No. 03-1238
In the Supreme Court of the United States
IBP, INC., PETITIONER
v.
GABRIEL ALVAREZ, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
PAUL D. CLEMENT
Acting Solicitor General Counsel of Record
THOMAS G.
HUNGAR Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the
Solicitor General
Department of Justice Washington, D.C.
20530-0001 (202) 514-2217
HOWARD M. RADZELY Solicitor of Labor
ALLEN H. FELDMAN Associate
Solicitor
MICHAEL P. DOYLE Attorney Department of Labor Washington,
D.C. 20210
QUESTIONS PRESENTED
1. Whether the Portal-to-Portal Act of 1947, 29 U.S.C. 254(a), excludes from
compensation the time an employee must spend walking between the location at
which he dons and doffs required protective gear and his work station, when such
donning and doffing is an integral and indispensable part of the employee's
principal work activities.
2. Whether the Court should reexamine its holding in Christensen v. Harris
County, 529 U.S. 576 (2000), that opinion letters issued by the Administrator of
the Wage and Hour Division of the Department of Labor are not entitled to
deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984).
TABLE OF CONTENTS
Statement
Discussion
Conclusion
TABLE OF AUTHORITIES
Cases:
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680
(1946)
Barnhart v. Walton, 535 U.S. 212, 217 (2002)
Bejil v. Ethicon, Inc., 269 F.3d 477 (5th Cir. 2001)
Chao v. George's Processing, Inc., No.
6:02-CV-03479-RED (W.D. Mo. filed Nov. 20, 2002)
Chao v. Tyson Foods, Inc., No. 02-CV-1174 (N.D. Ala.
filed May 9, 2002)
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984)
Christensen v. Harris County, 529 U.S. 576 (2000)
Evitts v. Lucey, 469 U.S. 387 (1985)
Herman v. Fabri-Centers of Am., Inc., 308 F.3d 580(6th
Cir. 2002), cert. denied, 537 U.S. 1245 (2003)
Houston Police Officers' Union v. City of Houston, 330
F.3d 298, 304-305 & n.7 (5th Cir.), cert, denied, 124 S. Ct. 300 (2003)
Jewell Ridge Coal Corp. v. Local 6167, United Mine Workers,
325 U.S. 161 (1945)
Reich v. IBP, Inc.: 38 F.3d 1123 (10th Cir. 1994) 820
F. Supp. 1315, 1325
Skidmore v. Swift & Co., 323 U.S. 134 (1944)
Sommerville v. United States, 376 U.S. 909 (1964)
South Dakota v. Kansas City S. Indus., Inc., 880 F.2d
40 (8th Cir. 1989), cert. denied, 493 U.S. 1023 (1990)
Steiner v. Mitchell, 350 U.S. 247, 255-256 (1956)
Tennessee Coal Co. v. Muscoda Local 123, 321 U.S. 590
(1944)
The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180
(1959)
Tum v. Barber Foods, Inc., 360 F.3d 274 (1st Cir.
2004), petition for cert. pending, No. 04-66 (filed July 8, 2004)
United States v. Mead Corp., 533 U.S. 218, 226-227
(2001)
Constitution, statutes and regulations:
U.S. Const. Art. III
Act of Oct. 26, 1949, ch. 736, § 3(o), 63 Stat. 911 (29 U.S.C.
203(o)
Fair Labor Standards Act of 1938, 29 U.S.C. 201 et seq.
29 U.S.C. 203(o)
29 U.S.C. 204(a)
29 U.S.C. 206
29 U.S.C. 207
29 U.S.C. 216(b)
Portal-to-Portal Act of 1947, 29 U.S.C. 251 et seq.:
29 U.S.C. 251(a)
29 U.S.C. 251(b)
29 U.S.C. 252
29 U.S.C. 254
29 U.S.C. 254(a)
29 U.S.C. 259(a)
Was. Rev. code Ann § 49.46 (West 2000)
29 C.F.R. 578.3(b)
Miscellaneous:
Robert L. Stern et al., Supreme Court Practice (8th ed.
2002)
In the Supreme Court of the United States
No. 03-1238
IBP, INC., PETITIONER
v.
GABRIEL ALVAREZ, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
This brief is submitted in response to the order of this Court inviting the
Solicitor General to express the views of the United States.
STATEMENT
1. The Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. 201 et seq.,
generally requires covered employers to pay their employees a minimum wage and
to compensate their employees for hours worked in excess of 40 in a given
workweek at a rate of one and one-half times the employees' regular rate of pay.
