Amicus Curiae Brief — City of Los Angeles v. Cleveland

9°

onerous overtime liability. If a city or iocality decides to

compensate dual function firefighter/paramedics in

accordance with the FLSA _ overtime exemption for

firefighters, it risks a substantial financial burden if a court

later determines that such employees are not engaged in fire

suppression and are due back pay. A public fire department

would have to hire more firefighters to make up for the

limited ability to use dual function personnel, and the

increased amount spent to compensate extra personnel would

reduce the budget for training, equipment and other service

needs. Particularly for public agencies with already slim

budgets, this is a strong financial deterrent that directly

diminishes the ability to provide quality fire and emergency

protection.

The Ninth Circuit’s decision will immediately impact

the practices of fire departments nationwide, and

consequently will affect the provision of fire and emergency

services provided to the vast majority of the public. Amid

continuing military engagements and the persistent threat of

attacks on our country, local agencies that provide public

safety functions play a critical role in homeland security and

must have the resources and flexibility to effectively deploy

first responders. This Court should not wait for the wave of

* inconsistent circuit court rulings that will inevitably follow

the Ninth Circuit’s decision, but instead should quickly

resolve this issue so that public fire departments can employ

dual function firefighter/paramedics without threat of

financial penalty.

Because of the Ninth Circuit’s ruling, fire departments

have been deprived of the clear mandate of the 1999

amendment—a law that was passed specifically to eliminate

the confusion and clarify that dual function paramedics are

covered by the overtime exemption. The Court should grant

the petition for writ of certiorari to provide the clarity that

Congress intended.

-— a

10

CONCLUSION

For all of the foregoing reasons and for the reasons set

forth in the petition, this Court should grant the Petition for

Writ of Certiorari on the question presented and reverse the

decision of the United States Court of Appeals for the Ninth

Circuit.

Respectfully submitted,

GAREN E. DODGE

COUNSEL OF RECORD

MARIA L. MULLARKEY

WILEY REIN & FIELDING LLP

1776 K Street, N.W.

Washington, D.C. 20006

(202) 719-7000

Counsel for Amicus Curiae

International Association of

Fire Chiefs

Dated: February 1, 2006

No. 05-851 ea

PUAN

In The x

OFFICE OF 1

Supreme Court of the United States

*

CITY OF LOS ANGELES,

Petitioner,

vs.

CEDRICK CLEVELAND, et al.,

Respondents.

o

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI

+

ALAN S. KAUFMAN

Counsel of Record

JEFFREY CHAMBERLAIN

CHAMBERLAIN, KAUFMAN & JONES

35 Fuller Road

Albany, New York 12205

518-435-9427

518-435-9102 (fax)

Counsel for Respondents

Cedrick Cleveland, et al.

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Did the district court and court of appeals correctly

hold that, based on the factual record created at trial,

plaintiffs did not have the “responsibility to engage in fire

suppression” within the meaning of 29 U.S.C. § 203(y)

(2000), and therefore were not exempt from overtime pay

for hours worked in excess of 40 hours per week under 29

U.S.C. § 207(k) (2000)?

il

TABLE OF CONTENTS

Page

QUESTION PRESENTE D....0:ccccsscccvsessessovecsveceveveensevees i

STATEMENT OF THE CASE ...........cccccccsccccessesscesererees

REASONS FOR DENYING THE PETITION ..............

A. Since its passage over six years ago, there

have been only five decisions in which the

statute has even been mentioned and only

three in which it has been applied...............0.... 7

B. The Ninth Circuit’s decision is the only circuit

court authority; there are no conflicting deci-

I I cicicndctnchcciarinccsincceuplaaiacness 8

C. The question presented does not require the

urgent attention of this Court ..................:::00 9

D. The court of appeals decided the case consis-

tently with the relevant decisions of this Court... 11

1. The decision is consistent with established

Re EID co coecinniiceniricecwentnsensnevesien 11

2. The decision is consistent with precedents

regarding interpretation of statutes gen-

DORI <:ccccniedsocabiensasaicscnceavnionsaonbionniamnan 13

3. The court’s interpretation does not render

part of the statute meaningless.................. 16

Ca eT atncicknisncsncais Ahintecdiveaievsncibiieutaatoeneionl 17

lil

TABLE OF AUTHORITIES

Page

CASES

A.H. Phillips, Inc. v. Walling, 324 U.S. 490 (1945)........... 12

Ardestani v. INS, 502 U.S. 129 (1991)............... eee 14, 16

Arnold v. Ben Kanowsky, Inc., 361 U.S. 388 (1960) ......... 12

Arthur Anderson, LLP v. United States, 125 S.Ct.

