No. _________

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In The

Supreme Court of the United States --------------------------------- ♦ ---------------------------------

MARCUS R. ABBE, et al.,

Petitioners,

v.

CITY OF SAN DIEGO,

Respondent.

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On Petition For A Writ Of Certiorari To The United States Court Of Appeals

For The Ninth Circuit

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PETITION FOR A WRIT OF CERTIORARI

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GREGORY G. PETERSEN, ESQ. 18301 Von Karman Avenue, Suite 330 Irvine, CA 92612 (949) 335-3500/Telephone (949) 313-7849/Facsimile ggpetersenlaw@gmail.com

Attorney for Petitioners

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

i

QUESTIONS PRESENTED

Whether the Ninth Circuit erred in following Bamonte v. City of Mesa, 598 F.3d 1217, 1231 (9th Cir. 2010) (2-1 – partial dissent) and concluding, contrary to established Supreme Court and previous Ninth Circuit precedent (and in conflict with the Fourth Circuit) that San Diego police officers failed to pre-sent genuine issues of material fact that the law, the workplace policy, or nature of a San Diego Police officer’s work required them to don and doff uniforms and safety equipment on the employers “premises.”

Whether the Ninth Circuit erred in affirming the trial court’s grant of summary judgment based on issue preclusion against all remaining police officers after the trial of eight test plaintiff officers when the jury issued a general verdict as to plaintiffs’ Fair Labor Standards Act (“FLSA”) claims, 29 U.S.C. § 201 et seq. and the trial court declined to include “suffer and permit” as part of the definition of “work” in both a jury instruction and the special verdict form as requested by Plaintiffs.

ii

PARTIES TO THE PROCEEDING

Pursuant to Rule 14.1(b), the following list iden-tifies all of the parties here and before the United States Court of Appeals for the Ninth Circuit.

The petitioners here and appellants below are plaintiffs Mark S. Annis, Jose J. Arguelles, Joe Bane, Kevin Barnard, Carole J. Beason, Charles J. Belletti, Michael Bendixen, Larry R. Bigbie, Rebecca E. Bigbie, Robert R. Bigbie, Dennis Bishop, Frank J. Brito, Christopher M. Bush, Robert C. Burlison, Larence B. Cahill, Francis M. Cali, Frank Caropreso, Henry Castro, Yezenia Chavez (Sanchez), Blake A. Cheary, Brent E. Cisneros, John Clark, Raymond P. Clark, Sr., Donald R. Cone, Sean R. Conway, Brian K. Cornell, Robert M. Cornett, Ralph A. Cummings, David Cupples, Fenella R. Custer, Garry Davis, Je-rome Dawson, William Day, Edward Devowe, Andrew Diaz, Arthur D. Doherty III, Christine M. Farmer, Andrew L. Fellows, Jeffrey M. Fellows, Alejandro Fernandez, Kevin Friedman, Paul Geis, Troy Gibson, Robert I. Gilbert, Ronald D. Glass, Juan Gomez, Jordi Gonzalez, Michael Gottfried, Michael Groff, Levi Harbin, Roger E. Hatch, Heidi L. Hawley, Crystal Hernandez-Cisneros, Robert Herzig, Daniel Higdon, Diana Hodges, Kenneth Hodges, Mark Hodges, Thom-as E. Hoenes, Frank J. Hoerman, David A. Hoffman, Larry D. Holloway, Dona Hufford, Ty Hufford, Su-zanne D. Huntington, Pia A. Iversen, Danielle J. Jackson, Robert F. Jackson, William E. Jacobson, Gregory A. Jebb, Buddy L. Johnson, Richard Johnson,

iii

PARTIES TO THE PROCEEDING – Continued

Patricia Krall, Joseph Krouss, David Lamaku, Chris Larson, Ronald W. LeMaster, John Letteri, Kazimierz P. Lewak, Anthony J. Linardi, Jr., Alfred Lozano, Chris M. Luce, George Maglaras, Bryan Manning, David R. Marshall, Philip Martz, Jr., Mark McCullough, Michael C. McCullough, Sharon McFalls, Scott McLellan, Kerry Mensior, David Mitchell, Brian D. Moore, Michael Nigro, Gilbert Ninness, Edward Garrick Nugent, Brad O’Donnell, Mike Padgett, Frederick Parenti, Charles J. Peck, Heather Petty, Christopher Poznanski, May Quinta-nilla, Craig Reesor, Jacob Resch, Ronald L. Rice, Larry Joe Robertson, Laura Santiago, Cody K. Schaaf, Glen R. Scherer, Steve Schnick, Paul W. Schwenn, Mark G. Sherman, Robert Simpson, Gina Spadacini, A.J. Spagnolo, Andrew Spagnolo, Philip Stanley, Joseph Steffen, Robert G. Stites, Roger Stonier, Michael T. Tansey, Karen-Anne Tenney, Chris Tews, Alvin Thach, George R. Thomas, Stephen Thorn, Freddie Thornton, Jr., Daniel Toneck, John Michael Tracy, Joseph Waggaman, Daniel K. Wall, Stephen E. Webb, Jordan Wells, Murdock J.E. Weltzien, Donna Wescott, Michael S. Williams, Eric Wiseman, Steven Witt, Michael Yaptangco, Angela M. Zdunich, James A. Zirpolo (Case No. 3:05-cv-1629), Brett H. Burkett, Robert C. Burlison, Richard J. Carlson, Henry L. Castro, Martin G. Castro, John Cochran, Jr., Arthur D. Doherty III, Anotine N. El-Assiss, Dale A. Flamand, Miguel A. Garcia, Ryan P. Gault, Kenneth S. Hargrove, Robert W. Herzig,