29 U.S.C. 206, 207. Following enactment of the FLSA, the Court held that
underground travel in mines to and from an employee's place of work is
compensable work. Jewell Ridge Coal Corp. v. Local 6167, United Mine Workers,
325 U.S. 161 (1945); Tennessee Coal Co. v. Muscoda Local 123, 321 U.S. 590
(1944). In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), the Court
held that walking from an employer's time clock to the employee's place of work
and back is compensable work. Anderson also held that certain pre-shift
activities, such as putting on garments and preparing equipment, is compensable
work. Id. at 692-693.
Congress viewed Anderson as "creating wholly unexpected liabilities, immense
in amount and retroactive in operation." 29 U.S.C. 251(a). To address that
"existing emergency," 29 U.S.C. 251(b), Congress enacted the Portal-to-Portal
Act of 1947 (Portal-to-Portal Act), 29 U.S.C. 251 et seq. That Act extinguished
employer liability for failure to pay minimum wage and overtime before May 14,
1947, for any activity unless it was compensable by contract or custom. 29 U.S.C. 252. For claims arising after that date, the Act provides that, absent
contract or custom, no employer shall be liable for failure to pay minimum wage
or overtime 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,
which occur either prior to the time on any particular workday at which such
employee commences, or subsequent to the time on any particular workday at which
he ceases, such principal activity or activities.
29 U.S.C. 254(a).
In 1949, Congress added a provision that allows the compensability of time
spent changing clothes at the beginning and end of a workday to be the subject
of collective bargaining. That provision excludes from the hours worked "any
time spent in changing clothes * * * at the beginning or end of each workday
which was excluded from measured working time during the week involved by the
express terms of or by custom or practice under a bona fide
collective-bargaining agreement." Act of Oct. 26, 1949, ch. 736, § 3(o), 63
Stat. 911 (29 U.S.C. 203(o)).
In Steiner v. Mitchell, 350 U.S. 247, 252-253 (1956), the Court held that the
phrase "principal activity or activities" as used in the Portal-to-Portal Act
embraces all activities that are "an integral and indispensable part of the
principal activities" an employee is hired to perform. The Court accordingly
held that the pre- and post-shift activities of changing clothes and showering
are compensable and not excluded by the Portal-to-Portal Act when they are "an
integral and indispensable part of the principal activities for which covered worker[s] are employed."
Id. at 256.
2. Petitioner IBP, Inc. operates a meat packing plant in Pasco, Washington.
Pet. App. 2a-3a. Petitioner requires its employees to wear certain protective
gear when performing their jobs. Id. at 4a n.2. All employees must wear
hardhats, hair nets, ear plugs, gloves, and boots. Ibid. Employees who use
knives must also wear metal aprons, leggings, vests, plexiglass arm guards, and
protective sleeves. Ibid. Under petitioner's work rules, employees "must gather
their assigned equipment, don that equipment in one of the [petitioner's]
plant's four locker rooms, and prepare work-related tools before venturing to
the slaughter or processing floors." Id. at 3a. After completing their shift on
the floor, employees "must clean, restore, and replace their tools and
equipment, storing all of it at the [petitioner's] plant itself." Id. at
3a-4a.
Respondents work in the slaughter and processing divisions of petitioner's
Pasco plant. Pet. App. 6a. They filed suit against petitioner under the FLSA and
state law, challenging petitioner's failure to pay them for the time spent
donning and doffing protective equipment and walking from the locker room to
their work stations and back. Ibid.
After conducting a bench trial, the district court ruled in respondents'
favor on most issues. Pet. App. 35a-82a. The court found that the donning and
doffing of unique protective gear, such as mesh gloves, metal aprons, leggings,
vests, plexiglass arm guards, and protective sleeves, is an "integral and
indispensable" part of respondents' principal activities and is therefore
compensable work under the FLSA. Id. at 53a-54a. The court further determined
that the reasonable time spent walking from the locker room to the workstation
and back is compensable. Id. at 54a. The district court rejected petitioner's
contention that such walking time is non-compensable under the Portal-to-Portal
Act. Id. at 53a-54a. The court reasoned that donning protective gear begins the
workday and doffing that gear ends it, and that the Portal-to-Portal Act's
exclusion applies only to walking time that occurs outside the workday. Ibid.
