Easter v. United States

United States Court of Appeals for the Federal Circuit
2008-5187

TERRY J. EASTER and MICHAEL EGGLESTON,

Plaintiffs,

and

STEVEN A. HUDSON, MICHAEL S. MORGAN,
VANESSA R. SPENCER, and JOHN A. WINSLOW,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee.

Jules Bernstein, Bernstein & Lipsett, P.C., of Washington, DC, argued for
plaintiffs-appellants. With him on the brief were Linda Lipsett; and Edgar James, James
& Hoffman, P.C., of Washington, DC.

Shalom Brilliant, Senior Trial Counsel, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
defendant-appellee. With him on the brief were Michael F. Hertz, Acting Assistant
Attorney General, Jeanne E. Davidson, Director, Todd M. Hughes, Deputy Director. Of
counsel was William P. Rayel, Trial Attorney.

Appealed from: United States Court of Federal Claims

Chief Judge Emily C. Hewitt
United States Court of Appeals for the Federal Circuit

2008-5187

TERRY J. EASTER and MICHAEL EGGLESTON,

Plaintiffs,

and

STEVEN A. HUDSON, MICHAEL S. MORGAN,
VANESSA R. SPENCER, and JOHN A. WINSLOW,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee.

Appeal from the United States Court of Federal Claims
in 04-CV-1435, Chief Judge Emily C. Hewitt.

__________________________

DECIDED: August 5, 2009
___________________________

Before MAYER, and BRYSON, Circuit Judges, and SPENCER, Chief District Judge. *

BRYSON, Circuit Judge.

∗ The Honorable James R. Spencer, Chief Judge, United States District Court
for the Eastern District of Virginia, sitting by designation.
 The dispute in this case is identical in all material respects to the dispute that was

before this court less than three years ago in Adams v. United States, 471 F.3d 1321

(Fed. Cir. 2006), and is similar to the dispute that was previously before this court in

Bobo v. United States, 136 F.3d 1465 (Fed. Cir. 1998). The task in this case is

therefore mainly to determine whether there is any reason for us to distinguish or depart

from the Adams and Bobo decisions. We conclude that there is not, and we therefore

affirm the decision of the Court of Federal Claims granting summary judgment in favor

of the government.

We have little to add to the thorough opinion of the Court of Federal Claims.

Nonetheless, at the risk of redundancy, we set forth our reasoning in this case because

there are a large number of similar cases pending before the Court of Federal Claims,

and our resolution of various issues raised by the appellants in this case may facilitate

the disposition of those other cases.

I

The four appellants are federal employees who are required, as a condition of

their employment, to use government vehicles when driving between their homes and

their places of work as part of their daily commutes. They are not allowed to use the

vehicles for personal purposes, including running personal errands on their way to or

from work. In light of the requirements that (1) they use government vehicles for

commuting, (2) they refrain from using the vehicles for personal purposes, and (3) they

transport work-related equipment with them when they use the vehicles for commuting,

the appellants argue that their commuting time constitutes a compensable period of

work under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq.

2008-5187 2
 II

The plaintiffs in the Bobo case were a group of Border Patrol dog handlers. They

were required to have their dogs reside with them and were paid for conducting dog

care tasks at home. The dog handlers were also required to use special government

vehicles to commute between their homes and their workplaces. They were required to

transport the dogs with them on that commute, and they were not allowed to engage in

personal business during the commute. They were not paid for the commuting time.

The dog handlers filed suit in the Court of Federal Claims, arguing that their time

spent commuting constituted compensable worktime, particularly in light of the various

restrictions and requirements that governed their commutes. The Court of Federal

Claims and this court, however, both held that the commuting did not constitute work for

purposes of the FLSA, notwithstanding the restrictions imposed by the agency. The

court noted that regulations of the Office of Personnel Management spell out the

general requirement of the FLSA that federal employees who are not exempt from the

Act must be paid for the time they spend “performing an activity for the benefit of an

agency and under the direction and control of the agency.” 5 C.F.R. § 551.401(a). The

court explained, however, that the general rule captured by that regulation is subject to

the Portal-to-Portal Act, which amended the FLSA, and which provides that

compensation need not be provided for time spent traveling to and from the employee’s

place of work or for activities “which are preliminary to or postliminary to” the

employee’s principal work activity. 29 U.S.C. § 254(a). Judicial constructions of that

