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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 12, 2002 Decided February 28, 2003
No. 01-5374
& No. 01–5375
MARY R. WATERS, ET AL.,
APPELLANTS
v.
DONALD H. RUMSFELD,
SECRETARY, U.S. DEPARTMENT OF DEFENSE AND
ROBERT J. CORTER, JR., MAJOR GENERAL,
DIRECTOR, U.S. DEFENSE COMMISSARY AGENCY,
APPELLEES
Appeals from the United States District Court
for the District of Columbia
(No. 00cv00332 & No. 01cv00472)
Claude D. Convisser argued the cause and filed the briefs
for appellants.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-
tant U.S. Attorney.
Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND,
Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: The plaintiffs in this case filed
actions against the Secretary of Defense and the Director of
the Defense Commissary Agency on behalf of themselves and
a class of more than 9,000 people who bag and carry groceries
for customers at United States military commissaries around
the world. We affirm the district court’s denial of the
plaintiffs’ request to declare an act of Congress unconstitu-
tional. We vacate, however, the district court’s denial of the
plaintiffs’ claims for money damages under the Fair Labor
Standards Act, because exclusive jurisdiction over those
claims lies in the United States Court of Federal Claims.
I
Military commissaries are grocery stores that serve active
and retired military personnel and their dependents. The
commissaries are operated by the Defense Commissary Agen-
cy, a component of the Department of Defense. The commis-
saries do not regard the plaintiffs as their employees and do
not pay them a salary or other compensation; the grocery
baggers work solely for tips from the customers for whom
they bag and carry groceries. The plaintiffs also allege that,
in order to receive a commissary’s permission to work for
tips, baggers are required to perform additional work for
which they receive neither salary nor tips. Among other
duties, this work includes gathering shopping carts and col-
lecting litter.
The plaintiffs contend that, under the Fair Labor Stan-
dards Act (FLSA), 29 U.S.C. § 201 et seq., they are employ-
ees of the commissaries and must be paid the minimum wage,
compensated for overtime hours, and provided with other
3
benefits prescribed by the Act. See 29 U.S.C. §§ 206, 207.
In 1978, Congress expressly addressed the FLSA status of
commissary baggers. In relevant part, Public Law 95-485
reads as follows:
[A]n individual who performs bagger or carryout service
for patrons of a commissary of a military department
may not be considered to be an employee for purposes of
the Fair Labor Standards Act of 1938 by virtue of such
service if the sole compensation of such individual for
such service is derived from tips.
Act of Oct. 20, 1978, Pub. L. No. 95-485, § 819, 92 Stat. 1611,
1626 (codified at 29 U.S.C. § 203 note).
Two groups of commissary baggers filed class action com-
plaints in the United States District Court. The first count of
lead plaintiff Mary Waters’ complaint sought a declaratory
judgment that Public Law 95-485 is unconstitutional because
it denies persons performing bagger and carryout services
the equal protection of the laws. The remaining counts of
Waters’ complaint, and all of the counts of the complaint filed
by lead plaintiff Calvin Davis, charged that the defendants
are liable to the plaintiffs under the FLSA for unpaid mini-
mum wages, unpaid overtime, and liquidated damages.1 The
district court granted the government’s motion to dismiss
both the constitutional and FLSA claims, and the plaintiffs
filed the instant appeal.
II
The plaintiffs contend that Public Law 95-485 violates the
equal protection component of the Due Process Clause of the
Fifth Amendment because it unfairly carves out commissary
baggers from the protections accorded other workers under
the FLSA.2 We review this contention de novo. LaRouche
v. Fowler, 152 F.3d 974, 987 (D.C. Cir. 1998). Because the
plaintiffs do not assert that commissary baggers constitute a
1 The complaints also sought attorney’s fees and costs.
2Both the plaintiffs and the government agree that the district
court had jurisdiction over this claim under 28 U.S.C. § 1331.
4
suspect class, or that Public Law 95-485 infringes upon
fundamental constitutional rights, we must uphold the statute
if it has any rational basis. As the Supreme Court said in
FCC v. Beach Communications, Inc.:
[E]qual protection is not a license for courts to judge the
wisdom, fairness, or logic of legislative choices. In areas
of social and economic policy, a statutory classification
that neither proceeds along suspect lines nor infringes
fundamental constitutional rights must be upheld against
equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational
basis for the classification.
508 U.S. 307, 313 (1993); see Williamson v. Lee Optical, 348
U.S. 483, 488–89 (1955).
