Bridges v. United States ( 2021 )

In the United States Court of Federal Claims
No. 18-727C
(Filed: October 7, 2021)
FOR PUBLICATION
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ROBERT BRIDGES, et al., *
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Plaintiffs, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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David Ricksecker, McGillivary Steele Elkin LLP, Washington, D.C., for
Plaintiffs. With him on briefs was Gregory K. McGillivary, McGillivary Steele Elkin
LLP, Washington, D.C.
Robert R. Kiepura, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C. for Defendant,
United States. With him on briefs were Joseph H. Hunt, Assistant Attorney General,
Jeffrey Bossert Clark, Acting Assistant Attorney General, Ethan P. Davis, Acting
Assistant Attorney General, Robert E. Kirschman, Jr., Director, Reginald T. Blades,
Jr., Assistant Director, Lauren S. Moore, Trial Attorney, and Jana Moses, Trial
Attorney, Commercial Litigation Branch, Civil Division, United States Department
of Justice, Washington, D.C, as well as Kathleen Haley Harne, Assistant General
Counsel, Employment Law Branch, Office of General Counsel, Federal Bureau of
Prisons, Washington, D.C.
OPINION AND ORDER
Plaintiffs — current and former Federal Bureau of Prisons employees at
Federal Correctional Institution Milan (“FCI Milan” or “the Prison”) — seek overtime
compensation under the Fair Labor Standards Act (“FLSA”) for time spent traveling
between their regularly scheduled shifts at the Prison and voluntary overtime shifts
guarding inmates at area hospitals. Plaintiffs also seek compensation for mileage
accumulated on their personal vehicles in transit between regular and overtime
shifts. The parties’ cross-motions for summary judgment are ripe for disposition.1
1Pls.’ Mot. for Partial Summ. J. (ECF 33) (“Pls.’ Mot.”) and Pls.’ Mem. ISO Mot. for Partial Summ. J.
(ECF 34) (“Pls.’ Mem.”); Def.’s Resp. to Pls.’ Mot. for Partial Summ. J. & Cross-Mot. for Partial Summ.
There are no genuine disputes of material fact. Rather, the case turns on how
the relevant regulations define Plaintiffs’ workday. Those regulations rule out
compensation for the travel time at issue. Accordingly, Defendant’s motion is
GRANTED, and Plaintiffs’ motion is DENIED. The case is DISMISSED.
BACKGROUND
FCI Milan inmates with medical needs that cannot be handled at the Prison
are admitted to nearby hospitals, where correctional workers guard the inmates at
all times. Pls.’ Mem. App. at PA9–10.2 Hospital posts are staffed by Prison employees
on overtime assignments. PA9.
Work schedules at the Prison and the relevant hospitals are organized into
shifts. At the hospitals where FCI Milan inmates are most commonly treated, shifts
are usually staggered an hour later than Prison shifts. PA17, PA21, PA161–64,
PA272, PA274, PA277. The hospitals are approximately 15 miles away from FCI
Milan, or about a 20-minute drive. PA13, PA18, PA40. As a result, Prison workers
doing hospital assignments typically complete their Prison shift, then travel to a
hospital for an overtime shift. PA21. Other arrangements for scheduling Prison and
hospital shifts are possible, see, e.g., PA22–23, but the parties agree that the legal
analysis is the same.
Hospital and Prison shifts are both tracked in the Prison’s roster. PA31, PA41,
PA101. But they are scheduled differently. FCI Milan employees normally bid on
quarterly posts at the Prison, with posts scheduled two weeks in advance. PA9, PA28.
Hospital shifts are not assigned in that way. PA8–9, PA28, PA101, PA114. Instead,
employees voluntarily sign up for overtime availability and leave a phone number
“for management to call.” PA250, PA 253. When overtime shifts need to be assigned,
the lieutenant on duty contacts employees by phone according to their order on a
rotation. PA18, PA28, PA 250, PA253. Employees can accept or decline the overtime
when contacted. If necessary, the Prison assigns workers to mandatory hospital
overtime, but employees usually volunteer. PA22.
