Perez v. Mountaire Farms, Inc.

350

рating, ultimately defending, reduction, a com- a the district court should order plete Appellee’s Br. Government to file appeal.”5 at 10 the motion. Newson, (internal (quoting 515 F.3d at 378 VACATEDAND REMANDED omitted)). quotations This argument ig- nores the fact a defendant’s uncondi- guilty plea

tional in and of itself limits his

grounds appeal, restricting subsequent for question

attacks on a conviction to the plea whether the “was both counseled and PEREZ; Luisa Elvin Francisco Gonza Broce, voluntary.” United States v. Osovio, Individually and on behalf of 563, 569, U.S. 109 S.Ct. 102 L.Ed.2d persons similarly all situated, Plain (1989). course, Of attacks on these tiffs-Appellees, grounds fall scope outside the of any ap- v. Blick, pellate waiver. See FARMS, MOUNTAIRE INCORPO (recognizing invalidity of appellate RATED, a Corporation; Delaware involuntarily waivers entered into or unin- Mountaire Delaware, Farms of In telligently). Therefore, when a defendant corporated, a Corporation, Delaware unconditionally pled guilty, has his refusal Defendants-Appellants, sign such an appellate waiver has no impact ability on his to challenge his con-

viction or on the Government’s need to Ray Barrientos; Gomez; Maria Juana “anticipate” challenge. such a Miguel; Moya Rivera; Gibran Gloria Castro;

Paneto Lopez; Shitwa Perez Santiag Jose Lugo; Antonio IV. Maritza Alcover; Cifuentes; Julio Juan C. reasons, For the foregoing we vacate Compian; Otero; Carmen Irma R. Divens’s sentence and remand for proceed- Perez; Sanchez; Julisa Carlos Tolli ings consistent with opinion.6 this If the Lopez; Daysi nichi De Jesus Vane provide Government cannot a valid reason gas; Haydee Betancourt; A. William refusing to move for an additional one- Velazquez Rivera; Villareal; Luz E. 3El.l(b) level reduction § under U.S.S.G. Lopez; Celso Escalante Manuel M. and continues to Herrera; refuse to move for a such Lopez Ortolaza; Luis Alex 5. The suggested Government further аppeal, oral 6. argues On Divens also that the dis- argument appellate imposed review of trict court substantively criminal unreason- relying able sentence sentences by requiring crack/pow- wastes trial on a 20:1 resources der ratio calculating courts to extent of its upon resentence defendants re- departure. Appellant's downward Br. at 28- argument mand. The is meritless. The Sen- procedurally Because the court erred in tencing 3El.l(b) § Commission did not draft miscalculating the range, Guidelines we do permit conservation of resources argument. not reach this See United Stales eliminating a statutory defendant's or consti- Carter, (4th Cir.2009) v. Rather, rights. 3El.l(b) tutional § simply (permitting consideration of a sentence’s sub- seeks to allocate “efficiently.” resources To "[i]f, stantive only reasonableness if” an resentence a defendant who has received an appellate proce- court "find[s] the sentence illegal surely sentence is “efficient.” reasonable”). durally Rivera; Baez; L. Baez Audin Caban; Jorge Negron Jose L. Millet J. Bataille; Bermudez; Carlos Sepulve- Johanna Martinez; Ramirez Jannette Perez; Solange Blanchard; Birriel Serrano; G. H. Catalina da; Christian Arellano; Avila; Bonola Cassan- Rosa Floriberto Avila E. Juan