The district court also rejected petitioner's contention that the donning and
doffing of protective gear is non-compensable as a result of collective
bargaining pursuant to the FLSA's "changing clothes" exclusion. Pet. App.
64a-65a. The court reasoned that the items of safety gear at issue are not
"clothes" within the meaning of that exclusion. Id. at 65a.
The district court determined, however, that the donning and doffing of
"non-unique protective equipment"- hardhats, earplugs, frocks, safety goggles,
hair nets, and boots-is not compensable under the FLSA because it is "not
integral and indispensable to the job." Pet. App. 54a. Alternatively, the court
concluded that the donning and doffing of non-unique gear is not compensable
because the "time it takes to complete such work is de minimis as a matter of
law." Id. at 54a & n.6.
The district court also ruled in respondents' favor with respect to certain
of their state-law claims. Pet. App. 71a-77a. The court rejected, however, the
largest monetary component of respondents' state law claims, namely, their
assertion that state law entitled them to receive overtime compensation for the
entirety of their 30-minute meal breaks whenever any portion of their meal
breaks was spent working. Id. at 74a.
The district court entered a judgment awarding respondents damages of
$3,098,517, comprised of $1,751,126 in FLSA overtime damages, $156,344 in state
law overtime damages for a period preceding the FLSA limitations period,
$286,119 in state law minimum wage damages, and $904,928 in state law rest break
damages. Resp. Br. in Opp. App. 2a. The award of FLSA overtime damages reflected
the court's determination that FLSA damages should be doubled pursuant to the
Act's liquidated damages provision, 29 U.S.C. 216(b). Pet. App. 78a-79a.
In keeping with the court's rejection of respondents' state law meal break
claim, the judgment did not award damages for that claim. Pet. App. 74a.
Anticipating that its determination on that state law issue might be reversed on
appeal, however, the district court announced that "[i]f the Court is reversed
on appeal on its meal break ruling," respondents would then "be able to recover
$7,297,517," comprised of $5,487,561 in state law overtime damages, $905,028 in
state law minimum wage damages, and $904,928 in state law rest break damages.
Ibid.
The court's initial judgment and its proposed alternative disposition both
reflect the court's view that, when FLSA and state law claims are "duplicative,"
respondents should recover on only one of the claims. Pet. App. 80a. Under the
court's calculations, total FLSA overtime damages initially exceeded state law
overtime damages for the same period because FLSA damages were doubled but state
law overtime damages were not. Once full meal breaks damages were added,
however, total state law overtime damages exceeded FLSA overtime damages. Based
on that method of calculation, the court awarded overtime damages under the FLSA
in its initial judgment but only under state law in its alternative
disposition.
3. The court of appeals affirmed the district court's judgment as to the FLSA
issues, but reversed that court's denial of respondents' state law meal break
claims. Pet. App. 1a-34a. The court of appeals held that donning and doffing of
unique sanitary and protective equipment is an "integral and indispensable" part
of the respondents' principal activities and is therefore work that is
compensable under the FLSA. Id. at 11a-12a.
The court of appeals also held that respondents are entitled to compensation
for "the reasonable walking time from the locker to work station and back . . .
for employees required to don and doff compensable personal protective
equipment." Pet. App. 18a. The court reasoned that respondents' work day begins
when they don required safety gear and that "any activity occurring thereafter
in the scope and course of employment" is not excluded by the Portal-to-Portal
Act. Id. at 17a-18a. The court concluded that the walking time at issue is done
in the scope and course of employment because respondents cannot perform their
job without walking between the locker room and their work stations. Id. at 19a.
The court added that "[t]here is nothing in the statute or regulations that
would lead to the conclusion that a workday may be commenced, then stopped while
the employee is walking to his station, then recommenced when the walking is
done." Ibid.
The court of appeals further held that donning and doffing protective gear is
not subject to the FLSA's "changing clothes" exclusion. Pet. App. 14a-17a. The
court concluded that the FLSA's exclusions must be narrowly construed and that
the items of protective gear at issue are not "plainly and unmistakably"
clothes. Id. at 15a-16a. The court noted that the Administrator of the Wage and
Hour Division of DOL had issued a June 2002 opinion letter interpreting
"clothes" to include protective safety equipment, but it rejected the
Administrator's interpretation on the ground that it conflicted with previous
interpretations by the Administrator. Id. at 17a n.9.
The court of appeals also affirmed the district court's conclusion that the
donning and doffing of "non-unique" gear is not compensable. The court of
appeals reasoned that the time required to don and doff non-unique gear is "de
minimis as a matter of law." Pet. App. 12a-13a.
