*1 they in do not intemperate, context in been hearing. He be at a will by prevailing any particular par- un- a against less indicate bias 100 months prison approximately Moreover, I than he in Stevens and Ste- stipulation ty. both sentencing the der II, court’s error with judge’s under the district the district been vens would have super- See Stevens lifetime regard imposition sentence. to the original 405-month had suc- I, 1177. If Stevens pro- F.2d at of a failure to release consisted vised invol- stipulation the proving ceeded in his with notice of intent vide Stevens govern- the could—at the court untary, place on the impose that sentence or stipulation the voided option ment’s imposition. See record his reasons for its —have sentencing its own determina- and made at 438. The F.2d at II, If F.3d at 438. tions. See Stevens in no such error judge committed the the not elect to void did government us, in fact currently before sentencing impris- term Stevens’ stipulation, entire remand; we have followed our direction same, and the would remain onment inadequate to his reasons simply found allocation a different change would be only Finally, we note support departure. and the underlying offenses a judge presided who has over that “[a] light in the Viewed enhancement. in- gains trial often an intimate lengthy leaving the to Stevens of significant benefit into circumstances of defen- sight intact, despite silence Stevens’ stipulation crime, may prove uniquely dant’s which at stake knowledge of the issues his determining the sentence be useful of the issues to statement clear court’s Robin, 11. 553 F.2d at Thus imposed.” considered, compels our conclusion in- judge remand a different hearing right waived his a knowingly particularly inappropriate stance would be assistance of no ineffective and there was in a loss of the it would result counsel. familiarity judge’s of this district benefit history and crimes. with Stevens’ Request Remand to Different III. for Judge CONCLUSION consider Stevens’ Finally, we discussed, we vacate For reasons to a resentencing request assign portion of Stevens’ sen- supervised release rule, even general judge. “As different resentencing. tence and remand has shown sentencing judge when a been views or made held erroneous to have resentencing ... before findings
incorrect only judge
a different judge’s fairness
rare instance judge’s fairness is
or the appearance v. KAVANAGH, in doubt.” United Plaintiff- seriously States David (2d n. 9 Cir. F.2d Bradley, 812 Appellant, omitted). 1987) (citation to a dif Remand v. may be appropriate also judge ferent INC., COMPANY, GRAND UNION ad repeatedly court district where the Defendant-Appellee. after we call view heres to an erroneous No. 98-7696. Docket attention. United to its See error (2d Brown, 470 F.2d States Appeals, Court of United States Robin, Cir.1972); States v. United Circuit. Second (en banc) Cir.1977) (2d (per F.2d 2, 1999. June Argued: Brown). curiam) (discussing 28, 1999. Sept. Decided: standards, find Applying these remanding resentenc Stevens’ no basis certain judge. Although a different
ing to may have remarks court’s district
Tara A. Kavanagh, Pelletreau & Pelle- treau, LLP, Patchogue, NY, Attorneys for Plaintiff-Appellant. (Jedd
Mark E. Mendelson, Tabakman counsel), Grotta, Hoffman, Glassman & P.A., Roseland, NJ, Attorneys for Defen- danb-Appellee. WALKER, he used his some to Union. When MESKILL
