Free Motion for Partial Summary Judgment - District Court of Federal Claims - federal

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No. 90-162C and consolidated cases (Judge Bush)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS STEPHEN S. ADAMS, et al., Plaintiffs, v. THE UNITED STATES, Defendant,

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT REGARDING REMAINING "DRIVING TIME" CLAIMS Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General

TODD M. HUGHES Deputy Director Filed electronically OF COUNSEL: Michael J. Dierberg William P. Rayel Trial Attorneys Commercial Litigation Branch Civil Division Department of Justice SHALOM BRILLIANT Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Telephone: (202) 616-8275 Facsimile: (202) 305-7643 Attorneys for Defendant April 11, 2008

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TABLE OF CONTENTS DEFENDANT'S MOTION FOR SUMMARY JUDGMENT REGARDING REMAINING "DRIVING TIME" CLAIMS . . . . . . . . . . . . . . . . . . . . . DEFENDANT'S BRIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Question Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statement Of The Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Under Controlling Precedent And The Law Of The Case, Plaintiffs Are Not Entitled To FLSA Compensation For Time Solely Spent Driving A Government Vehicle Between Home And Work . . . . There Is No Material Difference Between The Driving Claims Involved Here And Those Previously Decided In This Case . . . . . . . . . . . . . .

1 2 2 2 4 8

8

II.

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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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TABLE OF AUTHORITIES CASES

Adams v. United States, 65 Fed. Cl. 217 (2005), aff'd, 471 F.3d 1321 (2006), reh'g and reh'g en banc denied, 219 Fed. Appx. 993 (Fed. Cir. 2007), cert. denied, 128 S.Ct. 866 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9, 11 Adams v. United States, 471 F.3d 1321 (2006), reh'g and reh'g en banc denied, 219 Fed. Appx. 993 (Fed. Cir. 2007), cert. denied, 128 S.Ct. 866 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10, 11 Arizona v. California, 460 U.S. 605 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Bobo v. United States, 136 F.3d 1465 (Fed. Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 12 Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Coltec Indus., Inc. v. United States, 454 F.3d 1340 (Fed. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Crowley v. United States, 398 F.3d 1329 (Fed. Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

STATUTES

Fair Labor Standards Act, 29 U.S.C. § 201 et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

RULES

RCFC 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 - iii -

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INDEX TO THE APPENDIX

Boston v. U.S., No. 01-518, Partial Settlement Agreement Covering Plaintiffs at BATF in Occupational Codes 856 and 1801 and Plaintiffs at USSS in Occupational Codes 072, 080, 391, 1397 and 1802 at the GS-9 through GS-13 Grade Levels, October 15, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Adams v. U.S., No. 90-162, Partial Settlement Agreement Covering Plaintiffs at the GS-12 Grade Level in Occupational Codes 1811 and 1812 at Agencies Listed in Exhibit A, September 8, 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Adams v. U.S., No. 90-162, Partial Settlement Agreement Covering Plaintiffs at the GS-12 Grade Level in Occupational Code 1811 at IRS-ISD, November 1, 2004 . . . . . . . . . . . 21 Boston v. U.S., No. 01-518, Partial Settlement Agreement Covering Plaintiffs at Drug Enforcement Administration in OPM Occupational Series 080, 334, 391, 856, and 1802 Non-Supervisory Positions at the GS-9 through GS-13 Grade Levels, December 2, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Boston v. U.S., No. 01-518, Partial Settlement Agreement Covering Plaintiffs within the Bureau of Immigration and Customs Enforcement within the Department of Homeland Security, and/or Its Predecessor the United States Custom Service, (Collectively, "ICE") as Technical Enforcement Officers at the GS-9 through GS-13 Grade Levels, December 2, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Adams v. U.S., No. 90-162, Partial Settlement Agreement Covering Plaintiffs at the GS-13 Grade Level in Occupational Code 1811 at BATF, IRS, DEA, USCS and USSS, November 22, 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Adams v. U.S., No. 90-162, Partial Settlement Agreement Covering Plaintiffs within the United States Customs and Border Protection within the Department of Homeland Security and/or Its Predecessor the United States Customs Service as Marine Enforcement Officers at the GS-9 through GS-12 Grade Levels, March 19, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Adams v. U.S., No. 90-162, Partial Settlement Agreement Re FLSA Covering GS-5 and/or GS-7 in Occupational Codes 1811 and 1812 Plaintiffs, May 22, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Boston v. U.S., No. 01-518, Partial Settlement Agreement Covering Plaintiffs at Drug Enforcement Administration in OPM Occupational Series 1801 and 1810 NonSupervisory Positions at the GS-9 through GS-13 Grade Levels, June 29, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 -iv-

