Adams v. United States

United States Court of Appeals for the Federal Circuit

06-5040, -5041

STEPHEN S. ADAMS, ET AL.,

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 was Linda Lipsett. Of counsel on the brief
was Edgar James, James & Hoffman, P.C. of Washington, D.C.

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 Peter D. Keisler, Assistant Attorney
General; and David M. Cohen, Director.

Appealed from: United States Court of Federal Claims

Judge Lynn J. Bush
 United States Court of Appeals for the Federal Circuit

2006-5040, -5041

STEPHEN S. ADAMS, ET AL.,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee.

__________________________

DECIDED: December 18, 2006
__________________________

Before LOURIE, SCHALL, and GAJARSA, Circuit Judges.

GAJARSA, Circuit Judge.

The plaintiffs-appellants (“plaintiffs”) in this case are several thousand federal law

enforcement officers who seek compensation from the government for the time they

spend commuting to and from work in government-owned police vehicles. The United

States Court of Federal Claims issued summary judgment in favor of the government,

holding that the driving time was not compensable under the Fair Labor Standards Act

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

§§ 251-262. We affirm.

I. BACKGROUND

This case is the last piece of a larger employment dispute between the

government and law enforcement officers with the United States Secret Service; United
States Customs and Border Protection (formerly United States Customs Service); the

Internal Revenue Service; the Bureau of Alcohol, Tobacco, and Firearms; and the Drug

Enforcement Agency. We have ruled once before on an unrelated issue in the same

case. Adams v. United States, 391 F.3d 1212 (Fed. Cir. 2004). Most of the issues

have settled, with the government agreeing to make a cash payment to the plaintiffs and

to consider them non-exempt employees under FLSA. However, the settlement

agreements left open for litigation the question posed by this appeal: whether the

plaintiffs’ commutes constitute compensable work under FLSA.

The basic facts are undisputed. The plaintiffs are issued government-owned

police vehicles and required as a condition of their employment to commute from home

to work in those vehicles. This requirement facilitates their employers’ law enforcement

missions, since the cars will be available to the officers for rapid response to emergency

calls at any time, whether the officers are at home or proceeding on their commutes.1

The officers’ time is not entirely their own during their commutes: they are required to

have their weapons and other law enforcement-related equipment and to have on and

monitor their vehicles’ communication equipment. They are not allowed to run any

personal errands in their government vehicles, so their commute must proceed directly

from home to work and back again without unauthorized detours or stops.

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

compensable under the Fair Labor Standards Act. The Court of Federal Claims

considered cross-motions for partial summary judgment on the issue and granted the

1
This case does not require us to decide what FLSA mandates in the
particular instances when plaintiffs are actually called on to respond to an emergency or
otherwise deviate from their normal commutes. We address only plaintiffs’ basic
argument: that their normal commutes, without more, constitute compensable work.

2006-5040, -5041 2
government’s motion, deciding that the plaintiffs’ commute time was not compensable.

Adams v. United States, 65 Fed. Cl. 217 (2005). Since all other issues in the case had

settled, the partial summary judgment disposed of the only remaining issue, and the

Court of Federal Claims issued a final judgment. Many of the plaintiffs now appeal to

this court. We have jurisdiction to review a final judgment of the Court of Federal

Claims under 28 U.S.C. § 1295(a)(3).

II. DISCUSSION

A. Jurisdiction

The government argues that we lack jurisdiction due to a defective notice of

appeal; specifically, the notice in this case does not enumerate the names of all 6,610

individual appellants.2 The government correctly notes that in Torres v. Oakland

Scavenger Co., 487 U.S. 312 (1988), the Supreme Court held that Federal Rule of

Appellate Procedure 3(c) divested federal appeals courts of jurisdiction over appellants

not expressly named in the notice of appeal. If Torres were still good law, we would

have jurisdiction only over those plaintiffs whose names appear on the notice.