The court of appeals reversed the district court's denial of respondents'
meal-break claims under state law. Pet. App. 30a-32a. Recognizing that the
district court's ruling was "perhaps consistent with the FLSA," the court of
appeals held that it was inconsistent with "mandatory language" in the state
administrative code. Id. at 31a. Accordingly, the court of appeals "remand[ed]
for recalculation of damages consistent with this full thirty-minute
remuneration approach." Id. at 32a. Issuance of the mandate of the court of
appeals has been stayed pending disposition of the petition for a writ of
certiorari.
DISCUSSION
The first question raised in the petition is whether the Portal-to-Portal
Act, 29 U.S.C. 254(a), excludes from compensation the time an employee must
spend walking between the location at which he dons and doffs protective gear
and his work station, when such donning and doffing is an integral and
indispensable part of the employee's principal work activities. Because there is
a conflict in the circuits on that issue, and the issue is one of recurring
importance under the FLSA, this Court's review would be warranted in an
appropriate case. This case, however, may not be a suitable vehicle for
resolving that issue. It appears likely that the Court's resolution of that
issue would not affect the judgment that would ultimately be entered by the
district court on remand in this case. That circumstance counsels against review
of the walking time issue in this case.
Petitioner's second question asks whether an interpretation of the FLSA's
"changing clothes" exclusion expressed in an opinion letter issued by the
Administrator of the Wage and Hour Division of DOL is entitled to deference
under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984). In Christensen v. Harris County, 529 U.S. 576 (2000), the Court held
that the Administrator's opinion letters are not entitled to Chevron deference,
and petitioner has not made out the kind of compelling case necessary to justify
overruling a decision of this Court. In any event, it appears likely that the
Court's resolution of that issue, like the resolution of the first issue, would
not affect the judgment that would be entered by the district court on
remand.
A. 1. There is a conflict in the circuits on the question whether the
Portal-to-Portal Act excludes from compensation walking time associated with the
donning and doffing of safety gear, when such donning and doffing is an integral
and indispensable part of the employee's principal work activities. The Ninth
Circuit in this case correctly held that the Portal-to-Portal Act does not
exclude walking time that occurs after an employee dons required safety gear.
The court reasoned that the donning of safety gear commences an employee's work
day, and that the Portal-to-Portal Act does not exclude from compensation
walking time that occurs after the work day begins. Pet. App. 18a-19a. As the
court explained, "[t]here is nothing in the statute or regulations that would
lead to the conclusion that a workday may be commenced, then stopped while the
employee is walking to his station, then recommenced when the walking is done."
Id. at 19a.
The Ninth Circuit's holding and reasoning on this issue is inconsistent with
the First Circuit's decision in Tum v. Barber Foods, Inc., 360 F.3d 274 (2004),
petition for cert. pending, No. 04-66 (filed July 8, 2004). The First Circuit
held in Tum that the Portal-to-Portal Act excludes from compensation walking
time associated with the donning and doffing of required safety gear. Id. at
279-281. That court reasoned that while donning of required safety gear is an
integral and indispensable part of an employee's primary activities and is
therefore itself compensable (id. at 279), it does not start the workday for
purposes of the walking time exclusion in the Portal-to-Portal Act. Id. at
280-281.
The two cases are capable of being reconciled on their facts. The Ninth
Circuit unambiguously held that walking time is compensable when it follows
donning of protective gear that consumes an amount of time that is not de minimis. Pet. App. 18a-19a. The court did not clearly resolve the question
whether walking time would also be compensable when it follows donning that,
taken alone, consumes a de minimis amount of time. See id. at 13a (finding time
spent on donning non-unique gear to be "de minimis" and therefore "not
compensable"); compare id. at 18a (district court properly required compensation
for walking time following "compensable" donning and doffing), with id. at 14a
("'donning and doffing' and 'waiting and walking' constitute compensable work
activities except for the de minimis time associated with the donning and
doffing of non-unique protective gear"). Because all of the walking at issue in
Tum followed donning that consumed what the jury found to be a de
minimis
amount
of time, 360 F.3d at 278, it is unclear whether that time would have been
compensable under the Ninth Circuit's interpretation of the FLSA.