Employees who work a shift at FCI Milan and then a volunteer overtime shift
at a hospital are compensated for the time they spend at their posts, but not for their
travel time between work locations. In contrast, Prison employees are paid for travel
when they are assigned to mandatory overtime shifts, or when they must travel to a
J. on the Issue of Liability (ECF 38) (“Def.’s Resp. & Cross-Mot.”); Pls.’ Reply & Opp. to Def.’s Mot. for
Summ. J. (ECF 40) (“Pls.’ Reply & Opp.”); Def.’s Reply to Pls.’ Resp. to Def.’s Cross-Mot. for Partial
Summ. J. (ECF 41) (“Def.’s Reply”). I heard oral argument on June 11, 2021. Tr. of Oral Arg. (ECF 46).
2 Further citations to Plaintiffs’ Appendix will be to “PA.” Neither party has submitted declarations
authenticating the exhibits submitted in support of the cross-motions, but nor has either party objected
to the other’s failure to do so. RCFC 56(c)(2).
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hospital during their regular Prison shift. PA22, PA50. Employees are also
compensated when they transport prisoners or drive a government vehicle to the
hospital. PA19, PA33, PA42, PA100.
Overtime for Prison-to-hospital travel has been a matter of controversy at FCI
Milan before. Three memoranda of understanding between FCI Milan and the Prison
employees’ union (the “MOUs”) contain language covering overtime assignments: “[I]f
the assignment is located away from the official duty station within the local
commuting area (i.e. outside hospital), time spent traveling will not be considered
hours of work, unless the employee is required to drive a government vehicle or
perform work while traveling.” Def.’s Resp. & Cross-Mot. Exh. B at 1 (ECF 39-2);
PA251, PA254.
DISCUSSION
I. Jurisdiction
The United States Court of Federal Claims has jurisdiction under the Tucker
Act to adjudicate “any claim against the United States founded either upon … any
Act of Congress or any regulation of an executive department … in cases not sounding
in tort.” 28 U.S.C. § 1491(a)(1). Because the Tucker Act is “a jurisdictional statute
[that] does not create any substantive right enforceable against the United States for
money damages,” United States v. Testan, 424 U.S. 392, 398 (1976) (citing Eastport
S.S. Corp. v. United States, 178 Ct. Cl. 599, 605–07 (1967)), parties asserting Tucker
Act jurisdiction must “identify a substantive right for money damages against the
United States, separate from the Tucker Act itself.” Todd v. United States, 386 F.3d
1091, 1094 (Fed. Cir. 2004). That entails identifying a “money mandating” source of
law, i.e., a statute or regulation that “can fairly be interpreted as mandating
compensation by the Federal Government for the damage sustained and is reasonably
amenable to the reading that it mandates a right of recovery in damages.” Jan’s
Helicopter Serv., Inc. v. F.A.A., 525 F.3d 1299, 1307 (Fed. Cir. 2008) (quotes and
citations omitted) (quoting United States v. Mitchell, 463 U.S. 206, 217 (1983), and
United States v. White Mountain Apache Tribe, 537 U.S. 465, 473 (2003)).
Plaintiffs’ claims for uncompensated travel time are based on FLSA, which is
a money-mandating source of law. See Abbey v. United States, 745 F.3d 1363, 1369
(Fed. Cir. 2014). Their claims for mileage reimbursement rely on other sources of law
that require non-discretionary payment by the United States to particular recipients.
See 5 U.S.C. § 5704(a)(1) (“[A]n employee who is engaged on official business for the
Government is entitled to a rate per mile established by the Administrator of General
Services, instead of the actual expenses of transportation, for the use of a privately
owned automobile when that mode of transportation is authorized or approved as
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more advantageous to the Government.”); Program Statement 2200.04 at 23–24, BOP
Temporary (TDY) Travel Regulation (Dec. 1, 2016) (ECF 49-1) (providing that
employees “must receive a mileage reimbursement” for travel in personal vehicles
when requirements are met). Those terms are money-mandating as well. See, e.g.,
Jan’s Helicopter Serv., Inc., 525 F.3d at 1307.3 The Court therefore has jurisdiction
over both claims.
“[T]he special statute of limitations governing the Court of Federal Claims
requires” that timeliness be considered a jurisdictional question. John R. Sand &
Gravel Co. v. United States, 552 U.S. 130, 132 (2008). FLSA claims must be brought
within two years of alleged violations, or within three years of willful violations. 29
U.S.C. § 255(a). Plaintiffs allege that the challenged payment practices have
continued “on an ongoing basis to date,” Am. Compl. ¶ 7 (ECF 2), and the summary
judgment record bears that out. Plaintiffs’ claims are therefore timely.
