely on a

“custom or practice” justification pursuant to section 254(b).

2la

Graham v. United States, 3 Cl.Ct. 791 (1983). Because the

facts did not support either an express agreement or a custom

or practice of compensating the activities at issue, however, the

court found section 254(b) to “not have any applicability to the

present case.” Jd. at 795. In Graham, the Claims Court did

not comment on the applicability of section 254(b) to the

claims of federal employees as a general matter, or if there

were special considerations in its application because of the

nature of federal employment.

The most recent FLRA decision the court has found

regarding the applicability of section 254(b) to federal

employees reviewed the holdings of USAF, Navy and Treasury

!. Nat'l Treasury Employees Union v. United States Dep't of

the Treasury Internal Revenue Serv. Washington, D.C., 59

F.L.R.A. 119, 2003 WI. 22142504 (2003) (Treasury II).

Applying USAF, and noting that Navy and Treasury | did not

consider arguments concerning a governing OPM travel

regulation, 5 C.F.R. § 551.422(b), the FLRA found that section

551.422(b) prohibited the negotiation of compensation for

longer commuting time endured as a result of a temporary duty

assignment within the boundaries of the employee’s official

duty station. Treasury /I, 59 F.L.R.A. 119. This holding

produced the opposite result of the decision accorded the same

union in Treasury 1. The decision in Treasury I] turned on this

language in section 551.422(b):

(b) An employee who travels from home before the regular

workday begins and returns home at ihe end of the

workday is engaged in normal “home to work” travel;

such travel is not hours of work....

5 C.F.R § 551.422(b) (2005). Noting that negotiations for

compensation prohibited by government-wide regulation

cannot be allowed, the FLRA denied the union’s request to

negotiate a proposed commuting time compensation provision

for temporary duty assignments. Treasury I], 59 F.L.R.A. 119.

The FLRA noted that it had no jurisdiction to review the

legality of section 551.422(b) in relation to the provisions of

22a

the Portal-to-Portal Act. /d. The decision does call into question

the validity of employment agreements of federal employees

that allow for compensation of commuting time, compensation

which is nevertheless prohibited by section 551.422(b).°

in sum, the court is unaware of any binding precedent as to

how the section 254(b) limitations on the Portal-to Portal Act's

exceptions to FLSA compensability of activities at the

beginning or end of a workday or commuting time apply to

federal employees. The court notes that the limitations of the

exception could lead to a curious result in the federal

employment sector. Consider the hypothetical situation of a

federal agency “custom or practice” which at a certain point in

time interpreted FLSA to afford compensation for a non-

integral preliminary or postliminary activity, or a type of

commuting. Then, some time later, this interpretation is

discovered to have been incorrect as a general rule, and

controlling authority bans this court from awarding

compensation for those activities. Would section 254(b)(2)

and its definition of compensability, triggered because of an

incorrect statutory interpretation by the federal employing

agency, then trump the controlling legal authority that later

pronounced such activities noncompensable? That would

appear to be one interpretation of the statutory language, if

indeed section 254(b) functions in the federal employment

sector exactly as it does in the private sector. he court notes

that this might lead to widely disparate compensation practices

’The rationale in USAF relied upon in Treasury // is that the federal

government cannot negotiate employment agreements in conflict with

government-wide regulations, pursuant to 5 U.S.C. § 7117 (2000). | See

USAF, 952 F.2d at 451 (“Ifthe OPM had meant for postliminary activity to

be compensable through negotiation under the FLSA, it would have had to

affirmatively grant that right in these or other regulations in order not to run

afoul of § 7117 of the Flederal] Sfervice] Liabor] M [anagement]

R[elations] S[tatute] and its designation as nonnegotiable any proposal

inconsistent with government-wide regulations such as the provisions under

the FEPA or the FLSA barring such compensation.”>).

23a

between different federal agencies, based merely upon a

historical mistake in statutory interpretation at some of the

agencies, and those mistakes could perpetuate those inequities

for years. It could not have been, the intent of Congress to

replace federal employee compensation rights, as determined

by specific authorizing statutes and regulations, with the quirks

of incorrect managerial practices within federal agencies.

Because of these concerns, and because of the differences

between federal employment, where compensation is governed

largely by statute, and private employment, where

compensation is governed primarily by contract, see Adams v.

United States, 391 F.3d 1212, 1221 (Fed. Cir.2004) (“ *Though

a distinction between appointment and contract may sound

dissonant in a regime accustomed to the principle that the

employment relationship has its ultimate basis in contract, the

distinction nevertheless prevails in government service.” ~

(citing Kizas v. Webster, 707 F.2d 524, 535 (D.C.Cir.1983))),

petition for cert. filed, 73 U.S.L.W. 3558 (U.S. Mar. 9, 2005)

(No. 04-1225), the court will examine any application of

section 254(b) to the facts of this case to ensure that the

agreements, customs or practices alleged to exist squarely fall

within the ambit of section 254(b) as it applies to federal

employees.

6. Employee Commuting Flexibility Act of 1996 (ECFA)

ECFA amended the Portal-to-Portal Act by adding the

following language to 29 U.S.C. § 254(a):

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

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.

