GONZALEZ et al v. USA

Filing 30

PUBLISHED OPINION denying 14 Motion for Summary Judgment; granting 18 Cross Motion Signed by Chief Judge Emily C. Hewitt. (el3) Modified on 5/8/2009 to correct docket text (jt1).

G O N Z A L E Z et al v. USA

D o c . 30

In the United States Court of Federal Claims
N o . 07-790 C (E -F ile d : May 7, 2009) _________________________________________ ) ) Z O R A ID A GONZALEZ, ET AL., ) ) Plaintiffs, ) ) v. ) ) T H E UNITED STATES, ) ) Defendant. ) ) _________________________________________ ) S u m m a ry Judgment; RCFC 56; H o m e -to -W o rk Driving Under F L S A ; Facts Indistinguishable f ro m Facts in Adams II; No C h a n g e in Applicable S u b s ta n tiv e Law Since Adams II

J u le s Bernstein, Washington, DC, for plaintiffs. Linda Lipsett, Washington, DC, and E d g a r James, Washington, DC, of counsel. S h a lo m Brilliant, with whom were Michael F. Hertz, Acting Assistant Attorney General, J e a n n e E. Davidson, Director, and Todd M. Hughes, Deputy Director, Commercial L itig a tio n Branch, Civil Division, United States Department of Justice, Washington, DC, f o r defendant. OPINION & ORDER B e f o re the court are Plaintiffs' Motion for Partial Summary Judgment Regarding th e "Driving Time" Issue, Plaintiffs' Memorandum of Law in Support Thereof, and R e q u e st for Oral Argument (plaintiffs' Motion or Pls.' Mot.), filed July 31, 2008 and D e f e n d a n t' s Cross-Motion for Partial Summary Judgment and Opposition to Plaintiffs' M o tio n for Partial Summary Judgment Regarding the "Driving Time" Issue (defendant's M o tio n or Def.'s Mot.), filed September 9, 2008. On March 4, 2009 the court issued a s h o w cause order directing plaintiffs to file a memorandum (1) describing how this case d if f ers from Easter v. United States (Easter), 83 Fed. Cl. 236 (2008), appeal docketed, N o . 2008-5187 (Fed. Cir., Sept. 30, 2008) and Garner v. United States (Garner), 85 Fed.

Dockets.Justia.com

C l. 756 (2009), and (2) "why Easter and Garner are not controlling." Show Cause Order o f Mar. 9, 2009 (Show Cause Order) (Dkt. No. 26) at 2. Now also before the court in re sp o n s e to the Show Cause Order are Plaintiffs' Memorandum of Points and Authorities S h o w in g Cause Why Judgment Should Not Be Entered in Favor of Defendant (plaintiffs' S h o w Cause Memorandum or Pls.' Show Cause Mem.), filed March 20, 2009 and D e f en d a n t's Response to Plaintiffs' Memorandum of Points and Authorities Showing C a u se Why Judgment Should Not Be Entered in Favor of Defendant (defendant's Show C a u se Memorandum or Def.'s Show Cause Mem.), filed April 3, 2009. F o r the foregoing reasons, the court GRANTS defendant's Motion and DENIES p la in tif f s ' Motion. I. B a c k g ro u n d