Velasquez; Vega; Diaz; Bowden; Anabel Busanet Ra- dra Camacho; Manuel Victor Carrion; Cantave; M. Jesus Villafane; Leonide Yamilette fael Fonseca Dale; Charleron; Irizarry; A. Quinones; Exalus James R. Luis Garcia Timothy Dorsey; N. Marie Dorvili- Perales; Marre- O. Maria Perez Elidad Dorvilus; Ductan; er; Diaz; Luxone Judith Pedro Tira- ro; Rivera Sandra Duverger; Duverger; Cintron; C. Barreto; Absalon Solia Torres Yahaira do Escalante; Estrada; Maria Rigoberto Lopez; Antelma Torres G. Victor Farias; Feliciano Perez; D. Mario Vazquez Ana Michael Vasquez; Brian Florеs; Figueroa; T. Silva; David Ana Liduvina Puentes; Abner Velez M. Frazier; Ramos; Fogg; Leon N. Frazi- James Zamora; Raquel Arce Maria Giddins; er; Melvin Marta Gon- Benavides; Angel O. Luis Cal- Ernesto Mayra Gonzalez; Castro, Jr.; zales; Roberto J. Suarez; Vicente deron Larry Harmon; Santiago; Mangual; Gonzalez Marisol Cotto Oscar Colon Hernandez; Roche; Manuel M. Herr- Jerry Maria Rodriguez; Famania Hamilton; Gonzalez; era; Herrera Ro- Febrez; Berrios Guillermo Maria Jean-Lucner; De Gudino; Jean C. Je- Gonzalez; Ra- melus Sylvia Elvia Jimenez; Perez; sus; Erick Jimenez Infante; Eleazar Angel M. Munoz fael Johnson; Ortiz; Tirado; Lisson Jo- Nieves; James Abel R. Rufina Rosa Jules; Jules; seph; Ania B. Julien Ram- Mazariegos; Cuauhtemoc Ortiz Rivera; Joy Lecates; Zalazar; Agustín Bravo Jeomar Lebrón iez; Hector Litus; Louis; Jaques Marie Yolene Bueno; Gonzales; Alberto Co- Leonel Maldonado; Enid Mandez Olga Fernando Cruz; Crespo; Ivan Galarza lon Marrero; Esperanza Vazquez; Ivan Osorio; Lopez; Wald- Victor Gracia Martinez; Martell; Intermo Luis Vazquez; S. Romelia ermar Mendez Meeks; Mer- Escalante; Mazariegos; Juan Jesse Perez; Perez Florencia Guerra; cado; Nayra Linda Rivera; Mercado Pucio; Es- Maria J. Mauricio Mood, Jr.; Morales; Mercado Charles Rodriguez; Rodri- peranza Ramon Sylvia- Morales; Morales; Guzman; Velasquez; Nelia Jose guez Ruben Munguia; Moriden; Edwin Ines Velasquez Vargas; Mal- na Jesus Ideliz Nieves; M. Caraballo; Yashira Ocasio Velez; Nieves Brenda Matos pica Oney; Rivera; Andrea Morales; Manford Os- Medrano; Ed- Huto Sofia Pay- Jerry Patton; L. ten; Charles Hernandez; Pa- J. Thomas gardo Ortiz Godines; ton; Elias Lenny Santiago Lebrón; Delmar Perez Silva; dilla Mazariegos; Betzaida Perez Cubero; Perez Adrian Briz- Rodolfo Velez Quinones Roman; Mary Mendez; Montes; Ricardo eno; Manuel Castillo Ramirez; Angel Ra- Mejia Mendez; Alicea Jannette Garcia; Paula L. Ramos; Sepulveda; L. Ortiz; Bonilla; mirez Julie Perez Felix Eleazar Rivera; Cynthia Reddick; Morales; Irwin Gil- Long; Andrew A. Julian Laboy; Riv- Jonathan Rosa; berto Rivera Stacey Paul M. Norat Jean Leon; era; De Ivan Sr.; Roblero White, Juana Souil; D. Denes Adrian Cedeno; Rodriguez Rodriguez; Allius; Julio Alexandre; Dieupuifait Marie Crespo; Rodriquez Ruben Ru- Anaya; Allius; Abdiel Manuel Jos C. Jose G. Sanchez; mos; Cynthia Monica San- Cruz; Ayala Elizabeth Angeles; Eric chez; Dersy Castro; Reyes; Rodriguez; Miguel Sanchez Giselle Ofelia A. Sastre; Santiago; Santiago Rodriguez; Brenda Richard D. Berenice S. San- Satchell; Segarra Vazquez; L. Victor tos; Savage; Lamont D. Charles Sav- Silverio; D. Rafael Bonaficio Solo- Jr.; age, Glydis Smith; A. Alma Kelly mon; Solomon; Taylor; Dolores Venegas; Zamora, Sr.; Francisco