I EET Giichinananeiniasamieasddbebessaiibiedsinicowinausdcieanions 13, 16

Auer v. Robbins, 519 U.S. 452 (1997).............ccceesseeseceeeeee 13

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

Ts TNE CIE kdspatibita tein ck ueticninteniectoapbsetirenduabiiciee 12

Chavez v. The City of Katy, Texas, No. H-04-2573

(S.D. Tex. July 14, 2005) (unreported).........0........4. 8, 10

Corning Glass Works v. Brennan, 417 U.S. 188

SURE rriccsied caren Sp casieunbicne Aid ceataseedadaaubakeonbninaseaieneiadiots 12

Demarest v. Manspeaker, 498 U.S. 184 (1991)............0.... 14

HUD v. Rucker, 535 U.S. 125 (2002)................sccccdeccseeseres 14

Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709

SN i dovidinencionasdb canes ceccansadraeetiettn css ce pabnekes aioe CRE 12

Kelly v. Robinson, 479 U.S. 36 (1986) ...........cccceececeeseeeees 13

Lockwood v. Prince George’s County, Maryland, No.

99-2487, 2000 U.S. App. LEXIS 15302 (4th Cir.

I Se UD sittin ca iavirah scciednieep a cadcophcuccimiaasaiccuaadaalatndcaies 7

Oubre v. Entergy Operations, Inc., 522 U.S. 422

Se iiceiisidedecticnsicue wpsasasien aidsaebvausacanpacoaiandiemesorcseuaatuie ce 16

Overstreet v. North Shore Corp., 318 U.S. 125

| GRRL NRC eM GIUE Nis WIN Re ee AEN OR OFT 12

Perrin v. United States, 444 U.S. 37 (1979).....0.000000. 13

iv

TABLE OF AUTHORITIES — Continued

Page

Pizza v. Wolf Creek Ski Development Corp., 711

Fe ey RII kilt vtedtcrancnsentsndessunkpinieciokseciesiataaarss) 14

Tony and Susan Alamo Foundation v. Sec. of Labor,

RG es Pe CRIED ii biicsviesdesecesevescexevitintchiccinaeesonies, 12

TRW Inc. v. Andrews, 534 U.S. 19 (2001) ..........ce eee 13

Vela v. City of Houston, 276 F.3d 659 (5th Cir. 2001).........7

Weaver v. City and County of San Francisco, No.

CV-03-01589-SI, 2004 U.S. Dist. LEXIS 3421

(N.D. Cal. Feb. 27, 2004), reversed and re-

manded, No. 04-15597, 2005 U.S. App. LEXIS

28239 (9th Cir. December 16, 2005).................. 7, 8,9, 10

W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83

EE Fiche ch vciluisesiedsteverisJaniiarisaacicibemscheesamiu dasa mannes 14

STATUTES

Be Bs Fs riahitelesiisisiendeidinena Gian passim

a, SEE seansdineds esi dctieenten a 1

Oe Bi ee in ceescctietarienc eet 1

Be Re Ti icc ance rakovishecsedaeviemasiastosmedeinda 1, 2, 10, 15

REGULATIONS

Ge i iksseicncecticdc ese ee 12

Ges On etait eee, 12

ee ND wise ited indrakcnck sista 12

TABLE OF AUTHORITIES — Continued

Page

LEGISLATIVE HISTORY

145 Cong. Rec. H11500 (Nov. 4, 1999) .............cccccsscecreeeees 15

145 Cong. Rec. E2343 (Nov. 10, 1999)...................cccsssereees 15

Markup Held by House Committee on Education

and the Workforce on H.R. 1693, Comments of

Hon. William F. Goodling (Nov. 3, 1999) ............ ee 15

STATEMENT OF THE CASE

A. Prior proceedings

This is a case under the overtime provisions of the

Fair Labor Standards Act, 29 U.S.C. §207 (2000)

(“FLSA”). Plaintiffs work as paramedics at the Los Angeles

City Fire Department (“City”). They are also “cross-

trained” as firefighters, but at all relevant times have

worked on ambulances, providing paramedical services

exclusively. They did not fight fires. They were not ex-

pected to do so and there was no real chance that they

would fight fires. The City treated plaintiffs as “em-

ployee[s] in fire protection” under 29 U.S.C. § 207(k)

