36 F.3d 417 (5th Cir. 1994), 91-8416, Vega v. Gasper

Docket Nº:91-8416.
Citation:36 F.3d 417
Party Name:(BNA) 614 Maria VEGA, Eva Trevino, on behalf of herself and as next friend of Pedro Trevino, et al., Plaintiffs-Appellees, v. John W. GASPER, Defendant-Appellant.
Case Date:October 14, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 417

36 F.3d 417 (5th Cir. 1994)

(BNA) 614

Maria VEGA, Eva Trevino, on behalf of herself and as next

friend of Pedro Trevino, et al., Plaintiffs-Appellees,


John W. GASPER, Defendant-Appellant.

No. 91-8416.

United States Court of Appeals, Fifth Circuit

October 14, 1994

Rehearing Denied Nov. 10, 1994.

Page 418

[Copyrighted Material Omitted]

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Juan Carlos Garay, Guevara, Rebe, Baumann, Coldwell & Garay, W.A. Thurmond, Scott A. Agthe, Scott, Hulse, Marshall, Feuille,

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Finger & Thurmond, P.C., El Paso, TX, for appellant.

Kenneth R. Carr, Steven L. Huges, Mounce & Galatzan, El Paso, TX, for amicus So. N. Mexico Growers.

James D. Holzhauer, Mayer, Brown & Platt, Chicago, IL, for American Farm Bureau, et al. (amicus).

Mark A. Schneider, Nancy Simmons, Tex. Rural Legal Aid, Inc., Farm Worker & Garment Div., El Paso, TX, William H. Beardall, TX Rural Legal Aid, Weslaco, TX, for appellee.

George McAlmon, El Paso, TX, for amicus Sin Fronteras Farm Worker Organizing Project.

Jose G. Moreno, Diocesan Migrant and Refugee Serv., El Paso, TX, for amicus Catholic Diocese of Las Cruces.

Appeal from the United States District Court for the Western District of Texas.

Before REYNALDO G. GARZA and GARWOOD, Circuit Judges, and ROSENTHAL, [*] District Judge.

GARWOOD, Circuit Judge:

Defendant-appellant, John W. Gasper (Gasper), appeals the district court's judgment following a bench trial in favor of plaintiffs-appellees, seasonal farm workers, under the Fair Labor Standards Act, 29 U.S.C. Sec. 201 et seq. (FLSA), and the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. Sec. 1801 et seq. (AWPA). 1

The district court awarded nine plaintiffs recovery under the FLSA at minimum wage rates for their time spent traveling to and from the farm where they worked, and for their time waiting at the farm before and after working, for none of which Gasper had compensated them. FLSA recovery was also awarded these plaintiffs for the amount below minimum wage levels that Gasper had paid them for their working time at the farm. Liquidated damages under the FLSA were also awarded these plaintiffs, and attorneys' fees were assessed against Gasper. 2 Gasper's appeal challenges only the awards for travel and wait time and the related portion of the liquidated damages.

We hold that the workers' travel time is not compensable under the FLSA. We remand for additional fact findings concerning the compensability of the workers' wait time and for recalculation of the FLSA damage award. Because we are reducing the FLSA damage award, we also remand for recalculation of damages under the AWPA.


Before turning to the merits, we address appellees' suggestion of mootness, which Gasper has opposed. It appears that after this appeal was perfected Gasper filed for protection under Chapter 13 of the Bankruptcy Code. Plaintiffs promptly filed an unsecured claim in the bankruptcy court based on the entire judgment below ($61,309.30). A few weeks later, the bankruptcy court, on the joint motion of Gasper and plaintiffs "and after noting the Ch. 13 bankruptcy trustee's approval," entered an order referring to the present appeal and decreeing that:

"the automatic stay of Section 362(a) of the Bankruptcy Code is terminated for the limited purpose of permitting the Debtor [Gasper] and the Farmworkers [plaintiffs] to proceed with the above described appeal and in order that the Fifth Circuit may decide and issue its opinion and judgment regarding the Debtor's appeal, but the automatic stay shall otherwise remain in effect as to all other actions against the Debtor, to include any attempt to collect or proceed against the Debtor on any judgment already rendered or which may be modified as a result of the appeal."

Subsequently, after this appeal was orally argued, on Gasper's motion his bankruptcy proceeding was converted from Chapter 13 to Chapter 7. Several months later, plaintiffs filed an adversary proceeding in the bankruptcy court objecting under 11 U.S.C. Sec. 523(a)(6) to the dischargeability of Gasper's judgment debt to them "for failure to pay the minimum wage and for costs and attorneys' fees arising therefrom." The adversary stated it related to "unpaid minimum wages for time spent harvesting" but "does not include the amount of money awarded for travel and waiting time, which Plaintiffs do not seek to be determined non-dischargeable

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." This adversary is apparently still pending before the bankruptcy court. Some weeks later, the bankruptcy court entered an order discharging Gasper, and stating:

"1. The above-named debtor is released from all dischargeable debts.

