Hudson v. United States - Opposition

No. 09-736

In the Supreme Court of the United States

STEVEN A. HUDSON, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
JEANNE E. DAVIDSON
TODD M. HUGHES
SHALOM BRILLIANT
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

QUESTION PRESENTED

Whether petitioners' home-to-work commutes in government-owned vehicles are compensable work under the Fair Labor Standards Act of 1938, 29 U.S.C. 201 et seq., and Section 4(a) of the Portal-to-Portal Act of 1947, 29 U.S.C. 254(a).

In the Supreme Court of the United States

No. 09-736

STEVEN A. HUDSON, ET AL.,

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-17a) is reported at 575 F.3d 1332. The opinion of the Court of Federal Claims (Pet. App. 18a-52a) is reported at 83 Fed. Cl. 236.

JURISDICTION

The judgment of the court of appeals was entered on August 5, 2009. On October 22, 2009, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including December 18, 2009, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. 201 et seq., generally requires that an employer pay overtime compensation when it employs a non- exempt employee for a workweek longer than 40 hours. 29 U.S.C. 207(a), 213(a)(1). The Act does not define "work" or "workweek," and this Court's early cases con strued the term "work" broadly as activity "controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." See IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005) (IBP) (citing Tennessee Coal, Iron & R.R. v. Muscoda Local No. 123, 321 U.S. 590 (1944), Armour & Co. v. Wantock, 323 U.S. 126 (1944), and Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)). The sub stantial and unexpected scope of employer liability un der those early decisions led Congress to enact the Portal-to-Portal Act of 1947 (Portal-to-Portal Act), 29 U.S.C. 251 et seq., to narrow the coverage of the FLSA. See IBP, 546 U.S. at 26-27, 41.

As is relevant here, Section 4(a) of the Portal-to- Portal Act relieves employers from FLSA overtime lia bility for the following employee activities, unless such activities are compensable under a contemporaneous contract or "custom or practice" in effect at the place of employment (29 U.S.C. 254(b)(2)):

(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is em ployed to perform, and

(2) activities which are preliminary to or postliminary to said principal activity or activi ties,

which occur either prior to the time on any particular workday at which such employee commences, or sub sequent to the time on any particular workday at which he ceases, such principal activity or activities.

29 U.S.C. 254(a).

Regulations promulgated by the United States De partment of Labor (DOL) and Office of Personnel Man agement (OPM) explain that "[a]n employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordi nary home to work travel, which is a normal incident of employment" and "not worktime." 29 C.F.R. 785.35; see 5 C.F.R. 551.422(b); 29 C.F.R. 790.7(c). Such home to work travel, however, does not encompass an employee's transit to a work site that occurs after the employee has traveled from his home to an employer-specified location and started to perform the day's work. Where an em ployee is "required to report at a meeting place to re ceive instructions or to perform other work there, or to pick up and to carry tools, the travel from the desig nated place to the work place" is compensable as work. 29 C.F.R. 785.38.

2. Petitioners are four individuals who have been employed by the Bureau of Alcohol, Tobacco and Fire arms and components of the Department of Homeland Security, and who brought suit in the Court of Federal Claims alleging that the government failed to pay them overtime compensation as required by the FLSA. Pet. App. 2a, 18a. The parties subsequently settled all of the claims except the claim that time spent commuting be tween home and work in a government vehicle was work subject to overtime compensation. Pet. 9-10. Proceed ings with respect to the commuting time claim were stayed pending appellate review in another case, in which the home-to-work driving of several thousand law enforcement officers was ultimately held not compensa ble under the FLSA. Pet. App. 20a; see Adams v. United States, 65 Fed. Cl. 217 (2005), aff'd, 471 F.3d 1321 (Fed. Cir. 2006), cert. denied, 128 S. Ct. 866 (2008). The stay was lifted after the petition for a writ of certio rari in Adams was denied. Pet. App. 21a-22a.

