United States Federal Circuit Court of Appeals Reports

ADAMS v. U. S, 06-5040 (Fed. Cir. 12-18-2006) STEPHEN S.
ADAMS, ET AL., Plaintiffs-Appellants, v. UNITED STATES,
Defendant-Appellee. Case No. 06-5040,-5041. United States
Court of Appeals, Federal Circuit. December 18, 2006.

Jules Bernstein, Bernstein & Lipsett, P.C., of Washington,
DC, argued for plaintiffs-appellants. With him on the brief
was Linda Lipsett. Of counsel on the brief was Edgar James,
James & Hoffman, P.C. of Washington, D.C.

Shalom Brilliant, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for
defendant-appellee. With him on the brief were Peter D.
Keisler, Assistant Attorney General; and David M. Cohen,

Appealed from: United States Court of Federal Claims Judge
Lynn J. Bush.

Before LOURIE, SCHALL, and GAJARSA, Circuit Judges.

GAJARSA, Circuit Judge.

The plaintiffs-appellants (“plaintiffs”) in this case are
several thousand federal law enforcement officers who seek
compensation from the government for the time they spend
commuting to and from work in government-owned police
vehicles. The United States Court of Federal Claims issued
summary judgment in favor of the government, holding that
the driving time was not compensable under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§
201-219, as amended by the Portal-to-Portal Act, 29 U.S.C.
§§ 251-262. We affirm.


This case is the last piece of a larger employment dispute
between the government and law enforcement officers with
the United States Secret Service; United States Customs and
Border Protection (formerly United States Customs Service);
the Internal Revenue Service; the Bureau of Alcohol,
Tobacco, and Firearms; and the Drug Enforcement Agency. We
have ruled once before on an unrelated issue in the same
case. Adams v. United States, 391 F.3d 1212 (Fed. Cir.
2004). Most of the issues have settled, with the government
agreeing to make a cash payment to the plaintiffs and to
consider them non-exempt employees under FLSA. However, the
settlement agreements left open for litigation the question
posed by this appeal: whether the plaintiffs’ commutes
constitute compensable work under FLSA.

The basic facts are undisputed. The plaintiffs are issued
government-owned police vehicles and required as a condition
of their employment to commute from home to work in those
vehicles. This requirement facilitates their employers’ law
enforcement missions, since the cars will be available to
the officers for rapid response to emergency calls at any
time, whether the officers are at home or proceeding on
their commutes.[fn1] The officers’ time is not entirely
their own during their commutes: they are required to have
their weapons and other law enforcement-related equipment
and to have on and monitor their vehicles’ communication
equipment. They are not allowed to run any personal errands
in their government vehicles, so their commute must proceed
directly from home to work and back again without
unauthorized detours or stops.

The plaintiffs’ suit alleged, inter alia, that the time
they spent commuting was compensable under the Fair Labor
Standards Act. The Court of Federal Claims considered
cross-motions for partial summary judgment on the issue and
granted the government’s motion, deciding that the
plaintiffs’ commute time was not compensable. Adams v.
United States, 65 Fed. Cl. 217 (2005). Since all other
issues in the case had settled, the partial summary
judgment disposed of the only remaining issue, and the
Court of Federal Claims issued a final judgment. Many of
the plaintiffs now appeal to this court. We have
jurisdiction to review a final judgment of the Court of
Federal Claims under 28 U.S.C. § 1295(a)(3).


A. Jurisdiction

The government argues that we lack jurisdiction due to a
defective notice of appeal; specifically, the notice in
this case does not enumerate the names of all 6,610
individual appellants.[fn2] The government correctly notes
that in Torres v. Oakland Scavenger Co., 487 U.S. 312
(1988), the Supreme Court held that Federal Rule of
Appellate Procedure 3(c) divested federal appeals courts of
jurisdiction over appellants not expressly named in the
notice of appeal. If Torres were still good law, we would
have jurisdiction only over those plaintiffs whose names
appear on the notice. However, Rule 3(c) was amended in
1993, after the Court’s decision in Torres. It now states:

The notice of appeal must . . . specify the party or
parties taking the appeal by naming each one in the
caption or body of the notice, but an attorney
representing more than one party may describe those
parties with such terms as “all plaintiffs,” “the
defendants,” “the plaintiffs A, B, et al.,” or “all
defendants except X.”

