FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CEDRICK CLEVELAND; JUAN M.
ACHAN; LUIS F. ALDANA; DENNIS
M. ARCHIE; ANTHONY ARNADO;
DENNIS BARNES; JENNIFER LYNN
BOSCOE; JASON BRAFF; BRIAN T.
BROOKS; JAIME L. BROWN; MICHAEL
E. BROWN; JOSHUA L. BURTON;
CHRISTOPHER LEE CARPENTER;
ARMANDO CARRANZA; HEYWOOD
CHENG; BRAXTON CLARK; PAUL W.
CLARK; RUEL A. COLE; JUAN R.
COLSON; RAYMOND R. CRAWFORD;
JAMES D. CRITES; ARMANDO C.
CUEVAS; DOUGLAS DILKS; JEFF M. No. 03-55505
DODD; DAN DRAGOTTO; BRIAN C.
DUDLEY; WILLIAM A. DUNN; STEVE D.C. No.
CV-99-09175-CBM
J. ENCINIAS; ANTHONY CHARLES
FERRO; GUADALUPE G. FLORES; OPINION
MARK WRAY FLOT; LARRY R.
FORD; TIMOTHY P. FREEMAN;
RAYMOND A. GALLEGOS; DANNY
WILLIAM GARRETT; JAMES DAVID
GIBSON; MARK GLENCHUR; JAMES
R. GOLDSWORTHY; JEFFREY G.
GONZALEZ; CHRISTIAN P. GRANUCCI;
EDWARD J. GUTIERREZ; BENJAMIN R.
GUZMAN; JOSEL GUZMAN; SIR R.
HABERSHAM, IV; ANTHONY
HARDAWAY; HUSTON HERMAN;
ALFRED B. HERNANDEZ, III; RENE
HERRERA; RICKY M. HERRERA;
11097
11098 CLEVELAND v. CITY OF LOS ANGELES
LARRY HOERNER; KORY WAYNE
JACKSON; LARRY JACKSON; RODERIC
A. JACKSON; RONNIE R. JIMENEZ;
JAYSON A. JOHNSON; KEITH M.
JOHNSON; KEVIN MALCOLM
JOHNSON; DONALD R. JONES;
GARABED KARAOGLANIAN; KENNETH
L. KNIGHTEN; JOSEPH D. LANKAU;
DALE A. LECESNE; ROBERT
LEDESMA; BRIAN M. LEE; ROBERT
W. MACINNES; DAVID MALAFRONTE;
JOE G. MANZO; DEXTER G.
MCDANIEL; MICHELLE MARIE
MCKEE; TIMOTHY K. MCKEE;
LAURINDA MEADE; JOSEPH MENTON;
CHRISTOPHER J. MOFFATT; DONTA T.
MONTGOMERY; CECIL MORRIS;
ROGER D. MORRIS; CARL S.
MOSKOVITZ, II; AARON G.
MUNGARAY; ALAN C. NAEOLE;
DONALD P. NASH, II; JAMES
NORDQUIST; DENNIS A.
OHLIGSHLAGER; DREW OLIPHANT;
TYRONE O’SHEA; PATRICK T.
OYAMA; ROY ALLEN PAIGE; DAVID
PASS; NORMAN M. PATE; STEVEN
KEITH PHILLIPS; BRANDI PILATO;
WILLIAM RAMSEY; STEVEN G.
RAVITZ; LOUIS D. RICHARD; DAVID
T. RILES; JOHN RODRIGUEZ; MARK
L. ROUSSEAU; BRENT RUFF
SHANNON K. SAFFO; PAUL T.
SEMERJIAN; RICHARD DWIGHT
CLEVELAND v. CITY OF LOS ANGELES 11099
SENNEFF; GEORGE CARR SMITH, III;
STANLEY E. SMITH; PAUL E. SORUM;
BRENT SPANKROY; JOSEPH ST.
GEORGE; THOMAS W. STAFFORD;
CAREY STEINER; DENNIS C. STONE;
MICHAEL J. TAYLOR; MICHAEL D.