The government proffers such a rational basis here. It
notes that Congress enacted Public Law 95-485 following a
decision by the Civil Service Commission that commissary
baggers were Defense Department employees for purposes of
the FLSA. See 1 U.S. Op. Off. Legal Counsel 102 (1977)
(discussing unpublished Civil Service Commission decision).
According to the government, Congress decided to override
the Commission’s ruling because it feared the decision would
make commissary bagger positions more difficult for military
dependents to obtain. As the government explains, tips from
commissary bagging provide an important source of supple-
mental income for these individuals, who often find it difficult
to obtain other employment because they are relatively short-
term residents of the area in which they are stationed.
Appellees’ Br. at 8, 15–17. If commissary baggers were
covered by the FLSA, the government contends, the depen-
dents of service personnel would be displaced by local civil-
ians who would take the work as a route to more permanent
positions. Id. at 16–17.
The plaintiffs dispute whether this concern truly was Con-
gress’ motivation, and, even if it was, whether excluding
baggers from FLSA coverage is really necessary to accom-
plish that purpose. Although our examination of the legisla-
tive record makes clear that preserving opportunities for
dependents of military personnel was indeed a purpose of
5
Public Law 95-485, see infra notes 3–5, we need not dwell on
the point because ‘‘it is entirely irrelevant for constitutional
purposes whether the conceived reason for the challenged
distinction actually motivated the legislature.’’ Beach Com-
munications, 508 U.S. at 314. All that is required is that
there be ‘‘plausible reasons for Congress’ action.’’ Id. at 313–
14 (internal quotation marks omitted). Nor need we deter-
mine whether the vehicle chosen by Congress is necessary to
accomplish its purpose. To uphold the statute, all we must
decide is that there is ‘‘any conceivable rational basis’’ for the
legislative classification. Id. at 309.
There is no doubt that Congress could rationally conclude
that excluding baggers from FLSA coverage would enhance
the employability of spouses and other dependents of service
personnel. The transient nature of service life necessarily
limits the employment opportunities of military dependents,3
and many do earn supplemental income working as grocery
baggers.4 It would be rational for Congress to conclude that
if baggers were covered by the FLSA, local civilians would
successfully compete to fill the positions on a more permanent
basis, leaving fewer opportunities for military dependents
newly arriving from other posts.5 Nothing more is required
3See A Bill to Amend the Fair Labor Standards Act: Hearings
on H.R. 6256 Before the House Subcomm. on Labor Standards,
Comm. on Educ. & Labor, 95th Cong. 3 (1978) [hereinafter Sub-
committee Hearings] (statement of Rep. Daniel) (indicating that
spouses of service personnel reported ‘‘[t]ime after time TTT that
they are virtually unemployable because they are short-term resi-
dents’’).
4 See Subcommittee Hearings at 34 (statement of Maj. Gen.
Burkett) (‘‘The typical bagger is a military dependent, either a wife
or a teenager, son or daughter, off-duty military personnel, or
retired military.’’); Waters Decl. ¶ 10 (Dec. 2000) (stating that
approximately 32 of the 53 individuals registered to serve as
baggers at the Fitzsimons Army Center Commissary are military
dependents, and that 18 of the remaining 21 are active-duty person-
nel, active reserve personnel, or military retirees).
5 See Subcommittee Hearings at 4 (statement of Rep. Daniel) (‘‘If
the baggers’ jobs are absorbed by civil service, TTT they will become
6
to uphold the statute. As the Supreme Court has instructed,
our ‘‘standard of review is a paradigm of judicial restraint’’:
The Constitution presumes that, absent some reason to
infer antipathy, even improvident decisions will eventual-
ly be rectified by the democratic process and that judicial
intervention is generally unwarranted no matter how
unwisely we may think a political branch has acted.
Beach Communications, 508 U.S. at 314 (quoting Vance v.
Bradley, 440 U.S. 93, 97 (1979)).
Finally, the plaintiffs suggest that excluding them from the
protection of the FLSA is simply unfair. But ‘‘classifying
governmental beneficiaries [ ] ‘inevitably requires that some
persons who have an almost equally strong claim to favored
treatment be placed on different sides of the line, and the fact
[that] the line might have been drawn differently at some
points is a matter for legislative, rather than judicial, consid-
eration.’’ Beach Communications, 508 U.S. at 315–16 (quot-
ing United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166,
179 (1987)). Where the line is not drawn to disadvantage a
suspect class, Congress’ decision to prefer one group of
potential beneficiaries over another survives judicial scrutiny
as long as it is minimally rational. Id. at 313. We conclude
that the classification at issue in this case satisfies that test.