Fed.R.App.P. 3(c)(1). All of the appellants are represented
by the same counsel, and the notice of appeal is of the
form contemplated by the new Rule 3(c). The Notes of the
Advisory Committee on the 1993 amendments state that “[t]he
test established by the rule for determining whether such
designations are sufficient is whether it is objectively
clear that a party intended to appeal.” We accept that
formulation of the test. Here, all of the appealing
plaintiffs are listed in an appendix to their lead
counsel’s notice of appearance, which was duly served on
the government soon after the notice of appeal. It is
objectively clear to us and to the government that the
plaintiffs listed on that appearance form intended to
appeal. Since the present version of Rule 3(c) has been
satisfied by appellants, we take jurisdiction over all
plaintiffs named in the appearance of counsel. Therefore,
each appellant so listed shall be bound by our decision

B. Standard of Review

We review a grant of summary judgment by the Court of
Federal Claims de novo, drawing justifiable factual
inferences in favor of the party opposing the judgment.
Winstar Corp. v. United States, 64 F.3d 1531, 1539 (Fed.
Cir. 1995) (en banc). The Court of Federal Claims applies
the same summary judgment standard as do federal district
courts: summary judgment is proper if the evidence
demonstrates that “there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.” Ct. Cl. R. 56(c); cf.
Fed.R.Civ.P. 56(c).

C. The Portal-to-Portal Act

A few years after the enactment of FLSA, the Supreme Court
decided Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680
(1946). That case involved industrial workers who punched
in at a time clock, but were not credited for the time they
spent walking from the clock to their posts. Id. at 682-84.
The Supreme Court ruled that “the time spent in walking to
work on the employer’s premises, after the time clocks were
punched, involved ‘physical or mental exertion (whether
burdensome or not) controlled or required by the employer
and pursued necessarily and primarily for the benefit of
the employer and his business.'” Id. at 691-92 (quoting
Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321
U.S. 590, 598 (1944)).

Congress reacted to Anderson by enacting the
Portal-to-Portal Act of 1947, Pub.L. No. 80-49, 61 Stat. 84
(codified at 29 U.S.C. §§ 251-262). See 29
U.S.C. § 251(a) (Congressional finding that FLSA
“has been interpreted judicially in disregard of
long-established customs, practices, and contracts between
employers and employees,” with various negative
consequences); IBP, Inc. v. Alvarez, 126 S. Ct. 514, 519
(2005); Unexcelled Chem. Corp. v. United States, 345 U.S.
59, 61 (1953) (“The Portal-to-Portal Act was enacted to
remedy what were deemed to be some harsh results of our
decision in Anderson . . . .”). The Act pared back the
broad definition of compensable work initially promulgated
by the Supreme Court in Anderson. “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 activities which are preliminary
to or postliminary to said principal activity or
activities” are excluded from FLSA’s protections by the
Portal-to-Portal Act; employers need not pay employees
overtime or minimum wage for such activity. 29 U.S.C.
§ 254(a). The question of what sorts of activities
are “preliminary or postliminary” was most recently
addressed by the Supreme Court in IBP, in which the Court
held that the time spent walking from a locker room where
employees donned required protective gear to the work site
was compensable. 126 S. Ct. at 524.

The Portal-to-Portal Act speaks specifically to vehicular

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 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). Therefore,
merely commuting in a government-owned vehicle is
insufficient; the plaintiffs must perform additional
legally cognizable work while driving to their workplace
in order to compel compensation for the time spent
driving. The question in this appeal is whether the
requirements and restrictions placed on plaintiffs’
commutes rise to that level.