24a

29 U.S.C. § 254(a) (2000). As the Tenth Circuit explained the

purpose of this amendment, “[t]he Portal-to-Portal Act was

subsequently amended by the Employee Commuting Flexibility

Act of 1996 to clarify that otherwise non-compensable

commuting to work is not compensable merely because the

employee uses his employer’s vehicle.” United Transp. Union

Local 1745 y. City of Albuquerque, 178 F.3d 1109, 1117 (10th

Cir.1999). This provision was placed in the

noncompensability subsection of the Portal-to-Portal Act

provisions, titled “Activities not compensable.” 29 U.S.C. §

254(a). There is no provision in the compensability section of

the Portal-to-Portal Act, 29 U.S.C. § 254(b), regarding the use

of an employer’s vehicle for commuting purposes. Thus,

ECFA states that the use of an employer’s vehicle for

commuting is “not considered part of the employee’s principal

activities” under certain conditions, yet makes no statement as

to when commuting time in employer-provided vehicles would

be part of an employee’s principal activities and compensable.

The word “agreement” is not defined in the statutory

language of ECFA itself. Indeed, Congress rejected an

amendment which would have required the agreement between

employer and employee to be “knowing and voluntary, and (not

imposed] as a condition of employment.” H.R.Rep. No. !04-

585, at 11 (1996) (Minority Views). Because the term

“agreement” is subject to multiple interpretations, this court

looks to the legislative history to define this term. See Blum v.

Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 79 L.Ed.2d 891

(1984) (“Where, as here, resolution of a question of federal law

turns on a Statute and the intention of Congress. we look first to

the statutory language and then to the legislative history if the

statutory language is unclear.”); Rotec Indus., Inc. v.

Mitsubishi Corp., 215 F.3d 1246, 1252 (Fed. Cir.2000) (“When

the language ofa statute fails to provide clear and unambiguous

direction, we may turn to the statute’s legislative history.”

(citing 7oibh v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 115

L.Ed.2d 145 (1991))).

25a

The agreement regarding the use of the employer’s vehicle

for commuting need not be in writing, and may be based on no

more than a mutual understanding of company practices.

H.R.Rep. No. 104-585, at 4 (1996) (Committee Statement and

Views) (“While H.R. 1227 [ (the ECFA bill) ] does not sequire

a written agreement, this requirement may be satisfied through

a formal written agreement between the employee and

employer, a collective bargaining agreement between the

employee’s representative and the employer, or an

understanding based on established industry or company

practices.”). At least one purpose of the agreement, from the

employer’s standpoint, is to define the commuting time as

uncompensated. /d. at 11 (Minority Views) (“The Majority

chose to leave H.R. 1227 weak on the issue of employee

voluntariness, preferring to grant employers wide latitude to

impose, as a condition of employment, non-voluntary and non-

compensable employee use of the employer’s vehicle.”).

It is clear that the primary purpose of ECFA was to limit

employer liability for FLSA claims related to commuting time

in employer-provided vehicles. See id. at 3 (Background)

(noting that ECFA would address a situation where employers

were “vulnerable to back pay lawsuits by both the Department

of Labor and employees”), at 8-9 (Budget Authority and

Congressional Budget Office Cost Estimate) (“If, under current

law, the courts determine that the time spent commuting in a

company vehicle and on incidental activities is subject to

compensation, state and local governments would face

additional costs. H.R. 1227 | (ECFA) | would eliminate this

potential liability.”). It would be incongruous at best to read

the statute, an amendment ensuring noncompensability under

FLSA as long as minimal conditions are met, as mandating

compensability for employee commutes in employer-provided

vehicles if no agreement is alleged to exist between the

employer and the employee regarding the noncompensability

of those commutes. Yet this is precisely the argument that

plaintiffs make here. See Pls.’ 2004 Mot. at 20 (noting that

26a

defendant has not alleged the existence of an employer-

employee agreement concerning the noncompensability of

commuting time and concluding that “ECFA affirmatively

supports plaintiffs’ entitlement to be paid for driving a

government vehicle between home and work”).

This negative inference from the statutory language of

ECFA cannot stand. As defendant points out, this court in

Bobo I determined that the evidentiary record in that case did

not support the government’s allegation of the existence of an

employer-employee agreement concerning commuting time

noricompensability. 37 Fed. Cl. at 697. Yet, the court ruled in

favor of the government and determined those commutes to be

noncompensable. /d. at 703. This ruling was affirmed in

Bobo Il. if ECFA mandated compensation where no agreement

has been alleged. as plaintiffs contend, the Federal Circuit’s

decision in Bobo I] would have been wrongly decided, but this

is not so. ECFA does not support plaintiffs’ position because,

as this court stated in Bobo /, “[b]y its own terms, the 1996

amendment { (ECFA) ] applies only if the use of the employer's

vehicle for commuting purposes is subject to an employee-

cmploycr agreement that precludes compensation for such

commutes.” /d. at 697. The court has reviewed other court

decisions interpreting ECFA and has found no decision that

interprets ECFA to mandate compensability in the absénce ot

an employer-employee agreement fixing the noncompensability

of commuting time in employer-provided vehicles. The court

is not willing to read into ECFA an inference that is not

supported by its statutory terms, Irgislative history, caselaw or

logic.

ECFA is “fully retroactive” in effect, see, e.g, Baker v.

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

apply to the facts of this case, as a defense against liability

under FLSA, if any employer-employee agreement fixing the

noncompensability of commuting time had been alleged. The

briefing of defendant's 2002 motion makes no reference,

however, to such an agreement. Neither party in the 2004

27a

motion briefing argues that an employer-employee agreement

regarding the noncompensability of commuting time applies to

the driving time claims at issue in these motions. Because

there has been no allegation in any of the motions of such an

agreement, ECFA is inapplicable to the summary judgment

motions reviewed here.