iv

PARTIES TO THE PROCEEDING – Continued

Charles M. Hudgins, Roy B. Hulbert, Pia A. Iversen, Sandra L. LaChapelle, Brian P. Lucchesi, Scott D. Naliboff, Alan M. Nicholas, Christopher D. O’Quinn, Frederick Parenti, Douglas L. Pickett, Michael J. Prutzman, Sandra I. Rapalee, Bret A. Righthouse, Susan M. Righthouse, Jeffrey Salinas, Dorinda K. Dodd, Richard Garcia, David G. Maley, Brian Marvel, Michael S. Moran.

The appellee below and the respondent here is the City of San Diego.

v

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6 Petitioners state as fol-lows: there are no corporate entities involved in this case.

vi

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................ i

PARTIES TO THE PROCEEDING ..................... ii

CORPORATE DISCLOSURE STATEMENT ....... v

TABLE OF CONTENTS ...................................... vi

TABLE OF AUTHORITIES ................................. x

OPINIONS BELOW ............................................. 1

JURISDICTION ................................................... 1

STATUTES INVOLVED ...................................... 1

STATEMENT OF THE CASE .............................. 2

A. Factual Background .................................. 2

B. Proceedings Below ..................................... 5

REASONS FOR GRANTING THE PETITION ... 7

I. THIS CASE PRESENTS THE EX-TREMELY IMPORTANT QUESTION OF WHETHER A BRIGHT-LINE LOCATION RULE SHOULD PRECLUDE COMPEN-SATION WHERE DONNING AND DOFF-ING MAY SOMETIMES TAKE PLACE AWAY FROM THE EMPLOYER’S PREM-ISES ........................................................... 7

A. Statutory And Background Case Law .. 7

B. Bamonte’s And Abbe’s Use Of A Bright-Line Location Rule ................... 8

vii

TABLE OF CONTENTS – Continued

Page

C. The “Location Rule” Announced In Bamonte Conflicts With The Context Approach Utilized By The U.S. Su-preme Court, By Previous Ninth Cir-cuit Case Authority, By The Fourth Circuit And By Other Circuits ............ 9

D. The Holding In This Case Further Confuses Application Of The Context Approach Because California Law Requires Officers To Wear Protective Gear And To Cover Their Uniforms When Not On Duty .............................. 11

E. The Recent 2006 Advisory Memoran-dum From The Department Of Labor And/Or The Ninth Circuit’s Holding In Bamonte Have Spawned District Court Cases Addressing “De Facto” Requirements To Don And Doff On-Site Or Holding The Option To Dress At Home Is “Illusory.” .......................... 13

II. THIS CASE ALSO PRESENTS IM-PORTANT QUESTIONS REGARDING WHETHER “SUFFER AND PERMIT” IS INCLUDED AS PART OF THE DEFINI-TION OF “WORK” UNDER THE FLSA.... 15

III. IMMEDIATE REVIEW IS URGENTLY NEEDED ................................................... 19

CONCLUSION ..................................................... 20

viii

TABLE OF CONTENTS – Continued

Page

APPENDIX

Appendix A

Abbe v. City of San Diego, 9th Circuit Order Denying Plaintiffs’ Appeal, filed July 20, 2011, 2011 WL 2882694 .................................... 1a

Appendix B

Abbe v. City of San Diego, 2007 WL 4146696 (S.D. Cal. Nov. 9, 2007) ........................................... 5a

Appendix C

Abbe v. City of San Diego, Order Granting Summary Judgment As To Remaining Plain-tiffs (May 26, 2009) ............................................... 53a

Appendix D

Abbe v. City of San Diego, Order Denying Plaintiffs’ Motion For New Trial (August 4, 2009) ...................................................................... 77a

Appendix E

Abbe v. City of San Diego, 9th Circuit Order Denying Petition For Rehearing En Banc, filed August 29, 2011 ............................................. 94a

Appendix F

Statutory Provisions Involved .............................. 96a

Appendix G

DOL Advisory Memorandum 2006-2 .................. 102a

ix

TABLE OF CONTENTS – Continued

Page

Appendix H

DOL Wage and Hour Division (WHD) Admin-istrator’s Interpretation No. 2010-2 on June 16, 2010 ............................................................... 110a

Appendix I

DOL Amicus Brief, Perez v. Mountaire Farms, Inc. .......................................................... 122a

x

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Abbe v. City of San Diego, 2007 WL 4146696 (S.D. Cal. Nov. 9, 2007) ............................... 3, 8, 9, 11

Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003), aff ’d on other grounds, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005) ........ 2, 3, 9, 10, 12

Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944) .................................. 7

Ballaris v. Wacher Sitronic Corp., 370 F.3d 901 (9th Cir. 2004) ..................................................... 9, 12

Bamonte v. City of Mesa, 598 F.3d 1217 (9th Cir. 2010) ......................................................... passim

Barrentine v. Arkansas-Best Freight Sys., Inc., 750 F.2d 47 (8th Cir. 1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2116, 85 L.Ed.2d 480 (1985) ................................................................... 3, 10

Blonder-Tongue Lab v. Univ. of Ill. Found., 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) ....................................................................... 18

Central Hanover Bank & Trust Co. v. Kelly, 319 U.S. 94 (1943) .......................................................... 18

Dunlop v. City Elec., Inc., 527 F.2d 394 (5th Cir. 1976) .................................................................... 3, 10

IBP, Inc. v. Alvarez, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005) ........................................... 15

Kamilche Co. v. United States, 53 F.3d 1059 (9th Cir. 1995) ......................................................... 18

xi

TABLE OF AUTHORITIES – Continued

Page

Ketchum v. City of Vallejo, 523 F. Supp. 2d 1150 (E.D. Cal. 2007) ....................................................... 16

Lavin v. Emery Air Freight Corp., 980 F. Supp. 93 (D. Conn. 1997) .................................................. 18

Lemmon v. City of San Leandro, 538 F. Supp. 2d 1200 (N.D. Cal. 2007) ...................... 3, 14

Littlejohn v. United States, 321 F.3d 915 (9th Cir. 2003) ................................................................. 19

Maciel v. City of Los Angeles, 569 F. Supp. 2d 1038 (C.D. Cal. 2008) .............................................. 14

Martin v. City of Richmond, 504 F. Supp. 2d 766 (N.D. Cal. 2007) ............................................ 3, 14

Mitchell v. King Packing Co., 350 U.S. 260, 76 S.Ct. 337, 100 L.Ed. 282 (1956) .............................. 10

Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942) ................. 7

Perez v. Mountaire Farms, Inc., 650 F.3d 350 (4th Cir. 2011) .................................................. 3, 4, 14

Perez v. Mountaire Farms, Inc., 610 F. Supp. 2d 499 (D. Md. 2009) ................................................ 3, 13

Perez v. Mountaire Farms, Inc., 601 F. Supp. 2d 670 (D. Md. 2009) ................................................ 3, 13

Reich v. Dep’t of Conservation and Natural Resources, 28 F.3d 1076 (11th Cir. 1994) ................ 16

Resolution Trust Corp. v. Keating, 186 F.3d 1110 (9th Cir. 1999) ................................................. 18

xii

TABLE OF AUTHORITIES – Continued

Page

Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956) ................................. 8, 9, 10, 12

Syverson v. Int’l Bus. Machs. Corp., 472 F.3d 1072 (9th Cir. 2007) ................................................ 18

Tony and Susan Alamo Foundation v. Secre-tary of Labor, 471 U.S. 290, 105 S.Ct. 1953, 85 L.Ed.2d (1985) .................................................... 16

United States v. 20832 Big Rock Drive, 51 F.3d 1402 (9th Cir. 1995) ................................................ 17

Valladon v. City of Oakland, 2009 WL 3401263 (N.D. Cal. 2009) ....................................................... 14

STATE CASES

Melendez v. City of Los Angeles, 63 Cal.App.4th 1 (1998) .................................................................... 12

Topanga Assn. For a Scenic Community v. County of Los Angeles, 11 Cal.3d 506 (1974) ......... 18

FEDERAL STATUTES

28 U.S.C. § 1254(1) ....................................................... 1

29 U.S.C. §§ 201 et seq. ......................................... 1, 5, 7

29 U.S.C. § 203(g) ....................................................... 16

29 U.S.C. § 203(o) ................................................... 5, 12

29 U.S.C. § 207(a)(1) ..................................................... 5

29 U.S.C. § 207(k) ......................................................... 5

xiii

TABLE OF AUTHORITIES – Continued

Page

29 U.S.C. § 216(b) ......................................................... 5

29 U.S.C. § 254 ............................................................. 1

STATE STATUTES

Cal. Veh. Code § 2800.1(a)(4) ..................................... 12

Cal. Gov’t Code § 1126 ................................................ 12

Cal. Gov’t Code § 19850 .............................................. 11

Cal. Gov’t Code § 50081 .............................................. 11

Cal. Labor Code § 6401............................................... 11

Cal. Penal Code § 830.10 ...................................... 11, 12

RULES

FRAP 35(a)(2) ............................................................... 5

FRCP 8(c) .................................................................... 18

FRCP Rule 49(a) ......................................................... 18

OTHER AUTHORITIES

DOL Wage & Hour Adv. Mem. No. 2006-2 (May 31, 2006) ........................................................ 4, 13, 14