The First Circuit, however, did not base its walking time ruling on the
jury's finding in that case that the donning and doffing at issue consumed a de
minimis amount of time. Although the rationale for its decision is less than
clear, the First Circuit's opinion appears to hold as a categorical matter that
walking time associated with donning and doffing is simply not compensable. 360
F.3d at 280-281 (citing, inter alia, Reich v. IBP, Inc., 38 F.3d 1123 (10th Cir.
1994)); but cf. id. at 285-286 (Boudin, C. J., concurring) (raising question
whether de minimis donning and doffing can "be disregarded as starting the
workday," and stating that "[i]t may be time for the Supreme Court to have
another look at the problem"). That holding is directly inconsistent with the
holding of the Ninth Circuit in this case. Indeed, the court below and the First
Circuit in Tum specifically acknowledged their disagreement on the
compensability of walking time that is associated with the donning and doffing
of safety gear. Pet. App. 19a n.10; Tum, 360 F.3d at 281.
In Reich v. IBP, Inc., supra, the Tenth Circuit also addressed the
compensability of walking time that occurs after the donning of protective gear.
In that case, the court of appeals held that donning and doffing of protective
gear is an integral and indispensable part of a knife-worker's primary
activities and is therefore compensable. 38 F.3d at 1125-1126. Because employees
exercised discretion on when they picked up their protective gear and on when
and where they put it on, however, the district court in that case had been
unable to conclude that donning and doffing "were the first and last principal
activities of the workday which would commence and toll the running of the timeclock, including 'wait and walk time.'"
Id. at 1127. Instead, the district
court held (and the court of appeals agreed) that the employees were entitled to
be compensated for donning protective gear, but not for associated walking time
occurring before or after the compensable workday. Ibid.[1] Because the Reich
decision relied on the personal discretion enjoyed by the employees in that
case, it is factually distinguishable from the decision below. Nonetheless, the
Tenth Circuit's refusal to require compensation for a portion of the walking
time at issue in that case is at least arguably in some tension with the
decision below, and enhances the need for resolution of the question presented
in the petition.
2. The question whether walking time associated with the donning and doffing
of protective gear is compensable has considerable importance to the employers
and employees involved in the chicken and beef industries. See Br. of National
Chicken Council, et al. as Amicus Curiae (i)-(ii). Because of that issue's
importance to the administration of the FLSA, the Secretary of Labor has devoted
considerable attention to it. The Secretary filed suit seeking compensation for
such walking time in Reich v. IBP, Inc., supra. The Secretary filed amicus
briefs in the courts below in both this case and Tum, expressing the Secretary's
view that such time is compensable. And the Secretary is currently engaged in
two district court proceedings outside the First and Ninth Circuits in which the
Secretary is seeking compensation for walking time associated with the donning
and doffing of safety gear. Chao v. Tyson Foods, Inc., No. 02-CV-1174 (N.D. Ala.
filed May 9, 2002); Chao v. George's Processing, Inc., No. 6:02-CV-03479-RED
(W.D. Mo. filed Nov. 20, 2002). Because the circuits have divided on that issue
and because the issue is one of ongoing public importance, it warrants the
Court's review.
3. This case may not be an appropriate vehicle to resolve that issue,
however, because it appears that the Court's resolution of that issue would not
affect the judgment to be entered by the district court. The reason is as
follows: Respondents filed suit under both the FLSA and state law. The district
court found both federal law and state law violations and entered a judgment
awarding respondents $3,098,517, more than half of which constituted damages
under the FLSA with the remainder being based on respondents' state law claims.
Resp. Br. in Opp. App. 2a; see p. 5, supra. The district court did not rule in
respondents' favor on their state law claim seeking compensation for
petitioner's failure to provide them with a 30-minute meal break, and
accordingly the court did not award damages on that claim. Anticipating that its
determination on that state law issue might be reversed on appeal, however, the
district court announced that if respondents prevailed on that issue on appeal,
it would instead award respondents a total of $7,297,517, comprised entirely of
damages under state law. Pet. App. 74a. The court of appeals did reverse the
district court on the state law meal break issue. Id. at 30a-32a. It thus
appears that, once this case is returned to the district court, that court will
enter a monetary judgment of $7,297,517 that is based entirely on state law. Id.
at 74a. See pp. 5-6, supra (explaining why initial judgment awarded overtime
damages under the FLSA for overlapping state and federal law periods, but
alternative disposition rests overtime award only on state law).