TOBEY; ABEL J. TORRES; LOUIS
TORRES; CATHERINE A. UTTERBACK;
JOHN P. VIGIL; VICTOR M. VILLA;
DONELL C. WIBLE; KENNETH
WIGCHERT; ERIK D. WILLIAMS;
MARK R. WOOLF,
Plaintiffs-Appellees,
v.
CITY OF LOS ANGELES, a Municipal
corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Chief Judge, Presiding
Argued and Submitted
December 6, 2004—Pasadena, California
Filed August 22, 2005
Before: James R. Browning, Harry Pregerson, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Pregerson
11102 CLEVELAND v. CITY OF LOS ANGELES
COUNSEL
Barry R. Levy (argued), and Karen M. Bray (briefed), Horvitz
& Levy, Encino, California, for the defendant-appellant.
Alan S. Kaufman, Chamberlain, Kaufman & Jones, Albany,
New York, for the plaintiffs-appellees.
OPINION
PREGERSON, Circuit Judge:
This case involves the application of the Fair Labor Stan-
dards Act’s (“FLSA”) overtime exemption for an “employee
engaged in fire protection activities.” 29 U.S.C. § 207(k).
Unless an exemption applies, the FLSA requires that employ-
ees be compensated at a rate of one-and-one-half times their
regular hourly rate for all hours worked in excess of forty in
one week. We must determine whether the fire protection
exemption should be applied to dual function paramedics,
individuals trained in both fire suppression and advanced life
saving. This issue is of first impression in the Ninth Circuit.
We have jurisdiction under 28 U.S.C. § 1291. For the rea-
sons set forth below, we affirm the district court, finding that
no exemption applies.
I. Factual Background
Plaintiffs are 119 employees of Defendant City of Los
Angeles (the “City”). They are employed as “dual function”
or “cross-trained” firefighters/paramedics (“dual function
paramedics”). This means that Plaintiffs are fully trained and
certified in both fire suppression skills and advanced life sup-
port paramedics. The City also employs “single function”
paramedics who are not trained in fire suppression.
CLEVELAND v. CITY OF LOS ANGELES 11103
Plaintiffs work a rotating schedule that results in nine
scheduled twenty-four-hour shifts every twenty-seven days,
for a total of 216 hours per work period. During periods rele-
vant to this case, Plaintiffs were assigned to work as parame-
dics on “paramedic ambulances.” While staffing paramedic
ambulances, Plaintiffs were responsible for providing medical
care, transporting patients to hospitals, maintaining the ambu-
lances, and completing related paperwork. Paramedic ambu-
lances are usually staffed by two employees. This may
include two single function paramedics, two dual function
paramedics, or one of each. Dual function and single function
paramedics assigned to paramedic ambulances perform the
same job — that is, they provide medical care and transport
assistance.
Paramedic ambulances are not designed to provide fire pro-
tection services. They do not carry water, hoses, pumps, lad-
ders, or fire suppression breathing equipment, nor do they
carry any specialized extrication equipment, aside from a
crow bar and a lock cutter. All personnel at a fire scene are
expected to wear fire protection gear, except paramedics on
paramedic ambulances, who are dispatched only to perform
medical services. Paramedic ambulances are not dispatched to
every fire call, but are instead dispatched only when there
appears to be a need for advanced life support medical ser-
vices. Further, when they arrive at fire scenes, paramedics
treat injured people, standby for patient care, and take
exhausted firefighters to the hospital; they do not assist with
any fire suppression.
If there is no injury, and the incident commander does not
see the need for the paramedic ambulance to stand by, the
incident commander has the discretion to release the parame-
dic ambulance from the scene to be available for other calls.
Paramedic ambulances are rarely dispatched to fire scenes,
so such dispatches make up a very small portion of Plaintiffs’
work. Plaintiffs testified that they are sent to fire scenes an
11104 CLEVELAND v. CITY OF LOS ANGELES
average of one to two times per year, and only to perform
medical functions. There is no evidence that any Plaintiff (or
any other dual function paramedic) has ever been ordered to
perform fire suppression by an incident commander when
assigned to a paramedic ambulance. Dual function paramedics
may volunteer to assist firefighters at a fire scene, but if they
do not volunteer, they are not subject to discipline.