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS STEPHEN S. ADAMS, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 90-162C and consolidated cases (Judge Bush)

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT REGARDING REMAINING "DRIVING TIME" CLAIMS Pursuant to Rule 56 of the Rules of the United States Court of Federal Claims, defendant respectfully requests the Court to grant summary judgment dismissing the plaintiffs' claims for overtime pay pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., arising from employment as grade GS-13 criminal investigators with the Bureau of Alcohol, Tobacco and Firearms ("BATF"), the Drug Enforcement Administration ("DEA"), the Internal Revenue Service ("IRS"), the Customs Service ("USCS"), and the Secret Service ("USSS"); as grade GS-12 criminal investigators at the Department of Commerce ("DOC"), the Department of the Interior ("DOI"), Department of Veterans Affairs ("VA"), the Environmental Protection Agency ("EPA"), the Food and Drug Administration ("FDA"), and the IRS Internal Security Division ("IRS-ISD"); as grade GS-5 and GS-7 criminal investigators at EPA, IRS, the Fish and Wildlife Service ("F&WS"), and the Naval Criminal Investigative Service ("NCIS"); as grade GS-12 Marine Enforcement Officers ("MEOs"); as USSS employees in occupational series GS072, 080, 391, 1397, and 1802; as BATF employees in occupational series GS-856 and 1801, as DEA employees in occupational series GS-080, 334, 391, 856, and 1802; as DEA diversion investigators; and as USCS or Immigration and Customs Enforcement ("ICE") Technical Enforcement Officers.

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The grounds for this motion are that there are no genuine issues of material fact and that defendant is entitled to judgment as a matter of law. In support of our motion, we rely upon the pleadings, the following brief, the attached appendix, and the separately filed proposed findings of uncontroverted fact.1 DEFENDANT'S BRIEF Question Presented Whether plaintiffs are entitled to FLSA overtime pay for time solely spent driving between home and work in a Government vehicle. Statement Of The Case This case concerns more than 14,000 employees at various Federal agencies who have sued to recover various forms of overtime and premium pay. This motion concerns plaintiffs' claims for FLSA overtime arising from employment in the positions and agencies identified above. The parties have entered into partial settlement agreements that resolved these claims, except in the following respect: These settlements, like certain earlier settlements in this case pertaining to employment in criminal investigator positions and various other positions, do not cover claims based upon time plaintiffs solely spent driving to and from work in a Government vehicle. The parties filed a stipulation of partial dismissal with respect to the claims covered by these settlements. In August 2002 ­ after the parties entered into the first two settlement agreements reserving home-to-work driving claims ­ the Government filed a motion for summary judgment as to these claims. Specifically, we sought dismissal of plaintiffs' claims arising from their