DOL Wage & Hour Administrator’s Interpreta-tion No. 2010-2 (June 16, 2010) .............................. 11

65 Ops. Cal. Att’y Gen. 80 (1985) ............................... 12

1

OPINIONS BELOW

The opinion of the Court of Appeals is not “pub-lished” but is found at 2011 WL 2882694 and is reprinted in the Appendix to the Petition (“Pet. App.”) at 1a-4a. The District Court’s opinion granting sum-mary judgment as to Plaintiff ’s donning and doffing claims is not “published” but is found at 2007 WL 4146696 and is reprinted at Pet. App. at 5a-52a. The District Court’s Order granting summary judgment following the trial of the test plaintiffs is not pub-lished but is reprinted at Pet. App. at 53a-76a.

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JURISDICTION

Judgment was entered on July 20, 2011. The Order denying Appellant’s Petition for Rehearing En Banc was denied on August 29, 2011. This Court has jurisdiction under 28 U.S.C. § 1254(1).

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STATUTES INVOLVED

This case involves portions of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. The pertinent provisions are reproduced in the Appendix at Pet. App. at 96a-99a. This case also involves por-tions of the Portal-to-Portal Act, 29 U.S.C. § 254. The pertinent provisions are reproduced in the Appendix at Pet. App. at 99a-101a.

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2

STATEMENT OF THE CASE

A. Factual Background

This case involves extremely important questions regarding whether donning and doffing police uni-forms and safety equipment are “integral and indis-pensable” to the employer regardless of whether it takes place on the employer’s “premises” or else-where, thus, rendering the activity compensable under the FLSA.

The Ninth Circuit’s opinion in this case relies on Bamonte v. City of Mesa, 598 F.3d 1217, 1231 (9th Cir. 2010) (2-1 – partial dissent) to hold that plaintiffs did not raise a genuine issue of material fact that “the law, work place policy, or nature of a San Diego police officer’s work required the officers to don and doff Class B uniforms and safety equipment on the em-ployers’ premises.” (Emphasis supplied). As discussed by the dissent in Bamonte, supra, the majority panel articulated a “bright line rule” that “donning and doffing police uniforms and protective gear is integral and indispensable to police work, and thus, compen-sable under the FLSA, only if ‘the requirement of law, rule, the employer, or the nature of work mandates donning and doffing at the employer’s premises.’ ” Bamonte, supra at 1233. Under previous Ninth Circuit authority – Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir. 2003), aff ’d on other grounds, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005) donning and doffing is considered “work” under the FLSA. There is no bright-line location rule – in order to be

3

compensable, the task must be integral and indispen-sable, i.e., necessary to the principal work performed and done for the benefit of the employer. Id. at 903, citing Barrentine v. Arkansas-Best Freight Sys., Inc., 750 F.2d 47, 50 (8th Cir. 1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2116, 85 L.Ed.2d 480 (1985) and Dunlop v. City Elec., Inc., 527 F.2d 394, 398 (5th Cir. 1976). Neither Barrentine, supra, nor Dunlop, supra, relied on by the Court in Alvarez, supra, focus on location as a determinative factor.

This case also conflicts with the recent holding of the Fourth Circuit in Perez v. Mountaire Farms, Inc., 650 F.3d 350 (4th Cir. 2011).1 In Perez, supra, Mountaire Farms, Inc. argued that because Company policy had changed to allow employees to take home their smocks, donning and doffing activities were no longer compensable as work. The Company cited to

1 Two published district court opinions in the Perez case specifically refer to and discuss the district court opinion in this case. Perez v. Mountaire Farms, Inc., 610 F. Supp. 2d 499, 518-19 (D. Md. 2009) and Perez v. Mountaire Farms, Inc., 601 F. Supp. 2d 670, 679 fn.2 (D. Md. 2009) both cite the holding of Abbe v. City of San Diego, 2007 WL 4146696 *7 (S.D. Cal. Nov. 9, 2007) on the issue of location and point out its conflict with Lemmon v. City of San Leandro, 538 F. Supp. 2d 1200, 1200 (N.D. Cal. 2007) (donning and doffing may be compensable even if performed off the employer’s premises because the location of the donning and doffing should be only one of the considerations in determining if an activity is compensable) and Martin v. City of Richmond, 504 F. Supp. 2d 766, 775 (N.D. Cal. 2007) (record unclear whether the officers “actually [had] a meaningful opportunity to don their protective gear at home, or instead, whether that option [was] illusory).

4

DOL Wage & Hour Adv. Mem. No. 2006-2 (May 31, 2006) which states that donning and doffing is not compensable if employees have “the option and the ability to change into the required gear at home.”

Rejecting this rule and also rejecting the holding of Bamonte, supra, the Fourth Circuit upheld the trial court’s ruling that Mountaire’s take home policy was “illusory” and stated the factual record supported the district court’s determination that employees do not have a meaningful option to don and doff their protective gear at home. Perez, supra, 650 F.3d at 368.2 Thus, Perez conflicts with the bright-line loca-tion rule announced by the Ninth Circuit in Bamonte in that in Perez, the company permitted employees to don uniforms and safety gear at home, but the practi-calities of the work situation rendered the policy “illusory.” As discussed below, the holding of the court in Perez, supra, is analogous to several California district court cases which found that there was a de facto requirement for police officers to dress at the station.

