CourtCourt of Federal Claims
PartiesDAVID WHALEN, et al., Plaintiffs, v. UNITED STATES, Defendant.
Docket NumberNo. 07-707C,07-707C
Decision Date24 June 2010

DAVID WHALEN, et al., Plaintiffs,

No. 07-707C

In The United States Court Of Federal Claims

Filed June 24, 2010

R. Rex Parris, R. Rex Parris Law Firm, Lancaster, California, for plaintiffs. With him on the briefs were Alexander R. Wheeler, Jason P. Fowler, and Kitty Szeto, R. Rex Parris Law Firm, Lancaster, California.

William P. Rayel, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him on the briefs were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of counsel were Parisa Naraghi-Arani and Julia Rhodes, Federal Aviation Administration, Office of Chief Counsel, Washington, D.C.

Suit by air traffic control specialists at Edwards Air Force Base for compensation for overtime labor under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219; cross-motions for summary judgment; permissibility of a credit-hour arrangement; compensable work; time spent undergoing security inspections; time spent on medical clearances


LETTOW, Judge.

This Fair Labor Standards Act case involves Air Traffic Control Specialists ("ATCSs") employed by the Federal Aviation Administration ("FAA") at the High Desert Terminal Radar Approach Control ("TRACON"), Edwards Air Force Base, California ("Edwards AFB"). Plaintiffs seek damages in the form of compensation for overtime labor under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201-219 (the "Act" or "FLSA").

Previously, the court addressed procedural issues in the case by (1) granting a motion by the government for dismissal of this action as to one named plaintiff but rejecting a motion for a

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more definite statement, Whalen v. United States, 80 Fed. CI. 685 (2008) ("Whalen I"), and then (2) conditionally certifying a collective action encompassing two initially named plaintiffs and all other similarly situated ATCSs at Edwards Air Force Base and authorizing notice to all such similarly situated persons. Whalen v. United States, 85 Fed. Cl. 380 (2009) ("Whalen II"). After receiving notice, other ATCSs opted to join the suit, and plaintiffs subsequently filed a motion for partial summary judgment, to which the government responded by filing a cross-motion for summary judgment. After briefing, the motions were argued at a hearing on April 26, 2010, and are now ready for disposition.

The statute of limitations for willful violations of the FLSA is three years and that for quotidian violations of the FLSA is two years. 29 U.S.C. § 255(a). Plaintiffs filed their complaint on October 1, 2007; therefore, this action potentially reaches back to events dating from October 1, 2004.


Fourteen of the plaintiffs are or were operational ATCSs at the High Desert TRACON, located on Edwards Air Force Base. Pls.' Proposed Findings of Uncontroverted Facts ¶ 1 ("Pls.' PFUF"); Def.'s Proposed Findings of Uncontroverted Facts ¶ 1 ("Def.'s PFUF"); e.g., App. to Pls.' Mot. for Partial Summary Judgment ("Pls.' App.") 008, 10:18-22 (Dep. of Phillip John Delgado (Oct. 29, 2009) ("Delgado Dep.")).2 The principal activity of a controller is to separate and direct live air traffic, which essentially consists of viewing a radar terminal in a control room, directing pilots to ensure that their aircraft remain adequately separated from other aircraft, sequencing aircraft, and providing course guidance. Def.'s PFUF ¶¶ 3-4; App. to Def.'s CrossMot. for Summary Judgment ("Def.'s App.") 275, ¶¶ 3-4 (Decl. of Mark Heinrich (Jan. 25, 2010) ("Heinrich Decl.")).3

Plaintiffs' claims for overtime pay arise from three activities: (1) the FAA's periodic payment of plaintiffs with credit hours and not overtime compensation; (2) the lack of compensation for time spent in security inspections at the entrance and exit gates to Edwards

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AFB and in related activities; and (3) the lack of compensation for time spent traveling to or from required medical examinations (one-way travel was compensated), for time spent obtaining medical examinations associated with waivers of medical standards, and for reimbursement of medical expenses and mileage attendant to medical-waiver examinations.