Henry Jimenez; Charles E. Texeira Zamudio; Cantave; Cheryl An- Ernst Timmons, Jr.; Torres; David Jason Carter; Cesar; Malvin tonio William Rodriguez; Turnage; Torres Grace Ortiz; Pizarro; Cintron Iris N. Cirino Ulysse; Vargaz-Fran- Anel Francisco Cisneros; Regina Conquest; Johnie qui; Vasquez; A. M. Luis Niurka Ve- Guadalupe Perez; Diaz Erena Flam- Montalvo; Villata; E. lez Sandra er; Georges; Giddens; Marie Perr Villegas; Virgile; Roman Lena Velus Gonzalez; Gordon; Jennifer Maurice Sandy Williams; Dee Bessie A. Juarez; Kwak; Everardo J. Yoon Soo Wright; Adams; Ariste; David Elisee Moore; Herminia Maria Mor- Carlos Cintron; Cisneros; Maria Carlos Colon; Mullen; Tracy ales Shawn S. Garcia; Yarleem Colon Mandel Cor- Nock; Ocean; A. Mercelant Lavi bin; Cuffee; Custis; William Fred D. Oras; Ortega; Pagan Claudia Juan Gustin; Hagans; Menieze Alonzo Santiago; Pointdujour; Michelle Glo- Johnny Sylphane Lestin; Jean J. Lo- Pumphrey; Quinones; ria R. Joan Larry pez; Lopez; McCoy Manuel Romero; Amalia E. Jessica M. Rosar- Cooper; Merise; Daueyson Carod Rivera; Ivray Sauls; Viergela io Sen- Negron; Ayala; Jennifer Pena Mari- at; Singletary; R. Jessie Annie L. Perez; Rivera; bel Liliа B. Pierre L. Thornton; Stephens; Oliver Laura Hilaire; Tyrell Timmons; Saint Su- Tovar; Williams; Judith Suzette Jean Tripp; Claudio; san Marilu Velez Charleron; Baptiste; Paulette Mar- Morales; Joyce E. Luis Alvarado A. Cesar; Dice; tha Lelie L. Ea- Sharon Askius; Barrios; Noel Paul Desrari- ton; Florestal; Lefils Marie Melvina us; Ductan; Garcia; Olisia Joseph L. Gibbs; Guzman; Fredis A. Michael Sylvia Gonzalez; Guillermina Guerre- Jackson; Raymond Johnson; A. Wil- ro; Hernandez; Javier Claretta Jack- Leneus; Lifrance; frid Au- Francois son; Resto; Ruiz; Eric Rios Eduardo gusto Lopez; Ortiz; Oner O. Nevarez Rivera; Moisés Alberto Rivera Fal- Odaris; Milagro Pascual; Alce Doris con; Rocha; Sara J. Rodri- Juliana Raut; Roland H. Carlos M. Robles guez Andino; Sanchez; Adela J. Delgado; Santiago A. Juan Velas- Wright; Neredia Elizabeth Marie L. quez; Smith; Sturgis; Leon Brenda Altenor; Apodaca; Carmen Silvia Vargas; Reynaldo Vega; I. Noelia Bolden; Saint-Remy James L. Washington; Ascencio; Valerie Laura Charles; Florestal; Renise Luis C. Magdalena Bravo; Casseus; Elfise Garza; Gonzalez; Maria De La Luz Desfines; Joceline Ariel Diaz Mor- Gonzalez; Gonzalez; Gil Rosa Salva- ales; Evans; John H. Marie Lourda Romero; dor Guerrero Louise V. Exantus; Wilkely Frejuste; Seibo Harris; Louigene; Villa Luis R. Riv- Garcia; Gonzalez; Elvira Maria Gon- Marrero; Martinez; era Yolanda Monterrozo; zalez Medina; Monfort; A. Karina Guox-Ar- Francisco Elie Perdomo; queta; Gutierrez; Rene I. Blanca A. Me- Carlos Luis Per- Wanda ez; lendez; Quezada; Phillipe Monfiston; Jesus M. Carlos J. Juliana Perez; Elvin Francisco Gonza Luisa Monterrozo; Mon- Marie Gabrielle G. Individually Osovio, behalf of and on Torrez; Muniz tilus; M. Carlos situated, similarly Plain- persons all Pierre; Oguezana; Frantz Donne tiffs-Appellants, Pinkett; Pierre; Valerie Youbens Timothy Pum- Polynice; Guilson v. Rodriguez; Christopher Vic-