This Court's resolution of the walking time issue would have no apparent
effect on the district court's authority to enter such a judgment. In its
petition, petitioner challenges the lower court's authority to award walking
time based on federal law; it does not challenge the lower court's authority to
award walking time based on state law. Nor would a determination that walking
time is excluded under federal law carry over to state law, because the
applicable state statute does not contain any walking time exclusion that
parallels the Portal-to-Portal Act. Pet. App. 71a; Wash. Rev. Code Ann. §§
49.46.005 et seq. (West 2002 & Supp. 2004). Petitioner argued in its reply
brief in the court of appeals that the Portal-to-Portal Act preempts state law
to the extent that it authorizes compensation for walking time that would not be
compensable under federal law (C.A. Reply Br. 37-41). But the court of appeals
held that petitioner waived that argument by not presenting it in a timely
manner, Pet. App. 15a, and petitioner has not sought review of that
determination.
Because the court of appeals vacated the district court's judgment, on remand
respondents could theoretically seek entry of a judgment different than the
proposed alternative disposition suggested by the district court in its opinion.
For example, respondents could seek entry of a judgment awarding the same amount
of damages, but urge that it be based expressly on both federal law and state
law, thereby maximizing their chances of receiving the collateral estoppel
benefits of the federal law rulings in their favor. Respondents could also seek
a judgment that awards pre- and post-shift overtime damages based on the FLSA,
together with meal break overtime damages based on state law. Under the district
court's prior rulings, that method of calculating damages would lead to an
increase in the total amount of damages awarded to respondents, because the
district court (as affirmed by the court of appeals) has already held that
respondents' FLSA damages are to be doubled pursuant to the Act's liquidated
damages provision, but does not appear to have doubled preliminary and
postliminary donning, doffing, and walking time damages under state law. Pet.
App. 78a-80a. Respondents have represented to us, however, that they will seek
entry of the alternative judgment proposed by the district court and nothing
more. It therefore appears likely that the Court's resolution of the walking
time issue would not affect the judgment that will be issued on remand.
That circumstance does not demonstrate that a ruling by this Court on the
walking time issue would be advisory and therefore outside the scope of the
Court's Article III jurisdiction. A ruling by the Court that the FLSA does not
require compensation for walking time associated with donning and doffing safety
gear would authoritatively foreclose the district court from awarding or
increasing walking time damages based on federal law, and it would eliminate any
possibility that the district court's and the court of appeals' federal walking
time rulings would have collateral estoppel effects on petitioner in other
cases. Such a ruling would also eliminate any possibility that the FLSA
violation found in this case could serve as a basis for DOL to impose a civil
penalty in the event that petitioner violates the FLSA in the future. See 29
C.F.R. 578.3(b) (authorizing the Secretary to impose civil penalties upon
"repeat" violators). Cf. Evitts v. Lucey, 469 U.S. 387, 391 n.4 (1985) (a
criminal defendant's completion of sentence does not moot case because of
possible collateral consequences, such as an enhanced sentence for a later
conviction). Those consequences are sufficient to prevent the Court's ruling
from being advisory in an Article III sense.
Nonetheless, because it appears that the district court is likely to enter
the same judgment regardless of how this Court rules on the walking time issue,
prudential considerations may counsel against granting review on that issue in
this case. This Court ordinarily does not grant review in cases unless a
reversal would change the relative rights of the parties in some concrete
fashion. In The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180 (1959), for
example, the Court granted certiorari to decide whether a contract provision
that barred an in personam action was enforceable. After it became clear that
"in any event the [plaintiff] will be able to try its claim in the District
Court" because the contract did not bar the plaintiff's parallel in rem action,
the Court dismissed the writ of certiorari as improvidently granted. Id. at 183.
The Court explained that it decides issues of public importance only in the
context of "meaningful litigation," and that a resolution of the question on
which the Court had granted review could "await a day when the issue is posed
less abstractly." Ibid. The Court has also denied review in other comparable
circumstances. South Dakota v. Kansas City S. Indus., Inc., 880 F.2d 40 (8th
Cir. 1989), cert. denied, 493 U.S. 1023 (1990) (certiorari denied on federal law
conflict where state law furnished an independent ground for affirming court of
appeals); Sommerville v. United States, 376 U.S. 909 (1964) (certiorari denied
on conflict over whether state or federal law applied when petitioner would be
liable under either); see Robert L. Stern et al., Supreme Court Practice 231
(8th ed. 2002) (discussing cases). Petitioner has not identified any case in
which the Court has granted review in circumstances like those presented here,
and we are not aware of any such case. Thus, while the walking time issue
warrants review in an appropriate case, the Court may prefer to await a case in
which the issue "is posed less abstractly."[2]
2. The second question raised in the petition is whether an opinion letter
issued by the Administrator of the Wage and Hour Division of DOL is entitled to
Chevron deference. In Christensen v. Harris County, 529 U.S. 576, 587 (2000),
the Court held that the Administrator's opinion letters are not entitled to
Chevron deference, but instead are entitled to weight under the factors set
forth in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). According to
petitioner (Pet. 19-20), however, the Court's decision in United States v. Mead
Corp., 533 U.S. 218 (2001), calls into question the holding in Christensen, and
this Court's review is necessary to resolve the resulting "confusion."