1

"App. ___" refers to the appendix to this motion. 2

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driving between home and work while they were employed in USCS as MEOs at grades GS-9 or GS-11, or in USSS as series GS-080 physical security specialists or GS-391 telecommunication specialists at grades GS-9 or GS-11, or as series GS-072 fingerprint specialists or GS-1397 document analysts at grade GS-9. In September 2004 ­ after the parties entered into a settlement containing a similar reservation of driving claims in connection with plaintiffs' employments as grade GS-12 criminal investigators at BATF, DEA, IRS, USCS, and USSS ­ plaintiffs filed a motion for summary judgment as to these driving time claims, and we filed a cross-motion for summary judgment as to these claims. This Court granted summary judgment in the Government's favor, holding that the driving in question did not constitute compensable work under the FLSA, and dismissing all of the driving claims addressed by these motions. The United States Court of Appeals for the Federal Circuit unanimously affirmed this decision. Plaintiffs' petition for rehearing en banc was denied. Finally, the Supreme Court denied plaintiffs' petition for a writ of certiorari. See Adams v. United States, 65 Fed. Cl. 217 (2005), aff'd, 471 F.3d 1321 (2006) , reh'g and reh'g en banc denied, 219 Fed. Appx. 993 (Fed. Cir. 2007), cert. denied, 128 S.Ct. 866 (2008). The above-discussed motions addressed all of the FLSA claims in these consolidated cases that had been settled prior to October 2003 subject to a reservation of the driving time issue for judicial resolution. This motion addresses the FLSA claims in these consolidated cases that were settled subject to the same reservation since that time. The issue presented here and in the previous motions are the same. The activity in question ­ driving between home and work in a Government vehicle ­ is the same. The job duties are the same or nearly the same. Indeed, for the most part, this motion concerns the same positions at the same agencies as were involved in

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the earlier motions, the difference consisting only in the pay grade involved. This motion also involves the same positions at several agencies that were not involved in the earlier motions, as well as several positions that were not involved in the earlier motions but are similar to those positions in all material respects. With respect to the question whether the driving in question constitutes compensable work under the FLSA, there is no material difference between the driving involved here and in the above-discussed motions. Under controlling precedent and under the law of the case, as established in by the prior rulings of this Court and the Federal Circuit in this case, all of the home-to-work driving claims that have been carved out of settlement agreements and reserved for adjudication in these consolidated cases must be dismissed as a matter of law. STATEMENT OF FACTS In October 2003, the parties entered into a partial settlement agreement in this case and another case involving similar claims ­ Boston v. United States, No. 01-518C (Fed. Cl.) ­ covering plaintiffs' claims for FLSA overtime arising from employment at BATF and USSS in various technical positions relating to law enforcement (occupational series GS-856 and 1801 at BATF and GS-072, 080, 391, 1397, and 1802 at USSS) in grades GS-9 through GS-13. App. 1-10. The agreement stated: The parties herewith agree to settle the claims of plaintiffs arising out of the non-payment of FLSA overtime pay to them . . . with the exception of their claims based upon time solely spent driving to and from work in a government-owned or leased vehicle, which the parties agree shall be the subject of further litigation herein. App. 2, ¶ 4 (emphasis added). The agreement provided for the release of the Government from the FLSA claims covered by the agreement, App. 6, ¶ 5.I, and stated that "such release will not

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affect any right any plaintiff may have to continue to pursue . . . their claims for the time spent driving a government vehicle from home to work and work to home (`driving time') as an FLSA non-exempt employee," App. 7, ¶ 5.K. In September 2004, the parties entered into a partial settlement agreement covering plaintiffs' claims for FLSA overtime arising from employment as grade GS-12 criminal investigators with DOC, DOI, VA, EPA, and FDA. App. 10-20. The agreement stated: The parties agree to settle the claims of plaintiffs arising out of the non-payment of FLSA overtime pay to them . . . with the exception of their claims based upon time solely spent driving to and from work in a government vehicle, which the parties agree shall be the subject of further litigation herein. App. 11, ¶ 4 (emphasis added). The agreement provided for the release of the Government from the FLSA claims covered by the agreement, App. 16, ¶ 5.K, and stated that "such release will not affect any right any plaintiff may have to continue to pursue . . . their 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," App. 16-17, ¶ 5.M (emphasis added). In November 2004, the parties entered into a partial settlement agreement covering plaintiffs' claims for FLSA overtime arising from employment as grade GS-12 criminal investigators with IRS-ISD. App. 21-30. The agreement contained the identical terms (quoted above) concerning home-to-work driving time as were contained in the September 2004 settlement agreement. App. 22.