Before: KORMAN, vehicle, Kavanagh compensated District own Judges, Circuit mileage gas, and when drove Judge.* vehicle he was reimbursed Grand Union’s separate dissents KORMAN Judge solely gas expenditures. Although opinion. *3 single was stationed at a site sometimes he week, Kavanagh returned home ev- for a WALKER, JR., Circuit M. JOHN ery night because Grand Union reserved Judge: Kav- right change to his schedule. has Kavanagh David Plaintiff-appellant an alleges average that he traveled anagh Grand Union defendant-appellee sued including eight day, hours a of seven to Inc., the Fair under Company, home, depending his travel to and from (“FLSA”), §§ 201 U.S.C. Standards According to his work Kav- locations. wages for hourly overtime seq., seeking et approxi- him anagh, Union owes Grand he amount of time large the sometimes $37,605 compensation. mately overtime and the his driving between he performed stores at which Union Grand granted summary The district court and Between 1994 services. mechanical and dismissed judgment to Union Grand employed Kavanagh periodically was For the reasons set Kavanagh’s claims. utili- refrigerator and Union as by Grand below, affirm. forth not have a fixed He did ty mechanic. location, required instead was but
work DISCUSSION more to various of Grand Union’s give The FLSA was enacted and New in Connecticut fifty than stores to individu “specific protections minimum York. York, upstate including some New that each to ensure em al workers and Long York on New Kavanagh resided receive by the Act would ployee covered in Bell- Island, and Patchogue first in then work’ day’s for a fair day’s pay fair ‘[a] assignments his work He received port. from ‘the evil “over protected would be telephone. On over Union Grand ’ ” Barren “underpay.” work” as well than he would travel more days, some Inc., Sys. Freight tine v. Arkansas-Best one site. 101 S.Ct. 450 U.S. a union. not a member of Kavanagh was (alteration (1981) original) L.Ed.2d dollars hourly wage an ten paid He was Transp. Co. Overnight Motor (quoting Kavanagh forty-hour weeks. and worked 572, 578, Missel, site to which he to be at the was (1942) Cong. (quoting 81 Rec. L.Ed. 1682 a.m. and his work assigned by 8:00 (1937) (message of President he p.m., after which day at 4:30 ended Roosevelt))). purpose, accomplish To home. Union return to his Grand from re employers prohibits the FLSA Kavanagh for the time compensated more than to work employee an quiring job day traveling spent during the between employee forty per week unless hours sites, between not for his but at a for the overtime rate compensated day, nor job the first his home and times and one-half his than one not less job of the day the last pay. See U.S.C. regular rate occasionally used Kavanagh home. While 207(a)(1). vehicle, he traveled usually Union however, required, An is not truck, employer him all of carrying with in his own for all of the employee compensate repairs. to make he needed equipment him, is associated employee’s time belonged to equipment Some * York, designation. Korman, sitting by District of New Edward R. The Honorable Court for the Eastern States District United
work. Under Portal-to-Portal 29 might entitle him to the compensation he 254(a), an employer is not U.S.C. seeks. employee quired pay overtime for We affirm the district court’s de as:
activities such
cision. Although Kavanagh’s situation
riding,
walking,
traveling
or
to and
strikes
inequitable,
us as
nothing in the
from the actual place
performance
of pertinent
regulations
statutes and
requires
activity
principal
activities which Grand
compensate
Union to
Kavanagh for
such
is employed
perform,
his travel time. While we need not identi
fy a particular regulation exempting an
(2) activities which are preliminary to or
individual from the Portal-to-Portal Act in
postliminary
principal
to said
activity or
order to find that compensation is re
activities,
quired,
Co.,
see Skidmore v.
&
Swift
*4
134, 140,
which
prior
161,
occur either
to
U.S.
the time on
29 U.S.C.
particular employment relationship. This
The district court dismissed Kavanagh’s
construction is consistent with the overall
FLSA claim based on the Portal-to-Portal
regulatory scheme and with
interpreta-
Act. It noted that Kavanagh conceded that
given by
tions
other courts and the De-
Grand Union had
(“DOL”)
neither
contract nor a partment of Labor
itself when
policy of compensating travel
time that
See,
confronted with similar cases.
e.g.,
City pra,
opin-
we find no conflict
Transp. Union Local
United
F.3d
1120-21
ion letters and our
Albuquerque,
conclusion
this case.