Thereafter, upon the government's motion, the Court of Federal Claims entered summary judgment dismiss ing the commuting time claims in this case. Pet. App. 18a-52a. The court explained that this result was com pelled by circuit precedent established in Adams and in Bobo v. United States, 136 F.3d 1465 (Fed. Cir. 1998). The court observed that here, as in Adams, the plain tiffs' claim was limited by stipulation to time solely spent driving between home and work, and that, under Bobo and Adams, "commuting done for the employer's bene fit, under the employer's rules, is noncompensable if the labor beyond the mere act of driving the vehicle is de minimis," Pet. App. 20a (quoting Adams, 471 F.3d at 1328). The plaintiffs had failed to identify any material difference between their home-to-work driving and the home-to-work driving that had been held non-compensa ble in Bobo and Adams. Id. at 30a-34a.

3. The court of appeals affirmed. Pet. App. 1a-17a. Describing the dispute in this case as "identical in all material respects to the dispute" in Adams and as "sim ilar to the dispute" in Bobo, id. at 1a, the court endorsed the lower court's conclusion that the case was controlled by Bobo and Adams, and rejected the appellants' argu ment that those decisions were either distinguishable or not binding.

In Bobo, the court had addressed a claim by Border Patrol dog handlers who were required to transport their dogs with them while commuting to and from work, and, for this purpose, were required to commute in spe cial government vehicles, subject to certain require ments and restrictions. Pet. App. 2a-3a. To determine whether the dog handlers' home-to-work commute con stituted compensable work as "an integral and indis pensable part of the principal activities" for which they were employed, Bobo adopted the Second Circuit's ap proach of examining a plaintiff's commuting activity in light of the degree to which the "activity is undertaken for the employer's benefit," the degree to which it is "indispensable * * * to the primary goal of the em ployee's work," and the degree of "choice the employee has in the matter." 136 F.3d at 1467 (quoting Reich v. New York City Transit Auth., 45 F.3d 646, 650 (2d Cir. 1995)). Where the employee's work activity during the commute "is truly minimal, it is the policy of the law to disregard it." Ibid. (quoting Reich, 45 F.3d at 650). The Bobo court held that, while compulsory restrictions were placed on the dog handlers' commutes that benefitted the Border Patrol and were closely related to the em ployees' principal work activities, those restrictions were negligible as a whole because their impact was "infrequent, of trivial aggregate duration, and adminis tratively impracticable to measure." Id. at 1468.

In Adams, the court addressed the claim of several thousand law enforcement officers who were required to commute in government vehicles subject to certain re strictions, and to keep their weapons and other job- related equipment with them during their commutes. Pet. App. 4a. Following the analysis in Bobo, the court in Adams held that the appellants' commuting time was similarly not compensable under the FLSA. Ibid. (citing Adams, 471 F.3d at 1326-1328).

In light of Bobo and Adams, the court of appeals here stated that its task was "mainly to determine whether there is any reason for us to distinguish or de part from the Adams and Bobo decisions." Pet. App. 1a. The court found no such reason. Finding no merit in petitioners' contention that the earlier decisions were at odds with decisions of this Court and with relevant regu lations and administrative interpretations, id. at 8a-16a, and finding that petitioners had offered no factual dis tinction justifying a different result here than in Bobo and Adams, id. at 16a-17a, the court affirmed the dis missal of petitioners' home-to-work driving claims. Id. at 17a.

ARGUMENT

The decision of the court of appeals is correct and does not conflict with any decision of this Court or any other court of appeals. In 2008, this Court denied a peti tion for a writ of certiorari in Adams, which was "identi cal in all material respects" to this case. Pet. App. 1a. No events in the intervening years require a different result, and the Court should deny the petition for a writ of certiorari on this matter again.

1. The court of appeals correctly determined that petitioners are not entitled to overtime compensation for commuting between home and work with government vehicles.