B. Driving Time Pay Claims Cases

There has been extensive litigation of driving time pay

claims under FLSA for what might be called commuting time

claims. The court will focus primarily upon decisions of such

claims in the law enforcement arena, as it finds that the

particular demands upon law enforcement personnel, such as

plaintiffs, present common issues for courts to consider as they

apply FLSA to similar facts. Furthermore, where controlling

authority has interpreted FLSA on analogous facts, it is not the

job of this court to conduct a de novo analysis of the relevant

statute. See Crowley v. United States, 398 F.3d 1329, 1335

(Fed. Cir.2005) (“We reject the [trial] court's initial de novo

interpretation of [the statute at issue in that appeal] because the

Court of Federal Claims may not deviate from the precedent of

the United States Court of Appeals for the Federal Circuit any

more than the Federal Circuit can deviate from the precedent of

the United States Supreme Court.”).

1. Reich

Of initiai interest is the Second Circuit’s review of canine

unit police officers’ rights to compensation for commuting to

and from work with their dogs. Reich v. New York City Transit

Auth., 45 F.3d 646 (2nd Cir.1995) (Reich). In Reich, the

officers’ principal duty was to patrol the New York City

subways in the company of their dogs. /d. at 647. One of each

officer’s job requirements was to transport the dog to and from

the officer's home, where the dog was lodged. /d. The United

States Department of Labor (DOL) claimed that the entire

commute was work time. and won below. /d. The Second

Circuit carefully reviewed the law under FLSA and the Portal-

to-Portal Act. including the decisions in Anderson, Steiner,

28a

Mitchell and Lindow, all discussed supra, and summed up the

standard for reviewing commuting time claims:

While no clear standards emerge, certain gencralizations

can be drawn from these authorities. The more the

preliminary (or postliminary) activity is undertaken for the

employer’s benefit, the more indispensable it is to the

primary goal of the employee’s work, and the less choice

the employee has in the matter, the more likely such work

will be found to be compensable. Commuting and similar

activities are generally not compensable. The ability of

the employer to maintain records of such time expended is

a factor. And, where the compensable preliminary work

is truly minimal, it is the policy of the law to disregard it.

Id. at 650. The Federal Circuit has adopted the standard

elucidated in Reich for deciding commuting time claims. Bobo

I], 136 F.3d at 1468 (“We agree with the interpretation of the

Portal-to-Portal Act set forth in Reich* * * *”).

Applying that standard, the Second Circuit first determined

that “dog-care” work that occurred during the commute was

compensable, despite the Portal-to-Portal Act amendments,

because “[fleeding, training, and walking are work and are

indispensable to the dogs’ well-being and to the employer’s use

of the dogs in its business.” Reich, 45 F.3d at 650. Next, the

Reich court determined that the requirement of not taking

public transportation, the burden of having the dog in the car,

and the obligation of being ready to perform dog-care work as

needed did not transform the remainder of the commuting time

into work time. /d. at651. The court held that “the activity of

commuting involved neither exertion nor loss of time” and that

“during the major part of commuting time no work is required.”

Id. at 651-52.

The final step in the analysis employed by the Reich court

was to determine whether the compensable work activities that

occurred during commuting time were “so negligible as to be

de minimis and therefore not compensable under the FLSA.” /d.

at 652. Applying the three Lindow factors for de minimis

29a

work, the Second Circuit reviewed the evidence in the record

of a three-day bench trial and found the dog-care work to be

“insubstantial,” not “regularly occurring” and that “|t}he task

of recording the time spent in such duties, when they arise,

might well exceed the time expended in the performance of the

duties.” Jd at 652-53. ‘The Reich court concluded that for

these canine unit police officers, “these episodes of additional

compensable work are de minimis and, therefore, need not be

compensated.” /d. at 653. The Sixth Circuit, citing Reich as

“the leading case” for canine police officer commuting claims,

upheld a summary judgment against similar plaintiffs, because

those “[p]laintiffs ... have not adduced evidence that canine

officers spend more than a de minimis amount of time during

their commutes engaged in such [dog-care] activities.” Aiken

v. City of Memphis, Tenn., 190 F.3d 753, 758 (6th Cir. 1999).

2. Bobo I

This court decided cross-motions for summary judgment

concerning commuting time claims of Immigration and

Naturalization Service (INS) border patrol agent canine

handlers in Bobo J, 37 Fed. Cl. at 690, 703. To these claims,

the court applied the Reich standard. /d. at 698. As in Reich,

the court found that some of the activities that the plaintiffs

alleged to have occurred during their commutes would be

potentially compensable:

certain activities that plaintiffs claim to perform while

commuting-conducting searches, taking care of their

canines; responding to sensors and immigration related

calls; and rendering assistance to state, local, and other

government agencies-would be integral and indispensable

to their principal activities.

Id.

However, most of the commuting - time was

noncompensable, because this court, like the Reich court, did

not find that the burdens and restrictions placed on the plaintiffs

during their commutes transformed the commuting time into

work time. /d. at 699-700. The noncompensable burdens

30a

included “listening to and signing on and off their vehicle

radios. observing traffic, and looking out for suspicious

activity.” /d. at699. The Bobo J] court cited Agner v. United

States, 8 Cl.Ct. 635, 638 (1985), aff'd 795 F.2d 1017 (Fed.