However, Rule 3(c) was amended in 1993, after the Court’s decision in Torres. It now

states:

The notice of appeal must . . . specify the party or parties taking the
appeal by naming each one in the caption or body of the notice, but an
attorney representing more than one party may describe those parties with
such terms as “all plaintiffs,” “the defendants,” “the plaintiffs A, B, et al.,” or
“all defendants except X.”

Fed. R. App. P. 3(c)(1). All of the appellants are represented by the same counsel, and

the notice of appeal is of the form contemplated by the new Rule 3(c). The Notes of the

Advisory Committee on the 1993 amendments state that “[t]he test established by the
2
The case is not structured as a class action.

2006-5040, -5041 3
rule for determining whether such designations are sufficient is whether it is objectively

clear that a party intended to appeal.” We accept that formulation of the test. Here, all

of the appealing plaintiffs are listed in an appendix to their lead counsel’s notice of

appearance, which was duly served on the government soon after the notice of appeal.

It is objectively clear to us and to the government that the plaintiffs listed on that

appearance form intended to appeal. Since the present version of Rule 3(c) has been

satisfied by appellants, we take jurisdiction over all plaintiffs named in the appearance

of counsel. Therefore, each appellant so listed shall be bound by our decision here.3

B. Standard of Review

We review a grant of summary judgment by the Court of Federal Claims de novo,

drawing justifiable factual inferences in favor of the party opposing the judgment.

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

Court of Federal Claims applies the same summary judgment standard as do federal

district courts: summary judgment is proper if the evidence demonstrates that “there is

no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Ct. Cl. R. 56(c); cf. Fed. R. Civ. P. 56(c).

C. The Portal-to-Portal Act

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

v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). That case involved industrial workers

who punched in at a time clock, but were not credited for the time they spent walking

from the clock to their posts. Id. at 682-84. The Supreme Court ruled that “the time

spent in walking to work on the employer's premises, after the time clocks were

3
Counsel for appellants agreed at oral argument that everyone listed on his
notice of appearance would be so bound.

2006-5040, -5041 4
punched, involved ‘physical or mental exertion (whether burdensome or not) controlled

or required by the employer and pursued necessarily and primarily for the benefit of the

employer and his business.’” Id. at 691-92 (quoting Tenn. Coal, Iron & R.R. Co. v.

Muscoda Local No. 123, 321 U.S. 590, 598 (1944)).

Congress reacted to Anderson by enacting the Portal-to-Portal Act of 1947, Pub.

L. No. 80-49, 61 Stat. 84 (codified at 29 U.S.C. §§ 251-262). See 29 U.S.C. § 251(a)

(Congressional finding that FLSA “has been interpreted judicially in disregard of long-

established customs, practices, and contracts between employers and employees,” with

various negative consequences); IBP, Inc. v. Alvarez, 126 S. Ct. 514, 519 (2005);

Unexcelled Chem. Corp. v. United States, 345 U.S. 59, 61 (1953) (“The Portal-to-Portal

Act was enacted to remedy what were deemed to be some harsh results of our decision

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

initially promulgated by the Supreme Court in Anderson. “Walking, riding, or traveling to

and from the actual place of performance of the principal activity or activities which such

employee is employed to perform, and activities which are preliminary to or postliminary

to said principal activity or activities” are excluded from FLSA’s protections by the

Portal-to-Portal Act; employers need not pay employees overtime or minimum wage for

such activity. 29 U.S.C. § 254(a). The question of what sorts of activities are

“preliminary or postliminary” was most recently addressed by the Supreme Court in IBP,

in which the Court held that the time spent walking from a locker room where

employees donned required protective gear to the work site was compensable. 126 S.

Ct. at 524.