P la in tif f s in this action are employed by the United States Department of Justice (D O J ), Drug Enforcement Administration (DEA) as "Diversion Investigators." Complaint (Compl.) ¶ 1. On November 9, 2007 plaintiffs filed their Complaint in this co u rt, "seek[ing] to recover from defendant [(United States or government or defendant)] b a c k pay, liquidated damages, interest, attorney's fees and costs pursuant to the Fair L a b o r Standards Act of 1938 [(FLSA)], as amended, 29 U.S.C. [§§ 201-219]." Id. Plaintiffs allege that from and after 2004 defendant inappropriately labeled them as e x e m p t employees under the FLSA and thereby withheld from them "pay and benefits d u e . . . under the FLSA." Id. ¶¶ 7-10. Plaintiffs request that defendant be ordered "to c o n d u c t a full, complete and accurate accounting of all back overtime, premium and other p a y, leave, holiday and excused and other paid absence compensation, and benefits, in te re s t and liquidated damages due and owing to plaintiffs . . . from 2004." Id. ¶ 20(a). In the parties' Joint Preliminary Status Report (JPSR), filed on March 3, 2008, p lain tiff s and defendant stated that: T h e parties believe there is a reasonable likelihood of settlement on th e issue of whether certain plaintiffs are exempt from the FLSA as well as a likelihood that the amount of damages due [to each] plaintiff[] can be re so lv e d . It is unlikely that parties will resolve through settlement whether p la in tif f s are entitled to be compensated for driving a Government-owned v e h ic le from home to work and work to home. J P S R 4 (emphasis added). On May 4, 2009 the parties filed a stipulation of dismissal (S tip u la tio n of Dismissal) of "all claims in this action that are not" related to home-tow o rk driving. Parties Stipulation of Dismissal 1. 2

O n the same date that plaintiffs filed their Complaint, November 9, 2007, see C o m p l. 1, plaintiffs also filed with the court a Notice of Indirectly Related Cases (Not. of In d ire c tly Related Cases), stating that this case is "indirectly related to [Adams v. United S ta te s (Adams I), 65 Fed. Cl. 217 (2005)] . . . which [was] pending in the United States C o u rt of Federal Claims, the outcome of which [was] likely to call for a determination of th e same or substantially similar questions as are presented in the instant case." Not. of In d ire c tly Related Cases 1-2 (emphasis added). In Adams I, several thousand government e m p lo ye e s brought "overtime pay claims for time spent driving to and from work in g o v ern m en t-issu e d vehicles." Adams I, 65 Fed. Cl. at 219. After the United States Court o f Federal Claims (USCFC) determined that these driving claims were non-compensable u n d e r the FLSA, id. at 241, the Adams I plaintiffs appealed to the United States Court of A p p e a ls for the Federal Circuit (Federal Circuit). See Adams v. United States (Adams II ), 471 F.3d 1321, 1324 (Fed. Cir. 2006). On December 18, 2006 the Federal Circuit upheld the USCFC decision in Adams I and held that, according to precedent set in Bobo v. United States (Bobo), 136 F.3d 1 4 6 5 (Fed. Cir. 1998), "commuting done for the employer's benefit, under the employer's ru le s, is noncompensable if the labor beyond the mere act of driving the vehicle is de m inim is." Adams II, 471 F.3d at 1328. The Federal Circuit found that the Adams II p la in tif f s' driving claims were de minimis and were therefore properly denied. Id. The F ed era l Circuit's decision in Bobo­holding that an employee's driving of an employer's v e h ic le to and from work was not compensable under the FLSA, Bobo, 136 F.3d at 1 4 6 8 ­ w a s based on the Portal-to-Portal Act of 1947 (Portal-to-Portal Act), Pub. L. No. 8 0 -4 9 , 61 Stat. 84 (codified at 29 U.S.C. §§ 251-262 (2006)), a Congressionally-enacted e x c e p tio n to the FLSA.1 See Bobo, 136 F.3d at 1467-68. The Adams II plaintiffs' The Portal-to-Portal Act of 1947, Pub. L. No. 80-49, 61 Stat. 84 (codified at 29 U.S.C. §§ 251-262 (2006)), amended by the Employee Flexibility in Commuting Act of 1996, Pub. L. No. 104-188, § 2102, 110 Stat. 1755, 1928, now states, in relevant part: [N]o employer shall be subject to any liability or punishment under the Fair Labor Standards Act [(FLSA)] . . . [for] failure . . . to pay an employee minimum wages, or to pay an employee overtime compensation, for . . . (1) 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 (2) activities which are preliminary to or postliminary to said principal activity or activities . . . . 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 (continued...) 3
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p e titio n for rehearing en banc was denied, Adams v. United States, 219 F. App'x 993 (F e d . Cir. 2007) (table), as was their petition for a writ of certiorari, Adams v. United S ta te s , 128 S. Ct. 866 (2008). II. D is c u ss io n A. S ta n d a rd for Summary Judgment