Cir.1986) (Table), for “the proposition that otherwise

noncompensable time is not rendered compensable for FLSA

purposes because of a requirement that an employee listen and

respond to an employer-owned radio.” 37 Fed. Cl. at 700. The

restrictions that were imposed, “the prohibition against personal

use of their government-owned vehicles and the requirement

that they wear their uniforms while driving,” also did not

transform commuting time into work, because these agents

“enjoy the benefit of saving money by commuting in

government-owned vehicles rather than their personal vehicles”

and because controlling precedent has ruled that “travel to and

from work in a _ government-owned vehicle is _ not

compensable.” /d. at 699 n. 13.

Finally, completing the Reich analysis, this court

considered whether the potentially compensable activities

alleged to have occurred during the agents” commutes would be

more than de minimis. Id. at 701-03. Relying on plaintiffs’

declarations concerning dog-care duties and responding to

immigration-related calls and emergency calls, the court found

that :

[t]he activities plaintiffs engage in while driving to and

from their sector offices before and after their paid

workdays begin atic end are de minimis and therefore

noncompensable. None of these activities occurred

regularly, and, more importantly, when they did occur.

they lasted for a short period of time, which is insubstantial

in the aggregate. Finally, the INS would be hard-pressed

to establish a workable system for recording this time.

For these reasons, the duties plaintiffs claim to perform

while commuting are de minimis.

Id. at 703 (footnotes omitted). Because plaintiffs’ claims were

for work that fell within the de minimis standard, the court

3la

granted defendant's cross-motion for summary judgment.

3. Bobo Il

Bobo II affirmed the judgment in Bobo /, “{b]ecause any

work performed by the INS Agents during their commutes that

was otherwise compensable under the FLSA was de minimis in

nature.” 136 F.3d at 1466. The Federal Circuit noted that

“[v]iewing the pleadings and submissions in the light most

favorable to the INS Agents, we accept as true that the

resirictions placed upon the INS Agents’ commutes are

compulsory, for the benefit of the INS, and closely related to

the INS Agents’ principal work activities.” /d. at 1468. ‘The

Bobo Il court reviewed the restrictions placed on the

commuting time period, and found that “the main restriction on

the INS Agents is the prohibition on making personal stops

during their commute. However, such a restriction on their use

of a government vehicle during their commuting time does not

make this time compensable.” /d. The Federal Circuit also

found that the other alleged burdens “d{id] not pass the de

minimis threshold,” because “they are infrequent, of trivial

aggregate duration, and administratively impracticable to

measure.” Summary judgment was justified because the

commuting time duties “d{id] not give rise to a valid or even

triable claim for compensation under the FLSA.” /d.

4. Other Jurisdictions

The Reich analysis of the compensability of commuting

time has been widely cited and followed when deciding FLSA

claims in the law enforcement context. See, e.g., Aiken, 190

F.3d at 758 (citing both Reich and Bobo II and denying claims

because the plaintiffs’ evidence showed only de minimis work

during commutes); Jerzak v. City of S. Bend, 996 F.Supp. 840,

848 (N.D.Ind.1998) (citing Reich and denying commuting time

claims); Hellmers v. Town of Vestal, N.Y., 969 F.Supp. 837.

843 (N.D.N.Y.1997) (citing Reich and denying commuting

time claims); Bolick v. Brevard County Sheriff's Dept., 937

F.Supp. 1560, 1565-66 (M.D.Fla.1996) (citing Reich and

denying compensation for commuting time); see also

32a

Bartholomew v. City of Burlington, Kan., 5 F.Supp.2d 1161,

1170 (D.Kan.1998) (not citing Reich but similarly applying the

holdings in Steiner, Anderson and Lindow to deny claims for

commuting time claims); Kennedy vy. State, 688 N.W.2d 473,

477-78 (lowa 2004) (not citing Reich but citing Aiken and

Hellmers and concluding that “these officers’ drive time was no

more than a non-compensable commute under the FLSA”).

The Reich analysis has also been cited and approved in other

FLSA cases where the employee is not a law enforcement

officer but another type of employee. See, e.g., Tum v. Barber

Foods, Inc., 360 F.3d 274, 279, 281 (1st Cir.2004) (citing Reich

and denying a “walking time” claim for the time it took

employees to reach the time clock after donning required

protective and hygienic gear); Dooley v. Liberty Mut. Ins. Co..

307 F.Supp.2d 234, 249 (D.Mass.2004) (following Reich to

determine that “commutes do not constitute a primary activity”

unless the workday begins before, or continues after, the

driving time of the employees concerned); see also Smith v.

Aztec Well Servicing Co., 32) F.Supp.2d 1234, 1237-38

(D.N.M.2004) (not citing Reich, but applying the holdings of

Steiner and Lindow to deny commuting claims because only de

minimis work occurred during the commutes). The

overwhelming weight of authority supports the Reich analysis

of commuting time claims under FLSA.

Plaintiffs cite three cases for the proposition that “FLSA

may require an employee to be compensated for his or her

integral and indispensable travel time even where no activities

other than driving are performed during the travel.” Pls.” 2004

Opp. at 16 n. 5. This proposition appears to offer an alternative

to the Reich analysis of commuting time claims. Plaintiffs’

cases, however, are not persuasive.

The first case offered by plaintiffs, Baker v. Barnard

Constr. Co., 146 F.3d 1214 (10th Cir. 1998), does indeed state

that “travel time meeting the ‘integral and indispensable’ test

must be compensated pursuant to the FLSA” and applied this

statement of the law to a commuting time claim. /d. at 1216.