II. Merits
A. Summary Judgment Standard
A party seeking summary judgment must show “that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” RCFC 56(a). “[A]ll evidence must be viewed in the light most favorable to the
nonmoving party, and all reasonable factual inferences should be drawn in favor of
the nonmoving party.” Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202
(Fed. Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)). Summary judgment should
be granted “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Cross-motions for summary judgment should be evaluated as independent
motions. “[T]he court must evaluate each party’s motion on its own merits, taking
care in each instance to draw all reasonable inferences against the party whose
3 In Agwiak v. United States, the Federal Circuit held that a different statute providing that given
individuals were “entitled” to money was money-mandating. 347 F.3d 1375, 1380 (Fed. Cir. 2003).
Likewise, as a rule courts treat the word “must” as mandatory. See O’Farrell v. Dep’t of Def., 882 F.3d
1080, 1085 (Fed. Cir. 2018) (referring to word “must” as a “mandatory term”), and K-Con, Inc. v. Sec’y
of Army, 908 F.3d 719, 725 (Fed. Cir. 2018) (similar) (both citing Kingdomware Techs., Inc. v. United
States, 136 S. Ct. 1969, 1977 (2016)). “[U]se of the word ‘shall’ generally makes a statute money-
mandating,” see Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 877 (Fed. Cir. 2007) (quoting
Agwiak, 347 F.3d at 1380), and “must” means the same thing here. See J.H. Miles & Co. v. United
States, 3 Cl. Ct. 10, 13 (1983) (defining “shall” as “must”); Contreras v. United States, 64 Fed. Cl. 583,
592–93 (2005) (holding a statute not money mandating because it did not use the terms “‘shall’ or
‘must,’ which very obviously connote[] mandatory action”), aff’d, 168 F. App’x 938 (Fed. Cir. 2006).
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motion is under consideration.” Mingus Constructors, Inc. v. United States, 812 F.2d
1387, 1391 (Fed. Cir. 1987) (citing Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 313–
14 (2d Cir. 1981)). “[T]he court is not relieved of its responsibility to determine the
appropriateness of summary disposition in a particular case,” even if the parties
agree that no material facts are disputed and summary disposition is appropriate.
Williams v. United States, 144 Fed. Cl. 218, 230 (2019) (citing Prineville Sawmill Co.
v. United States, 859 F.2d 905, 911 (Fed. Cir. 1988)).
B. Analysis
FLSA requires compensation for hours worked, including work “suffer[ed] or
permit[ted]” by the employer. 29 U.S.C. §§ 203(g), 207(a)(1); see also 5 C.F.R.
§ 551.401(a). The Portal-to-Portal Act limits that mandate with a general rule
excluding time spent in travel to and from work:
[N]o employer shall be subject to any liability or punishment under the
Fair Labor Standards Act of 1938, as amended … on account of the
failure of such employer to pay an employee minimum wages, or to pay
an employee overtime compensation, for or on account of any of the
following activities of such employee engaged in on or after May 14,
1947—
(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,
which occur either prior to the time on any particular workday at which
such employee commences, or subsequent to the time on any particular
workday at which he ceases, such principal activity or activities.
29 U.S.C. § 254(a). Plaintiffs argue, rather, that travel between FCI Milan and
volunteer overtime shifts at a hospital occurs within a “continuous workday” —
running from the start of the regular shift to the end of the overtime shift — during
which all Plaintiffs’ time is compensable work. Pls.’ Mem. at 14. To succeed, Plaintiffs
must show that Office of Personnel Management (“OPM”)4 regulations establish a
4 Except as to employees of certain named agencies, “the Director of the Office of Personnel
Management is authorized to administer the provisions of [FLSA] with respect to any individual
employed by the United States[.]” See 29 U.S.C. § 204(f)); see also 5 C.F.R. §§ 551.102, 551.103. OPM
is required to do so consistently with “the rulings, regulations, interpretations, and opinions of the
Secretary of Labor which are applicable in other sectors of the economy,” see Billings v. United States,
322 F.3d 1328, 1333 (Fed. Cir. 2003) (quoting Fair Labor Standards Amendments of 1974, H.R. R EP.
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“workday” mandating compensation for travel between the Prison and overtime shifts
at hospitals. That argument is inconsistent with the relevant regulations, and
therefore fails.5
First, Plaintiffs’ “continuous workday” theory does not account for how OPM
regulations treat non-work time during the workday. Plaintiffs rely heavily on a
Department of Labor (“DOL”) interpretation of FLSA providing that “[t]ime spent by
an employee in travel as part of his principal activity, such as travel from job site to
job site during the workday, must be counted as hours worked.” 29 C.F.R. § 785.38.