In December 2005, the parties entered into a partial settlement agreement in this case, in Boston, and in nine more recent cases, covering plaintiffs' claims for FLSA overtime arising from employment at DEA in various technical positions relating to law enforcement

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(occupational series GS- 080, 334, 391, 856, and 1802), at grades GS-9 through GS-13. App. 31-44. The agreement contained the identical terms (quoted above) concerning home-to-work driving time as were contained in the September 2004 settlement agreement. App. 34. Also in December 2005, the parties entered into a partial settlement agreement in this case, in Boston, and in 12 more recent cases, covering plaintiffs' claims for FLSA overtime arising from employment at USCS or ICE as Technical Enforcement Officers at grades GS-9 through GS-13. App. 45-56. The agreement contained the identical terms (quoted above) concerning home-to-work driving time as were contained in the October 2003 settlement agreement. App. 49-50. In November 2006, the parties entered into a partial settlement agreement in this case covering plaintiffs' claims for FLSA overtime arising from employment as grade GS-13 criminal investigators with BATF, DEA, IRS, USCS, and USSS. App. 57-66. The agreement contained the identical terms (quoted above) concerning home-to-work driving time as were contained in the September 2004 settlement agreement. App. 58. In March 2007, the parties entered into a partial settlement agreement in this case and another case ­ Boyer v. United States, No. 00-641C (Fed. Cl.) ­ covering plaintiffs' claims for FLSA overtime arising from employment as MEOs at grade GS-12 in this case and at grades GS-9 and GS-11 in Boyer. App. 67-74.2 The agreement contained the identical terms (quoted above) concerning home-to-work driving time as were contained in the September 2004 settlement agreement. App. 68.

The plaintiffs in Boyer are GS-9 and GS-11 MEOs who filed suit after the GS-9 and GS11 MEO claims in this case were settled. The MEO claims in this case that were settled in March 2007 are those involving grade GS-12. 6

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In May 2007, the parties entered into a partial settlement agreement covering plaintiffs' claims for FLSA overtime arising from employment as grade GS-5 and GS-7 criminal investigators with EPA, IRS, F&WS, and NCIS. App. 75-85. The agreement contained the identical terms (quoted above) concerning home-to-work driving time as were contained in the September 2004 settlement agreement. App. 76. In June 2007, the parties entered into a partial settlement agreement in this case, in Boston, and in 13 more recent cases, covering plaintiffs' claims for FLSA overtime arising from employment as DEA diversion investigators at grades GS-9 through GS-13. App. 86-99. The agreement contained the identical terms (quoted above) concerning home-to-work driving time as were contained in the September 2004 settlement agreement. App. 90. Pursuant to the terms of these partial settlement agreements, the parties filed stipulations of partial dismissal with the Court, dismissing the claims settled by the agreements. Each stipulation described the claims settled, and stated that the agreement did not cover "plaintiffs' FLSA claims for the time solely spent driving a Government vehicle between home and work . . . ." Docket Entries 500, 521, 528, 611, 634, 651, 658 and 682.

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ARGUMENT I. Under Controlling Precedent And The Law Of The Case, Plaintiffs Are Not Entitled To FLSA Compensation For Time Solely Spent Driving A Government Vehicle Between Home And Work As the Federal Circuit has observed, "[t]here can be no question that the Court of Federal Claims is required to follow the precedent of the Supreme Court, our court, and our predecessor court, the Court of Claims." Coltec Indus., Inc. v. United States, 454 F.3d 1340, 1353 (Fed. Cir. 2006). This Court "may not deviate from the precedent of the United States Court of Appeals for the Federal Circuit any more than the Federal Circuit can deviate from the precedent of the United States Supreme Court." Crowley v. United States, 398 F.3d 1329, 1335 (Fed. Cir. 2005). Federal Circuit precedent is all the more controlling where, as here, the precedent is established in a decision affirming this Court's decision in an earlier stage of the same case. In such circumstances, the Federal Circuit's decision, as well as the rulings of this Court that were affirmed, constitute the law of the case, and should be followed in later stages of the same litigation. "As most commonly defined, the doctrine of the law of the case posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16(1988) (internal brackets omitted), quoting Arizona v. California, 460 U.S. 605, 618 (1983). The legal issues governing this motion have been decided in the Government's favor by this Court earlier in this case, and this decision has been affirmed upon appeal. In a thorough and carefully-reasoned opinion, this Court addressed home-to-work driving claims that were identical to those involved in the present motion, involving many of the same plaintiffs and other