R u le 56 of the Rules of the United States Court of Federal Claims (RCFC) p ro v id e s that summary judgment is appropriate when there are no genuine issues of m a te ria l fact in dispute and the moving party is entitled to judgment as a matter of law. RCFC 56(c)(1); see Anderson v. Liberty Lobby, Inc. (Anderson), 477 U.S. 242, 247 (19 8 6 )2 ; Jay v. Sec'y of Dep't of Health & Human Servs., 998 F.2d 979, 982 (Fed. Cir. 1 9 9 3 ). A fact is material if it might "affect the outcome of the suit under the governing la w ." Anderson, 477 U.S. at 248. Disputes over facts that are not outcome determinative w ill not preclude the entry of summary judgment. Id. Any doubts about factual issues are re so lv e d in favor of the party opposing summary judgment, Litton Indus. Prods., Inc. v. S o lid State Sys. Corp., 755 F.2d 158, 163 (Fed. Cir. 1985), to whom the benefits of all f a v o ra b le inferences and presumptions run, see H.F. Allen Orchards v. United States, 749 F .2 d 1571, 1574 (Fed. Cir. 1984), cert. denied, 474 U.S. 818 (1985). B. T h e Arguments in Plaintiffs' Show Cause Memorandum Are Not P e rs u a siv e

P la in tif f s offer two arguments that differ from the arguments made by the p lain tiff s in Easter and Garner. First, plaintiffs argue that "the [c]ourt is faced with re c o rd evidence, which . . . establishes that by plaintiffs having engaged in required h o m e -to -w o rk driving of Government vehicles, defendant benefitted by reason of an

(...continued) 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) (2006) (emphases added). The Rules of the United States Court of Federal Claims (RCFC) generally mirror the Federal Rules of Civil Procedure (FRCP). RCFC 56 Rules Committee Notes ("The subdivision structure of RCFC 56 was reordered to more closely conform to FRCP 56."). Therefore, this court relies on cases interpreting FRCP 56, as well as those interpreting RCFC 56. 4
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in c r e a s e in the amount of productive `on the job' work by plaintiffs." Pls.' Show Cause M e m . 2. Plaintiffs claim that the "on the job" productivity "distinguishes clearly the in s ta n t case from both Easter and Garner." Id. Defendant argues that "[t]his purported d istinction is not a material one, and not one that warrants a different result here." Def.'s S h o w Cause Mem. 2. The court agrees with defendant. The court does not see any d is tin c tio n between an increase in "on the job" productivity by home-to-work driving in a g o v e rn m e n t-o w n e d car, and the observation by the Federal Circuit in Adams II that "the p la in tif f s are issued government-owned police vehicles and required as a condition of th e ir employment to commute from home to work in those vehicles. This requirement f a c ilita te s their employers' law enforcement missions." Adams II, 471 F.3d at 1323. Plaintiffs' claimed increase of productivity, see Pls.' Show Cause Mem. 2, merely " f a c ilita te s their employers' law enforcement missions," see Adams II, 471 F.3d at 1323. Plaintiffs' second claim is that "required driving of Government vehicles between h o m e and their first and last `field work' sites must . . . be compensated under FLSA" because "driving from the plaintiffs' offices to their first `field work' stops would be c o m p e n s a b le under FLSA." Pls.' Show Cause Mem. 3. Defendant states that "driving b e t w e e n work locations and driving to and from work are quite distinguishable" because th e second activity is "commuting" and the first activity "is not." Def.'s Show Cause M e m . 3. Defendant also notes that plaintiffs use the terms "`first work site' and `last w o rk site' without any basis even in alleged facts, in order to support a distinction that w o u ld only be pertinent under an interpretation of the [FLSA] that the Federal Circuit did n o t adopt, much less rely upon as the basis for its decision." Def.'s Mot. 17. Additionally, plaintiffs have not "offered evidence concerning the nature of their field w o rk that supports distinguishing their driving from that involved in Bobo and Adams." See id. The court agrees with defendant that "utilization of Government vehicles for h o m e -to -w o rk driving does not necessarily involve any driving during the course of the w o rk day," id., and nothing in plaintiffs' Show Cause Memorandum offers anything to th e contrary, see Pls.' Show Cause Mem. passim. The reasoning in Adams II applies to both of plaintiffs' arguments in plaintiffs' S h o w Cause Memorandum. The "facts" that plaintiffs propose as their basis for d istin g u ish in g their case from Adams II have already been addressed in Adams II in p e rh a p s slightly different phrasing. See Adams II, 471 F.3d at 1328 ("[C]ommuting done f o r the employer's benefit, under the employer's rules, is noncompensable if the labor b e yo n d the mere act of driving the vehicle is de minimis."). Because Adams II addresses th e circumstances proposed by plaintiffs as their basis for distinguishing this case from A d am s II, there is no dispute of material fact, and defendant is entitled to summary ju d g m e n t as a matter of law.