But whatever that language might mean, DOL’s interpretations do not govern
Plaintiffs; OPM’s do. An OPM regulation — which Plaintiffs ignore — uses different
language:
A preparatory or concluding activity that is not closely related to the
performance of the principal activities is considered a preliminary or
postliminary activity. Time spent in preliminary or postliminary
activities is excluded from hours of work and is not compensable, even if
it occurs between periods of activity that are compensable as hours of
work.
5 C.F.R. § 551.412(b) (emphasis added). Far from establishing the “continuous
workday” Plaintiffs envision, that regulation specifically excludes compensation for
activities that are not “closely related” to an employee’s principal activities, even
during the course of a workday.6
NO. 93–913, at 28 (1974), reprinted in 1974 U.S.C.C.A.N. 2811, 2837), and OPM regulations are invalid
if they depart from the Secretary’s official positions without justification, see id. at 1334; see also Am.
Fed’n of Gov’t Employees v. Office of Pers. Mgmt., 821 F.2d 761, 770 (D.C. Cir. 1987); Plaintiff No. 1 v.
United States, No. 19-1019C, 2021 WL 2283858, at *3 (Fed. Cl. May 20, 2021). Plaintiffs do not
challenge the validity of OPM’s regulations. Plaintiffs suggest in passing that the OPM regulations
should be interpreted in light of Federal Personnel Manual Letter No. 551–10 (1976), see Pls.’ Mem.
at 22, but do not explain what the letter says or why it is entitled to deference in light of subsequent
regulations.
5 Plaintiffs concede that their mileage claim falls with their claim for uncompensated travel time. Tr.
of Oral Arg. at 38. That is consistent with the relevant statute, which requires mileage compensation
for employees “engaged on official business for the Government[.]” 5 U.S.C. § 5704(a)(1). Given that
Plaintiffs do not perform any work during the travel time at issue, they plainly are not conducting
official business. The statute is consistent with the superseded travel regulation Plaintiffs rely upon.
See U.S. Department of Justice, Federal Bureau of Prisons Directive 2200.01 (May 5, 2000) (PA387).
It also appears to be consistent with the current version of the regulation, Program Statement 2200.04,
though Plaintiffs have forfeited any argument based on the new version to the extent it differs from
the prior one. Therefore, Plaintiffs are not entitled to mileage reimbursement.
6 That reading tallies with the underlying OPM definition of “workday,” which provides that an
employee’s “hours of work” include “[a]ll time spent by an employee in the performance of [principal]
activities,” 5 C.F.R. § 551.411(a), and thus impliedly exclude other kinds of activities. Meals and rest
breaks are governed by their own rules. 5 C.F.R. § 551.411(b), (c).
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The parties appear to agree that a Prison employee’s principal activity is
guarding prisoners, whether at the Prison or a hospital. See Pls.’ Mem. at 3–4; Def.’s
Resp. & Cross-Mot. at 2–3; Def.’s Reply at 9. But under the Portal-to-Portal Act,
travel to the place of work is generally separate from the work itself, see IBP, Inc. v.
Alvarez, 546 U.S. 21, 41 (2005); 29 U.S.C. § 254(a), and Plaintiffs do not argue that
their travel is “closely related” to guarding.7 5 C.F.R. § 551.412(b); cf. Integrity
Staffing Solutions, Inc. v. Busk, 574 U.S. 27, 36 (2014) (explaining that in
determining what activities are “integral and indispensable” to principal activities,
the question is not “whether an employer required a particular activity” but what
“productive work … the employee is employed to perform”). Plaintiffs pause their
guarding responsibilities at the end of their Prison shifts, so even though they resume
similar activities at the hospital, travel to the second worksite is “excluded from hours
of work and is not compensable[.]” 5 C.F.R. § 551.412(b).
Plaintiffs argue that the “continuous workday” obliterates the distinction
between principal activities and preparatory or concluding activities: Travel, in their
view, “is actually part of the principal activities that are part [of] the continuous
workday.” Pls.’ Reply & Opp. at 8. But that ignores the critical OPM regulation,
which, again, requires distinguishing between “principal activities” and separate
“preparatory or concluding” activities — even in the course of a workday. 5 C.F.R.