Section 4(a)(1) of the Portal-to-Portal Act distin guishes between an employee's time spent on principal "work" activities (that is, the "principal activity or activ ities which [an] employee is employed to perform"), for which the FLSA requires overtime pay, and noncom pensable time spent "traveling to and from the actual place of performance" of such "principal activity or activ ities" before the employee's principal work activities begin or after they cease. 29 U.S.C. 254(a)(1). This Court has held that "any activity that is 'integral and indispensable' to a 'principal activity' is itself a 'principal activity' under § 4(a) of the Portal-to-Portal Act." IBP, Inc. v. Alvarez, 546 U.S. 21, 37 (2005) (citing Steiner v. Mitchell, 350 U.S. 247 (1956)).

This Court has also held, however, that "the fact that certain preshift activities are necessary for employees to engage in their principal activities does not mean that those preshift activities are 'integral and indispensable' to a 'principal activity.'" IBP, 546 U.S. at 40-41 (empha ses added). All home-to-work commutes are "neces sary" for an employee to perform the principal activity for which he is employed, yet it is undisputed that an employee's normal commute is not compensable under the FLSA. Cf. 29 C.F.R. 785.35, 790.7(c); cf. also 5 C.F.R. 551.422(b). Even before Congress enacted the Portal-to-Portal Act to restrict the FLSA's application to travel time, this Court indicated that "traveling from workers' homes to [the workplace]" does not qualify as "work"-that is, activity both "controlled or required by the employer" and "pursued necessarily and primarily for the benefit of the employer and his business." An derson v. Mt. Clemens Pottery Co., 328 U.S. 680, 691-692 (1946) (citation omitted); IBP, 546 U.S. at 25; cf. Reich v. New York City Transit Auth., 45 F.3d 646, 651-652 (2d Cir. 1995) (applying this "concept of compensable work" to resolve a dispute over home-to-work commut ing).1 A home-to-work commute primarily benefits the employee because it accommodates the employee's choice of where to live; its duration is determined by that personal choice; and, when an employee elects to live farther from work (and accept a longer commute), that choice does not benefit the employer or his busi ness.2

In some circumstances, an employee may perform significant activities during a home-to-work commute that sufficiently alter its character to make it an "inte gral and indispensable" part of the employee's primary work activity that primarily benefits his employer. The court of appeals, like its sister circuits, has thus prop erly evaluated commuting-based overtime claims by weighing the degree to which activities associated with the employee's home-to-work travel are "undertaken for the employer's benefit," the degree to which they are "indispensable * * * to the primary goal of the em ployee's work," and the degree of "choice the employee has in the matter." Bobo v. United States, 136 F.3d 1465, 1467-1468 (Fed. Cir. 1998) (quoting Reich, 45 F.3d at 650). Moreover, where the work-related aspects of an employee's commute are negligible in light of the com mute's normal benefit to the employee, the courts of appeals have held the time spent in such commutes to be non-compensable. See Adams, 471 F.3d at 1327; Bobo, 136 F.3d at 1468; Reich, 45 F.3d at 650, 652-653 (com muting by dog handlers required to transport their dogs between home and work was not compensable where work-related duties during commute were "neither sub stantial, nor regularly occurring"); Aiken v. City of Memphis, 190 F.3d 753, 758 (6th Cir. 1999) (following Bobo and Reich and holding that commutes by K-9 offi cers required to transport their dogs between home and work in city vehicles are not compensable where no "more than a de minimis amount of time during their commutes" was spent on work activities), cert. denied, 528 U.S. 1157 (2000).

2. Petitioners do not dispute that the decision of the court of appeals here was supported by its prior deci sions in Bobo and Adams. Rather, petitioners argue that the Federal Circuit misconstrued the FLSA and the Portal-to-Portal Act in those cases, and, therefore, erred here as well by following those cases. Petitioners are incorrect.