Plaintiffs assigned to paramedic ambulances do not per-
form environmental rescues;1 such rescues are performed by
fire suppression personnel assigned to vehicles with the nec-
essary equipment. Plaintiffs are sometimes dispatched to
crime scenes and vehicle accidents for the purpose of provid-
ing medical services. Nevertheless, Plaintiffs respond to a
considerably greater number of purely medical emergencies
than they do to fires, traffic accidents, or crime scenes.
Because paramedics are called away from the fire station
more frequently than firefighters, dual function paramedics
often miss required fire suppression training sessions.
II. Statutory and Regulatory Background
The Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C.
§§ 201-19, provides for the payment of premium overtime
compensation at one and one-half times the regular rate when
an employee works more than forty hours in a seven-day
week. See 29 U.S.C. § 207(a).2 Section 207(k) provides an
1
Although the district court did not define “environmental rescues,” it
appears to refer to the swift water rescues, cliff rescues, and underground
tunnel rescues discussed in the parties’ testimony.
2
Section 207(a) states, in pertinent part:
Employees engaged in interstate commerce; additional applica-
bility to employees pursuant to subsequent amendatory provi-
sions
(1) Except as otherwise provided in this section, no employer
shall employ any of his employees who in any workweek is
engaged in commerce or in the production of goods for
CLEVELAND v. CITY OF LOS ANGELES 11105
exemption for law enforcement and fire protection employees.
See 29 U.S.C. § 207(k).3 Under this exemption, an employer
commerce, or is employed in an enterprise engaged in com-
merce or in the production of goods for commerce, for a
workweek longer than forty hours unless such employee
receives compensation for his employment in excess of the
hours above specified at a rate not less than one and one-
half times the regular rate at which he is employed.
(2) No employer shall employ any of his employees who in any
workweek is engaged in commerce or in the production of
goods for commerce, or is employed in an enterprise
engaged in commerce or in the production of goods for
commerce, and who in such workweek is brought within the
purview of this subsection by the amendments made to this
chapter by the Fair Labor Standards Amendments of 1966
—
29 U.S.C. § 207(a).
3
Section 207(k) states, in pertinent part:
No public agency shall be deemed to have violated subsection (a)
of this section with respect to the employment of any employee
in fire protection activities . . . if —
(1) in a work period of 28 consecutive days the employee
receives for tours of duty which in the aggregate exceed the
lesser of (A) 216 hours, or (B) the average number of hours
(as determined by the Secretary pursuant to section 6(c)(3)
of the Fair Labor Standards Amendments of 1974) in tours
of duty of employees engaged in such activities in work
periods of 28 consecutive days in calendar year 1975; or
(2) in the case of such an employee to whom a work period of
at least 7 but less than 28 days applies, in his work period
the employee receives for tours of duty which in the aggre-
gate exceed a number of hours which bears the same ratio
to the number of consecutive days in his work period as 216
hours (or if lower, the number of hours referred to in clause
(B) of paragraph (1)) bears to 28 days,
compensation at a rate not less than one and one-half times the
regular rate at which he is employed.
29 U.S.C. § 207(k).
11106 CLEVELAND v. CITY OF LOS ANGELES
must compensate fire protection employees with payment of
premium overtime payment only after 204 hours of work
within a twenty-seven-day period. See § 207(k)(2). The City
has relied on § 207(k)’s exemption to pay Plaintiffs as
employees in fire protection activities. Classified as such,
Plaintiffs received overtime pay only if they worked more
than 204 hours in a twenty seven-day work-period.
A. Regulatory Interpretation of the FLSA
At the time that Plaintiffs filed their complaint, the FLSA
did not define an “employee in . . . fire protection activity.”