33a

However, the facts of that case can be readily distinguished

from the claims here. In Baker, the commute occurred in

private vehicles provided by the employees, who were required

to transport fully fueled and stocked welding rigs. /d. at 1215.

The employer “did not pay [the] Plaintiffs for their return

travel time associated with refueling and restocking the welding

rigs in the evenings.” /d. Unlike Reich and the case here, the

commute in Baker was not in a law enforcement context. In

addition, the burdens upon the commute were considerable, and

far exceeded the burdens discussed in Reich or Bobo Il. Cf

Dooley, 307 F.Supp.2d at 248 (distinguishing Baker from

Dooley because in Baker, “the act of driving equipment itself

constituted substantial work, either because of additional

responsibilities or the extensive nature of the equipment being

transported”). Because the type of commuting in Baker was of

a different nature than the commuting here and in Reich, Baker

must be distinguished as not readily applicable to the facts at

hand. To the extent that the Tenth Circuit in Baker could be

read to apply a more easily met standard for compensable travel

time under FLSA than that applied by the Second Circuit in

Reich, a reading the court does not endorse, the court

recognizes that the Federal Circuit has adopted the Reich

analysis and that the Reich analysis is controlling law in this

circuit.

The second case cited by plaintiffs is an unreported

decision, Steelman v. Telco Tel. Co., No. CIV. 00-518-JO, 2001

WL 21361 (D. Or. Jan.5, 2001). Steelman cited Reich,

however, and endorsed the Reich analysis of commutifig time

claims. /d. at *3. Steelman thus supports defendant’s position

here, not plaintiffs’. Denying cross-motions for summary

*Even where Baker is the controlling law, an analysis similar to the

Reich analysis has been applied to commuting time claims for time spent

commuting in an employer-provided vehicle where the burdens alleged were

minimal in comparison with the benefits of convenient and free

transportation to and from the work site. Smith, 321 F.Supp.2d at 1237. As

in Reich, the commuting time in Smith was ruled to be noncompensable. /d.

34a

judgment on the FLSA claims before it, Stee/man held only that

disputed facts postponed the application of the Reich analysis.

Id. Steelman thus provides no support for plaintiffs’ alternative

to the Reich analysis.

Plaintiffs’ third case is Graham v. City of Chicago, 828

F.Supp. 576 (N.D.111.1993). This is an early case in a series of

decisions discussing commuting time claims for canine unit

officers. /d. at 579 (“Though several courts have addressed the

issue Of home care for police canines, the issue of whether

transporting the animals to and from work is compensable has

not been squarely addressed.”). The Graham court, unlike

Reich, treated the entire commute time as compensable because

the officers were transporting the dogs to and from work, even

though no additional burden or work occurred during the

driving time. /d. Although there are minor factual differences

between Graham and Reich, these decisions cannot be

reconciled. he Reich court noted that the lower court

decision on appeal in Reich had followed Graham in ruling

commuting time compensable, Reich, 45 F.3d at 648, and

reversed the lower court’s ruling in favor of the appellees’

claim for compensation, id. at 653. Because the Federal

Circuit in Bobo /I endorsed Reich, the Reich analysis of

commuting time compensability under FLSA, not the Graham

analysis, governs this court. The Graham analysis appears to

be an interpretation of the Portal-to-Portal Act which is in a

distinct minority and is probably no longer good law. See

Dooley, 307 F.Supp.2d at 248 (“Graham remains, but it is

contradicted by extensive case law reaching the opposite

conclusion.”).

Plaintiffs have failed to persuade the court that the Reich

analysis adopted by Bobo // is incorrect. Controlling and

persuasive authority argue otherwise. The court now applies

the Reich analysis and the holding of Boho // to plaintiffs’

claims now before the court on motions for summary judgment.

III. Defendant’s 2002 Motion

A. Arguments of the Parties

35a

Defendant’s 2002 motion relies heavily on the holdings of

Bobo I and Bobo II, and distills from them that

[t]he premise underlying both opinions was that the mere

act of driving a vehicle to and from the workplace did not

itself constitute work, and that time spent in this activity

would not be compensable unless it involved some

additional burdens that were more than de minimis.

Def.’s 2002 Mot. at 5-6. This is indeed the controlling law in

this circuit, and this premise must be applied to the facts of this

case. Plaintiffs’ 2002 motion attempts to distinguish Bobo I]

from the instant case, because, plaintiffs assert, “in Bobo [//]

there had never been a ‘custom or practice’ of paying INS

canine handlers for driving.” Pls.” 2002 Opp. at 10.

Plaintiffs assert that here, unlike in Bobo IT, “a ‘custom’ or

‘practice’ was in effect at the time such driving was being

performed providing for payment by the Government for such

activity.” /d. at 14. Plaintiffs, however, mistake the conditions

imposed by the statute for the “custom or practice” limitation

on the Portal-to-Portal Act provisions. For plaintiffs’

argument to have any force here, plaintiffs must show that there

was a “custom or practice” of paying these plaintiffs for their

commutes. The statute clearly states that for an employee to

benefit from the custom or practice limitation on the Portal-to-

Portal Act provisions mandating the noncompensability of

commuting time, there must be “a custom or practice in effect,

at the time of such activity, at the establishment or other place

where such employee is employed, covering such activity, not

inconsistent with a written or nonwritten contract, in effect at

the time of such activity, between such employee, his agent, or

collective-bargaining representative and his employer.” 29

U.S.C. § 254(b\(2) (emphasis added). Here, plaintiffs toil to

show that other employees were paid for commuting time in

government vehicles, but fail to allege that these plaintiffs, or

indeed any employees in the same grade levels and position

descriptions as these plaintiffs, benefitted from such a custom

or practice. Thus, plaintiffs’ attempt to distinguish this case

36a

from Bobo J] fails because there is no genuine issue of material

fact regarding a custom or practice concerning these particular

plaintiffs.