(2000), paying them overtime wages for hours worked in

excess of 204 in a 27-day work period. Section 207(k) is a

“partial exemption” to the regular FLSA rule requiring

overtime pay for hours worked over 40 in a seven-day

work week. 29 U.S.C. § 207(a) (2000). Plaintiffs claim they

were not “employee[s] in fire protection” when they

worked as paramedics on ambulances, and should have

been paid overtime for hours worked in excess of 40 per

work week.

Following a bench trial, the district court issued

findings of fact and conclusions of law and ruled the City

had not met its burden of proving that plaintiffs were

exempt under the section 207(k) exemption. The district

court awarded plaintiffs back pay, liquidated damages,

attorney’s fees and costs. The parties stipulated to these

amounts and judgment was entered for plaintiffs. The City

appealed, and the Ninth Circuit affirmed. 420 F.3d 981

(9th Cir. 2005)

2

In December, 1999, after the filing of this case but

before trial, Congress added a new section to the FLSA, 29

U.S.C. § 203(y) (2000). Section 203(y) defines the phrase

“employee in fire protection activities” used in section

207(k). Before the enactment of section 203(y), the phrase

was defined by United States Department of Labor

(“DOL”) regulations. In its conclusions of law, the district

court ruled that the City had not met its burden of proving

that plaintiffs were properly exempt under section 207(k)

as employees “in fire protection activities” either under the

definitions in DOL regulations or under the definition in

section 203(y). In its appeal to the court of appeals, the

City abandoned all arguments except those based on the

definition of “employee in fire protection activities” in

section 203(y). The City argued that the district court

erred in holding that plaintiffs were not exempt under

section 203(y), and also argued that section 203(y) con-

trolled this case in its entirety, including during the period

before its enactment. The court of appeals upheld the

district court’s conclusion that, based on the facts, plain-

tiffs were not exempt under section 203(y) because plain-

tiffs did not have the “responsibility to engage in fire

suppression” as required by section 203(y)(1).

B. Facts

On appeal, the City did not challenge any of the

district court’s findings of fact. In its petition, the City

ignores most of these findings. The trial record amply

supports the district court’s finding that plaintiffs did not

have the responsibility to engage in fire suppression.

Plaintiffs are “cross-trained” paramedics for the City

of Los Angeles Fire Department. (19).' This means they

are trained anc. certified in fire suppression skills and also

trained and certified as advanced life support paramedics.

(19). The City also employs paramedics who are not cross-

trained in fire suppression. (19).

During the times pertinent to this case, plaintiffs

worked on “paramedic ambulances” as paramedics. (20,

46). Ambulances are almost always staffed by two para-

medics. These may be cross-trained paramedics, paramed-

ics who are not cross-trained, or one of each. (20). The

cross-trained paramedics do the “exact same job” as their

colleagues who are not cross-trained, which is to provide

medical care and transport patients to hospitals, maintain

the ambulance, and do related paperwork. (20-22, 50-51,

54, 75, 90, 135, 142, 185).° Paramedics who are not cross-

trained are paid overtime for hours worked over 40 in a

workweek for performing this work on paramedic ambu-

lances. Plaintiffs are not. (25, 92).

Paramedic ambulances are sent to calls by dispatchers

when there may be a need for advanced life support

medical services. (20, 21, 52, 75-76, 135). They are not

eispatched for a firefighting function. (21, 52, 57, 75-76,

90-91, 135). Which particular ambulance gets sent to a call

is a function solely of availability and location; whether

’ References are to pages of Appellant’s Excerpts of Record

submitted to the court of appeals by the City, and include, but are not

limited to, references to the district court's findings of fact. References

to numbers preceded by “S” are to the Appellees’ Supplemental Ex-

cerpts of Record submitted by plaintiffs.

2 ‘ °

Cross-trained paramedics are supposed to wear a different

colored helmet than single function paramedics. (67-68):

the paramedics staffing an ambulance are cross-trained

plays no part. (20). The dispatchers do not know the

training of the paramedics on the paramedic ambulances,

and the paramedic ambulances are not dispatched accord-

ing to whether the employees staffing the ambulance are

cross-trained as firefighters or not. (57-58). Since they are

dispatched to the scene solely to provide medical services

if needed, whether paramedics staffing the paramedic

ambulance are cross-trained is irrelevant to the dis-

patcher, regardless of the nature of the call. (21, 97, 151).