Guidance for defining this term came from Department of
Labor (“DOL”) regulations, available in the Code of Federal
Regulations. See 29 C.F.R. § 553. Section 553.210 provides
a four-part test for determining whether an employee is
engaged in a “fire protection activity.” 29 C.F.R. § 553.210(a).4
The last full sentence of this regulation specifically includes
ambulance and rescue service workers who form an “integral
part” of an agency’s fire protection activities. This sentence
4
Section 553.210(a) states in pertinent part:
As used in [§ 207(k)], the term “any employee . . . in fire protec-
tion activities” refers to any employee (1) who is employed by an
organized fire department or fire protection district; (2) who has
been trained to the extent required by State statute or local ordi-
nance; (3) who has the legal authority and responsibility to
engage in the prevention, control or extinguishment of a fire of
any type; and (4) who performs activities which are required for,
and directly concerned with, the prevention, control or extin-
guishment of fires, including such incidental non-firefighting
functions as housekeeping, equipment maintenance, lecturing,
attending community fire drills and inspecting homes and schools
for fire hazards. The term would include all such employees,
regardless of their status as “trainee,” “probationary,” or “perma-
nent,” or of their particular specialty or job title . . . . The term
would also include rescue and ambulance service personnel if
such personnel form an integral part of the public agency’s fire
protection activities. See § 553.215.
29 C.F.R. § 553.210(a) (emphasis added).
CLEVELAND v. CITY OF LOS ANGELES 11107
is followed by an explicit cross-reference to 29 C.F.R.
§ 553.215. According to § 553.215, ambulance and rescue
service employees “of a public agency other than a fire pro-
tection or law enforcement agency may be treated as employ-
ees engaged in fire protection” if they are “regularly
dispatched to fires, crime scenes, riots, natural disasters and
accidents.” 29 C.F.R. § 553.215(a) (emphasis added).5 Section
553.212 provides that someone who spends more than twenty
percent of his or her working time engaged in nonexempt
activities (activities not related to fire suppression) may not be
considered an “employee engaged in fire protection.” 29
C.F.R. § 553.212(a).6
5
Section 553.215(a) states in pertinent part:
Ambulance and rescue service employees of a public agency
other than a fire protection or law enforcement agency may be
treated as employees engaged in fire protection or law enforce-
ment activities of the type contemplated by [§ 207(k)] if their ser-
vices are substantially related to firefighting or law enforcement
activities in that (1) the ambulance and rescue service employees
have received training in the rescue of fire, crime, and accident
victims or firefighters or law enforcement personnel injured in
the performance of their respective, duties, and (2) the ambulance
and rescue service employees are regularly dispatched to fires,
crime scenes, riots, natural disasters and accidents. As provided
in § 553.213(b), where employees perform both fire protection
and law enforcement activities, the applicable standard is the one
which applies to the activity in which the employee spends the
majority of work time during the work period.
29 C.F.R. § 553.215(a) (emphasis added).
6
Section 553.212(a) states in pertinent part:
Employees engaged in fire protection . . . activities as described
in § 553.210 . . . may also engage in some nonexempt work
which is not performed as an incident to or in conjunction with
their fire protection or law enforcement activities . . . . The per-
formance of such nonexempt work will not defeat [the § 207(k)]
exemption unless it exceeds 20 percent of the total hours worked
by that employee during the workweek or applicable work
period. A person who spends more than 20 percent of his/her
working time in nonexempt activities is not considered to be an
employee engaged in fire protection or law enforcement activities
for purposes of this part.
29 C.F.R. § 553.212(a) (emphasis added).
11108 CLEVELAND v. CITY OF LOS ANGELES
III. Procedural Background
A. District Court Proceedings
1. The Complaint
In their complaint, Plaintiffs alleged that the City violated
the FLSA by compensating them as fire protection employees
under 29 U.S.C. § 207(k)’s special overtime exemption dur-
ing the periods that they were assigned to paramedic ambu-
lances. Plaintiffs contend that during those periods, they did
not qualify as fire protection employees as that term was
defined by DOL regulations set forth in 29 C.F.R. § 553, and
that they should have been compensated at a rate of one-and-
one-half times their regular hourly rate for all hours in excess
of forty hours worked in one week.