III
In addition to a declaration that Public Law 95-485 is
unconstitutional, the plaintiffs seek unpaid minimum wages,
unpaid overtime, and liquidated damages under the FLSA.
They contend that even if the law is constitutional, it excludes
from FLSA coverage only those individuals who perform
‘‘bagger or carryout service,’’ and that because they perform
additional duties that are not excluded, they are entitled to
entry level jobs for those intent on career progression. Those who
now perform this service will be frozen out.’’); id. at 17 (statement
of Rep. Aspin) (noting that commissaries ‘‘will naturally prefer to
hire persons who won’t be pulled off the job’’).
7
full protection under the FLSA. The district court rejected
the plaintiffs’ statutory interpretation, holding that Congress
did not intend ‘‘to provide any FLSA coverage to grocery
baggers, even if they performed duties in addition to bagging
and carrying.’’ Waters v. Rumsfeld, No. 00-0332, Mem. Op.
at 15 (D.D.C. Sept. 21, 2001).
Before we may examine the merits of the district court’s
holding, we must first assure ourselves that the district court
had jurisdiction to adjudicate the plaintiffs’ FLSA claims.
The ‘‘Little Tucker Act’’ grants United States district courts
concurrent jurisdiction with the United States Court of Fed-
eral Claims over civil actions or claims against the United
States
not exceeding $10,000 in amount, founded either upon the
Constitution, or any Act of Congress, or any regulation of
an executive department, or upon any express or implied
contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tortTTTT
28 U.S.C. § 1346(a)(2). Under the (Big) Tucker Act, claims
‘‘exceeding the $10,000 jurisdictional ceiling TTT are within
the exclusive jurisdiction of the Court of Claims.’’ Goble v.
Marsh, 684 F.2d 12, 15 (D.C. Cir. 1982); see United States v.
Hohri, 482 U.S. 64, 72 (1987); Van Drasek v. Lehman, 762
F.2d 1065, 1071 n.10 (D.C. Cir. 1985).6
6The Tucker Act grants the United States Court of Federal
Claims jurisdiction
to render judgment upon any claim against the United States
founded either upon the Constitution, or any Act of Congress
or any regulation of an executive department, or upon any
express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in
tort.
28 U.S.C. § 1491(a)(1). As the Supreme Court has explained, the
understanding that claims for more than $10,000 are within the
exclusive jurisdiction of the Court of Federal Claims ‘‘is not based
on any language in the Tucker Act granting such exclusive jurisdic-
tion to the Claims Court. Rather, that court’s jurisdiction is
8
The district court concluded that, in light of the nature of
the plaintiffs’ demands for unpaid wages and overtime, they
necessarily sought money damages in excess of $10,000. No
party disputes this point. However, that fact does not neces-
sarily divest the district court of jurisdiction. The plaintiffs
may ‘‘remain in District Court under the Tucker Act even if
their damages exceed $10,000 in amount, as long as they
waive any claims in excess of $10,000.’’ Goble, 684 F.2d at 15;
see Stone v. United States, 683 F.2d 449, 451 (D.C. Cir. 1982).
It is apparently on this ground that the district court took
jurisdiction, stating in a footnote: ‘‘In the event that the
Court does not dismiss their action, Plaintiffs would amend
their Complaint to limit their claims to $10,000 in money
damages.’’ Waters, Mem. Op. at 13 n.12 (citing Davis Plain-
tiffs’ Opp’n to Defendants’ Mot. to Dismiss at 19).
On appeal, the plaintiffs—who below had no objection to
the district court deciding their FLSA claims—now argue
that the court was without jurisdiction to do so because they
did not in fact waive claims for amounts in excess of $10,000.7
On the other hand, the government—which in the district
court resisted a finding of jurisdiction on the ground that the
Tucker Act gave exclusive jurisdiction to the Court of Federal
Claims—now argues that the plaintiffs effectively waived
claims for amounts over $10,000 so as to vest jurisdiction in
‘exclusive’ only to the extent that Congress has not granted any
other court authority to hear the claims that may be decided by the
Claims Court.’’ Bowen v. Massachusetts, 487 U.S. 879, 910 n.48
(1988).
