Bobo v. U.S., 97-5096

• Decision Date: 09 February 1998
• Docket Number: No. 97-5096,97-5096
• Citation: 136 F.3d 1465
• Parties: Jerry BOBO, John Bordovsky, IV, Dennis Harmon, Richard Hawbaker, Robert Nelson, Russell O'Riley, Julio Tydingco, Luis Armendariz, Donald Arnold, Ruben Banda, Christopher Cantrell, Brian Carter, Steven Clanahan, John Dissler, Jason Heckler, Eugene Montoya, Michael Myers, Christopher O'Dell, Bruce Roberts, Robert Rodriguez, Harold Smallwood, Gregory Smith, Guadalupe Trevino, Jr., Luis Uribe, Gregorio Vasquez and Jonathan Hawley, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1465

136 F.3d 1465

Jerry BOBO, John Bordovsky, IV, Dennis Harmon, Richard Hawbaker, Robert Nelson, Russell O'Riley, Julio Tydingco Luis Armendariz, Donald Arnold, Ruben Banda, Christopher Cantrell, Brian Carter, Steven Clanahan, John Dissler, Jason Heckler, Eugene Montoya, Michael Myers, Christopher O'Dell Bruce Roberts, Robert Rodriguez, Harold Smallwood, Gregory Smith, Guadalupe Trevino, Jr., Luis Uribe, Gregorio Vasquez and Jonathan Hawley, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.

No. 97-5096.

United States Court of Appeals Federal Circuit.

Feb. 9, 1998.

Gregory K. McGillivary, Mulholland & Hickey, Washington, DC, argued for plaintiffs-appellants. With him on the brief was Thomas A. Woodley.

Hillary A. Stern, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, argued for defendant-appellee. With her on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Sharon Y. Eubanks, Deputy Director.

Before MICHEL, LOURIE and CLEVENGER, Circuit Judges.

MICHEL, Circuit Judge.

Plaintiffs-Appellants (the "INS Agents") appeal from a final judgment of the United States Court of Federal Claims concluding that the INS Agents' commutes were not compensable under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (1994) (the "FLSA"), and granting summary judgment to the United States. Bobo v. United States, 37 Fed.Cl. 690 (Fed.Cl.1997). This appeal was submitted for our decision following oral argument on January 8, 1998. Because any work performed by the INS Agents during their commutes that was otherwise compensable under the FLSA was de minimis in nature, we affirm.

BACKGROUND

The INS Agents are a group of current and former Border Patrol agent dog handlers employed by the Department of Justice in the Immigration and Naturalization Service (the "INS"). The INS Agents' principal duties include attending to immigration-related calls requiring the aid of their dogs, such as responding to sensors that detect suspected illegal entries, and inspecting vehicles at official checkpoints. The INS Agents are required by the INS to have their dogs reside The INS Agents brought suit under the Tucker Act, 28 U.S.C. § 1491 (1994), against the United States in the Court of Federal Claims seeking compensation for their commuting time pursuant to the FLSA. They argued that such time was compensable because of various restrictions placed upon them during their commute, such as the prohibition on personal stops, and various duties, such as the need to make stops for the dogs to exercise and relieve themselves. In addition, they contended that such commuting time was compensable because of the further responsibilities allegedly required of them by the INS, such as monitoring their radios, reporting their mileage, and looking out for suspicious activity. On cross-motions for summary judgment the Court of Federal Claims denied the INS Agents' claim for compensation reasoning that, although certain of the duties and activities alleged to take place during the commute were theoretically compensable under the FLSA and not exempted by the Portal-to-Portal Act, 29 U.S.C. §§ 251-262 (1994), no compensation was warranted because, as a matter of law, these duties and activities were de minimis in nature. The INS Agents now appeal the grant of summary judgment in favor of the United States to this court. There is no doubt that the appeal was timely and that we have jurisdiction, as did the Court of Federal Claims.

with them and are provided with specially equipped vehicles to transport the dogs between their homes and Border Patrol offices or other work locations. The vehicles may not be employed for personal use. Indeed, the INS Agents may not even make personal stops during their commute and they must wear their official uniforms while using the vehicles. The INS Agents are not paid for their commuting time but are paid an hour each day for conducting dog care tasks at home.

DISCUSSION

The FLSA, as interpreted by the Office of Personnel Management's regulations, requires federal agencies to pay employees for "[a]ll time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency." 5 C.F.R. § 551.401(a) (1997). However, the Portal-to-Portal Act, which amended the FLSA, creates an exception to this general rule and declares, for public and private employees alike, that compensation need not be paid 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....

29 U.S.C. § 254(a) (1994). The Supreme Court first interpreted this provision of the Portal-to-Portal Act in Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956), which held that time spent by private employees at a battery plant changing clothes and showering before and after shifts was compensable because these activities were necessary to protect the workers from the toxins in the workplace. As the Court held, "[a]ctivities performed either before or after the regular work shift ... are compensable under the Portal-to-Portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed." Id. at 256, 76 S.Ct. at 335. This provision of the Portal-to-Portal Act was also construed in Reich v. New York City Transit Authority, 45 F.3d 646, 650 (2d Cir.1995), in which the compensability of the commuting time of police dog handlers was at issue. The Second Circuit explained:

The more the preliminary (or postliminary) activity is undertaken for the employer's...