Specifically, Plaintiffs asserted that they do not qualify as
fire protection employees under the DOL regulations because:
(1) they do not have the “responsibility” to engage in fire sup-
pression, § 553.210(a)(3); (2) they do not, in fact, engage in
fire suppression and are not regularly dispatched to fire
scenes, § 553.210(a); and (3) the exemption is inapplicable
because Plaintiffs spent more than twenty percent of their
time engaged in nonexempt work (work that is not performed
incident to or in conjunction with their fire protection)
because they devote the vast majority of their time to provid-
ing medical services, § 553.212(a). Plaintiffs also alleged that
the City’s decision to compensate them as fire protection
employees was not the result of a good faith effort to comply
with the FLSA.
2. Enactment of 29 U.S.C. § 203(y)
On December 9, 1999, three months after Plaintiffs filed
their complaint, Congress enacted 29 U.S.C. § 203(y).7 Sec-
7
See Fair Labor Standards Act Amendment, Pub. L. 106-151, 113 Stat.
1731 (1999).
CLEVELAND v. CITY OF LOS ANGELES 11109
tion 203(y) provides the FLSA with its own statutory defini-
tion of an “employee in fire protection activities.” 29 U.S.C.
§ 203(y). This definition is much shorter and simpler than the
piecemeal definition found in the Code of Federal Regula-
tions. Nonetheless, § 203(y) is reminiscent of 29 C.F.R.
§ 553.210(a)(3), inasmuch as it defines an employee in fire
protection activities as one who “has the legal authority and
responsibility to engage in fire suppression . . . .” 29 U.S.C.
§ 203(y)(1) (emphasis added).8
3. District Court Ruling
The parties stipulated to a bifurcated bench trial. The issue
of liability was tried first, with the amount of damages to be
determined later. Without affording priority to the definitions
of “employee in fire protection activities” as set forth in the
DOL regulations and in § 203(y), the district court concluded
that Plaintiffs did not qualify as “employee[s] in fire protec-
tion activities” under either definition because: (1) Plaintiffs
do not have the “responsibility to engage in fire prevention,
control or extinguishment” as set forth in 29 C.F.R.
§ 553.210(a)(3); (2) Plaintiffs are not regularly dispatched to
fire scenes as described by 29 C.F.R. § 553.215(a)(2); (3)
Plaintiffs’ nonexempt work is not limited to less than twenty
8
Section 203(y) states, in pertinent part:
“Employee in fire protection activities” means an employee,
including a firefighter, paramedic, emergency medical technician,
rescue worker, ambulance personnel, or hazardous materials
worker, who —
(1) is trained in fire suppression, has the legal authority and
responsibility to engage in fire suppression, and is
employed by a fire department of a municipality, county,
fire district, or State; and
(2) is engaged in the prevention, control, and extinguishment of
fires or response to emergency situations where life, prop-
erty, or the environment is at risk.
29 U.S.C. § 203(y) (emphasis added).
11110 CLEVELAND v. CITY OF LOS ANGELES
percent of their total work hours as described by 29 C.F.R.
§ 553.212; and (4) Plaintiffs do not have the “responsibility to
engage in fire suppression” as set forth in 29 U.S.C. § 203(y).
Following the liability phase of the trial, the parties stipu-
lated to a method for calculating the unpaid overtime. The
district court concluded that Plaintiffs were entitled to liqui-
dated damages, because the City did not act reasonably or in
good faith. The district court subsequently entered judgment,
awarding unpaid overtime and liquidated damages for a total
of $5,131,514.02. The district court also awarded Plaintiffs
$116,550.00 in attorneys fees and $11,389.12 in costs.