(bus
(10th Cir.1999)
travel time
drivers’
And
decision
the Office of Person-
day
(“OPM”)
last shift
not
and from first and
of the
Management
nel and
to limit
Imada,
compensable);
424-25 workers’ travel pensate Kavanagh trav bus, long time on as two sometimes as job eling day to the first hours, compensable); job of the day, regardless the last 790.7(c) in (non-compensable travel length of distance or the benefit to employee’s ordinary daily trips cludes “an having only Grand Union of one lodging home or and the actu between his large geographic cover such area. Be does is em place al where he what he cause this extensive travel was a contem (where do”); id. ployed to *5 plated, normal under the em occurrence special one-day assign a given ployment into contract entered between city, may be ment in another travel time Union, Kavanagh and 29 of it compensable, except portion Kavanagh’s 785.35 forecloses entitle normally be under excluded would compensation ment under the FLSA. category, travel “home-to-work” such as station); judicial Wage to train Given the constraints on the func time home Letter, tion, Op. legislate exception and Hour Div. we decline to WL (travel 28, 1997) (Dep’t July by po regulation. Labor this lice between home and work out officers duty not generally side of normal hours CONCLUSION if “within com compensable the normal reasons, foregoing judgment For the area”); Op. Div.
muting
Wage
Hour
of the district court is affirmed.
Letter,
(Dep’t
ment, only limited by the effective present date case employer, involves an (June 25, 1938), of the act and by any the Grand Union Company, seeks to which applicable State statute of limitations. use this salutary exemption as a license to If the latter were 4 years, the liability of employee’s double its workweek without
275
of the
language
Portal-to-
manner
compensation.
additional
any
exempts
Fair
Act. While
Portal
around
end-run
this
in which
perfor-
place
from the “actual
to and
accomplished
Act is
Labor Standards
activity”
principal
I sum-
opinion.
mance
majority
in the
outlined
where
perform,”
in
employed
briefly
place
“employee
here
the facts
marize
job regularly involves
of a
my disagreement
performance
for
the basis
context
exceeding the time
equal to or
panel.
travel time
majority
the distinction between
“working,”
by the
employed
was
Kavanagh
George
elusive.
travel and work becomes
Cf.
during
periods
two
Company
Union
Grand
(“[W]here
790.7(e) (1999)
an em-
Kavanagh’s job
and 1996.
activity at
principal
performs his
ployee
equipment
refrigeration
was to service
(common
examples
places
would
various
in
supermarkets
Union
fifty-six Grand
in
lineman,
a ‘trouble-shooter’
telephone
York,
and
Jersey
Connecticut.
New
New
reader, or
manufacturing
a meter
plant,
for an
per hour
paid
Kavanagh was
$10.00
exterminator)
those
travel between
far-
day. Because
work
eight hour
the nature described
not travel of
places is
operations,
Union’s
Grand
flung location of
not
section,
Portal Act has
and the
in this
travel as
required to
often
Kavanagh was
determining whether
significance
[sic]
more,
he worked
hours,
than
many
if
time
counted as
time should be
declined
Union
day or
any
week.
worked.”).
travel, although
Kavanagh
pay
mileage.
gas
him
it reimbursed
Supreme
Court
significantly,
More
Kavanagh at
call
Grand Union would
reading
the literal
“[w]here
held
has
far-flung super-
of its
him which
and tell
an odd
‘compel
statutory term
aof
”
day
to the next
report
markets
consider
result,’
pause
we should
De-
the next week.
occasions
or on some
Congress.
contemplated
it was
whether
store,
the location of
upon
pending
Dep’t
States
v. United
Public Citizen
ranged between
Kavanagh’s travel
Justice,
U.S.
nine
one-half
and one-half
five
Green
(quoting
L.Ed.2d
lives on
.Kavanagh,
day.
who
per
hours
Co., 490
Laundry Mach.
U.S.
Bock
Island,
not seek
Long
does
L.Ed.2d
Nassau,
from work
to and
for travel
force
(1989)).
particular
holding has
This
Instead, he
Queens Counties.
Suffolk
Portal-
language
here because
extraordinary
for the
*7
compensation
seeks
ambiguity,”
from
Act “is not free
to-Portal
in the tri-
points
more distant
travel
to
...
of
history
becomes
legislative
“the
and
state area.