Act, the Bobo court explained, had led to the general rule that activities performed

before or after the employee’s regular shift are compensable “if those activities are an

2008-5187 3
integral and indispensable part of the principal activities” of the employees’ work. Bobo,

136 F.3d at 1467, quoting Steiner v. Mitchell, 350 U.S. 247, 256 (1956). The Bobo

court then concluded that even though the restrictions placed upon the agents’

commutes were mandatory, “the burdens alleged are insufficient to pass the de minimis

threshold” and therefore are not compensable. 136 F.3d at 1468. The court specifically

adverted to the agents’ argument that the prohibition on making personal stops during

their commutes made the agents’ commutes compensable work time and rejected that

argument, holding that “such a restriction on their use of a government vehicle during

their commuting time does not make this time compensable.” Id.

In Adams, decided nine years later, the court followed the analysis in Bobo and

reached the same result, this time with respect to a group of several thousand law

enforcement officers who were issued government police vehicles. The officers were

required to commute from home to work in their vehicles, they were required to keep

their weapons and other law-enforcement-related equipment with them, and they were

prohibited from using the vehicles for personal business. Following the analysis used in

Bobo, the court concluded that the officers’ commuting time, even though subject to

certain restrictions, was not compensable under the FLSA, particularly in light of the

provisions of the Portal-to-Portal Act. Adams, 471 F.3d at 1326-28.

III

The trial court held that the facts in this case are indistinguishable from the facts

in Bobo and Adams and that the court was compelled by those precedents to reject the

appellants’ claims. In her opinion, the trial judge addressed each of the arguments

raised by the appellants as to why Bobo and Adams did not dictate a similar result in

2008-5187 4
this case, and she rejected them all. Easter v. United States, No. 04-1435C (Fed. Cl.

Aug. 1, 2008). In particular, she declined to entertain the argument that those cases

were simply wrongly decided and should not be followed, since the decisions of this

court are binding precedent for the Court of Federal Claims. She also rejected the

argument that Bobo and Adams are inconsistent with Supreme Court precedent and

prior Federal Circuit precedent and should not be followed for that reason as well. After

the trial court entered summary judgment against them, the appellants took this appeal.

IV

At the outset, we address a procedural point raised by the appellants regarding

the entry of summary judgment. The appellants filed their complaint in September

2004. The case was stayed pending the litigation in the Adams case, which the

plaintiffs in this case represented was “likely to call for a determination of the same or

substantially similar questions as are presented in this case.” In March 2008, after the

completion of the proceedings in Adams, the trial court lifted the stay and ordered the

government to file any dispositive motions by April 4, 2008. The government then

moved for dismissal under Rule 12(b) of the Rules of the Court of Federal Claims

(“RCFC”) for failure to state a claim on which relief can be granted. The appellants filed

an opposition to that motion and attached to their opposition the declarations of two of

the appellants. On August 1, 2008, after further briefing and oral argument, the court

entered a dispositive order in which the court treated the government’s motion to

dismiss as a motion for summary judgment and then entered summary judgment in

favor of the government.

2008-5187 5
 Like the equivalent Federal Rule of Civil Procedure, RCFC 12(b) (the pertinent

portion of which has recently been re-codified as RCFC 12(d)) allows a court to treat a

motion to dismiss for failure to state a claim as a summary judgment motion if “matters

outside the pleadings are presented to and not excluded by the court.” Relying heavily

on this court’s decision in Thoen v. United States, 765 F.2d 1110 (Fed. Cir. 1985), the

appellants argue that under the circumstances of this case it was error for the trial court

to convert the government’s Rule 12 motion into a summary judgment motion.

Whether to accept extra-pleading matter on a motion for judgment on the

pleadings and to treat the motion as one for summary judgment is within the trial court’s

discretion. See Gulf Coast Bank & Trust Co. v. Reder, 355 F.3d 35, 38-39 (1st Cir.