a. Petitioners contend (Pet. 14-16) that in these cases the Federal Circuit applied a test for determining whether travel is a "principal activity" under Section 4(a)(1) of the Portal-to-Portal Act that is different than the test for determining whether preliminary or post liminary activities are "principal activities" under Sec tion 4(a)(2). They further contend that this "two-tiered approach to Section 4(a)" erroneously makes driving that is an "integral and indispensable" part of a princi pal work activity non-compensable unless an employee also performs other work while driving. Pet. 12, 16. Petitioners mischaracterize the Federal Circuit's analy sis. Nothing in that court's decisions suggests that it interprets "principal activities" in Section 4(a)(1) differ ently from the same term in Section 4(a)(2). Both here and in Adams the court applied its prior decision in Bobo to the facts of the case, and Bobo expressly in voked this Court's ruling in Steiner that an activity is compensable under Section 4(a) when it is "an integral and indispensable part of the principal activities for which covered workmen are employed." Bobo, 136 F.3d at 1467 (quoting Steiner, 350 U.S. at 256).

The court of appeals applied the correct legal stan dard, but it did not accept petitioners' contention that their particular commutes were an "integral and indis pensable part" of their principal work activities. Signifi cantly, in this case (as in Adams), the commuting time claim was presented for adjudication after the dismissal, pursuant to a settlement, of all relevant FLSA claims other than those for time solely spent driving a govern ment vehicle between home and work. Pet. App. 29a- 30a. Therefore, any time petitioners spent performing work-related activities in addition to such driving are not at issue here.

The only question before the court of appeals was whether petitioners should be compensated for driving to and from their homes in government vehicles. The court accepted that the restrictions placed upon the em ployees' commutes, i.e., that they not make personal stops, were compulsory, for the benefit of the agency, and closely related to the employees' principal work ac tivities, but found these restrictions to be "insufficient to pass the de minimis threshold," Pet. App. 3a (quoting Bobo, 136 F.3d at 1468); see Adams, 471 F.3d at 1327. These restrictions, therefore, were insufficient to render personal commutes an "integral and indispensable part" of their principal work activities.

Petitioners' misreading of the test applied by the Federal Circuit appears to stem from their dwelling upon the Adams court's statement, paraphrasing the holding in Bobo, that "commuting done for the em ployer's benefit, under the employer's rules, is noncom pensable if the labor beyond the mere act of driving the vehicle is de minimis." Adams, 471 F.3d at 1328. See Pet. 8, 12, 15. From this, petitioners appear to assume that the court found the commuting in question to have been done for the employer's benefit and as a require ment of employment. Neither this case, Adams, nor Bobo, however, involve a requirement that employees commute, nor do they involve a benefit to the govern ment from the employees' commuting. The requirement in question is only that when the employees commute, they utilize government vehicles for this purpose. And, the benefit to the government mentioned in Adams and Bobo was not a result of the commuting, but of the fact that the vehicle was available for response to emergen cies, Adams, 471 F.3d at 1323, or for transporting dogs, Bobo, 136 F.3d at 1466-1467. Thus, petitioners' commut ing time is not an integral and indispensable part of their principal activities. In any event, the question whether petitioners' commutes constitute an integral and indispensable part of their principal activities in volves application of a settled legal standard to their particular factual situation and does not merit this Court's review.

b. Petitioners argue (Pet. 16-25) that review is war ranted to resolve a circuit conflict over the proper appli cation of Section 4(a)(1). No such conflict exists.

First, to the extent that the purported conflict con cerns the so-called "two-tiered approach to Section 4(a)," Pet. 16, petitioners' argument stems from their misreading of the Federal Circuit's decisions. As noted above, the Federal Circuit did not adopt the approach petitioners attribute to it. Second, while petitioners ac knowledge that two circuits are in agreement with the Federal Circuit (Pet. 16 (citing Aiken, 190 F.3d at 758 and Rutti v. LoJack Corp., 578 F.3d 1084 (9th Cir. 2009)), petitioners fail to cite any precedential decision from any circuit holding home-to-work driving to be compensable work under the FLSA. Instead, petition ers rely upon decisions in which activities other than commuting were held to be compensable, and decisions in which commuting time was held non-compensable for reasons that, according to petitioners, make those deci sions distinguishable.