B. The Appeal
The City maintains that all work performed by Plaintiffs,
including emergency medical services, is exempt under
§ 203(y).9 In addition, the City contends that § 203(y)
amended the FLSA to both define and clarify the scope of
exempt activity under § 207(k)’s fire protection employee
exemption. As a clarification, the City asserts that § 203(y)
applies both retroactively and prospectively, and that § 203(y)
should govern the district court’s entire analysis. See ABKCO
Music, Inc. v. LaVere, 217 F.3d 684, 689 (9th Cir. 2000) (rec-
ognizing that “clarifying legislation is not subject to any pre-
sumption against retroactivity and is applied to all cases
pending as of the date of its enactment”). Plaintiffs maintain
that the district court correctly applied and interpreted the
FLSA, its recent amendment, and relevant DOL regulations.
9
The City’s appeal focuses only on the times Plaintiffs were assigned
to paramedic ambulances because: (1) Plaintiffs concede that they were
properly compensated under the fire protection employee exemption dur-
ing the periods they staffed firefighting vehicles; and (2) the City concedes
that Plaintiffs should not be compensated as fire protection employees dur-
ing the periods they work as Quality Improvement Analysts.
CLEVELAND v. CITY OF LOS ANGELES 11111
IV. Standard of Review
A district court’s determinations regarding exemptions to
the FLSA are questions of law that we review de novo. See
Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1124 (9th Cir.
2002). However, findings of fact underlying a legal determi-
nation are reviewed for clear error. See id.
The district court’s interpretation of DOL regulations pro-
mulgated under the FLSA is reviewed de novo. See Webster
v. Pub. Sch. Employees of Wash., Inc. 247 F.3d 910, 914-15
(9th Cir. 2001). Nonetheless, deference is owed to the DOL’s
regulations interpreting the Act. See Baldwin v. Trailer Inns,
Inc., 266 F.3d 1104, 1112 n.4 (9th Cir. 2001).
V. Discussion
The FLSA is construed liberally in favor of employees;
exemptions “are to be narrowly construed against the employ-
ers seeking to assert them . . . .” Arnold v. Ben Kanowsky,
Inc., 361 U.S. 388, 392 (1960); see also Klem v. County of
Santa Clara, 208 F.3d 1085, 1089 (9th Cir. 2000) (holding
that the FLSA “is to be liberally construed to apply to the fur-
thest reaches consistent with Congressional direction”) (quo-
tation and citation omitted). Further, an FLSA exemption will
not be found “except [in contexts] plainly and unmistakably
within [the given exemption’s] terms and spirit.” Id. (quoting
Arnold, 361 U.S. at 392). Therefore, the City has the burden
to prove that Plaintiffs meet each element of the § 207(k)
exemption for “employee[s] in fire protection activities” and
that Plaintiffs fit “plainly and unmistakably” within the terms
and spirit of the exemption.
As discussed in greater detail below, the district court prop-
erly concluded that the City did not meet its burden of prov-
ing that Plaintiffs qualify as “employees engaged in fire
protection” as defined by the DOL’s regulations or § 203(y).
Each definition will be examined in turn.
11112 CLEVELAND v. CITY OF LOS ANGELES
A. The Definitions of “Employee Engaged in Fire
Protection Activities,” and Their Applications
1. 29 C.F.R. § 553.210 and 29 U.S.C. § 203(y)
[1] Section 553.210(a) defines an “employee . . . in fire
protection activities” as any employee who: (1) is employed
by an organized fire department or fire protection district; (2)
has been trained in fire protection; (3) has the legal authority
and responsibility to engage in the prevention, control, or
extinguishment of a fire; and (4) who performs activities
which are required for, and directly concerned with, the pre-
vention, control or extinguishment of fires.10 29 C.F.R.
§ 553.210(a) (emphasis added). Section 203(y) states that an
“employee in fire protection activities” is one who: (1) is
trained in fire suppression; (2) has the legal authority and
responsibility to engage in fire suppression; (3) is employed
by a fire department of a municipality, county, fire district, or
State; and (4) is either engaged in the prevention, control, and
extinguishment of fires or responds to emergency situations
where life, property, or the environment is at risk. 29 U.S.C.