2004); 5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1371,

at 273 (3d ed. 2004). Before the court may convert a motion for judgment on the

pleadings into a motion for summary judgment, the court must ordinarily provide notice

of its intention to do so. Several courts have held, however, that in a case such as this

one, in which it is the non-moving party that introduces extra-pleading matter, that party

is deemed to be on constructive notice that the court may convert the motion into a

motion for summary judgment. See Rupert-Torres v. Hospital San Pablo, Inc., 205 F.3d

472, 475 (1st Cir. 2000); Gurary v. Winehouse, 190 F.3d 37, 42-43 (2d Cir. 1999);

Hamm v. Rhone-Poulenc Rorer Pharms., Inc., 187 F.3d 941, 948-50 (8th Cir. 1999);

San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir. 1998).

Although the Third Circuit has rejected that “constructive notice” approach, it has held

that the conversion is nonetheless subject to harmless error analysis. See In re

Rockefeller Ctr. Props., Inc., Sec. Litig., 184 F.3d 280, 288-89 (3d Cir. 1999). In this

2008-5187 6
case, we need not decide whether the appellants had constructive notice of the

conversion, as we conclude that any error on the trial court’s part with respect to the

conversion was harmless.

Throughout this litigation, the issue at the core of the dispute has been treated as

purely legal; there has been no serious contention that the facts are contested. The

facts set forth in the affidavits submitted by the two appellants were not in any way

challenged by the government, and those facts are identical in all material respects with

the facts presented in the Adams litigation. Significantly, the appellants have not

suggested that they had additional facts that they were unable to present to the trial

court because of the court’s decision to convert the government’s motion into a motion

for summary judgment, and the government made no effort to introduce any factual

presentation of its own. In sum, this case involves essentially undisputed facts and

turns on the legal consequences that attach to those facts. Accordingly, nothing of

significance turns on the distinction between a ruling on the pleadings and summary

judgment.

The question whether a party has had a “reasonable opportunity” to present

pertinent summary judgment materials when a trial court converts a motion to dismiss

into a motion for summary judgment “necessarily turns on the way in which the

particular case under consideration has unfolded.” Whiting v. Maiolini, 921 F.2d 5, 6

(1st Cir. 1990). In addition to looking to whether notice, actual or constructive, has been

given, courts have disfavored conversion when “the motion comes quickly after the

complaint was filed [or] discovery is in its infancy and the nonmovant is limited in

obtaining and submitting evidence to counter the motion.” Rupert-Torres, 205 F.3d at

2008-5187 7
475. In this case, the trial court did not act precipitously in converting the motion to

dismiss into a motion for summary judgment; the court’s ruling came five months after

the court lifted the stay of the proceedings in this case, and well after the government

had responded to the appellants’ discovery requests. In addition, the trial court

engaged in a colloquy with the parties during oral argument on the motion to dismiss

regarding whether the proceeding should be treated as a summary judgment

proceeding in light of the appellants’ submission of extra-pleading materials. The

court’s action therefore could not have come as a surprise to the appellants.

Finally, nothing in Thoen alters this analysis. In Thoen, the government moved

for dismissal on jurisdictional grounds, and the trial court converted the motion to a

motion for summary judgment on the merits. 765 F.2d at 112-13. The change from

jurisdiction to the merits meant that the court was addressing an issue entirely different

from that presented in the government’s motion. This court held that the government’s

submission of materials outside the pleadings in support of its jurisdictional motion did

not put the plaintiff on constructive notice that the court would address the merits of the

dispute. Id. at 114. In this case, it was the plaintiffs who introduced the extra-pleading

material. Moreover, the motion to dismiss in this case was on the merits, so the

government’s motion presented issues that were entirely congruent with those decided

by the court in entering summary judgment. For those reasons, the trial court’s

conversion of the government’s motion was not contrary to the decision in Thoen. And

because the trial court’s action did not result in any discernible prejudice to the

appellants, we are not required to reverse the judgment based on the assertedly

improper conversion.

2008-5187 8
 V

On the merits, we begin with the straightforward proposition that this court’s prior

decisions in Bobo and Adams are binding on this panel. In the absence of an en banc

decision overruling those cases or some other intervening event—such as a statutory or

regulatory change that would require us to revisit those decisions, or an intervening

Supreme Court decision clearly undermining Bobo and Adams—we are required to

adhere to those precedents. Thus, to the extent that the appellants’ argument is simply

a challenge to the correctness of this court’s decisions in Bobo and Adams, we reject it.