Defendant argues that federal “agency compliance with the

interpretation of FLSA embodied in FPM Letter No. 551-10...

does not constitute a ‘custom or practice’ within the meaning

of section 254(b).” Def.’s 2002 Reply at 17. This argument

echoes the court’s concern, as discussed supra, that section

254(b) may not be applicable to federal employees, or that

special considerations might affect its applicability to federal

employees. It is not necessary to reach this issue, however,

because the court has found that no custom or practice existed

here for compensating the 2002 plaintiffs for their commutes.

The court now turns to the facts of the commutes of the

first two groups of plaintiffs, to determine if Bobo // can be

distinguished or if that holding controls the result here. The

court notes that defendant's reliance on Bobo // and defendant's

assertion that the first two groups of plaintiffs’ commuting time

involved “even less than de minimis ” work activity, Def.’s

2002 Mot. at 7, put plaintiffs on notice that the Reich analysis

and the de minimis doctrine would be at issue in this case. lo

avoid the summary judgment fate of the plaintiffs in Bobo /

plaintiffs here must allege facts that would satisfy all of the

elements of the Reich analysis, so as to show that the driving

time by and of itself was inherently compensable, or that

plaintiffs’ commuting time included more than de minimis

work activity.

B. Plaintiffs at USSS and USCS at Issue in the 2002 Motion

Defendant asserts that the plaintiffs encompassed by

defendant’s 2002 motion occupy the following types of

positions: marine enforcement officer positions at USCS; and,

physical security specialist, telecommunication specialist,

fingerprint specialist or document analyst positions at USSS.

This assertion is uncontroverted. These job classifications fall

within the law enforcement personnel categery reviewed in

Reich and Bobo I. The only type of claim addressed in

. ‘ *

37a

defendant’s 2002 motion is commuting time claims while

driving a government vehicle to and from work, as

substantiated by the settlement agreements concerning these

plaintiffs. ‘This is the type of claim addressed in Bobo / and

Bobo Il. Despite plaintiffs’ contention that defendant “has

submitted no facts, material or otherwise, in support of its

motion,” Pls.” 2002 Opp. at 2, the court finds that defendant has

identified the plaintiffs, claims, and controlling law concerning

those claims to a degree sufficient to decide defendant’s 2002

motion as a matter of law.

In opposition to defendant’s 2002 motion, plaintiffs have

submitted Plaintiffs’ Statement of Uncontroverted Fact (Pls.°

2002 Facts) and an appendix of exhibits (Pls.’ 2002 App.), both

of which are almost exclusively devoted to agency policies and

procedures concerning the compensation of commuting time,

Or agency commentary on the FLSA implications of that

compensation. There are over three hundred pages in the

appendix. Several of the exhibits are internal documents from

other federal agencies, not USSS or USCS. No declarations

have been submitted from individual plaintiffs whose claims

are at issue in the 2002 motion. The lack of specificity of the

alleged facts significantly detracts from plaintiffs’ ability to

support their contentions under the Reich standard.

Plaintiffs appear to argue that these plaintiffs’ driving time

claims are based on situations where the “ ‘ “employee[ ] drives

a government vehicle home (as a requirement of the employing

agency) iv respond to cmergency calls from his/her home.” * ™

Pls.’ 2002 Opp. at 9 (quoting Aguilar v. United States, 36 Fed.

Cl. 560, 567 (1996) (quoting FPM Letter No. 551-10 (1976))).

However, nothing in plaintiffs’ recitation of facts alleges that

this was indeed the situation at USSS and USCS for the

concerned plaintiffs.’ Assuming, arguendo,’ that the court

*A USSS document is quoted which states that certain USSS GS-5 and

GS-7 employees may claim work time for when they “drive a Government

vehicle to and from work as a requirement of the Secret Service in order to

38a

should infer that the only reasons these plaintiffs at USSS and

USCS were issued government vehicles was to have the

vehicles readily available for emergency response to agency

needs, a fact not alleged by plaintiffs with the specificity

necessary to resist summary judgment,’ the court would follow

Bobo II and review these commutes for compensability based

on the burdens placed on plaintiffs related to emergency

response availability, and for compensability based upon any

work activities they might have performed during their

commutes. If emergency response activities during

commuting had been alleged, the court would regard any

emergency response activities alleged to have occurred during

the commutes as integral and indispensable to plaintiffs’

primary work activities, because all favorable inferences are

due to the non-movant opposing summary judgment. These

emergency response work activities would be compensable if

not de minimis.

In the 2002 motion evidentiary allegations by plaintiffs,

respond to emergencies from their residence,” but this policy does not allege

any facts relevant here. Pls.’ 2002 Facts at 3. Similarly, a USCS memo is

quoted which states that “[{i}n the past, we have authorized certain groups of

employees to use G[overnment] O[wned] V[ehicle}s Home to Work in order

for them to be available for call outs and to facilitate before and after duty

hours activities,” id. at 10, but again, this statement alleges no facts that are

of use to plaintiffs concerning these plaintiffs in particular.