D. Burden of Proof

The plaintiffs argue that the burden of proof lies with the
government in this case, relying on a statement by the
Supreme Court that “the application of an exemption under
the Fair Labor Standards Act is a matter of affirmative
defense on which the government has the burden of proof.”
Corning Glass Works v. Brennan, 417 U.S. 188, 196-197
(1974). However, the Portal-to-Portal Act does not create
an “exemption” in the same sense as the Supreme Court used
the term in Corning. The cases the Court cited in support
for its statement in Corning all related to the total
exclusion of a particular worker or workers from certain
FLSA protections. See A.H. Phillips, Inc. v. Walling, 324
U.S. 490, 493 (1945) (issue was whether employees worked in
a “retail establishment” and hence were wholly exempt from
wage and hour requirements); Arnold v. Ben Kanowsky, Inc.,
361 U.S. 388, 392 (1960) (same); Walling v. General Indus.
Co., 330 U.S. 545, 547-48 (1947) (whether employee was
exempt due to being employed in “executive capacity”);
Mitchell v. Ky. Fin. Co., 359 U.S. 290, 295 (1959) (retail
establishment). None of these cases speak to the exclusion
of only some activities from FLSA; they all deal with the
exempt status of a particular worker or workers. By
settlement, the government has agreed that these plaintiffs
are not FLSA-exempt. The issue of total FLSA exemption of
the sort that the Supreme Court decided in Corning is
therefore not before us.

Better guidance is found in Anderson, where the Court said:
“An employee who brings suit . . . for unpaid minimum wages
or unpaid overtime compensation . . . has the burden of
proving that he performed work for which he was not
properly compensated.” Anderson, 328 U.S. at 686-87.[fn4]
Typically, this question relates to whether the plaintiffs
worked a certain amount of hours and whether those hours
went uncompensated by the employer. However, there is an
additional, earlier premise at issue in this case: namely,
whether the alleged acts of the plaintiff constitute
compensable “work” at all. The burden to prove that such
work was performed necessarily includes the burden to
demonstrate that what was performed falls into the category
of compensable work. See, e.g., Baker v. Barnard Constr.,
146 F.3d 1214, 1216 (10th Cir. 1998) (in Portal-to-Portal
Act case, jury instruction “appropriately asks the jury
whether Plaintiffs have proved that their return travel is
compensable” (emphasis added)). Thus, the plaintiffs in this
case had the burden of showing that their drive time was
compensable work for FLSA purposes and of showing that it
does not fall into the set of activities excluded from the
definition of compensable work by the Portal-to-Portal Act
as interpreted by our precedent.

Since the burden of proof is on the plaintiffs, we reject
their argument that summary judgment to the government was
improper because the government presented minimal evidence.
Since the plaintiffs’ evidence does not demonstrate any
ground for relief (for reasons discussed below), the
government need not present any evidence to rebut the
documentary evidence presented by the plaintiffs.

E. Merits

This court decided a similar case in Bobo v. United
States, 136 F.3d 1465 (Fed. Cir. 1998). In Bobo, Border
Patrol dog handlers raised a basically identical claim
under FLSA. The dog handlers were required to commute to
and from work in their government cars, monitor their
vehicle radios, report mileage, be on the lookout for
suspicious activity, and refrain from personal errands or
detours. Id. at 1467. They were also required to stop to
walk their dogs as needed. Id. The government credited the
handlers an extra hour each day for dog care tasks at home
but did not consider the driving time to be compensable. The
dog handlers sued to obtain compensation for their
commuting time.

In deciding Bobo, we noted with approval the Second
Circuit’s decision in Reich v. N.Y. City Transit Auth., 45
F.3d 646 (2d Cir. 1995), which stated that:

The more the preliminary (or postliminary) activity is
undertaken for the employer’s benefit, the more
indispensable it is to the primary goal of the employee’s
work, and the less choice the employee has in the matter,
the more likely such work will be found to be
compensable. . . . The ability of the employer to
maintain records of such time expended is a factor. And,
where the compensable preliminary work is truly minimal,
it is the policy of the law to disregard it.