With respect to the appellants’ argument that Supreme Court or other Federal

Circuit decisions require us to overturn the decisions in Bobo and Adams, we disagree.

To begin with, several of the decisions on which the appellants rely predate Adams and

thus do not qualify as subsequent authority that would call Adams into question. In any

event, even without regard to the issue of timing, we do not find in those authorities any

persuasive ground for reconsidering Bobo and Adams.

A

In seeking to avoid the stare decisis effect of Bobo and Adams, the appellants

invoke the Supreme Court’s decisions in National Cable & Telecommunications Ass’n v.

Brand X Internet Services, 545 U.S. 967 (2005), and Long Island Care at Home, Ltd. v.

Coke, 551 U.S. 158 (2007). As the trial court explained, those cases are entirely

inapposite, and neither provides any support at all for the appellants.

The two Supreme Court decisions involve specific applications of the general

principle of judicial deference to administrative rulemaking generally referred to as the

“Chevron doctrine.” See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467

2008-5187 9
U.S. 837 (1984). In the Long Island Care case, the Court required judicial deference to

a Department of Labor regulation that addressed the extent to which the FLSA applies

to persons employed to provide companionship services to individuals who are

incapable of caring for themselves. The Court noted that Congress had expressly

authorized the Labor Department to engage in “gap-filling” with respect to the scope and

definition of the terms “domestic service employment” and “companionship services” in

the FSLA. 551 U.S. at 165. Because the Supreme Court concluded that the

Department of Labor had not exceeded the congressional mandate, it directed the lower

courts to defer to the agency’s interpretations of those terms.

In the Brand X case, the Court again mandated judicial deference to an agency’s

interpretation of a statute. In that case, the reviewing court had previously interpreted

the statute in one way, and the agency subsequently adopted a different interpretation

through an authorized rulemaking process. When the reviewing court overturned the

agency’s regulatory interpretation based on its own prior decision, the Supreme Court

reversed, holding that because the statutory language in question was ambiguous, the

reviewing court had to defer to the agency’s reasonable interpretation of that language,

even though the reviewing court had previously interpreted the same language in a

different manner before the agency had construed it. 545 U.S. at 983. Thus, the

Supreme Court concluded, the fact that the reviewing court had previously interpreted

the statutory language did not deprive the agency of its congressionally mandated

authority to interpret that language, nor did it free the reviewing court from its

responsibility to exercise its reviewing responsibilities under the deferential mandate of

Chevron.

2008-5187 10
 Neither of those cases has any pertinence here. Unlike in Brand X, this is not a

case in which a court has construed an ambiguous statute in a particular way, after

which an agency has issued regulations interpreting the statute differently than did the

court. The pertinent OPM regulations have remained the same since 1980, and there

have been no regulatory changes since Bobo and Adams that would suggest agency

disagreement with those decisions. Unlike in Long Island Care, this court in Bobo and

Adams did not reject an agency’s regulatory interpretation of a statute that it

administers. Although the appellants complain that the Adams court ignored the

regulations, a more plausible explanation for the court’s failure to advert to the

regulations in Adams is that those regulations were not helpful to the plaintiffs in that

case and thus deference to those regulations would not have altered the court’s

decision. As we discuss below, the applicable OPM regulations did not support the

appellants’ position in Adams, and they do not support the appellants’ position here.

The appellants point to an OPM regulation, 5 C.F.R. § 551.422(a)(2), which

provides that time spent traveling shall be considered hours of work if an employee “is

required to drive a vehicle or perform other work while traveling.” That regulation,

however, leaves unclear the extent to which “traveling,” as the term is used in that

regulation, encompasses commuting between home and work. A related OPM

regulation, 5 C.F.R. § 551.422(b), deals with that specific issue and makes clear that an

employee “who travels from home before the regular workday begins and returns home

at the end of the workday is engaged in normal ‘home to work’ travel; such travel is not

hours of work.” Those regulations do not support the appellants’ position; if anything,

they tend to support the government. Even more telling, however, is the informal

2008-5187 11
guidance provided by OPM as to the meaning of the latter regulation. In a website

publication cited by both parties, OPM expanded upon the commuting regulation and

wrote the following, citing the Bobo decision as authority:

[C]ommuting time may be hours of work to the extent that the employee is
required to perform substantial work under the control and direction of the
employing agency—i.e., productive work of a significant nature that is an
integral and indispensable part of the employee’s principal activities. The
fact that an employee is driving a Government vehicle in commuting to
and from work is not a basis for determining that commuting time is hours
of work.