A number of the decisions upon which petitioners rely conclude that an employee performs an integral and indispensable part of his principal work activity when driving his employer's vehicle between the employer's staging area and a work site in order to transport heavy equipment, tools, or supplies essential for performing his and others' job duties at the site.3 One reflects that travel at the end of the day necessary to maintain the tools used to do the employee's principal work can be compensable.4 The issues implicated by an overtime claim based on circumstances materially similar to home-to-work commuting were thus never addressed or decided in those decisions, which themselves recognize that overtime claims are highly contextual and "must be decided upon [their] peculiar facts." See, e.g., DA&S Oil Well Servicing, Inc. v. Mitchell, 262 F.2d 552, 554-555 & n.4 (10th Cir. 1958); accord Baker v. Barnard Constr. Co., 146 F.3d 1214, 1218-1219 (10th Cir. 1998) (Barnard Constr.).5

Petitioners (Pet. 22) also rely upon two Second Cir cuit decisions in which the commuting in question was held non-compensable: Singh v. City of New York, 524 F.3d 361 (2008) (Sotomayor, J.), and Reich. Petitioners argue that the employer requirements associated with the commuting in those cases were less significant than those involved here,6 and they speculate that under facts closer to those involved here, the Second Circuit would reach a contrary result. There is no basis for a writ of certiorari to resolve a conflict between the decision of the Federal Circuit and hypothetical future decisions of the Second Circuit. Petitioners also argue that in Singh and Reich the Second Circuit did not apply the two-tier test that petitioners attribute to the Federal Circuit. As noted, however, the Federal Circuit did not apply such a test. It applied the same test as did the Second Cir cuit, to facts that were somewhat different from the facts in the Second Circuit cases, and reached the same result as did the Second Circuit. This is not a conflict between circuits.

c. Petitioners argue (Pet. 26-29) that the Federal Circuit's construction of the FLSA and the Portal-to- Portal Act conflicts with that of DOL. The court of ap peals considered and rejected this argument, correctly concluding in this case that Bobo and Adams were con sistent with the pertinent regulations and interpreta tions issued by OPM, and that these, in turn, were con sistent with those of DOL. Pet. App. 11a-16a.7 The court noted that under OPM's regulations, "an employee 'who travels from home before the regular workday be gins and returns home at the end of the workday is engaged in normal "home to work" travel; such travel is not hours of work,'" Id. at 11a (citing 5 C.F.R. 551.422(b)), and that, likewise, "Section 553.221(e) of the Labor Department regulations, 29 C.F.R. § 553.221(e), establishes the baseline principle that '[n]ormal home to work travel is not compensable.'" Id. at 13a (citing 29 C.F.R. 785.35). Petitioners fault the court of appeals for treating the latter regulations as "aces of trump," Pet. 26, and argue that the cited language does not mean that all home to work travel is non-compensable. The regula tions do mean, however, that home to work travel is not compensable in the absence of additional requirements that turn the travel time into compensable work, and none of the DOL regulations upon which petitioners rely states that the requirements of the kind involved here are sufficient to do so.8

As petitioners note, OPM did at one time issue guid ance which could be construed as supporting petitioners' position. Pet. 5 (citing Federal Personnel Manual Let ter No. 551-10 (Apr. 30, 1976)). However, OPM with drew that guidance when it abolished its Manual in 1993 (effective 1994). See Nebblett v. OPM, 237 F.3d 1353, 1358 (Fed. Cir. 2001). OPM's superseding guidance states that commuting time "may be hours of work to the extent that the employee is required to perform sub stantial work under the control and direction of the employing agency," but that "[t]he fact that an em ployee is driving a Government vehicle in commuting to and from work is not a basis for determining that com muting time is hours of work." OPM, Hours of Work for Travel (visited Feb. 17, 2010) <http://www.opm.gov/oca/ worksch/html/travel.asp>. This agency guidance is not inconsistent with any applicable regulation or interpre tation issued by either DOL or OPM, and, as the court of appeals observed, it "is an authoritative interpreta tion that warrants deference." Pet. App. 12a (citing Auer v. Robbins, 519 U.S. 452, 461 (1997)).

d. Petitioners contend (Pet. 30-32) that the court of appeals applied a de minimis threshold in this case con trary to this Court's decision in Anderson. That conten tion does not bear scrutiny or merit this Court's review. Anderson concluded that "negligible" amounts of time performing work activities "may be disregarded" as de minimis under the FLSA. 328 U.S. at 692. "It is only when an employee is required to give up a substantial measure of his time and effort that compensable work ing time is involved." Ibid.