Importantly, this case takes the bright-line rule announced in Bamonte a step farther. California law

2 The Department of Labor filed an Amicus Brief in Perez, supporting the district court’s determination that the Company policy allowing employees to dress at home was illusory. Pet. App. I at 122a-158a. The DOL also addressed the Company’s contention the time spent was de minimus, noting that the Company could not use the defense if the time spent was part of a regularly scheduled workday. Id. at 148a-156a.

5

requires that if a police officer is not on duty they must cover their uniform. Unlike the City of Mesa officers, a San Diego police officer is under the control of his or her employer and subject to the workplace and public policy strictures of California law no matter where they don their uniforms. Thus, donning and doffing is integral and indispensable to the employer, under the control of the employer, and for the benefit of the employer even if it is performed when the officer is at home and not at the station.

Consideration by the full Court is necessary to address this extremely important issue. Fed. R. App. P. 35(a)(2).

B. Proceedings Below

Petitioners – Fifteen hundred individual police officers sued the City of San Diego for damages and other relief pursuant to the FLSA, 29 U.S.C. §§ 201, et seq. The officers’ individual claims were based inter alia, on violations for late payment of overtime. See FLSA, 29 U.S.C. §§ 207(a)(1) and 216(b).

The district court denied relief granting sum-mary judgment to City on partial cross-motions for summary judgment on the officers’ donning and doffing claims. The court also granted summary judgment as to Plaintiff ’s donning and doffing claim pursuant to FLSA, 29 U.S.C. § 203(o) and determined defendants qualified for the “gap time” exemption under FLSA, 29 U.S.C. § 207(k). Pet. App. at 5a-52a.

6

Following a trial for overtime compensation on claims for preliminary and postliminary activities, the jury returned a verdict against each of the eight “test” trial officers on the issue of whether the plain-tiff had established they performed uncompensated work. The jury verdict instructions and jury verdict questionnaire did not include time spent by the employees which was suffered and permitted by the employer in the definition of work. The jury only answered the first question on the form which was: Did Plaintiff establish that he actually performed uncompensated “work”? Plaintiffs contended the verdict was general. City contended the verdict was special and encompassed “core issues.”

The court then granted summary judgment as to the remaining Plaintiffs based upon issue preclusion. Pet. App. at 53a-76a. Plaintiffs’ Motion for New Trial was also denied. Pet. App. at 77a-93a.

Plaintiffs appealed to the Ninth Circuit on a number of issues, including the court’s grant of sum-mary judgment on the donning and doffing claims.

On appeal, the panel affirmed the trial court rulings including the trial court’s grant of summary judgment on the officers’ donning and doffing claims. The court also affirmed the trial court’s reliance on issue preclusion to enter judgment against the re-maining Plaintiffs. Pet. App. at 1a-4a.

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7

REASONS FOR GRANTING THE PETITION

I. THIS CASE PRESENTS THE EXTREMELY IMPORTANT QUESTION OF WHETHER A BRIGHT-LINE LOCATION RULE SHOULD PRECLUDE COMPENSATION WHERE DONNING AND DOFFING MAY SOME-TIMES TAKE PLACE AWAY FROM THE EMPLOYER’S PREMISES.

The Ninth Circuit ruling in this case and in Bamonte, supra, conflicts with U.S. Supreme Court precedent on the issue of whether the fact a police officer may change into their uniform and protective gear at home precludes compensability under the FLSA. This issue is particularly important in view of the changing nature of the American workforce and the changing nature of the location where work is performed.

A. Statutory And Background Case Law.

The FLSA, 29 U.S.C. §§ 201, et seq., was enacted in 1931 and ensures that employees receive “[a] fair day’s pay for a fair day’s work.” Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942). “Work” is “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.” Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944).

In 1947, in response to the above definition of “work,” Congress passed the Portal-to-Portal Act.

8

Under the Act, employers are not obligated to com-pensate employees for activities that are “prelimi-nary” or “postliminary” to the employee’s principal activity. Id. Activities are “principal” under the Portal-to-Portal Act, “if those activities are an inte-gral and indispensable part of the principal activities for which [the employee] is employed.” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956). Activities undertaken for the employees’ own convenience, not being required by the employer and not being necessary for the performance of their duties for the employer are not compensable. Id.

B. Bamonte’s And Abbe’s Use Of A Bright-

Line Location Rule.

In Bamonte v. City of Mesa, 598 F.3d 1217 (9th Cir. 2010), the Ninth Circuit in a split decision, addressed the issue of whether the trial court’s grant of summary judgment in favor of the City of Mesa, Arizona, as to Mesa police officers’ donning and doffing claims should be affirmed. The officers in Bamonte were required by the Department to wear their uniforms and some safety equipment. They were not required to wear body armor, although they had to have it available. The officers claimed it was pref-erable to don and doff their gear at the police station, but there was no requirement that they do so. Id. at 1231. (Emphasis added).