Id. at 650, quoted in Bobo, 136 F.3d at 1467. We concluded
that though “the restrictions placed upon the INS Agents’
commutes are compulsory, for the benefit of the INS, and
closely related to the INS Agents’ principal work
activities . . . the burdens alleged are insufficient to
pass the de minimis threshold.” Bobo, 136 F.3d at 1468
(citing Anderson, 328 U.S. at 692 (“When the matter in issue
concerns only a few seconds or minutes of work beyond the
scheduled working hours, such trifles may be
disregarded.”)). Bobo is not identical but very similar to
the case before us. The primary difference between the
commuting conditions in Bobo and those in this case
militates against plaintiffs, who do not make uncompensated
dog-walking stops. Under the Portal-to-Portal Act,
plaintiffs’ driving time is not compensable.

Some of the plaintiffs in this case argue that, unlike in
Bobo, there was a “custom or practice” of compensating them
for their commuting time. If such a “custom or practice”
existed, the Portal-to-Portal Act could be read not to
allow the employer to cease compensating for the activity.
See 29 U.S.C. § 252(a)(2). Those plaintiffs are
correct that under Federal Personnel Manual System Letter
No. 551-10, FLSA non-exempt officers were indeed compensated
for their commute time. Prior to this litigation, though,
the plaintiffs and other officers in the positions and
grades at issue were classified as exempt from FLSA and
were therefore not paid for their commutes. That exemption
status has been changed by the settlement agreement, in
which the government stipulated for the purpose of this
case that the plaintiffs were non-exempt. Plaintiffs seize
on this provision of the settlement to argue that, had the
government not wrongly classified them as exempt, it would
have applied Letter 551-10 and thus a “custom or practice”
of compensation would have existed. However, hypothetical
customs or practices do not suffice. In reality, the
government did not compensate the plaintiffs for their
commuting time; the plaintiffs cannot now rely on the
settlement to rewrite history.

The plaintiffs also argue that 31 U.S.C. § 1344
should alter the outcome of this case. That statute is a
money allocation provision that prohibits federal funds
from being spent on transportation for other than official
purposes. It makes clear that “transportation between the
residence of an officer or employee and various locations
that is . . . essential for the safe and efficient
performance of . . . criminal law enforcement duties[] is
transportation for an official purpose.” Id. §
1344(a)(2). While the statute defines the commutes at issue
here to be essential to the agencies for budgetary
purposes, it does not follow that those commutes constitute
compensable work by the officers. The fact that the
commutes are not an illegal expenditure of government
resources does not change the result: Bobo still teaches
that commuting done for the employer’s benefit, under the
employer’s rules, is non-compensable if the labor beyond
the mere act of driving the vehicle is de minimis. That is
the case here.

Neither these distinctions nor others advanced by the
plaintiffs are persuasive, and so the holding in Bobo
controls the legal conclusion in this case.


Because Bobo entitles the government to judgment as a
matter of law on the facts advanced by the plaintiffs, the
Court of Federal Claims correctly granted summary judgment
to the government. Its decision is therefore


[fn1] This case does not require us to decide what FLSA
mandates in the particular instances when plaintiffs are
actually called on to respond to an emergency or otherwise
deviate from their normal commutes. We address only
plaintiffs’ basic argument: that their normal commutes,
without more, constitute compensable work.

[fn2] The case is not structured as a class action.

[fn3] Counsel for appellants agreed at oral argument that
everyone listed on his notice of appearance would be so

[fn4] Although Anderson’s definition of compensable work was
modified by the Portal-to-Portal Act, Congress did not
speak to the issue of the burden of proof. This statement
by the Court therefore remains good law.