§ 551.412(b). Because Plaintiffs’ travel falls in the latter category, the OPM
regulation rules out compensation.
Second, Plaintiffs are also mistaken in their premise that OPM regulations
define a “workday” that combines Prison and volunteer overtime shifts into a single
continuous unit. Plaintiffs’ travel occurs outside the workday, as OPM defines it. They
would thus lose even if they were right that OPM regulations require compensation
for all activities during a continuous workday. A close reading of the regulations
shows why.
OPM defines a “workday” as the time between the “commencement” and
“cessation” of “the principal activities that an employee is engaged to perform on a
given day[.]” 5 C.F.R. § 551.411(a); see Van Buren v. United States, 141 S. Ct. 1648,
1657 (2021) (“When a statute includes an explicit definition of a term, we must follow
that definition, even if it varies from a term’s ordinary meaning.”) (quoting Tanzin v.
Tanvir, 141 S. Ct. 486, 490 (2020) (quotes omitted)); Tesoro Haw. Corp. v. United
States, 405 F.3d 1339, 1346 (Fed. Cir. 2005) (noting that “[w]e construe a regulation
7 There are circumstances where travel is closely related to work. For example, time spent walking in
essential protective equipment between a locker room and a factory floor is compensable. IBP, Inc.,
546 U.S. at 37. But the Portal-to-Portal Act distinguishes those cases from simply traveling to a work
location, even at an employer’s direction.
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in the same manner as we construe a statute”). “Principal activities,” in turn, “are the
activities that an employee performs during his or her regularly scheduled
administrative workweek (including regular overtime work)[.]” 5 C.F.R.
§ 550.112(a).8 “Regularly scheduled administrative workweek” and “regular overtime
work” have regulatory definitions as well, both of which underscore that the work
must be “regularly scheduled.” Id. The former means “the period within an
administrative workweek … within which the employee is regularly scheduled to
work.” 5 C.F.R. § 550.103; 5 C.F.R. § 610.102 (similar language); see also 5
C.F.R. § 610.111 (prescribing agency authority to establish the workweek). The latter
means “overtime work that is part of an employee’s regularly scheduled
administrative workweek.” 5 C.F.R. § 550.103.
Reading those nested definitions together, it turns out that the bounds of an
employee’s “workday” depend not just on what he is doing, but on how his time is
scheduled. The workday begins and ends with the employee’s “principal activities,”
see 5 C.F.R. § 551.411(a), but “principal activities” by definition occur “during [a]
regularly scheduled” work period, see 5 C.F.R. § 550.112(a). Work and closely related
activities are still compensable when not regularly scheduled, see 29 U.S.C. § 203(g);
see also IBP, Inc., 546 U.S. at 33, but then they are not part of an employee’s principal
activities for purposes of defining a workday under OPM regulations. The “workday”
is thus a “regularly scheduled” unit of time, excluding compensable work time that is
not regularly scheduled.
It is important to acknowledge an alternative reading. It could be that
although the activities an employee is regularly scheduled to perform are his
“principal activities,” the workday includes all the time he spends performing those
activities, whether the time is “regularly scheduled” or not. That interpretation finds
some support from the statute, caselaw, and DOL interpretations. See IBP, Inc., 546
U.S. at 34 (noting that it is “unlikely … that Congress intended to create an
intermediate category of activities that would be sufficiently ‘principal’ to be
compensable, but not sufficiently principal to commence the workday”); see also 29
C.F.R. § 790.8 (DOL regulation defining “principal activities” without reference to
regular scheduling). But when it comes to the OPM regulations — which, again,
8 Principal activities also include “activities performed by an employee during periods of irregular or
occasional overtime work authorized under [5 C.F.R.] § 550.111.” 5 C.F.R. § 550.112(a). Plaintiffs
argue that voluntary Prison overtime meets that definition. Tr. of Oral Arg. at 25. But the overtime
authorization provisions of Section 550.111 implement the Federal Employees Pay Act (“FEPA”),
which covers overtime that has been “officially ordered or approved.” 5 U.S.C. § 5542(a); see generally
Doe v. United States, 372 F.3d 1347 (Fed. Cir. 2004). Those aspects of Section 550.111 are inapplicable
to federal employees covered by FLSA’s overtime provisions. See 5 C.F.R. § 550.101(c). And Plaintiffs
have not presented a FEPA claim.