Hours of Work for Travel, http://www.opm.gov/oca/worksch/html/travel.asp. To the

extent that the OPM regulations are ambiguous, the agency’s guidance is an

authoritative interpretation that warrants deference. See Auer v. Robbins, 519 U.S.

452, 461 (1997).

In sum, because the agency regulations do not support the appellants’ position in

this case, neither Brand X nor Long Island Care provides any reason to question the

decisions in Bobo and Adams or any reason to depart from those decisions here. The

Supreme Court cases are simply dry holes for the appellants.

B

The appellants next cite the decision of this court in Billings v. United States, 322

F.3d 1328 (Fed. Cir. 2003), in support of the proposition that Congress intended for

OPM, to the extent practicable, to make its guidelines for the application of the FLSA in

the federal sector generally consistent with corresponding Department of Labor

regulations applicable to the private sector. Even assuming that we could overrule our

prior decision in Adams based on its asserted failure to follow Department of Labor

regulations, we would not do so, because the premise of the appellants’ argument is

2008-5187 12
incorrect: There is no conflict between the OPM regulations and the parallel regulations

of the Department of Labor.

The applicable Labor Department regulations are generally similar to OPM’s, and

do not directly conflict with respect to the subject matter of this case. Section

553.221(e) of the Labor Department regulations, 29 C.F.R. § 553.221(e), establishes

the baseline principle that “[n]ormal home to work travel is not compensable, even

where the employee is expected to report to work at a location away from the location of

the employer’s premises.” See also id. § 785.35. That regulation is followed by one

that states:

A police officer, who has completed his or her tour of duty and who is
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. Of course, the time spent in
responding to such calls is compensable.

Id. § 553.221(f).

The appellants argue that the “police officer” regulation supports them because it

provides that a police officer “who is given a patrol car to drive home and use on

personal business” is not working. Extrapolating from that language, they take the

regulation to mean that if the officer is not free to use the police vehicle on personal

business, he must be working. That conclusion, however, does not follow. The fact that

the regulation describes a set of facts and states that a case fitting that fact pattern

would not require compensation does not mean that if any of the facts were changed,

compensation would be required.

The other references from the Department of Labor on which the appellants rely

are also unavailing. The appellants cite a 1986 excerpt from the Field Operations

2008-5187 13
Handbook of the Department’s Wage and Hour Division that deals with “special

problems”; that excerpt states that if an employee is required to drive an ambulance

home in order to be able to respond to calls immediately, the time spent in driving would

constitute hours worked. Department of Labor, Wage and Hour Division, Field

Operations Handbook § 31d00(a)(5) (May 30, 1986). They also cite a 1995 opinion

letter, WH-543, 1995 WL 17851862, which states that commuting time is not

compensable if, among other circumstances, the choice to drive the employer’s vehicle

is a voluntary one on the part of the employee. Neither reference is directly supportive

of the appellants’ position in this case. The Field Office Handbook’s discussion of the

case of an ambulance driver deals with what the Handbook explicitly refers to as a

“special problem,” and for that reason cannot simply be extrapolated to all public

servants who are required to use their official vehicles for commuting. The 1995 opinion

letter, like the police officer regulation, describes a circumstance in which compensation

is not required but does not expressly state that compensation would be required if any

of the listed factors was altered.