That issue does not merit review. Mead held that classification rulings
issued by Customs officials are not entitled to Chevron deference, a holding
that is consistent with the result reached in Christensen. In its analysis of
the deference issue, Mead made clear that opinion letters are not categorically
barred from receiving Chevron deference. Instead, Mead instructs that, in
deciding whether opinion letters are entitled to Chevron deference, a court
should decide whether an agency's "generally conferred authority and other
statutory circumstances" make it "apparent" that "Congress would expect the
agency to be able to speak with the force of law when it addresses ambiguity in
the statute or fills a space in the enacted law." 533 U.S. at 229. Mead did not
indicate, however, that opinion letters issued by the Administrator are entitled
to Chevron deference under that standard. Indeed, Mead cited Christensen with
apparent approval. See id. at 236 n.17, 237-238.
Petitioner argues (Pet. 22-23) that the Administrator's opinion letter in
this case is entitled to Chevron deference under the Mead standard, because the
Administrator is appointed with the advice and consent of the Senate and has
certain administrative responsibilities, 29 U.S.C. 204(a), and because employers
that rely in good faith on the Administrator's opinion letters are entitled to a
defense against FLSA liability. 29 U.S.C. 259(a). But reliance on those two
factors would lead to the conclusion that all opinion letters issued by the
Administrator are entitled to Chevron deference-a position that is at odds with
Christensen and that would therefore require its overruling. See Skidmore, 323
U.S. at 140 (holding that Administrator's interpretations of the FLSA "are not
controlling upon the courts by reason of their authority" but "constitute a body
of experience and informed judgment to which courts and litigants may properly
resort for guidance"). Petitioner has not made out the kind of compelling case
that would be necessary to justify the overruling of this Court's
precedents.
In Barnhart v. Walton, 535 U.S. 212 (2002), the Court held that a particular
Social Security Administration interpretation was entitled to Chevron deference
because of "the interstitial nature of the legal question, the related expertise
of the Agency, the importance of the question to administration of the statute,
the complexity of that administration, and the careful consideration the Agency
has given the question over a long period of time." Id. at 222. That decision
suggests a basis for arguing that some opinion letters issued by the
Administrator might warrant Chevron deference in appropriate circumstances-a
position that would require qualifying Christensen and Skidmore, but not
overruling them. Barnhart, however, does not support petitioner's view that all
opinion letters issued by the Administrator are categorically entitled to Chevron deference.
Nor is this case an appropriate one in which to decide whether there are some
opinion letters issued by the Administrator that would warrant Chevron deference
under Barnhart. First, petitioner did not ask the court of appeals to give the
Administrator's interpretation Chevron deference in light of the factors set
forth in Barnhart. Accordingly, the court of appeals did not purport to resolve
the deference issue in terms of the Barnhart factors. Pet. App. 17a n.9.
Second, the question whether particular opinion letters issued by the
Administrator might be entitled to deference under Barnhart would benefit from
further ventilation in the courts of appeals. Petitioner has cited only two
recent court of appeals decisions in which opinion letters issued by the
Administrator have been at issue. Both courts concluded that they would reach
the same conclusion regardless of the level of deference accorded to the opinion
letters. Accordingly, neither court decided the precise level of deference
required. See Houston Police Officers' Union v. City of Houston, 330 F.3d 298,
304-305 (5th Cir.), cert. denied, 124 S. Ct. 300 (2003); Herman v. Fabri-Centers
of Am., Inc., 308 F.3d 580, 592-593 (6th Cir. 2002), cert. denied, 537 U.S. 1245
(2003).