Mitchell, 350 U.S.
v.
importance.” Steiner
247, 254,
L.Ed.
76 S.Ct.
that this extraordi-
asserts
Union
Grand
history
(1956).
legislative
the
Clearly, as
it
compensable
nary
is not
indicates,
not the
this is
earlier
discussed
reg-
Kavanagh’s
and after
before
occurred
contemplated
Congress
case that
of
Moreover,
kind
Union
Grand
day.
ular work
compensable
exempted
it
of
to
itself
it
entitled
avail
insists
of
place
the actual
and from
to
“travel
though
the
to
even
exemption
FÜSA
activity or
principal
of
performance
the
plain-
to
are' not due
the distances traveled
employed
individual
which an
activities”
Kavanagh
to live.
where
tiffs choice of
perform.
to
to travel
concededly
required
be
work in
get
to
to his
comparable distances
of
language
relying on
Rather than
if he
City
Long
and
Island
York
New
majority
Portal-to-Pórtal
York,
New
Connecticut
upstate
to
moved
in-
ambiguous
best an
is at
on what
lies
Jersey.
or New
regulation
of
terpretative
in this
result
the odd
justify
Labor to
of
de-
accepts Grand Union’s
majority
employers
says
regulation
Nevertheless,
so
not do
case.
it does
fense.
to
compensate employees
are not
we are free to hold that it is unreasonable
travel,
for their
travel”
classify
“[n]ormal
between home
substantial
necessitated
(1999).
work. 29 C.F.R.
employer’s
and
needs and not the em-
holds,
ployee’s
residence,
regulation,
majority
choice of
This
does
“normal
permit a construction
“not
that would re-
and work.”
quire
compensate
Grand Union to
Kav-
addressing
detail,
Before
this issue in
spent traveling
for his time
anagh
to the
few words are warranted
respect
job
day
job
first
of
and from the last
of
the nature of the interpretative regulation
day,
regardless
length
deference
we owe it. There are
or the
distance
to Grand Union
benefit
regulations
two kinds of
to which different
having only
one
cover such a
degrees of deference are due. The first is
large geographic
Supra,
area.”
at [273] a “legislative” regulation in which “an
added).
(emphasis
agency is exercising its rule-making power
clarify
existing
statute or regulation,
majori-
This conclusion derives from the
law,
or to
rights,
create new
or duties in
ty’s interpretation of “normal travel” to
what
legislative
amounts to a
act.” White
encompass only
normally
“time
spent by a
Shalala,
(2d Cir.1993).
v.
specific employee traveling to work. The
“legislative
Because
rule-making involves
represent
term does not
an objective stan-
agency’s
delegated power make
law
of how far
dard
most workers commute or
rules,
through
subject
it is
public
to the
how far they may reasonably
expected
participation and debate that notice and
Instead,
to commute.
it represents a sub-
procedures provide.”
comment
303-
jective standard,
defined
what is usual
04.
adopted,
Once
a legislative rule must
within the
a particular
confines of
employ-
be “given controlling weight unless [it is]
ment relationship.” Supra, at [272-73].
arbitrary, capricious,
manifestly
con-
way,
Stated another
employer
can make
trary
U.S.A.,
to the statute.” Chevron
compensable
unreasonable travel time not
Inc. v. Natural Resources
Coun-
Defense
simply by making it a regular part of the
cil, Inc.,
837, 844,
467 U.S.
Thus,
employee’s job.
majority
is able
(1984);
tive
majority,
by
construed
is inconsis-
that it is sound.
by
issued
opinion
tent with informal
letters
seemingly recognizes
majority
Department
Labor. See General
Co.,
here:
it bases its
it
such discretion
has
Elec.
429 U.S. at
§ 785.35 on
to defer to 29 C.F.R.