Reliance on the 1995 opinion letter is further undercut by congressional action in

response to that letter. Reacting to concerns over the 1995 opinion letter and a

predecessor opinion letter from 1994, Congress in 1996 enacted an amendment to the

Portal-to-Portal Act known as the Employee Commuting Flexibility Act, Pub. L. No. 104-

188, §§ 2101-03, 110 Stat. 1755, 1928 (1996), codified at 29 U.S.C. § 254(a)(2). That

Act provided that an employee’s use of an employer’s vehicle for commuting and

“activities performed by an employee which are incidental to the use of such vehicle for

commuting” is not compensable work if the use of the vehicle is within the normal

2008-5187 14
commuting area for the employer’s business and the use of the employer’s vehicle is

subject to an agreement between the employer and the employee or an employee

representative.

The trial court did not rely on the Employee Commuting Flexibility Act as a basis

for its decision in this case because, as the government concedes, the use of

government vehicles at issue in this case was not subject to an employer-employee

agreement. 1 Nonetheless, the legislative history of that Act makes clear that Congress

was not satisfied that the 1994 and 1995 opinion letters struck the proper balance

between uncompensated commuting and compensable work. See H.R. Rep. No. 104-

585, at 3 (1996). In light of the 1996 legislation, the continuing force of the 1995 opinion

letter is therefore open to question. For these reasons, we conclude that there are no

regulations or rulings of either OPM or the Department of Labor that dictate a different

1
The appellants complain that the court in Adams improperly relied on the
1996 Act. While the Adams court cited the language that was added to the Portal-to-
Portal Act in that year, the court did so only to make the general point that “merely
commuting in a government-owned vehicle is insufficient; the plaintiffs must perform
additional legally cognizable work while driving to their workplace in order to compel
compensation for the time spent driving.” 471 F.3d at 1325. On the merits, the court
ruled against the Adams plaintiffs based on Bobo and on the court’s conclusion that “the
labor beyond the mere act of driving the vehicle is de minimis.” Id. at 1328.

The appellants also argue that the court in Adams incorrectly held that the
plaintiffs had the burden of proof with respect to the issue of FLSA compensability. The
question of liability in Adams, however, turned not on the existence of an exemption
from the FLSA, but on whether the driving at issue constituted compensable work under
the statute. As the court correctly held in Adams, the plaintiffs had the burden of proof
on that issue. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946)
(“employee who brings suit for unpaid wages . . . has the burden of proving that he
performed work for which he was not properly compensated”).

2008-5187 15
result from that reached by this court in Bobo and Adams. In fact, as noted, to the

extent that there is any informal guidance from either agency as to the proper resolution

of this dispute, it is found in the discussion on the OPM website, which endorses the

approach followed by this court in Bobo.

C

In their brief, the appellants state in passing that this case differs from Adams in

that “the claim that they were engaged in compensable Employer required driving from

home to their work sites and from their last work site to their homes was not litigated at

all in Adams” because in Adams “it was not claimed that the plaintiffs’ compensable

driving was from home to a ‘first stop,’ and from a ‘last stop’ to home.” The distinction

suggested by that passage is apparently based on the statements in the appellants’

declarations in which they assert that their commuting activity often involves driving

between home and a location where they are directed on particular occasions, other

than a fixed office or regular worksite.

The appellants do not adequately explain why the difference between their

situation and that of the appellants in the Bobo and Adams cases requires a different

outcome; that is, it is unclear why an employee’s travel between home and a fixed

workplace should be uncompensated, while the same employee’s travel between home

and varying work locations within the commuting area should be compensated. Indeed,

both the OPM and Department of Labor regulations make clear that if commuting does

not otherwise constitute work, the fact that the employee may be commuting to different

job sites, rather than a fixed work location, does not make a difference. See 29 C.F.R.

§ 785.35 (“[O]rdinary home to work travel . . . is a normal incident of employment. This

2008-5187 16
is true whether he works at a fixed location or at different job sites.”); id. § 553.221(e)

(“Normal home to work travel is not compensable, even where the employee is

expected to report to work at a location away from the location of the employer’s

premises.”); 5 C.F.R. § 551.422(b), (d) (commuting to “temporary duty location” is not

compensable if the temporary duty station is within “the limits of the employee’s official

duty station,” i.e., within a prescribed mileage radius of up to 50 miles from the official

duty station). In light of the absence of any persuasive argument justifying the

distinction alluded to by the appellants, we decline to base a decision in the appellants’

favor on those allegations.

AFFIRMED.

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