§ 203(y) (emphasis added). The parties agree that this case
turns on whether Plaintiffs have the responsibility to engage
in fire prevention as required by 29 C.F.R. § 553.210(a)(3)
and 29 U.S.C. § 203(y)(2).
To determine the meaning of a term in a federal regulation,
we look to the common meaning of the word. See United
States v. Willfong, 274 F.3d 1297, 1301 (9th Cir. 2001) (citing
United States v. Hoff, 22 F.3d 222, 223 (9th Cir. 1994)). The
starting point for an examination of statutory meaning is the
10
Section 553.210(a) alternatively provides that § 207(k) also applies to
“rescue and ambulance service personnel if such personnel form an inte-
gral party of the public agency’s fire protection activities. See § 553.215.”
This alternative exemption cannot apply to the Plaintiffs because they are
employed by the Los Angeles City Fire Department, and § 553.215 only
applies to “employees of a public agency other than a fire protection . . .
agency.” § 553.215(a).
CLEVELAND v. CITY OF LOS ANGELES 11113
text of the statute itself. See United States v. Sioux, 362 F.3d
1241, 1246 (9th Cir. 2004). Where “the statute’s language is
plain, the sole function of the courts is to enforce it according
to its terms,” United States v. Ron Pair Enters., Inc., 489 U.S.
235, 241 (1989) (citation and internal quotations omitted),
because “courts must presume that a legislature says in a stat-
ute what it means and means in a statute what it says there,”
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992).
The inquiry must cease if the statutory language is unambigu-
ous and “the statutory scheme is coherent and consistent.”
Ron Pair Enters., 489 U.S. at 240. “When a statute does not
define a term, a court should construe that term in accordance
with its ‘ordinary, contemporary, common meaning.’ ” San
Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024,
1034 (9th Cir. 2004) (internal citation omitted). “To deter-
mine the ‘plain meaning’ of a term undefined by a statute,
resort to a dictionary is permissible.” Id. at 1034.
[2] The ordinary, common meaning of the word “responsi-
bility” is “a duty, obligation or burden.” American Heritage
Dictionary of the English Language, Fourth Edition (Hough-
ton Mifflin 2000). Other dictionaries are to the same effect:
• “A charge, trust, or duty, for which one is responsible,”
Oxford English Dictionary (2nd ed. 1989);
• “Liability,” Black’s Law Dictionary (8th ed. 2004);
• “A thing or person that one is responsible for,” Webster’s
New World Dictionary, Third College Edition (1986).
Similarly, “responsible” means “expected or obliged to
account (for something, to someone), answerable, account-
able” and “involving accountability, obligation or duties.”
Webster’s New World Dictionary, Third College Edition
(1986). “Responsible applies to one who has been delegated
some duty or responsibility by one in authority and who is
subject to penalty in case of default.” Id. “The state or fact of
11114 CLEVELAND v. CITY OF LOS ANGELES
having a duty to deal with something [is] . . . a thing that one
is required to do as part of a job, role or legal obligation.”
New Oxford American Dictionary (2001). “Responsible”
means “having an obligation to do something, or having con-
trol over or care for someone, as part of one’s job or role.” Id.11
[3] Applying this ordinary, common-sense meaning, for
Plaintiffs to have the “responsibility” to engage in fire sup-
pression, they must have some real obligation or duty to do
so. If a fire occurs, it must be their job to deal with it. The
undisputed evidence shows that, among other things:
11
The City devotes extensive briefing to the possible legislative intent
behind enacting § 203(y). The City contends, that in enacting § 203(y),
Congress meant to ensure that the definition applied to dual function
paramedics as well as firefighters. The City cites numerous congressional
statements to support its contention that § 203(y) was intended to include
dual function paramedics. See 145 Cong. Rec. E2343, H11499, and
H2809.
According to the rules of statutory construction, the court can only look
to legislative intent when a statute is ambiguous. See HUD v. Rucker, 535
U.S. 125, 132 (2002) (“[R]eference to legislative history is inappropriate
when the text of the statute is unambiguous.”); see also W. Va. Univ.