2. Any judgment heretofore or hereafter obtained in any court other than this court is null and void as a determination of the personal liability of the debtor with respect to any of the following:

(a) debts dischargeable under 11 U.S.C. Sec. 523;

(b) unless heretofore or hereafter determined by order of this court to be nondischargeable, debts alleged to be excepted from discharge under clauses (2), (4) and (6) of 11 U.S.C. Sec. 523(a);

(c) debts determined by this court to be discharged."

Several months thereafter plaintiffs filed in this Court their "Suggestion of Mootness," contending that "this Appeal is now moot" because Gasper has been discharged from the only obligations at issue on this appeal, the travel and wait time. Subsequently, plaintiffs have filed an affidavit of the bankruptcy trustee indicating that the estate is still being administered, that unsecured creditors have received no distribution from the estate but it is possible that some distribution will be made to them on their claims, and stating "I do not believe there is any reason to continue with the appeal" and "I believe the matter is more properly the subject of the claims objection process in the Bankruptcy Court." 3

We conclude that the appeal is not moot. Certainly it will affect what plaintiffs may recover from the bankruptcy estate. 4 Assuming, as appears to be the assumption of the parties but has not been expressly stated or reflected by any of the material filed with us, that the liabilities of the estate exceed its assets, then what other unsecured creditors will receive will also be affected by this appeal. If the mentioned assumption is not accurate, or would not be accurate were Gasper to prevail on all issues he raises on appeal, then the appeal will clearly affect what Gasper receives from the estate. Moreover, if plaintiffs prevail in their objection to dischargeability (or if any other creditors successfully object to the dischargeability of any debt), then Gasper will be affected because if he prevails on appeal the undischarged debt or debts will be reduced below what they otherwise would be by application of estate funds which would otherwise be applied to the debts at issue on this appeal. Cf. Abel v. Campbell, 334 F.2d 339, 341 (5th Cir.1964) ("Because the tax liability survives ... the bankruptcy, the bankrupt has standing to attack the proof of claim before the Referee and a right to appeal an adverse judgment as would an ordinary creditor"); Matter of Dooley, 41 B.R. 31, 33 (Bank.N.D.Ga.1984) (debtor has standing to object to claim); In re McCorhill Pub., Inc., 89 B.R. 393, 396 (Bank.S.D.N.Y.1988) ("a debtor has standing to object to claims where disallowance of the claims would produce a surplus"). We conclude that the case is not moot in the sense of no longer presenting a case or controversy. See also Cox v. Sunbelt Sav. Ass'n of Texas, 896 F.2d 957, 959-60 (5th Cir.1990); Triland Holdings & Co. v. Sunbelt Service Corp., 884 F.2d 205, 208 (5th Cir.1989); Ratner v. Sioux Natural Gas Corp., 770 F.2d 512, 516 (5th Cir.1985).

We recognize, of course, that where a debtor is in bankruptcy a suit against the debtor for a post-petition debt must make the trustee a defendant. Bellini Imports v. Mason and Dixon Lines, Inc., 944 F.2d 199, 201-02 (4th Cir.1991). Suits against the debtor commenced before bankruptcy or on

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pre-petition claims are stayed by the automatic stay of 11 U.S.C. Sec. 362(a). Here, however, there was no bankruptcy until after Gasper had perfected the instant appeal. Subsequently, the bankruptcy court, on motion of Gasper and plaintiffs, and with the approval of the Chapter 13 trustee, lifted the automatic stay for the specific purpose of allowing Gasper "to proceed with" this appeal "in order that the Fifth Circuit may decide and issue its opinion and judgment regarding the Debtor's [Gasper's] appeal." The subsequent conversion to Chapter 7 did not invoke another automatic stay or modify this order. See In Re Parker, 154 B.R. 240, 243 (Bank.S.D.Ohio, W.D., 1993) ("the conversion of the debtors' Chapter 7 case to Chapter 13 did not cause the stay to be reimposed and that conversion did not affect this court's earlier order granting relief from stay"); Matter of Winslow, 39 B.R. 869, 871 (Bank.N.D.Ga.1984) ("An order which lifts the automatic stay returns the parties to the legal relationships which existed before the stay became operative"). Of course, the general rule is that "once a trustee is in a bankruptcy case, the trustee, not the debtor or the debtor's principal, has the capacity to represent the estate and to sue and be sued...." In Re Gulph Woods Corp., 116 B.R. 423, 428 (Bank.E.D.Pa.1990). This principle, however, is not without exceptions. See id. at 429-30. Plainly, its purpose is to allow the trustee to collect and protect the estate and avoid unnecessary estate expenses. Here, dismissing the appeal as moot could not possibly subserve any of these purposes, and we note that the trustee has never moved to intervene in this appeal or to have the appeal...

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