A. Credit Hours

The FAA, in accord with its personnel management system, see Def.'s App. 394 (FAA Personnel Management System (Mar. 28, 1996)), and a series of collective bargaining agreements entered between the FAA and the National Air Traffic Controllers Association, AFLCIO, see Def.'s PFUF ¶ 41; Def.'s App. 299-300, ¶¶ 4-7 (Decl. of Michael S. Herlihy (Jan. 22, 2010) ("Herlihy Decl.")), 4 provided its employees with a credit-hour system as an optional alternative to overtime. The credit-hour arrangement allowed ATCSs who worked in the High Desert TRACON to request, in advance, to work hours in excess of their basic work requirement, subject to FAA's approval, and thereby receive "credit hours" for such work. Pls.' App. 430, ¶ 1 (Stipulation by the Parties Regarding Credit Hours (Nov. 18, 2009) ("Stip. for Credit Hours")). Recourse to the credit-hour system was entirely voluntary on the part of ATCSs. Id. When plaintiffs worked credit hours, they received one credit hour for each hour worked, equal to one hour of paid leave. Id. ¶¶ 2-3.5 Under the latest collective bargaining agreement entered on October 1, 2009, plaintiffs may no longer request and earn credit hours, although they do retain any credit hours previously earned and can receive payment for unused credit hours at the regular hourly rate upon separation or conversion to a non-flexible schedule. Id. at 431, ¶ 8. Plaintiffs who worked credit hours from October 1, 2004 to September 30, 2009, see, e.g., Pls.' App. 062, 80:17-20 (Dep. of Dennis Albert Hambrick (Sept. 30, 2009) ("Hambrick Dep.")), now claim that they should have been paid the FLSA overtime rate of "one and one-half times" their regular rate, 29 U.S.C. § 207(a)(1), rather than receiving one credit hour for each hour worked. See Pls.' Mot. for Partial Summary Judgment at 11 ("Pls.' Mot.").

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B. Security Inspections

Plaintiffs allege that the FAA failed to compensate them with overtime pay for time they spent submitting to mandatory security inspections at the entrance and exit gates of Edwards AFB, as well as time driving from the entrance gates to TRACON to report to work, time driving from TRACON to the exit gates at the end of work, time spent submitting to mandatory vehicle inspections, and time involved with mandatory base gate closures.

For plaintiffs to enter Edwards AFB to report to work at the TRACON, they had to pass through one of three entrance gates: the North Gate, the South Gate, or the West Gate. Pls.' PFUF ¶¶ 19-20; Def.'s PFUF ¶ 6; e.g., Pls.' App. 309, 24:8-24 (Dep. of Thomas A. Dina (Oct. 28, 2009) ("Dina Dep.")); Pls.' App. 293-94, 40:8-15, 43:5-8, 43:21-23 (Dep. of Susan Marmet (Sept. 30, 2009) ("Marmet Dep.")). A security check point was in place at each gate, where plaintiffs were required to produce their FAA identification badge, and sometimes a driver's license, for an Air Force security guard to inspect. Pls.' PFUF ¶¶ 29-30; Def.'s PFUF ¶ 9; e.g., Pls.' App. 309-310, 24:25 to 25:14 (Dina Dep.). The process to pass through the check point typically took plaintiffs less than one minute. Def.'s PFUF ¶ 10; e.g., Def.'s App. 120, 37:13-25 (Delgado Dep.). However, plaintiffs often had to wait in line before reaching the security check points, with the wait time varying, depending on the gate through which plaintiffs entered and the time of day. Pls.' PFUF ¶ 31; Def.'s PFUF ¶ 11; e.g., Pls.' App. 312-313, 42:25 to 43:17 (Dina Dep.); Def.'s App. 60, 54:7-19 (Dep. of David Paul Whalen, Sr. (Oct. 1, 2009) ("Whalen Dep.")).6

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After passing through one of the three gates, plaintiffs typically proceeded directly to TRACON, a distance of between 4.5 and 8.2 miles, depending upon which gate was used. Def.'s PFUF ¶ 12; Def.'s App. 95, 42:2-5 (Dep. of Fritz Sperling (Oct. 29, 2009) ("Sperling Dep.")); Def.'s Resp. to Pls.' PFUF ¶ 55; Pls.' App. 425-26, Interrogatory No. 12 (Def.'s Objections and Responses to Pls.' First Set of Interrogatories (June 11, 2009)). After their shift, plaintiffs could leave Edwards AFB by the same routes. Pls.' PFUF ¶ 54; Def.'s PFUF ¶ 22; e.g., Pls.' App. 108, 55:15-22 (Dep. of Joel Ortiz (Oct. 1, 2009) ("Ortiz Dep.")). However, plaintiffs were not required to proceed directly from the gates to TRACON and vice versa, but rather could use a variety of non-work-related facilities and amenities on base, such as parks, restaurants, a golf course, a theater, a credit union, a gas station, and a museum. Def.'s PFUF ¶¶ 13, 22; see, e.g., Def.'s App. 61-62, 56:24 to 57:23 (Whalen Dep.). Plaintiffs used these facilities on occasion, see Def.'s PFUF ¶ 13, but they are not seeking compensation for time spent driving to and from these facilities. See Pls.' Resp. to Def.'s PFUF ¶ 13. Some plaintiffs were subjected to security inspections at the exit gates, though such inspections were rare and plaintiffs typically drove straight through the exit gates without...

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