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plaintiffs in the same agencies and positions but at a different pay grade, as well as other plaintiffs in the same or related positions at other agencies. The Court concluded that the Government was entitled to judgment as a matter of law. Thus, with respect to the Government's August 2002 summary judgment motion concerning plaintiffs' claims arising from their driving between home and work while they were employed in USCS as MEOs at grades GS-9 or GS-11, or in USSS in various technical positions, the Court stated: The only type of claim addressed in defendant's 2002 motion is commuting time claims while driving a government vehicle to and from work, as substantiated by the settlement agreements concerning these plaintiffs. . . . Despite plaintiffs' contention that defendant "has submitted no facts, material or otherwise, in support of its motion," Pls.' 2002 Opp. at 2, the court finds that defendant has identified the plaintiffs, claims, and controlling law concerning those claims to a degree sufficient to decide defendant's 2002 motion as a matter of law. 65 Fed. Cl. at 231. Similarly, with respect to the parties' 2004 cross-motions for summary judgment concerning plaintiffs' claims arising from their driving between home and work while they were employed as grade GS-12 criminal investigators at BATF, DEA, IRS, USCS, and USSS, the Court stated: The only type of claim addressed in defendant's 2004 motion is commuting time claims for "`time spent solely driving'" a government vehicle to and from work, as substantiated by the 2003 settlement agreement concerning these plaintiffs. . . . Despite plaintiffs' contention that defendant "has submitted no facts in support of its motion," Pls.' 2004 Opp. at 33, the court finds that defendant has identified the plaintiffs, claims, and controlling law concerning those claims to a degree sufficient to decide defendant's 2004 motion as a matter of law. 65 Fed. Cl. at 240. Accordingly, this Court granted the Government's 2002 motion and its 2004 cross-motion for summary judgment.

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In so ruling, this Court relied largely upon Bobo v. United States, 136 F.3d 1465 (Fed. Cir. 1998), a case in which the Federal Circuit rejected home-to-work driving claims under the FLSA by Immigration and Naturalization Service ("INS") Border Patrol agent dog handlers, who were required by the INS to have their dogs reside with them, and were provided by the agency with specially equipped vehicles to transport the dogs between their homes and Border Patrol offices or other work locations. In affirming this Court's decision of the 2002 and 2004 motions in this case, the Federal Circuit similarly relied upon its prior decision in Bobo, and held: "Because Bobo entitles the government to judgment as a matter of law on the facts advanced by the plaintiffs, the Court of Federal Claims correctly granted summary judgment to the government." 471 F.3d at 1328. In sum, according to binding precedent and the law of the case, plaintiffs are not entitled to compensation under the FLSA for time spent solely driving between home and work in a Government vehicle. II. There Is No Material Difference Between The Driving Claims Involved Here And Those Previously Decided In This Case In the earlier decisions in this case concerning home-to-work driving, this Court and the Federal Circuit applied the reasoning in Bobo ­ a case involving INS dog handlers ­ to a variety of other positions at other agencies. Although the decisions in this case involved positions that were different from the dog handlers in Bobo and different from each other, neither this Court nor the Federal Circuit found these differences to be material to the issue whether the plaintiffs involved were entitled to FLSA compensation for their home-to-work driving. Indeed, despite these differences, the Federal Circuit expressly found all of these driving claims to be materially

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the same, observing that "[i]n Bobo, Border Patrol dog handlers raised a basically identical claim under FLSA." 471 F.3d at 1326 (emphasis added). Further, the common denominator that this Court found to underlie all of the driving claims it decided in this case was that the nature and scope of these claims were defined by the relevant partial settlement agreements and stipulations of partial dismissal to consist of claims for driving between home and work, not claims for driving in the course of other activities that might constitute compensable work. 65 Fed. Cl. at 231, 240.3 The same common denominator underlies all of the claims involved in the present motion. All of these claims are claims reserved for adjudication under the terms of partial settlement agreements that otherwise settled the FLSA claims of the plaintiffs arising from employment in the agencies, positions, and grades referenced in these agreements, and each of these agreements states that the parties "agree to settle the claims of plaintiffs arising out of the non-payment of FLSA overtime pay to them . . . with the exception of their claims based upon time solely spent driving to and from work in a government vehicle, " App. 11, 22, 34, 58, 76, 90, (emphasis added), or, in the case of two settlement agreements, "a government-owned or leased vehicle," App. 2, 50, 68.