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C.

T h e Reasoning in Easter and Garner Is Applicable to This Case

B e c a u s e the court sees no material differences between the facts, circumstances, a n d arguments made by the parties in this case and the facts, circumstances, and a rg u m e n ts made by the parties in Easter and Garner, the court adopts the reasoning of the E a ste r and Garner opinions and incorporates pages 240 through 250 of the Easter d e c is io n , Easter, 83 Fed. Cl. at 240-50, and pages 759 through 769 of the Garner decision, G a rn e r, 85 Fed. Cl. at 759-69, into this opinion by reference. III. C o n c lu s io n

P la in tif f s have argued that the precedents of Adams II and Bobo are not c o n tr o llin g because this case involves distinguishable facts, see Pls.' Mot. 20-22, because th e applicable law has changed, see id. at 6-19, and because the Federal Circuit was inco rrect in its FLSA interpretation in Adams II and Bobo, see id. at 22-32. The court r e so l v e d each of these disputes against the plaintiffs in the Easter and Garner decisions, s e e supra Part II.C, and the court does not find any of the arguments made in plaintiffs' S h o w Cause Memorandum persuasive, see supra Part II.B. Because the facts and c ir c u m s ta n c e s of this case are substantially identical to those in Adams II, as well as those in Easter and Garner, and because there has been no change in the applicable law g o v e rn in g what constitutes "time worked" under the FLSA, this court follows the Federal C irc u it precedent as to whether the FLSA requires employees to be compensated for d riv in g between home and work in a government-owned vehicle. See Coltec Indus. v. U n ite d States, 454 F.3d 1340, 1353 (Fed. Cir. 2006) ("There can be no question that the C o u rt of Federal Claims is required to follow the precedent of the Supreme Court, [the F e d e ra l Circuit], and [the] predecessor court [of the Federal Circuit], the Court of C laim s." (citations omitted)). Based upon the precedent of Adams II, defendant is e n title d to summary judgment. See Adams II, 471 F.3d at 1328 ("[C]ommuting done for th e employer's benefit, under the employer's rules, is noncompensable if the labor beyond th e mere act of driving the vehicle is de minimis."). Defendant's Motion is GRANTED a s to home-to-work driving and plaintiffs' Motion is DENIED. The Clerk of Court is D IR E C T E D TO ENTER JUDGMENT in favor of defendant.

IT IS SO ORDERED. s/E m ily C. Hewitt EMILY C. HEWITT Chief Judge

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