phrey; Farms, Incorporated, a Dela- Mountaire Bayron Rojas; Eliese Rodriguez; tor Farms Corporation; Mountaire ware Rosier; Ismael Romain; L. Marie Delaware, Incorporated, a Dela- Satchell; E. Craig Donta Ruperto; Defendants-Appel- Corporation, ware Tovar; Pedro Vickers; Juan Jason lees, Zheng; Ald- Diana Vasquez; Jun Jie Burton; Hector D. Ca- us; Clarence Lugo; Firana ban; Barrientos; Gomez; Ray Ruben Cardona Maria Juana Exume; Moya Rivera; Desravines; Miguel; Choi- Gloria Mathurin Gibran Castro; Lopez; Galindo; Perez Paneto Shitwa Florestal; Pedro Gil sius Santiag Lugo; Maritza Antonio Jose Lecius; Herrera; Dul- Sergio Charles Cifuentes; Alcover; Julio Juan C. Maldonado; Leyva; Abner ce Jessica Otero; R. Compian; Irma Carmen Murat; Montulus; Carline Bernard Sanchez; Perez; Tolli- Carlos Julisa Pierre-Louis; Pierre; M. Jean Donel Daysi Lopez; De nichi Jesus Vane- Ramos; Rodriguez Elizabeth Sarai Haydee Betancourt; gas; A. William Correa; Rosario; Iveett Santos Zaida Villareal; Rivera; Velazquez Luz E. Houston; Anthony Bernarda Ven- T. Lopez; M. Manuel Escalante Celso Ventura; Margarita tura; Aurelia Gil Ortolaza; Herrera; Lopez Alex Luis Charles; Lesly Ventura; Jean Gil Caban; Jorge Negron Millet L. J. Decembre; Marie Yanick Jacques Martinez; Sepulve- Ramirez Jannette Lima; Marie Delva; Dumonvil Jean Serrano; da; H. Catalina Christian llera; Guerrier; Laumise Aristen M. Avila; Rosa Velasquez; Avila E. Juan llera; Lopez; America D. Robeldo Diaz; Camacho; Ra- Manuel Victor Martinez; Reymundo Macedo; To- Villafane; Yamilette fael Fonseca Mazariegos Velasquez; Jean mas Quinones; Irizarry; R. Luis Garcia Noel; Mondestin; Ramiro Jean Louis Perales; Marre- Maria Perez Elidad Serrano; Miguel A. Noriega; Ortiz Diaz; Tira- ro; Rivera Pedro Sandra Larry Marrero; D. Otero Omaira Cintron; Barreto; Yahaira Torres do Pierre; Pi- Phillips; Amelice Gadoul Lopez; Antelma Torres G. Victor Padilla; Santiago errilus; Angel Julio Perez; Vazquez Anа Vasquez; Brian Claimants, Soto, Randy De Jesus Silva; Puentes; Ana Abner Velez M. Ramos; Zamora; Raquel Arce Maria Center; Legal Bu- Aid Public Justice Benavides; Angel Luis Cal- Ernesto Legal Aid Justice reau, Incorporated; Castro, Jr.; Suarez; Vicente deron Employment Center; Maryland Law- Mangual; Marisol Cotto Colon Oscar Association; Metropolitan yers Roche; Jerry Rodriguez; Famania Lawyers Employment Washington Gonzalez; Febrez; Maria Guillermo Secretary Labor, Gudino; Association; Gonzalez; U.S. Ra- Sylvia Elvia Perez; Infante; Angel Labor, Support- M. Munoz Amici fael Department Ortiz; Nieves; Abel Rufina Rosa R. ing Appellee. Jules; Mazariegos; seph; Jules; Cuauhtemoc Ram- Ania B. Ortiz Julien Zalazar; iez; Agustín Rivera; Joy Lecates; Hector Bravo Jeomar Lebrón Bueno; Gonzales;. Jaques Litus; Louis; Alberto Marie Leonel Co- Yolene Cruz; Crespo; Olga Maldonado; lon Ivan Galarza Fernando Enid Mandez Osorio; Lopez; Vazquez; Marrero; Esperanza Victor Gracia Wald- Ivan Vazquez; Martell; Martinez; ermar Mendez Romelia Luis S. Intermo Escalante; Perez; Mazariegos; Meeks; Perez Florencia Jesse Juan Mer- Pucio; Rivera; cado; Nayra Guerra; Maria J. Mauricio Es- Mercado Linda Morales; peranza Rodriguez; Jr.; Mood, Ramon Rodri- Mercado Charles guez Guzman; Velasquez; Morales; Morales; Sylvia- Ruben Jose Nelia Vargas; Velasquez Moriden; Munguia; Ideliz na Jesus Mal- Ines Edwin pica Caraballo; Nieves; Velez; Brenda Matos Nieves Yashira M. Ocasio Medrano; Morales; Rivera; Oney; Huto