Noting that it was axiomatic that under the FLSA, “employers must pay employees for all hours

9

worked,” the Bamonte Court reviewed U.S. Supreme Court and Ninth Circuit precedent establishing that donning and doffing can be compensable activities. Id. at 1220-22, citing Steiner v. Mitchell, 350 U.S. 247 (1956); Alvarez v. IBP, Inc., 339 F.3d 894, 898 (9th Cir. 2003); and Ballaris v. Wacher Sitronic Corp, 370 F.3d 901 (9th Cir. 2004). The court recognized that clothes changing and showering fulfilled mutual obligations, citing Steiner, supra at 251. Bamonte, supra at 1221. However, the Court determined that donning and doffing of police uniforms as well as safety equipment was not compensable because there was no legal requirement that the donning and doffing take place on the employer’s premises. Bamonte, supra at 1223. In support of this newly articulated bright-line rule, the majority cited the district court opinion appealed from in this case – Abbe v. City of San Diego, 2007 WL 4146696, at *7 (S.D. Cal. 2007). Bamonte, supra at 1227.

C. The “Location Rule” Announced In

Bamonte Conflicts With The Context Approach Utilized By The U.S. Su-preme Court, By Previous Ninth Cir-cuit Case Authority, By The Fourth Circuit And By Other Circuits.

As pointed out by Judge Gould in his partial dissent in Bamonte,3 the new rule articulated by the

3 Judge Gould dissented on the issue of whether the officers should be compensated for protective gear. He sided with the

(Continued on following page)

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majority is contrary to the Supreme Court’s context-specific approach to determine whether a particular activity is integral and indispensable. See Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir. 2003) (internal quotation marks omitted), aff ’d, 546 U.S. 21, 32, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005) (citing with ap-proval the Ninth Circuit’s “context specific” descrip-tion of the compensability determination).4 Justice Gould discusses two U.S. Supreme Court cases which illustrate the context approach. He points out that in both Steiner, supra, 350 U.S. at 256 and Mitchell v. King Packing Co., 350 U.S. 260, 261-62, 76 S.Ct. 337, 100 L.Ed. 282 (1956), the Court examined many different factors in determining compensability under the Portal-to-Portal Act noting that although the location of the clothes changing and knife sharpening formed part of the analysis in both Steiner and Mitch-ell, location did not dominate or control the inquiry.

Justice Gould notes that under the Bamonte majority’s new rule, any police department that mandates its officers don and doff their uniforms and gear at the precinct must pay for that time, while those departments that make the donning and doffing

majority on the issue of whether the actual changing of uniforms was compensable. Id. 4 Neither Barrentine v. Arkansas-Best Freight Sys., Inc., 750 F.2d 47, 50 (8th Cir. 1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2116, 85 L.Ed.2d 480 (1985) nor Dunlop v. City Elec., Inc., 527 F.2d 394, 398 (5th Cir. 1976) relied on by the Court in Alvarez, to define the integral and indispensable test for com-pensability focuses on location as a determinative factor.

11

location optional face no such requirement. He con-tends the majority conflates the requirement that a piece of clothing or gear be donned on-site with the importance that the piece of gear has for the job performed. Bamonte, supra at 1233-34.

There is a clear need for this Court to reconcile these conflicting approaches.

D. The Holding In This Case Further

Confuses Application Of The Context Approach Because California Law Re-quires Officers To Wear Protective Gear And To Cover Their Uniforms When Not On Duty.

In this case, unlike Bamonte, Plaintiff officers are required by law to don safety equipment including protective equipment such as a bullet proof vest.5 This is a legal requirement that protects both the employer and the employee.6 Unlike the police

5 The safety equipment worn by police officers in California, as well as their badge and name tag, is mandated by statute. See Cal. Gov’t Code §§ 50081 and 19850; see also Cal. Labor Code § 6401 and Cal. Penal Code § 830.10. 6 The district court also found against plaintiffs donning and doffing claims on the alternative ground that except for safety equipment plaintiffs were covered by the section 203(o) exemption. Abbe, 2007 WL * 8. However, since that time, the DOL has issued Wage and Hour Division (WHD) Administrator’s Interpretation No. 2010-2 on June 16, 2010 which states that such donning and doffing is compensable. Pet. App. at 110a-121a. In relevant part, the WHD Interpretation states that