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Plaintiffs do not challenge — that reading is inferior for at least two reasons. First,
OPM has provided that “[i]n determining what activities constitute hours of work
under the Act, there is generally a distinction based on whether the activity is
performed by an employee during regular working hours or outside regular working
hours.” 5 C.F.R. § 551.421(a). For example, OPM regulations explicitly tie
compensation for travel time to whether the travel is during “regular working hours.”
5 C.F.R. § 551.422 (discussed below); see also 5 C.F.R. § 550.112(g). It is not
surprising that non-regularly scheduled activities would also be excluded from the
definition of a “workday.” Second, OPM defines principal activities to include
“activities performed by an employee during periods of irregular or occasional
overtime work authorized under [5 C.F.R.] § 550.111,” but not other kinds of irregular
overtime, such as volunteer hospital shifts. See 5 C.F.R. § 550.112(a). Several aspects
of the OPM regulatory scheme, in other words, reinforce the conclusion that Plaintiffs’
principal activities end with the regularly scheduled day, not when Plaintiffs
ultimately stop guarding prisoners and go home.9
So how are the Prison shifts and voluntary hospital overtime shifts scheduled?
Plaintiffs’ counsel conceded at argument that the former are regularly scheduled,
while the latter are not. Tr. of Oral Arg. at 25–26.10 The record shows no genuine
issue of fact on the subject, even drawing all inferences in Plaintiffs’ favor. As
discussed above, Prison employees bid on their regular posts quarterly. See PA9,
PA95, PA270–79 (example of quarterly rosters that show an employee’s shift during
any given week). But with hospital overtime shifts, employees instead sign up on a
list to receive overtime assignments. PA18. FCI Milan’s Administrative Lieutenant
testified that he does not include the hospital shifts when preparing the schedule two
weeks in advance. PA28. The operations lieutenant running the day-to-day shift
monitors for overtime assignments, which are offered ad hoc on a rotational basis.
PA18, PA28, PA250, PA253.
The hospital shifts, in short, are not scheduled in the same way as the Prison
shifts, and they are not “regular” in any plausible sense. Prison employees therefore
do not perform their “principal activities,” as that term is defined by regulation, when
they work those shifts. 5 C.F.R. § 550.112(a). Their “principal activities” — and thus
their “workday” — begin and end with the Prison shift. Thus, even if OPM regulations
9 In any event, even if the alternative reading were better, Plaintiffs would still lose under 5 C.F.R.
§§ 551.412 and 551.422.
10 Defendant’s counsel stated that both Prison and hospital shifts are scheduled and recorded through
the same roster system, and expressed the view that both were part of the regularly scheduled
workweek. Tr. of Oral Arg. at 50. But counsel also recognized that the actual scheduling process is
different. Id. at 59. Even if the parties’ counsel both conceded the same issue against their clients’
interest, the record leaves no question that Plaintiffs’ concession was correct.
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established a continuous workday during which all time is compensable, contra 5
C.F.R. § 551.412(b), voluntary hospital overtime shifts would not be included within
the workday. Travel between Prison shifts and hospital shifts is preliminary or
postliminary to employees’ principal activity, and so noncompensable.
Third, OPM has promulgated a regulation on compensability of travel time.
For federal employees, “[t]ime spent traveling shall be considered hours of work if:
[inter alia] [a]n employee is required to travel during regular working hours [or] … is
required to drive a vehicle or perform other work while traveling[.]” 5 C.F.R.
§ 551.422(a)(1)–(2).11 That provision also precludes Plaintiffs from recovering
overtime.
Plaintiffs’ travel is not during “regular working hours.” “‘[R]egular working
hours’ means the days and hours of an employee’s regularly scheduled administrative
workweek established under part 610 of this chapter.” 5 C.F.R. § 551.421(a). And, as
discussed above, “[r]egularly scheduled administrative workweek … means the
period within an administrative workweek … within which the employee is regularly
scheduled to work.” 5 C.F.R. § 610.102; see also 5 C.F.R. § 550.103 (similar language).