The Court noted that, "[i]n the 1999 and 2000 agreements, these claims are referred to as `time spent driving a government vehicle from home to work and from work to home,'" whereas "[i]n the 2003 agreement, the preserved driving time claims are described as `time solely spent driving a government vehicle from home to work and work to home.'" 65 Fed. Cl. at 220. As the Court further noted, however,"Defendant's counsel explained that the addition of the word `solely' to the 2003 stipulation was simply to clarify the limited nature of plaintiffs' preserved claims, and that the 1999 and 2000 stipulations were similarly limited in nature . . . , [and] [p]laintiffs did not challenge this interpretation of the scope of plaintiffs' driving time claims." Id. at 233 n.9. . 11

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Thus, plaintiffs cannot distinguish their driving claims from those previously adjudicated in this case by pointing to differences between the agencies, positions, and grades involved in the prior adjudication and those involved in this motion, between the nature of the driving done in the course of performing the duties of the previously addressed positions and the positions involved here, or between the time spent by plaintiffs in the former positions and in the latter positions performing activities during their commutes beyond solely driving.4 No such distinctions are relevant to what is at issue here: time solely spent driving to and from work. Further, the complaints in these consolidated cases allege no facts concerning plaintiffs' home-to-work driving that can serve as a basis for distinguishing the driving involved here from the driving previously addressed by this Court and by the Federal Circuit in this case and in Bobo. Indeed, the pleadings contain no allegations at all concerning driving. Cf. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007) ("[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)," (citations and footnote omitted)). Finally, the documents contained in the record that was before this Court when it decided the 2002 and 2004 motions were not unique to the specific positions and grades involved in those motions. Apart from the relevant partial settlement agreements, these documents were offered by plaintiffs in connection with the grade GS-12 criminal investigator positions at BATF,

To the extent that plaintiffs may have performed such activities during the commutes in question, those activities do not require additional back pay for that time, but preclude it, regardless of whether those activities constituted compensable work, because plaintiffs' claims for time spent on such activities are covered by the settlements in question. The only time reserved by the settlement for adjudication is time solely spent driving to and from work. The compensability of time spent by plaintiffs performing other activities is simply not before the Court. 12

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DEA, IRS, USCS, and USSS, but the documents did not pertain to any particular grade. To the extent that these documents had any bearing upon the compensability of home-to-work driving by GS-12 criminal investigators at these agencies, these documents have the same bearing upon the compensability of such driving by GS-13 criminal investigators at these agencies. The same record supports summary judgment for the Government as to the latter just as it did as to the former. And, given the reasoning of this Court and the Federal Circuit in rejecting the driving claims of the GS-12 criminal investigators at these agencies and of USCS MEOs and USSS physical security specialists, telecommunication specialists, fingerprint specialists, and document analysts at various grades, plaintiffs cannot argue that the other home-to-work driving claims at issue in this motion ­ all of which involve criminal investigator positions at other agencies or related technical positions at the same agencies ­ are materially different from those previously decided. CONCLUSION For the foregoing reasons, the Court should enter summary judgment in the Government's favor, dismissing plaintiffs' remaining claims for overtime pay pursuant to the FLSA arising from employment as grade GS-13 criminal investigators with BATF, DEA, IRS, USCS, and USSS; as grade GS-12 criminal investigators at DOC, DOI, VA, EPA, FDA, AND IRS-ISD; as grade GS-5 and GS-7 criminal investigators at EPA, IRS, F&WS, and NCIS; as grade GS-12 MEOs; as USSS employees in occupational series GS-072, 080, 391, 1397, and 1802; as BATF employees in occupational series GS-856 and 1801; as DEA employees in occupational series GS-080, 334, 391, 856, and 1802; as DEA diversion investigators; and as USCS or ICE Technical Enforcement Officers.