Nothing in Anderson suggests that this is the only way in which a "de minimis" concept might have rele vance. In this case, the petitioners engaged in activity- commuting to and from work-that is normally not com pensable. They received a government car in which to conduct this activity, on certain conditions, including that they not make personal stops during their com mute. Especially in light of the valuable benefit re ceived, a reasonable "restriction on their use of a gov ernment vehicle during their commuting time," Bobo, 136 F.3d at 1468, was a de minimis one that did not transform their entire commute into work. Cf. 29 C.F.R. 785.17 (on-call employee who uses time for own purposes is not working). Abiding by this restriction is not a ser vice to the employer, and it has no effect upon the na ture or length of the time petitioners spend driving be tween home and work, other than to prevent that time from being interrupted or lengthened for purposes other than commuting. The court of appeals properly held that "such a restriction on their use of a government vehicle during their commuting time does not make this time compensable." Pet. App. 4a (quoting Bobo, 136 F.3d at 1468).

e. The court of appeals correctly held that the plain tiffs had the burden of proof with respect to whether the activity in question constituted compensable work under the FLSA. Pet. App. 15a n.1; Adams, 471 F.3d at 1325- 1326. In so holding, the court here and in Adams relied upon this Court's statement in Anderson that "[a]n em ployee 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." 328 U.S. at 686-687. As the Adams court explained, "[t]he burden to prove that such work was performed necessarily includes the bur den to demonstrate that what was performed falls into the category of compensable work." 471 F.3d at 1326 (citing Barnard Constr., 146 F.3d at 1216).

Petitioners argue (Pet. 32-33) that the Portal-to-Por tal Act is an "exception" to the FLSA overtime require ments and that, therefore, the employer has the burden of proving that plaintiffs' commuting time falls within the Portal-to-Portal Act. As the court here and in Ad ams correctly recognized, however, the compensability of the driving in these cases did not turn upon an excep tion, but upon whether the driving constituted compen sable work at all. Anderson held that the employees bear the burden of proof on that question.

Implicit in petitioners' argument is that everything an employee does is presumed to be compensable work if the employee so characterizes it, and that it is the em ployer's burden to prove the characterization wrong. There is no basis for this premise. Consistent with this court's teaching in Anderson, the court of appeals cor rectly assigned to petitioners the burden of proving that they were performing compensable work while commut ing.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
JEANNE E. DAVIDSON
TODD M. HUGHES
SHALOM BRILLIANT
Attorneys

FEBRUARY 2010

1 The travel time that the Portal-to-Portal Act excludes from comp ensation includes travel within the employer's premises, i.e., travel much more closely related to the employee's work than commuting. As his Court noted in IBP, "walking from a time-clock near the factory gate to a workstation is certainly necessary for employees to begin their work, but it is indisputable that the Portal-to-Portal Act evinces Congress' intent to repudiate Anderson's holding that such walking time was compensable under the FLSA." 546 U.S. at 41.

2 While petitioners assert (Pet. 21) that "even a significant, direct benefit to the employee" will not make an activity non-compensable under IBP and Steiner, neither case addressed the process of distin guishing between activities that primarily benefit the employer and those that do not. See IBP, 546 U.S. at 25, 32 (noting rule that activity must be "primarily for the benefit of the employer" to constitute compensable work in case where litigants did not challenge ruling that donning and doffing unique protective gear was an "integral and indispensable" part of employees' principal work activity); Steiner, 350 U.S. at 252, 256 (no challenge to similar ruling).