For the same reasons described above, the voluntary hospital shifts are not regularly
scheduled, so time between the hospital shifts and the Prison shifts is not within
Plaintiffs’ “regular working hours.” Section 551.422(a)(1) thus does not allow
compensation.12
Nor is Plaintiffs’ travel compensable as “work while traveling” under
Section 551.422(a)(2). For OPM-regulated federal employees, “work” means “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). Travel can certainly be
work if it meets that description. Section 551.422(a)(2) mentions workers being
“required to drive a vehicle,” for example. As relevant here, Plaintiffs are in fact
11 See also 5 C.F.R. § 550.112(g) (“Time in travel status away from the official duty-station of an
employee is deemed employment only when: (1) It is within his regularly scheduled administrative
workweek, including regular overtime work; or (2) The travel— (i) Involves the performance of actual
work while traveling[.]”); 5 C.F.R. § 551.401(h) (“For the purpose of determining overtime pay for work
in excess of 40 hours in a workweek under this part, time spent in a travel status is hours of work as
provided in § 551.422 of this part and § 550.112(g) of this chapter or 5 U.S.C. [§] 5544, as applicable.”).
12 The parties argue at length over decisions by the Federal Labor Relations Authority (“FLRA”)
applying Section 551.422 and related regulations to fact patterns similar to this case. “FLRA decisions
are entitled to deference because of the FLRA’s expertise in the area of labor law” but should not be
followed when “inconsistent with a statutory mandate or the congressional policy underlying a
statute.” Albright v. United States, 26 Cl. Ct. 1119, 1124 (1992), aff’d, 10 F.3d 790 (Fed. Cir. 1993)
(citing Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 (1983), and NLRB v. Brown,
380 U.S. 278, 291–92 (1965)). Although the Court does not entirely endorse the FLRA’s reasoning, its
decisions reinforce the conclusions expressed in this Order.
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compensated if they have to transport a prisoner to the hospital, PA100, or drive a
government vehicle, PA108. But simply driving a personal vehicle from the location
of a regular shift to a voluntary second shift is not of that description. It is not “for
the benefit” of the Prison any more than other travel excluded from compensable work
hours by the Portal-to-Portal Act.
Plaintiffs dispute whether Section 551.422 applies at all. Pls.’ Mem. at 21. One
portion of the regulation authorizes agencies to “prescribe a mileage radius of not
greater than 50 miles to determine whether an employee’s travel is within or outside
the limits of the employee’s official duty station for determining entitlement to
overtime pay for travel under this part.” 5 C.F.R. § 551.422(d). Plaintiffs argue that
the regulation is wholly inapplicable to travel within 50 miles of the Prison, and
stipulate that the travel at issue in this case is within that radius. Pls.’ Mem. at 21.
Some aspects of Section 551.422 do involve travel away from an employee’s duty
station, and so depend on how a duty station is geographically defined. See 5 C.F.R.
§ 551.422(a)(3)–(4), (b). Those provisions are inapplicable here. The parts of the
regulation cited above, though, are not limited to duty stations and therefore govern
Plaintiffs’ entitlement to compensation for travel time. And none of them authorizes
compensation for travel between the Prison and voluntary overtime shifts.13
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Partial Summary Judgment is
DENIED, and Defendant’s cross-motion is GRANTED. The case is DISMISSED.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
s/ Stephen S. Schwartz
STEPHEN S. SCHWARTZ
Judge
13 Plaintiffs’ employment relationship with FCI Milan is also defined by their collective bargaining
agreement — specifically, several memoranda of understanding addressing this very issue. Since 2011,
the agreements have stated that travel between the Prison and an “outside hospital” is not
compensable unless an employee is required to perform other work or drive a government vehicle.
Def.’s Resp. & Cross-Mot. Exh. B at 1 (2011 MOU); see also PA251 (2015 MOU), PA254 (2017 MOU).
The MOUs cannot diminish Plaintiffs’ rights under FLSA, which are “nonwaivable” and therefore
“take precedence over conflicting provisions in a collectively bargained compensation arrangement.”
Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 740–41 (1981) (collecting cases). But nor
can an MOU obligate the government to pay more than Congress has authorized. See U.S. Const. art.
I, § 9, cl. 7; 31 U.S.C. §§ 1341(a)(1)(A), 1342. Although the MOUs are more consistent with the
government’s litigation position, the parties have not shown that the MOUs resolve any of the
underlying statutory and regulatory interpretation questions. I therefore interpret FLSA and the
relevant regulations, not the MOUs.
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