Hosps., Inc. v. Casey, 499 U.S. 83, 98-99 (1991)
(The best evidence of [legislative] purpose is the statutory text
adopted by both Houses of Congress and submitted to the Presi-
dent. Where that contains a phrase that is unambiguous — that
has a clearly accepted meaning in both legislative and judicial
practice — we do not permit it to be expanded or contracted by
the statements of individual legislators or committees during the
course of the enactment process.).
However, because the term “responsibility” is not vague or unclear on
these facts, the statute cannot be deemed ambiguous, and review of legis-
lative history would be imprudent. See Int’l Ass’n of Machinists & Aero-
space Workers, Local Lodge 964 v. BF Goodrich Aerospace
Aerostructures Group, 387 F.3d 1046, 1051-52 (9th Cir. 2004) (“Only if
this organic approach leaves ambiguity — or, indeed, if it reveals it —
may we turn to extrinsic indicia of legislative intent, like legislative histo-
ry.”)
CLEVELAND v. CITY OF LOS ANGELES 11115
(1) the paramedic ambulances do not carry fire-
fighting equipment or breathing apparatuses;
(2) a dispatcher does not know if he or she is send-
ing single or dual function paramedics to a call;
(3) paramedic ambulances are not regularly dis-
patched to fire scenes and are dispatched only
when there appears to be a need for advanced
life support medical services;
(4) dual function paramedics are not expected to
wear fire protective gear;
(5) dual function paramedics are dispatched to a
variety of incidents (e.g., vehicle accidents and
crime scenes) at which they are expected to
perform only medical services; and
(6) there is no evidence that a dual function
paramedic has ever been ordered to perform
fire suppression.
For these many reasons, the district court properly concluded
that the City did not meet its burden of showing that Plaintiffs
have the “responsibility” to engage in fire prevention, control,
or extinguishment as required by 29 C.F.R. § 553.210(a)(3).
2. 29 C.F.R. § 553.212
[4] Section 553.212 provides that an employee who spends
more than twenty percent of his or her working time engaged
in nonexempt activities may not be considered an “employee
engaged in fire protection.” 29 C.F.R. § 553.212(a). Accord-
ing to § 553.212, if ambulance or rescue service workers fall
within §§ 553.210 or 553.215, they are still entitled to
§ 207(a)’s regular overtime compensation so long as they
spend more than twenty percent of their working time
11116 CLEVELAND v. CITY OF LOS ANGELES
involved in nonfire suppression activities. Because Plaintiffs
do not fall within the definition of either § 553.210 or
§ 553.215, we need not decide whether they spend more than
twenty percent of their working time in nonexempt activities.
See Vela v. City of Houston, 276 F.3d 659, 672 (5th Cir.
2001).
B. The Temporal Scope of 29 U.S.C. § 203(y)
[5] As discussed above, when Plaintiffs filed their com-
plaint, the FLSA did not contain a definition for an “employee
in fire protection activities,” and Plaintiffs’ suit was based on
the contention that they did not fit within the DOL’s defini-
tion in 29 C.F.R. § 553. In December 1999, Congress enacted
29 U.S.C. § 203(y), which provided the FLSA with its own
definition. The City contends that the definition of § 203(y)
supercedes any DOL language as the exclusive definition.
Further, the City contends that this definition should be
applied retroactively and prospectively because Congress’
enactment of § 203(y) constitutes a “clarification” rather than
an amendment. However, because Plaintiffs do not have the
“responsibility” to engage in fire suppression and, conse-
quently do not qualify under either definition, there is no need
to discuss the temporal scope of § 203(y).
VI. Conclusion
Because the City has not met its burden of proving that
Plaintiffs qualify as “employees engaged in fire protection” as
defined by either 29 C.F.R. § 553 or 29 U.S.C. § 203(y), the
district court’s finding that § 207(k)’s exemption does not
apply is AFFIRMED.