3 See, e.g., Secretary of Labor v. E.R. Field, Inc., 495 F.2d 749, 750- 751 (1st Cir. 1974) (electrician hired to work at construction site works when driving employer's truck to transport necessary tools and equipment from employer's shop to jobsite); Mitchell v. Mitchell Truck Line, Inc., 286 F.2d 721, 723-725 (5th Cir. 1961) (truck drivers hired to deliver construction materials work when driving trucks from em ployer's truck yard to loading facility and when returning to yard after dropping load at destination); DA&S Oil Well Servicing, Inc. v. Mitchell, 262 F.2d 552, 554-555 (10th Cir. 1958) (employees hired to perform services at oil well work when driving trucks that transport necessary heavy equipment back from well site to employer's base); cf. Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir.) (discussing unpublished and non-precedential decision holding that employees work when driving vehicles that transport necessary tools from employer's lot to work site), cert. denied, 552 U.S. 1077 (2007). The same result holds true when an employee must transit from one employer-specified location to another in the middle of the workday. See United Transp. Union Local 1745 v. City of Albuquer que, 178 F.3d 1109, 1118-1119 (10th Cir. 1999).

4 See Baker v. Barnard Constr. Co., 146 F.3d 1214 (10th Cir. 1998). Baker held that welders hired to perform welding services at a worksite must be compensated for the "travel time associated with refueling and restocking the welding rigs" if such travel is proven to be an integral and indispensable part of their principal work activity, id. at 1215-1217, and that a jury must decide whether it was necessary "to transport the rigs from the work site each day to refuel and restock" or whether such maintenance could be performed on site. Id. at 1219. Because Baker concerned only "whether the travel associated with refueling and restocking the rigs" is compensable work, ibid., it did not address whether a welder must be compensated for his commute home if he drives there after refueling and restocking.

5 The Ninth Circuit, in a unpublished decision, has ruled that work foremen who were employed to drive their specially equipped company trucks to an out-of-town jobsite in order to transport equipment, tools, and crew members to the site each day must be compensated for driving the trucks back to town (often to their homes) because their employer required that they drive the trucks away from the worksite and prohibited them from returning the trucks to the company office in town. See Dole v. Flint Eng'g & Constr. Co., 914 F.2d 262 (1990) (Table). That decision is consistent with the outcome in this case, and, in any event, would not give rise to a circuit conflict warranting this Court's review because it has no precedential effect for future cases. See 9th Cir. R. 36-3(a).

6 Petitioners also exaggerate the difference. For example, they stress that in Reich, unlike in Bobo, "'the handlers were not required to drive,' at all." Pet. 23 (quoting Reich, 45 F.3d at 651). In the sen tence from which petitioners quote, however, the court also stated that the handlers' commute was required to be in a private vehicle. As a practical matter, unless the handler had someone to drive him, he was required to drive.

7 Congress authorized OPM to administer the FLSA in the Federal sector. See 29 U.S.C. 204(f); see also H.R. Rep. No. 913, 93d Cong., 2d Sess. 28 (1974) (indicating Congress wanted Civil Service Commission (OPM's predecessor) to administer the FLSA in a manner generally consistent with the interpretations adopted by DOL in other sectors of the economy); Billings v. United States, 322 F.3d 1328, 1333-34 (Fed. Cir.), cert. denied, 540 U.S. 982 (2003).

8 See, e.g., 29 C.F.R. 790.7(d) ("carrying by a logger of a portable power saw or other heavy equipment * * * on his trip into the woods to the cutting area" is not covered by Section 4(a)); 29 C.F.R. 785.41 ("work" required to be performed while traveling is compensable; employee whose "work" is to drive a vehicle or ride in one as a helper is working while riding); Wage & Hour Div., U.S. Dep't of Labor, Field Operations Handbook § 31d (May 30, 1986) <http://www.dol.gov/whd/ FOH/index.htm> (addressing "special problems" applicable to em ployees employed to drive ambulances); id. § 31d00(a)(5). As the court of appeals noted, the cited Handbook's discussion of the "special problems" concerning ambulance drivers "cannot simply be extrapo lated to all public servants who are required to use their official vehicles for commuting." Pet. App. 14a.