§ i .

“Defendant also appears to make this inference in order to compare

plaintiffs’ driving time claims with the claims considered in Bobo //. See

Def.’s 2002 Reply at 9 (“Where an employce drives a Government vehicle

home in order to have the vehicle available in the event of an emergency, the

employee's utilization of a Government vehicle for his commu’: apparently

serves the Government's interest.”).

*Plaintiffs simply state in their brief that these plaintiffs’ “driving is

compensable under FLSA,” Pls.’ 2002 Opp. at 8, and offer citations to OPM

guidance and regulations. Plaintiffs do not support this legal conclusion

with factual assertions related to the conditions under which they commuted

in government vehicles.

39a

there is no evidence of restrictions or burdens on these

plaintiffs during their commutes, such as prohibitions on

personal stops or a requirement to monitor radio

communications. lhe only burden alleged by plaintiffs, a

burden alleged only indirectly through citation to FPM Letter

No. 551-10, is that these plaintiffs were required to take

government vehicles home to facilitate emergency response

from their homes. The Reich analysis endorsed by Bobo /]

compels the determination that such minimally-burdened

commuting time is noncompensable. Pursuant to the holding

of Bobo II, the driving time of these plaintiffs is

noncompensable because it is not work time.

Plaintiffs do not claim back pay for emergency response

activity during their commutes.’ Even if plaintiffs had

presented such a claim, the record is devoid of any facts

concerning the regularity, aggregate duration, or time-keeping

burden related to any emergency response activities performed

by these plaintiffs during their commutes. In the absence of

any alleged facts as to compensable work activity occurring

during these commutes, plaintiffs have not shown that any

work during these commutes was more than de minimis. Bobo

/ rejected driving time claims because the facts alleged did not

overcome the de minimis threshold, and the Federal Circuit

affirmed that decision and held that no valid or triable claim

remained because the plaintiffs’ work had not been shown to be

more than de minimis. This comports with plaintiffs’ burden

’The court asked plaintiffs “[w]hether plaintiffs allege that more than

de minimis emergency response work occurred during the driving time at

issue, and if so, which citations to the record before the court support such

an allegation.” Order of April 4, 2005 at 2. At oral argument, plaintiffs

responded that emergency response work during driving time was not the

basis of their driving time claims. See Tr. at 29 (Pls.’ counsel) (“[W]e’re

not talking aout the time that they may have been riding home and they got

a call t@ go some place on an emergency or otherwise ....””). For further

discussion ©! the scope of plaintiffs’ driving time claims, see infra note 9

and accompanying text.

40a

under FLSA to prove that compensable work was performed.

See Anderson, 328 U.S. at 686-87, 66 S.Ct. 1187 ("An

employee who brings suit under § 16(b) of [FLSA] for unpaid

minimum wages or unpaid overtime compensation, together

with liquidated damages, has the burden of proving that he

performed work for which he was not properly compensated.”).

Plaintiffs have not adduced facts alleging burdens on their

commuting time in government vehicles which would render

those commutes compensable. In addition, plaintiffs have not

adduced facts alleging that compensable work activities

occurred during that commuting time. Thus, plaintiffs’ back

pay driving time claims preserved by the 1999 and 2000

settlement agreements fail as a matter of law. For these

reasons, defendant’s 2002 motion is granted.

IV. 2004 Cross-Motions

A. Changes in Settlement Agreement Terms

As an initial matter, the court must address whether the

changes in the settlement agreement terms from the 1999 and

2000 agreements to the 2003 agreement make a difference in

how the Reich analysis must be applied to the 2004 motions as

opposed to the 2002 motion. Plaintiffs rely on the new joint

stipulation that states that plaintiffs concerned by the 2004

motions were FLSA non-exempt at the times relevant to the

driving time issue. Pils.’ 2004 Mot. at 3. However, as

defendant points out, this does not help plaintiffs to show that

there was a custom or practice of compensating these plaintiffs

for their commuting time, because “the undisputed fact is that,

to the extent that agencies ever followed a practice of

compensating agents for home-to-work driving in accordance

with FPM Letter No. 551-10. this practice never extended to

agents who were, rightly or wrongly, classified as exempt from

the FILSA [at the time].” Def.’s 2004 Mot. at 33. Thus, the

new language in the 2003 settlement agreement is of no avail

to plaintiffs in establishing a custom or practice of any

relevance to the 2004 motions and does not change the court's

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analysis.*

Defendant relies on the new language in the 2003

settlement agreement preserving claims “ “based upon time

solely spent driving to and from work in a government vehicle.’

” Def.’s 2004 Mot. at 9 (quoting agreement and putting

emphasis on the added word “solely”). In defendant’s view,

“to the extent that plaintiffs spent time during their commutes

performing activities beyond solely driving, those activities do

not require additional back pay for that time, but [the settlement

agreement terms] preclude [such overtime claims], regardless

of whether those activities constituted compensable work and

regardless of whether that work was more than de minimis.

‘lhe compensability of time spent by plaintiffs performing these

activities is simply not before the {c]ourt.” /d. Plaintiffs did not

respond to this argument in their responsive bricfing.