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department in Bamonte, in California and in San Diego if an officer dresses at home, he or she is re-quired to cover the uniform and equipment before arriving at a work location.7,8 Thus, the officers don-ning and doffing of uniform and equipment wherever it is done is absolutely controlled by the laws of California and the rules of the employer.9 The act of

donning and doffing triggers the workday. The WHD states that it “is the Administrator’s interpretation that the § 203(o) exemption does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job. This interpretation reaffirms the interpreta-tions set out in the 1997, 1998 and 2001 opinion letters and is consistent with the ‘plain meaning’ analysis of the Ninth Circuit in Alvarez.” Moreover, because Plaintiffs are required by law to wear their uniforms as discussed above, the City does not qualify under the 203(o) exemption. 7 Uniforms are required to be covered while officers are off duty. 8 Cal. Penal Code § 830.10 prohibits peace officers from using “for private gain or advantage . . . the badge, uniform, prestige, or influence of [their] local agency office or employ-ment,” Cal. Gov’t Code § 1126. Section 1126 has been interpreted as precluding police officers from wearing their official uniforms in private employment without prior authorization. See Melen-dez v. City of Los Angeles, 63 Cal.App.4th 1, 13 (1998) (citing 65 Ops. Cal. Att’y Gen. 80, 83 (1985)). A suspect may not be prose-cuted for evading a pursuing peace officer while operating a motor vehicle unless the officer is, among other things, “wearing a distinctive uniform.” Cal. Veh. Code § 2800.1(a)(4). 9 The Court in Bamonte states that in deciding the case “[w]e refer to the ‘disparity in the circumstances’ between this case and Steiner, Alvarez, and Ballaris, without limiting the reference solely to location.” Bamonte, 598 F.3d at 1221. Histori-cally, on-premises donning and doffing were required in order to

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donning and doffing in California is for the benefit of and is integral and indispensable to the employer and, for that matter, the employer’s employer, the public.

E. The Recent 2006 Advisory Memoran-

dum From The Department Of Labor And/Or The Ninth Circuit’s Holding In Bamonte Have Spawned District Court Cases Addressing “De Facto” Re-quirements To Don And Doff On-Site Or Holding The Option To Dress At Home Is “Illusory.”

In Wages & Hour Adv. Mem. No. 2006-2 at 3 (May 31, 2006), DOL advises that:

donning and doffing of required gear is with-in the continuous workday only when the employer or the nature of the job mandates that it take place on the employer’s premis-es. It is our longstanding position that if em-ployees have the option and ability to change into the required gear at home, changing in-to that gear is not a principal activity, even when it takes place at the plant.

As discussed, in the Fourth Circuit, the District Court’s holding in Perez, supra, was that although employees were entitled to take clothes and

be compensable because that was the location where the worker worked.

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equipment home, this policy was “illusory.” See also DOL Amicus Brief, Pet. App. 136a-144a. In the Ninth Circuit, district courts have dealt with Wage & Hour Adv. Mem. No. 2006-2 at 3 (May 31, 2006) in a variety of ways. See, e.g., Valladon v. City of Oakland, 2009 WL 3401263, at *9-10 (N.D. Cal. 2009) (denying city’s motion for summary judgment because sufficient evidence supported a de facto policy requiring officers to don and doff on-site); Maciel v. City of Los Angeles, 569 F. Supp. 2d 1038, 1049 (C.D. Cal. 2008) (finding that “[f ]or all practical purposes, the equipment must be donned and doffed at the assigned station”); Lem-mon v. City of San Leandro, 538 F. Supp. 2d 1200, 1206 (N.D. Cal. 2007) (finding “strong indicia that the donning and doffing of the uniform at the police station is a de facto requirement”); Martin v. City of Richmond, 504 F. Supp. 2d 766, 776 (N.D. Cal. 2007) (finding genuine issue of material fact as to whether the nature of police work permits off-site donning and doffing).

The necessity of arguing a de facto requirement to dress on the employer’s premises or to make a claim the employer’s allowing employees to dress at home is “illusory” arises from the confusion between U.S. Supreme Court, Ninth Circuit and other circuit case law using the context approach and the 2006 Advisory Memo. There is also a conflict among the circuits. Bamonte, supra, now followed in the Ninth Circuit uses a bright-line location rule whereas the Fourth Circuit in Perez, supra, adopted the trial court’s finding the employer’s policy allowing

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employees to dress at home was “illusory.” In the interests of fairness and uniformity of case law, there is a need for these separate approaches to be recon-ciled. These are hard times. The least employees can ask is that the rules regarding payment for overtime be clear, consistent and uniformly applied.

As for a bright-line location rule, particularly, in the case of police officers, one could argue that the employee’s workplace is not the police station at all, it is the community. California’s requirement that officers cover their uniforms when they are not on duty tacitly recognizes just that and requires officers to cover their uniforms so the public will not be confused. It is unfair to require police officers to meet dress and safety requirements whether at the station or in the community and not to compensate them for it. Their uniforms and safety equipment are an important part of the job. Donning and doffing is a daily activity and the sum total of hours expended is not de minimus.

II. THIS CASE ALSO PRESENTS IMPORTANT

QUESTIONS REGARDING WHETHER “SUFFER AND PERMIT” IS INCLUDED AS PART OF THE DEFINITION OF “WORK” UNDER THE FLSA.

In IBP, Inc. v. Alvarez, 546 U.S. 21, 25, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005), the Court stated: that neither “work” nor “workweek” is defined in the FLSA, noting that the most pertinent definition provides “Employ” includes to suffer or permit to

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work. Id. citing 29 U.S.C. § 203(g). See also Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 300, fn.21, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985).

