Forbes v. United States

84 Fed. Cl. 319, 2008 U.S. Claims LEXIS 298, 2008 WL 4646053
CourtUnited States Court of Federal Claims
DecidedOctober 16, 2008
DocketNo. 06-510C
StatusPublished
Cited by12 cases

This text of 84 Fed. Cl. 319 (Forbes v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Forbes v. United States, 84 Fed. Cl. 319, 2008 U.S. Claims LEXIS 298, 2008 WL 4646053 (uscfc 2008).

Opinion

OPINION AND ORDER

LETTOW, Judge.

Evangela Forbes filed suit in this court alleging that her employer, the Department of Justice, has violated provisions of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201-219, and the leave, holiday, and premium-pay provisions of Title 5 of the United States Code. 5 U.S.C. §§ 5542, 5545-46. Ms. Forbes, a diversion investigator for the Drug Enforcement Administration [320]*320(“DEA”), seeks to recover back pay, liquidated damages, interest, attorney’s fees, and costs. Compl. U1. Following a partial settlement, the issue presently before the court is whether Ms. Forbes is entitled to overtime pay under the FLSA for time solely spent driving in a government vehicle between home and work. The United States has submitted a motion for judgment on the pleadings, contending that Ms. Forbes has failed to state a claim upon which relief can be granted. See Def.’s Mot. for Judgment on the Pleadings, Dismissing the Claims to be Adjudicated (“Def.’s Mot.”) at 1. Ms. Forbes has submitted a cross-motion for partial summary judgment regarding the potentially dispositive “driving time” issue, arguing on numerous grounds that she is entitled to compensation under the FLSA. See Pl.’s Mot. for Partial Summ. Judgment Regarding the “Driving Time” Issue and Opp’n to Def.’s Mot. for Judgment on the Pleadings (“Pl.’s Cross-Mot.”).

A hearing on the pending motions was held on September 15, 2008.1 The competing motions accordingly are ready for disposition.

BACKGROUND2

In enacting the FLSA, Congress sought “to achieve a uniform national policy of guaranteeing compensation for all work or employment engaged in by employees covered by the Act.” Tennessee Coal, Iron & R.R. v. Muscoda Local No. 123, 321 U.S. 590, 602, 64 S.Ct. 698, 88 L.Ed. 949 (1944). This case particularly turns on the changes to the FLSA made by the Portal-to-Portal Act, as amended in turn by the Employee Commuting Flexibility Act of 1996, Pub.L. No. 104-188, § 2101, 110 Stat. 1755, 1928 (1996) (codified at 29 U.S.C. § 254(a)). See Adams v. United States, 471 F.3d 1321, 1324-25 (Fed. Cir.2006) (summarizing the circumstances leading to the adoption of the Portal-to-Portal Act and its effect on the FLSA). The Portal-to-Portal Act excluded from FLSA liability such activities as

[wjalking, 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 post-liminary to said principal activity or activities.

29 U.S.C. § 254(a). In terms of compensating employees for transportation-based work, the Portal-to-Portal Act specifically declared that

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.

Id. (emphasis added). Thus, the Portal-to-Portal Act exempted certain employee activities from the definition of compensable work under the FLSA.

As a diversion investigator employed by DEA, Compl. H1, Ms. Forbes “is responsible for addressing the problem of diversion of controlled pharmaceuticals and regulated chemicals from the legitimate channels in which they are manufactured, distributed and dispensed.” Def.’s Resp. to Pl.’s Proposed Findings of Uneontroverted Fact (“Def.’s Facts”) at 12. A diversion investigator engages in field work when he or she “conducts either a regulatory, civil or criminal investigation at a location other than at a DEA office.” Def.’s Facts at 9. Federal agency employees engaged in field work can be authorized to use government vehicles to transport themselves from home to work. See 41 C.F.R. § 102-5.35. In accord with this regulatory authorization, Ms. Forbes has been provided with a government vehicle for use in transporting herself between her home [321]*321and the locations where field work is performed.

On June 29, 2007, the parties entered into a settlement resolving certain of plaintiffs FLSA claims but expressly reserving for further litigation the plaintiffs FLSA “driving time” claims, along with any claims based upon plaintiffs employment in positions and at agencies other than those identified in the settlement. See Pl.’s Cross-Mot., Declaration of Jules Bernstein, Ex. 1 (Partial Settlement Agreement Covering Plaintiffs at DEA in OPM Occupational Series 1801 and 1810 Non-Supervisory Positions at the GS-9 Through GS-13 Grade Levels (June 29, 2007) (“Partial Settlement Agreement”)) at 1Í 5(0) (providing that plaintiff may continue to pursue a claim “for back pay, liquidated damages and/or interest for FLSA overtime and other pay or compensation against the United States not covered by this Agreement, including [her] claims for the time solely spent driving a government vehicle from home to work and work to home (‘driving time’) as an FLSA non-exempt employee”). In her complaint, Ms. Forbes makes no claims based upon employment in positions and at agencies other than those identified in the Partial Settlement Agreement, and she does not allege any claims other than those for compensation under the FLSA and Title 5 of the United States Code. Compl. HH1, 7. Accordingly, Ms. Forbes’s claim for compensation for her “driving time” to and from work is the only claim that remains to be adjudicated in this case.

STANDARDS FOR DECISION

Under Rule 12(e) of the Rules of the Court of Federal Claims (“RCFC”), the court “may convert a motion to dismiss into a motion for summary judgment under RCFC 56 if it relies on evidence outside the pleadings.” Brubaker Amusement Co. v. United States, 304 F.3d 1349, 1355 (Fed.Cir.2002); see also Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 988 F.2d 1157, 1164 (Fed.Cir.1993) (stating that the standard for a motion for summary judgment applies when matters outside the pleadings are considered by a court disposing of a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6)). Correlatively, “Mon-version of a motion for judgment on the pleadings into one for summary judgment should only occur after the parties have been offered a ‘reasonable opportunity’ to present pertinent summary judgment materials.”

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Bluebook (online)
84 Fed. Cl. 319, 2008 U.S. Claims LEXIS 298, 2008 WL 4646053, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forbes-v-united-states-uscfc-2008.