7 In the district court, the plaintiffs argued that the Tucker Act’s
grant of jurisdiction to the Court of Federal Claims does not control
this case because, in their view, the Act applies only to complaints
seeking damages from appropriated funds of the United States.
The Defense Commissary Agency, the plaintiffs asserted, is a ‘‘non-
appropriated funds instrumentality.’’ The district court did not
decide whether the plaintiffs were correct about the applicability of
the Tucker Act to non-appropriated funds instrumentalities, be-
cause it ruled that the Defense Commissary Agency does in fact
receive appropriated funds. Waters, Mem. Op. at 12. The plain-
tiffs do not appeal that ruling.
9
the district court under the Little Tucker Act. The irony of
the parties’ reversal of positions aside, we have an indepen-
dent obligation to determine jurisdiction de novo. See Lepre
v. Dep’t of Labor, 275 F.3d 59, 64 (D.C. Cir. 2001).
In Goble v. Marsh, this circuit held that, for a district court
to maintain jurisdiction over a claim that might otherwise
exceed $10,000, a plaintiff’s waiver of amounts over that
threshold must be ‘‘clearly and adequately expressed.’’ 684
F.2d at 17. In Goble, although the plaintiffs had waived their
backpay claims in excess of $10,000, we held those waivers
insufficient because they ‘‘did not expressly disclaim’’ dam-
ages over $10,000 that would accrue after the filing of the
complaints and before final judgment. Id. at 16.
The plaintiffs in the instant case did not expressly disclaim
monetary damages over $10,000. Rather, the language upon
which the district court apparently relied for its conclusion
that the plaintiffs had waived claims over that amount reads
as follows:
In the alternative that this Court holds that the plaintiffs’
claims in federal district court are subject to [the Little
Tucker Act], the plaintiffs request leave to submit con-
sent forms pursuant to 29 U.S.C. § 216 limiting their
claims to not more than $10,000 each. Any consent
forms which plaintiffs moved this Court to provide to
potential class members also would include this $10,000
cap.
Davis Plaintiffs’ Opp’n at 19. On appeal, plaintiffs’ counsel
submits that he did not intend by this language to waive all of
his clients’ claims in excess of $10,000, but only to ask the
court to give each plaintiff an opportunity to decide whether
to consent to such a limited recovery in order to remain in
district court: ‘‘In fact, the plaintiffs-appellants were not
prepared to amend their Complaint to limit their claims to
$10,000 in money damages; their counsel only sought leave
for each one to decide on his or her own whether to file
consent forms so limiting their damages and allowing him or
her then to proceed in the District Court.’’ Appellants’ Opp’n
to Appellees’ Mot. to Transfer at 3. This explanation is
10
consistent with the language from the plaintiffs’ district court
pleading quoted above, as well as with additional language on
the same page of the same pleading. See Davis Plaintiffs’
Opp’n at 19 (stating that the plaintiff ‘‘may bring herself into
conformity with the jurisdictional limitation TTT by filing a
consent form TTT acknowledging a cap on her damages of
$10,000’’) (emphasis added).
We conclude that the plaintiffs did not ‘‘clearly and ade-
quately express’’ an intent to waive their FLSA claims in
excess of $10,000. Accordingly, the Court of Federal Claims
has exclusive jurisdiction to adjudicate those claims, and the
district court was without jurisdiction to rule on their merits.
IV
For the foregoing reasons, we affirm the district court’s
determination that Public Law 95-485 is constitutional under
the Fifth Amendment. However, we vacate the judgment
with respect to the plaintiffs’ FLSA claims, remand those
claims to the district court, and direct that court to transfer
them to the United States Court of Federal Claims pursuant
to 28 U.S.C. § 1631.8
8 The government initially moved to transfer this appeal to the
United States Court of Appeals for the Federal Circuit. Under 28
U.S.C. § 1295(a)(2), that court—with certain exceptions not relevant
here—has exclusive jurisdiction over the appeal of any case in
which the jurisdiction of the district court was founded ‘‘in whole or
in part’’ on the Little Tucker Act. Id. § 1295(a)(2). Section
1295(a)(2) is inapplicable here, however, in light of our conclusion
that the district court’s jurisdiction was not properly based on the
Little Tucker Act in any part. At oral argument, both parties
agreed that if we so concluded, the appropriate disposition would be
to transfer the plaintiffs’ FLSA claims to the Court of Federal
Claims.