(“declining]
decision
follow administrative
“fundamentally
that it is
sound
ground
they
... where
conflicted
guidelines
Supra at
with the statute.”
agency”).
and consistent
pronouncements
earlier
[272-73],
justi-
letter,
are offered to
No
November
opinion
The first
dated
reason^
Instead,
the focus of
fy
inquiry
that conclusion.
whether
addresses
determining
is on
majority opinion
traveling to a
spent by police
officer
intended
training
what the
weeks of
academy for two
police
Having
travel.”
by
phrase
response
“normal
from the
compensable.
words,
meaning of those
determined the
in relevant
Department of Labor reads
majority erroneously concludes that
part as follows:
judicial function”
“the constraints on the
per-
It
the travel
is our
holding
that it does not
prevent us
begin-
officer at the
police
formed
here.
apply
Supra
to the circumstances
workday from
ning
the end of the
analysis
in this
is obvious.
The flaw
[273].
municipal build-
home to the
the officer’s
by an admin-
Saying
interpretation
that an
vehicle to
police
from there in a
ing and
“fundamentally
sound”
agency
istrative
Academy
ordinary
Policy [sic]
it
Nor is the
does not make
so.
soundness
work travel and would
be
home to
by saying
enhanced
compensable
hours
considered to
was made
an administrative
it
provisions of the FLSA.
work under the
agency.
travels from
An
who
*9
workday is
regular
his or her
before
already
I have
demonstrated
ordinary
to work trav-
in
home
majority places
engaged
on
employ-
incident of
el which is a normal
fundamentally unsound
“normal travel” is
(We
approximate
note that the
protection af-
ment.
it undermines the
25 mile distance between—is not an un-
employee
[A]n
Washing-
who works in
ton, DC,
reasonable distance
home to work
regular
with
working hours
for
commuting.).
from 9 a.m.
p.m. may
to 5
given
special assignment
in
City,
New York
Department of Labor Wage and Hour
Washington
instructions
leave
(November 15,
Opinion
1990),
Letter
re
8 a.m. He arrives in New York at 12
al.,
printed in Gilbert Ginsburg
J.
et
Fair
noon, ready for work.
special
as-
States,
Labor Standards Handbook for
signment
completed
p.m.,
at 3
and the
App.
Governments and Schools
III at 168
employee
in Washington
arrives back
added).
(emphasis
parentheti
7 p.m. Such
regarded
travel cannot be
cal included in
suggests
letter
as ordinary home-to-work travel occa-
that travel of unreasonable distances is not
sioned merely by the fact
employ-
“normal travel” between
and
work.
ment.
It
performed
was
employ-
This view is confirmed
a more recent
er’s benefit
special request
and at his
opinion letter that
directly
almost
meet
the needs of the particular and
point.
It responds to a question “[wheth-
assignment.
unusual
It would thus
er
Project
travel time for the
Coordinator
qualify as an integral part of
“princi-
from home to work site and work site back
pal” activity which
home [in the same state] is considered
perform
hired to
on the workday in
compensable
Department
time.”
of Labor
question; it is like travel involved in an
Wage
Letter,
and Hour Opinion
1996 WL
(described
emergency
785.36),
§
call
in
1996).
(May
The response
or like travel that
in
day’s
is all
work
from
of Labor is as fol-
(see 785.38).
lows:
(1999).
Merely stating that
in
employees
The distance
in
involved
the travel here
question work in the same state where
is akin to that referred to in May
they live
necessarily
does not
mean that
Opinion
Letter. Plaintiff here not
all their work is “local.”
regard,
In this
only travels to distant work sites in a state
our response to
question
might be
Island,
more like Texas than Rhode
he
different
employees
who live and
also travels across state lines. Plaintiff
work in Texas
employees
than for
who
alleges
in addition
assignments
in
live and work in Rhode Island.
In Tex-
Queens
Brooklyn,
Island,
Long
as, our
might
answer
flow from either 29
“was
to travel from
his home
785.37,
785.35 or
depending on
Patchogue to ... upstate New York and
involved;
Island,
the distance
in Rhode
Connecticut and several
locations New
§ 785.35.