The Portal-to-Portal Act speaks specifically to vehicular travel:

2006-5040, -5041 5
 For purposes of this subsection, the use of an employer’s vehicle for travel
by an employee and activities performed by an employee which are
incidental to the use of such vehicle for commuting shall not be considered
part of the employee’s principal activities if the use of such vehicle for
travel is within the normal commuting area for the employer’s business or
establishment and the use of the employer’s vehicle is subject to an
agreement on the part of the employer and the employee or
representative of such employee.

29 U.S.C. § 254(a). Therefore, merely commuting in a government-owned vehicle is

insufficient; the plaintiffs must perform additional legally cognizable work while driving to

their workplace in order to compel compensation for the time spent driving. The

question in this appeal is whether the requirements and restrictions placed on plaintiffs’

commutes rise to that level.

D. Burden of Proof

The plaintiffs argue that the burden of proof lies with the government in this case,

relying on a statement by the Supreme Court that “the application of an exemption

under the Fair Labor Standards Act is a matter of affirmative defense on which the

government has the burden of proof.” Corning Glass Works v. Brennan, 417 U.S. 188,

196-197 (1974). However, the Portal-to-Portal Act does not create an “exemption” in

the same sense as the Supreme Court used the term in Corning. The cases the Court

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

particular worker or workers from certain FLSA protections. See A.H. Phillips, Inc. v.

Walling, 324 U.S. 490, 493 (1945) (issue was whether employees worked in a “retail

establishment” and hence were wholly exempt from wage and hour requirements);

Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960) (same); Walling v. General

Indus. Co., 330 U.S. 545, 547-48 (1947) (whether employee was exempt due to being

employed in “executive capacity”); Mitchell v. Ky. Fin. Co., 359 U.S. 290, 295 (1959)

2006-5040, -5041 6
(retail establishment). None of these cases speak to the exclusion of only some

activities from FLSA; they all deal with the exempt status of a particular worker or

workers. By settlement, the government has agreed that these plaintiffs are not FLSA-

exempt. The issue of total FLSA exemption of the sort that the Supreme Court decided

in Corning is therefore not before us.

Better guidance is found in Anderson, where the Court said: “An employee who

brings suit . . . for unpaid minimum wages or unpaid overtime compensation . . . has the

burden of proving that he performed work for which he was not properly compensated.”

Anderson, 328 U.S. at 686-87.4 Typically, this question relates to whether the plaintiffs

worked a certain amount of hours and whether those hours went uncompensated by the

employer. However, there is an additional, earlier premise at issue in this case: namely,

whether the alleged acts of the plaintiff constitute compensable “work” at all. The

burden to prove that such work was performed necessarily includes the burden to

demonstrate that what was performed falls into the category of compensable work.

See, e.g., Baker v. Barnard Constr., 146 F.3d 1214, 1216 (10th Cir. 1998) (in Portal-to-

Portal Act case, jury instruction “appropriately asks the jury whether Plaintiffs have

proved that their return travel is compensable” (emphasis added)). Thus, the plaintiffs

in this case had the burden of showing that their drive time was compensable work for

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

from the definition of compensable work by the Portal-to-Portal Act as interpreted by our

precedent.

4
Although Anderson’s definition of compensable work was modified by the
Portal-to-Portal Act, Congress did not speak to the issue of the burden of proof. This
statement by the Court therefore remains good law.

2006-5040, -5041 7
 Since the burden of proof is on the plaintiffs, we reject their argument that

summary judgment to the government was improper because the government

presented minimal evidence. Since the plaintiffs’ evidence does not demonstrate any

ground for relief (for reasons discussed below), the government need not present any

evidence to rebut the documentary evidence presented by the plaintiffs.

E. Merits

This court decided a similar case in Bobo v. United States, 136 F.3d 1465 (Fed.

Cir. 1998). In Bobo, Border Patrol dog handlers raised a basically identical claim under

FLSA. The dog handlers were required to commute to and from work in their

government cars, monitor their vehicle radios, report mileage, be on the lookout for

suspicious activity, and refrain from personal errands or detours. Id. at 1467. They

were also required to stop to walk their dogs as needed. Id. The government credited

the handlers an extra hour each day for dog care tasks at home but did not consider the

driving time to be compensable. The dog handlers sued to obtain compensation for

their commuting time.