In the trial court, Plaintiffs attempted to have the term “suffer and permit” included in a Jury Instruction entitled “Work under the FLSA.” Specifi-cally, Plaintiffs requested the jury be instructed, “Such time also includes not only work that an em-ployee is assigned but also work that an employee is ‘suffered or permitted’ by the employer to perform.” The court declined to give the instruction. There is no reported Supreme Court case of which Petitioner is aware that addresses this issue.

The trial court also improperly instructed the jury that only knowledge by managers (Lieutenants) could be imputed to the employer and not facts known to supervisors (Sergeants). That is not the law. See Reich v. Dep’t of Conservation and Natural Re-sources, 28 F.3d 1076, 1082 (11th Cir. 1994) (an employer “does not rid himself of that duty because the extent of the business may preclude his personal supervision, and compel reliance on subordi-nates. . . .”). See also Ketchum v. City of Vallejo, 523 F. Supp. 2d 1150, 1152, n.27 (E.D. Cal. 2007) (officers alleged employer’s knowledge based upon complaints to and knowledge of supervisors). The result was that there was simply no way for the jury to understand that the work the officers performed as to preliminary and postliminary shift activities was “work” if their supervisors (and by extension their employer) were

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aware that the activity was being performed. Again, this issue has not been addressed by the Supreme Court.

The Special Verdict Form given to the jury in-cluded the first question:

Did Plaintiff establish that he actually per-formed uncompensated “work”?

(If you answer YES, please proceed to the next question. If you answer NO, please pro-ceed to the last question on this form)

(emphasis added).

The jury answered “no” and went to the last question on the Form which resulted in a verdict for City.10 See United States v. 20832 Big Rock Drive, 51 F.3d 1402, 1408-09 (9th Cir. 1995) (“Big Rock”) (re-versed because verdict form did not fully and fairly

10 City contends the first Special Verdict question was a “core issue” agreed to by the parties in the joint pretrial order. However, the question “agreed” to by the parties as stated in the pretrial order was:

1. Whether the activities each Trial Plaintiff claims to have performed [were suffered or permitted] out-side of his or her regular working hours were neces-sary to the principal work performed [and done primarily] for the benefit of the City (i.e. were these activities compensable work under the FLSA)?

Thus, the jury verdict form did not include an important ele-ment of Plaintiffs’ claim that work for which the officers were claiming overtime included time spent that was suffered and permitted.

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present all issues to the jury where jury found “no” on the first question, directed to the last question with-out having addressed the factual questions of the case). Such an all-encompassing decision cannot, as to all these Plaintiffs, bridge the analytical gap. See Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506 (1974). Due process requires an opportunity to be heard. See Central Hanover Bank & Trust Co. v. Kelly, 319 U.S. 94 (1943).11

Based on the failure to give proper instructions and problems with the Special Verdict Form itself, the trial court judgment as to the eight test plaintiffs and subsequent summary judgment based on issue preclusion as to the remaining Officers’ claims should be overturned. See FRCP Rule 49(a) (“court may require a jury to return only a special verdict in the form of a special written finding on each issue of fact.”) Lavin v. Emery Air Freight Corp., 980 F. Supp. 93 (D. Conn. 1997). Because the verdict was a general verdict, there can be no showing that the issues were

11 Under federal law, a judgment in a prior proceeding bars (1) a party and those in privity with the party from relitigating (2) identical issues (3) that have been actually litigated and decided in a previous case. Kamilche Co. v. United States, 53 F.3d 1059, 1062 (9th Cir. 1995). See also Syverson v. Int’l Bus. Machs. Corp., 472 F.3d 1072, 1078 (9th Cir. 2007); Resolution Trust Corp. v. Keating, 186 F.3d 1110, 1114 (9th Cir. 1999). However, case law is clear that claim preclusion, like issue preclusion, is an affirmative defense. Blonder-Tongue Lab v. Univ. of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); see FRCP 8(c).

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actually litigated and decided. Regardless of the type of issue preclusion invoked, a party asserting the doctrine must prove that the determination of the issue in the prior litigation was “a critical and neces-sary part of the judgment in [that] action.” Littlejohn v. United States, 321 F.3d 915, 923 (9th Cir. 2003). Res judicata was not proper as no issues were decided by the jury that are applicable to and can or should bind the remaining Plaintiffs.

III. IMMEDIATE REVIEW IS URGENTLY

NEEDED.

This Court’s review is urgently needed. There is conflict among the Circuits and a resolution of the issues would result in a much needed clarification of whether compensation should be awarded for don-ning and doffing of police uniforms either on or off the employers’ “premises.”

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CONCLUSION

The Petition for Writ of Certiorari should be granted.

Dated: November 28, 2011

Respectfully submitted,

GREGORY G. PETERSEN, ESQ. 18301 Von Karman Avenue, Suite 330 Irvine, CA 92612 (949) 335-3500/Telephone (949) 313-7849/Facsimile ggpetersenlaw@gmail.com

Attorney for Petitioners