Plaintiffs were invited to respond to this topic at oral

argument. Order of April 4, 2005 at 2. At oral argument,

plaintiffs agreed with defendant’s explanation of the

significance of the word “solely.” See Ir. at 29 (Pls.’ counsel)

(“[WJe’re not talking about the time that they may have been

riding home and they got a call to go some place on an

emergency or otherwise, we’re talking about the driving from

home-to-work and from work-to-home so they could have the -

cars at home to be able to respond to emergencies.”). Based on

the parties’ arguments and the plain meaning of the text of the

2003 settlement agreement, the court agrees that plaintiffs’

preserved ciaims are for driving time which consists solely of

transporting the employee, automobile and work-related

equipment from home to work and work to home.’

SAs previously discussed in part II!.A of this opinion, on these facts the

court need not reach the issue of the applicability of section 254(b) to federal

employees.

*Defendant’s counsel explained that the addition of the word “solely”

to the 2003 stipulation was simply to clarify the limited nature of plainuffs’

preserved claims, and that the 1999 and 2000 stipulations were similarly

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B. Plaintiffs’ Argument that Bobo I/ is Distinguishable or

Mistaken

Plaintiffs argue that Bobo // is distinguishable on both

‘facts and legal principles.” Pls.” 2004 Mot. at 15. The facts

that are alleged to be different are: (1) that FPM Letter No.

551-10 is applicable here and was not in Bobo I], id. at 16; (2)

that plaintiffs here were commuting im government vehicles to

allow for immediate response to emergencies, rather than to

transport dogs, id.; (3) that the Bobo // plaintiffs received some

compensation for driving time and dog-care, whereas these

plaintiffs did not receive any compensation for commuting time

activities, id; (4) that here the claim is not for trivial, de

minimis dog-care work such as was the case in Bobo II. id. at

16-17; and, (5) that a custom or practice existed here of

compensating this type of commuting time for other

employees, id. at 17. Plaintiffs in their reply brief allege an

additional factual distinction (6), that a statute, 31 U.S.C. §

1344(a)(2)(B), is relevant to this case but was not addressed in

Bobo I]. Pls.’ 2004 Opp. at 23.

The court is unable to discern from plaintiffs” brief exactly

which legal principles are different here than in Bobo II, but

will assume that plaintiffs mean that the allegedly different

facts in this case would permit a different legal analysis than

the Reich analysis employed in Bobo II. This possibility is

discussed in more detail infra in part IV.C of this opinion.

Plaintiffs also suggest that if Bobo /] could be read to preclude

limited in nature. See Tr. at 77 (“I don’t think it [the addition of the word

“solely” } was intended really to change anything but really to clearly [say}

what ! believe was intended in all the agreements ...."’). Defendant’s counsel

also stated that any work during commuting time, such as emergency

response activity documented as “administratively uncontrollable overtime,”

had already been paid through settlement. /d. at 78. The preserved claims

are thus for the commuting time in and of itself. See id (Def.’s counsel)

(“All these work-related activities other than driving. that’s what we settled.

What was left over was the routine commute.”) /d. Plaintiffs did not

challenge this interpretation of the scope of plaintiffs’ driving time claims.

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the claims here, that Bobo // “would be mistaken.” /d. at 16 n.

5. This court is, of course, bound by the holding in Bobo // and

cannot consider plaintiffs’ suggestion that the Federal Circuit

could be mistaken about the law.

1. FPM Letter No. 551-10 at Issue Here but not in Bobo //

The relevance of FPM Letter No. 551-10 (FPM Letter) to

plaintiffs here is undisputed. Pls.” 2004 Mot. at 4; Def.’s 2004

Reply at 4. This letter, discussed in detail infra in part 1V.C of

this opinion, states that when an “[e]mployee drives a

Government vehicle home (as a requirement of the employing

agency) to respond to emergency calls immediately from

his/her home [,] ... [aJll time spent driving the vehicle home to

work (work to home) is hours worked.” Pls.’ 2004 App. Ex.

1] at 547. The opinions in Bobo / and Bobo I/ did not discuss

FPM Letter No. 551-10. Nevertheless, contrary to plaintiffs’

assertion at orakargument, Tr. at 82 (plaintiffs’ counsel arguing

that “the Federal Circuit did not have before it [FPM Letter

No.] 551-10”), the Bodo plaintiffs did raise the FPM Letter as

support for their commuting time claims.

The trial court in Bobo / was presented with arguments

concerning the FPM Letter No. 551-10 provision cited above,

the provision which authorized compensation for commuting

time when a government vehicle was provided in order to

facilitate emergency response from the employee’s home.

Reply Brief for Pls. filed Dec. 31, 1996 at 6, Bobo /; Brief for

Pls. filed on Sept. 6, 1996 at 7, Bobo /. The trial court also had

before it the text of FPM Letter No. 551-10, attached as an

exhibit to plaintiffs’ appendix in support of their cross-motion

for summary judgment. Brief for Pls. filed on Sept. 6, 1996

App. at 125, Bobo I In its published opinion, the Bobo / court

discussed the claims of those plaintiffs for time spent

responding to emergency calls from their homes. 37 Fed. Cl.

at 703 n. 23. Thus, although it was never specifically discussed

by the court, FPM Letter No. 551-10 and its implications were

considered by the court in Bobo I. On appeal, the border patrol

agents also argued for compensability based on emergency

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response availability and provided a copy of FPM Letter No.

551-10 in their appendix. Brief for Appellants filed Aug. 25,

1997 at 8, 17, App. at 57, Bobo 1] (1997 WL 33544216).

Even though the relevant provision of FPM Letter No. 551-

10 concerning compensa

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