In deciding Bobo, we noted with approval the Second Circuit’s decision in Reich

v. N.Y. City Transit Auth., 45 F.3d 646 (2d Cir. 1995), which stated that:

The more the preliminary (or postliminary) activity is undertaken for the
employer’s benefit, the more indispensable it is to the primary goal of the
employee’s work, and the less choice the employee has in the matter, the
more likely such work will be found to be compensable. . . . The ability of
the employer to maintain records of such time expended is a factor. And,
where the compensable preliminary work is truly minimal, it is the policy of
the law to disregard it.

Id. at 650, quoted in Bobo, 136 F.3d at 1467. We concluded that though “the restrictions

placed upon the INS Agents’ commutes are compulsory, for the benefit of the INS, and

closely related to the INS Agents’ principal work activities . . . the burdens alleged are

2006-5040, -5041 8
insufficient to pass the de minimis threshold.” Bobo, 136 F.3d at 1468 (citing Anderson,

328 U.S. at 692 (“When the matter in issue concerns only a few seconds or minutes of

work beyond the scheduled working hours, such trifles may be disregarded.”)). Bobo is

not identical but very similar to the case before us. The primary difference between the

commuting conditions in Bobo and those in this case militates against plaintiffs, who do

not make uncompensated dog-walking stops. Under the Portal-to-Portal Act, plaintiffs’

driving time is not compensable.

Some of the plaintiffs in this case argue that, unlike in Bobo, there was a “custom

or practice” of compensating them for their commuting time. If such a “custom or

practice” existed, the Portal-to-Portal Act could be read not to allow the employer to

cease compensating for the activity. See 29 U.S.C. § 252(a)(2). Those plaintiffs are

correct that under Federal Personnel Manual System Letter No. 551-10, FLSA non-

exempt officers were indeed compensated for their commute time. Prior to this

litigation, though, the plaintiffs and other officers in the positions and grades at issue

were classified as exempt from FLSA and were therefore not paid for their commutes.

That exemption status has been changed by the settlement agreement, in which the

government stipulated for the purpose of this case that the plaintiffs were non-exempt.

Plaintiffs seize on this provision of the settlement to argue that, had the government not

wrongly classified them as exempt, it would have applied Letter 551-10 and thus a

“custom or practice” of compensation would have existed. However, hypothetical

customs or practices do not suffice. In reality, the government did not compensate the

plaintiffs for their commuting time; the plaintiffs cannot now rely on the settlement to

rewrite history.

2006-5040, -5041 9
 The plaintiffs also argue that 31 U.S.C. § 1344 should alter the outcome of this

case. That statute is a money allocation provision that prohibits federal funds from

being spent on transportation for other than official purposes. It makes clear that

“transportation between the residence of an officer or employee and various locations

that is . . . essential for the safe and efficient performance of . . . criminal law

enforcement duties[] is transportation for an official purpose.” Id. § 1344(a)(2). While

the statute defines the commutes at issue here to be essential to the agencies for

budgetary purposes, it does not follow that those commutes constitute compensable

work by the officers. The fact that the commutes are not an illegal expenditure of

government resources does not change the result: Bobo still teaches that commuting

done for the employer’s benefit, under the employer’s rules, is noncompensable if the

labor beyond the mere act of driving the vehicle is de minimis. That is the case here.

Neither these distinctions nor others advanced by the plaintiffs are persuasive,

and so the holding in Bobo controls the legal conclusion in this case.

III. CONCLUSION

Because Bobo entitles the government to judgment as a matter of law on the

facts advanced by the plaintiffs, the Court of Federal Claims correctly granted summary

judgment to the government. Its decision is therefore

AFFIRMED.

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