Jersey,” that he “typically traveled be-
added).
Id. (emphasis
week,”
tween 500 and
per
1600 miles
The two regulations referred to in the
that his “travel
averaged
response are instructive
regula-
here. The
five and one half and nine and one half
tion
govern
that would
travel in a
3-4).
small hours per day.” (Appellant’s Br. at
compact
Island,
state like Rhode
reflects Nor does there appear
any
to be
dispute
general
rule that “[n]ormal travel from that Grand Union benefitted
plain-
home to work is not worktime.” 29 C.F.R.
extra-long
tiffs
having
(1999).
§ 785.35
hand,
On the other
hire
regional
additional
employees, regulation suggested
possibly
providing that plaintiff otherwise would not have
the answer to home to work site
been traveling such a great distance on a
Texas is the one governing home to work
daily
Moreover,
basis.
no matter where
on a special one-day
assignment
plaintiff
reside,
another
chose to
certain of Grand
distant city. In pertinent part, it reads as Union’s stores would have been a consider-
follows:
home,
able distance from
necessitating
*10
No. 551-10 att. at 9 tbl. 4
was FPM Letter
plaintiff
when
days
on the
long
a
drive
1976)
and FPM Letter No. 551-
(April
those remote stores.
report
required
(October 4, 1977);
see
ordi- 11 att. at
tbl.
regarded
as
cannot
“Such travel
551.422(a)(2)
(b).
§
by also 5 C.F.R.
occasioned
nary home-to-work
551.422(d)
significantly,
pro-
More
section
29 C.F.R.
employment.”
fact of
that,
(1999).
purposes,
employ-
vides
for these
§ 785.37
(the
duty
official
station
location of his
ee’s
only
instances
are not
These
assignment), cannot have a
present work
found
of Labor has
Department
which the
fifty
more than
miles. 5 C.F.R.
radius of
determinative.
traveled to be
distance
551.422(d);
Fed.Reg.
§
also 59
see
dealing with
regulation
interpretative
The
(1994) (discussing amendment of
travel com-
makes such
emergency travel
(d)). The
to add subsection
regulation
“a
travel over
only if it involves
pensable
only
compensation
condition to which
§ 785.36
distance.”
substantial
“[wjhen
subject
time is
is
(1999).
recent
Similarly, a more
directly from home to a
employee travels
the distance
places emphasis
letter
the limits
temporary duty location outside
ques
a
responds to
The letter
traveled.
station, the time
duty
of
or her official
by
police
a
spent
the time
tion “whether
employee
spent
would have
normal
work in a
to and from
commuting
officer1
work travel shall be deducted
home to
nor
his or her
car outside
police
marked
of work.”
compensable] hours
[the
treated as hours
duty
mal
hours must be
551.422(b).
Id.
of
Department
under the FLSA.”
worked
Letter,
ordinary travel to no more
By limiting
Opinion
and Hour
Wage
Labor
1997).
miles,
fifty
the Office
Personnel
The
than
(July
were denied compensation for their travel compensable). tance” majori- Because the time. 36 F.3d 423. The reason for the ty chooses instead to affirm the judgment two-hour trip Vega was the distance Union, favor of Grand I respectfully between the farm workers’ home and dissent. location of the fields in which they worked. “The workers were not to use employer’s]
[the to get buses to work in morning. They chose they where lived get
and how to to and from work. Not all employer’s] field [the workers rode his (emphasis
buses.” Id. at 425 in original). circumstances,
Under these the Fifth Cir-
cuit held that fact “[t]he the travel long
time was so does not make it compen-
sable under the statute.” UNITED America, STATES of present case is different from Ima- Appellee, plaintiff da because derived no benefit travel, from extraordinary and it is because, different Vega no matter plaintiff reside,
where chose to certain LUMPKIN, Defendant, Roxanne