Petitioner also contends (Pet. 26) that, regardless of the proper degree of
deference due, "the Ninth Circuit below erred by rejecting out of hand the
agency's 'new' interpretation." We agree that the court of appeals was wrong to
dismiss the Administrator's comprehensive and carefully reasoned opinion letter
setting forth the rationale for the agency's interpretation of the "changing
clothes" exception. Pet. App. 94a-100a. The court of appeals misapplied
Skidmore, failing even to acknowledge the "thoroughness evident in [the opinion
letter's] consideration," the "validity of its reasoning," and "its consistency
with earlier * * * pronouncements." 323 U.S. at 140; see Pet. App. 17a n.9. The
court instead concluded that a temporary change in position, standing alone,
sufficed to justify its refusal to defer. Consistency of interpretation is only
one of the factors to be considered under Skidmore, however, and in any event
the Administrator in this instance was merely readopting the agency's previous
enforcement practice. Id. at 94a-95a. Notwithstanding the Ninth Circuit's error,
however, the court's mere misapplication of Skidmore does not create a circuit
conflict or otherwise rise to the level of an issue requiring this Court's
attention.
Petitioner briefly argues (Pet. 18) that review is also warranted on the
"changing clothes" issue because the decision below "creates a conflict" with
the Fifth Circuit's decision in Bejil v. Ethicon, Inc., 269 F.3d 477 (2001) (per curiam). There is, however, no conflict. In
Bejil, the Fifth Circuit held that
sanitary garments, such as lab coats, dedicated shoes and shoe coverings, and
hair and beard coverings fall within the "changing clothes" exclusion. Id. at
480 n.3. The court of appeals in this case, however, did not address items of
that kind. Instead, it held that special protective gear such as metal aprons
and Kevlar gloves do not constitute "clothes." The court reasoned that the
"changing clothes" exclusion applies only to items that are "plainly and
unmistakably" clothes, and that the items of special protective gear at issue
here are not "plainly and unmistakably" clothes. Pet. App. 16a-17a. That
analysis does not suggest that the Ninth Circuit would reach the same conclusion
about the items at issue in Bejil.
Finally, review is unwarranted on the "changing clothes" issue for the same
reason that it may be unwarranted on the walking time question. Because there is
no state law "changing clothes" exclusion, it appears that resolution of that
issue would not affect the judgment that will be issued by the district
court.
CONCLUSION
The petition for a writ of certiorari should be held pending the Court's
disposition of the petition for a writ of certiorari in Tum, No. 04-66. If the
petition in Tum is granted, the Court may wish to hold the petition in this case
pending its decision on the merits in Tum. If the petition in Tum is denied, the
petition in this case should also be denied.
Respectfully submitted.
PAUL D. CLEMENT Acting Solicitor General
THOMAS G. HUNGAR
Deputy
Solicitor General
IRVING L. GORNSTEIN Assistant to the
Solicitor General
HOWARD M. RADZELY Solicitor of Labor
ALLEN H. FELDMAN Associate
Solicitor
MICHAEL P. DOYLE Attorney Department of Labor
OCTOBER 2004
Footnotes
[1] By contrast, the district court in Reich held that walking time associated
with pre-shift or post-shift activities was compensable when those activities
started the workday. In particular, the court found that the workday commenced
when employees picked up their knives at the knife room, and ceased when they
dropped off their knives at the knife room after their shift, because "knives
were an integral and indispensable part of the production work of knife carrying
employees." Reich v. IBP, Inc., 820 F. Supp. 1315, 1325 (D. Kan. 1993).
Accordingly, the court held that "the time spent walking from the knife room to
the work station and back to the knife room was compensable because it occurred
during the workday." Ibid. That conclusion was not disturbed on appeal.
[2] A petition for a writ of certiorari is pending in Tum v. Barber Foods,
Inc., No. 04-66 (filed July 8, 2004), and also raises the walking time issue,
albeit in a somewhat different factual context in view of the jury's conclusion
that the associated donning and doffing time was de minimis. That petition also
raises another question of considerable significance to the administration of
the FLSA-whether donning and doffing time should be considered together with
walking time in assessing whether the time devoted to those activities is de
minimis, or whether donning and doffing time should instead be examined in
isolation. The respondent in Tum has not filed a brief in opposition, but to the
extent we have been able to determine based on a review of the opinion in that
case, it appears that Tum would likely provide the Court an opportunity to
resolve the existing disagreement among the circuits over the walking time
issue. Because the cases raise closely related issues, the Court may wish to
hold the petition in this case pending its disposition of the petition for a
writ of certiorari in Tum.
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