Paramedic ambulances have no firefighting function

and are not designated by the City as fire suppression

resources. (48-49, 180). They carry no firefighting equip-

ment other than a small fire extinguisher. (134). Ambu-

lances carry no water and are not capable of pumping

water to extinguish fires. (48-49, 134). They carry no hoses

or ladders or specialized extrication equipment. (7, 20,

134). Paramedic ambulances do not carry any breathing

apparatus (tanks of air worn in hazardous environments).

(20, 59).

The Fire Department maintains a variety of other

vehicles which, unlike the ambulances, are used for fire

suppression. (47-48). Unlike ambulances, these vehicles

have direct firefighting functions, including the ability to

carry and pump water. They carry a full standard com-

plement of firefighting equipment and rescue tools, includ- -

ing breathing apparatus to allow the personnel staffing

them to enter hazardous environments. (48, 60, 138). The

standard staffing of some of these fire vehicles includes

one or two cross-trained paramedics. (47-48). Unlike

ambulances, when these fire suppression vehicles are

dispatched, the cross-trained paramedics assigned to them

5

“can be expected to perform either firefighting or para-

medic services as needed.” (138).

Virtually all of plaintiffs’ working time is spent at

incidents other than fires. Dispatch to fires is rare, and

when it occurs the purpose is to provide medical services.

Except in certain larger structure fires (when established

protocol requires automatic dispatch of a paramedic

ambulance to a fire scene to stand by in case of medical

emergency), plaintiffs on paramedic ambulances are

dispatched to fire scenes only when there is a report of a

person who may be trapped, injured, or in need of medical

attention or when the incident commander requests the

dispatch of a paramedic ambulance to stand by in case of

injury or loss of life. (54, 137-38). Plaintiffs are sometimes

dispatched and respond to crime scenes and vehicle

accidents for the purpose of providing medical services to

anyone who needs it. (22, 23). However, the clear majority

of calls to which plaintiffs are dispatched are medical calls

having nothing to do with fires, crimes, or accidents. (51,

53, 54, 89, 142, S8).

Upon the rare dispatch to a fire scene, plaintiffs are

required to place their ambulances ifi locations that do not

impede the operation of firefighting equipment and do not

impede plaintiffs’ ability to leave the scene to transport

patients or go to another call if there is no need for medi-

cal services at the fire scene. (56, 76). If there is an injury

at the scene either to a firefighter or member of the public,

plaintiffs are responsible for attending to it. (21). If there

is no injury to attend to, plaintiffs stand by in a medical

staging area away from the area where the fire is being

fought or may be released from the scene by the incident

commander to be available to respond to other calls. (21-

22, 56, 90).

Incident commanders at fire scenes do not normally

view plaintiffs on paramedic ambulances as augmenting

their firefighting personnel. (21, 185). There is no evidence

in the record that any plaintiff - or any cross-trained

paramedic assigned toe an ambulance — was ever ordered to

perform any fire suppression activity while working on a

paramedic ambulance. (22, 57, 77, 91, 96). Using a cross-

trained paramedic assigned to an ambulance to perform

fire suppression would compromise the ability of the

remaining paramedic to perform medical functions be-

cause paramedics working alone are limited by medical

protocols in the kind of medical activities they can per-

form. (21, 63, 151-152, 185).

Firefighters are required to wear “personal protective

equipment” or “turn out gear” when performing fire

suppression work. (60, 206-207). All personnel at a fire

scene are required to wear fire protective gear except

paramedics on paramedic ambulances, who are not re-

quired to do so because they are standing by to provide

medical care, which does not place them in an environ-

ment where such apparatus is needed. (21, 60).

Cross-trained paramedics assigned to paramedic

ambulances may volunteer, if they choose, to assist fire-

fighters at a fire scene in activities such as pulling hose off

trucks and “throwing” ladders. (125-126, 193-194 ). Para-

medics who are not cross-trained may also volunteer to

perform these same tasks. (184). There is no evidence in

the record that any plaintiff ever engaged in such activi-

ties. (57, 77, 91). While Deputy Chief Neamy testified for

the City that at a fire scene he would “expect” plaintiffs on