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Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General

s/Todd M. Hughes TODD M. HUGHES Deputy Director

Filed electronically OF COUNSEL: Michael J. Dierberg William P. Rayel Trial Attorneys Commercial Litigation Branch Civil Division Department of Justice s/Shalom Brilliant SHALOM BRILLIANT Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Telephone: (202) 616-8275 Facsimile: (202) 305-7643 Attorneys for Defendant April 11, 2008

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CERTIFICATE OF SERVICE

I hereby certify that on the 11th day of April, 2008, a copy of the foregoing "DEFENDANT'S MOTION FOR SUMMARY JUDGMENT REGARDING REMAINING `DRIVING TIME' CLAIMS," was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/Shalom Brilliant

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No. 90-162C and consolidated cases (Judge Bush) IN THE UNITED STATES COURT OF FEDERAL CLAIMS STEPHEN S. ADAMS, et al., Plaintiffs, v. THE UNITED STATES, Defendant. APPENDIX TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT REGARDING REMAINING "DRIVING TIME" CLAIMS Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General TODD M. HUGHES Deputy Director Filed electronically OF COUNSEL: Michael J. Dierberg William P. Rayel Trial Attorneys Commercial Litigation Branch Civil Division Department of Justice SHALOM BRILLIANT Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Telephone: (202) 616-8275 Facsimile: (202) 305-7643 Attorneys for Defendant April 11, 2008

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INDEX TO THE APPENDIX

Boston v. U.S., No. 01-518, Partial Settlement Agreement Covering Plaintiffs at BATF in Occupational Codes 856 and 1801 and Plaintiffs at USSS in Occupational Codes 072, 080, 391, 1397 and 1802 at the GS-9 through GS-13 Grade Levels, October 15, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Adams v. U.S., No. 90-162, Partial Settlement Agreement Covering Plaintiffs at the GS-12 Grade Level in Occupational Codes 1811 and 1812 at Agencies Listed in Exhibit A, September 8, 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Adams v. U.S., No. 90-162, Partial Settlement Agreement Covering Plaintiffs at the GS-12 Grade Level in Occupational Code 1811 at IRS-ISD, November 1, 2004 . . . . . . . . . . . 21 Boston v. U.S., No. 01-518, Partial Settlement Agreement Covering Plaintiffs at Drug Enforcement Administration in OPM Occupational Series 080, 334, 391, 856, and 1802 Non-Supervisory Positions at the GS-9 through GS-13 Grade Levels, December 2, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Boston v. U.S., No. 01-518, Partial Settlement Agreement Covering Plaintiffs within the Bureau of Immigration and Customs Enforcement within the Department of Homeland Security, and/or Its Predecessor the United States Custom Service, (Collectively, "ICE") as Technical Enforcement Officers at the GS-9 through GS-13 Grade Levels, December 2, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Adams v. U.S., No. 90-162, Partial Settlement Agreement Covering Plaintiffs at the GS-13 Grade Level in Occupational Code 1811 at BATF, IRS, DEA, USCS and USSS, November 22, 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Adams v. U.S., No. 90-162, Partial Settlement Agreement Covering Plaintiffs within the United States Customs and Border Protection within the Department of Homeland Security and/or Its Predecessor the United States Customs Service as Marine Enforcement Officers at the GS-9 through GS-12 Grade Levels, March 19, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Adams v. U.S., No. 90-162, Partial Settlement Agreement Re FLSA Covering GS-5 and/or GS-7 in Occupational Codes 1811 and 1812 Plaintiffs, May 22, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Boston v. U.S., No. 01-518, Partial Settlement Agreement Covering Plaintiffs at Drug Enforcement Administration in OPM Occupational Series 1801 and 1810 NonSupervisory Positions at the GS-9 through GS-13 Grade Levels, June 29, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

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