Sofia Ed- Manford Andrea Os- gardo Hernandez; ten; Jerry Patton; Pay- Ortiz Thomas Pa- J. L. Charles Silva; Lenny Lebrón; Santiago ton; Godines; dilla Perez Delmar Elias Cubero; Mazariegos; Rodolfo Velez Adrian Briz- Perez Betzaida Perez eno; Montes; Quinones Mary Mendez; Roman; Castillo Manuel Ricardo Mejia Mendez; Garcia; Angel Ramirez; L. Paula Aliсea Jannette Ra- Ortiz; Bonilla; Sepulveda; Ramos; Eleazar Perez Felix mirez Julie L. Long; Morales; Cynthia Reddick; Rivera; Andrew A. Julian Irwin Gil- Stacey Rosa; Laboy; M. Norat Jean Paul berto Rivera Jonathan Riv- Souil; White, Sr.; era; Leon; Adrian D. Denes Juana Roblero De Ivan Alexandre; Allius; Dieupuifait Rodriguez; Rodriguez Cedeno; Marie Julio Allius; Anaya; Rodriquez G. Jose Manuel Crespo; Jos C. Abdiel Ruben Ru- Angeles; Cruz; Ayala mos; Cynthia Sanchez; Eric Elizabeth Monica San- Baez; Rivera; chez; Dersy Castro; Jose L. Baez Audin Sanchez Giselle Bataille; Bermudez; Santiago; Sastre; Johanna Carlos D. Brenda Richard Perez; Solange Blanchard; Satchell; Segarra G. Birriel Vazquez; L. Victor Arellano; Silverio; Floriberto Bonola Cassan- Rafael D. Bonaficio Solo- Bowden; Vega; mon; dra Solomon; Kelly Taylor; Anabel Busanet Dolores Cantave; Henry Carrion; Jimenez; Leonide M. Jesus Texeira E. Charles Charleron; Dale; Exalus Timmons, Jr.; Torres; James A. David Jason Timothy Dorsey; O. Marie N. Rodriguez; Turnage; Dorvili- Torres Grace er; Dorvilus; Ductan; Ulysse; Luxone Vargaz-Fran- Judith Anel Francisco Duverger; Duverger; Absalon qui; Vasquez; Solia C. Luis A. Niurka M. Ve- Rigoberto Escalante; Estrada; Montalvo; Villata; Maria lez Sandra E. Farias; Michael D. Villegas; Mario Virgile; Feliciano Lena Roman Velus Flores; Figueroa; Sandy Liduvina Williams; David T. Dee A. Bessie Fogg; Frazier; Wright; Adams; Ariste; James Leon N. Frazi- David Elisee er; Giddins; Cintron; Melvin Cisneros; O. Marta Gon- Carlos Maria zales; Gonzalez; Mayra Garcia; Roberto J. Yarleem Colon Mandel Cor- Larry Santiago; bin; Cuffee; Harmon; Custis; Gonzalez William Fred D. Hernandez; Gustin; Maria Manuel M. Hagans; Herr- Menieze Alonzo era; Hamilton; Sylphane Lestin; Johnny Berrios Herrera Ro- Jean Lo- J. Jean-Lucner; pez; Lopez; Larry McCoy melus Jean C. De Je- Manuel sus; Jimenez; Cooper; Merise; Daueyson Eleazar Erick Jimenez Carod Tirado; Johnson; Negron; Ayala; James Lisson Jo- Jennifer Pena Mari- Tovar; Williams; Jean Rivera; L. Judith Suzette Pierre Perez; Lilia B. bel Charleron; Mar- Timmons; Baptiste; Paulette Tyrell Hilaire; Su- Saint Cesar; Dice; Claudio; Lelie L. Ea- tha Sharon Tripp; Marilu Velez san Florestal; Joyce ton; Melvina Marie Morales; Lefils A. E. Alvarado Luis Guzman; Gibbs; Michael Barrios; Fredis A. Paul Desrari- Askius; Noel Jackson; Johnson; Garcia; Raymond Wil- Ductan; Joseph L. A. us; Olisia Lifrance; Leneus; Francois Au- Gonzalez; frid Guerre- Sylvia Guillermina Ortiz; gusto Lopez; Nevarez Hernandez; Oner O. Jack- ro; Claretta Javier Pascual; Ruiz; Odaris; Milagro Resto; Doris Eduardo Alce son; Rios Eric Raut; H. Carlos M. Robles Rivera; Rivera Fal- Roland Alberto Moisés Santiago Delgado; Rocha; Juan A. Velas- Rodri- con; Juliana J. Sara Smith; Sturgis; Sanchez; Brenda Andino; quez; Leon Adela guez J. Vargas; Reynaldo Vega; Wright; L. Noelia I. Marie Elizabeth Neredia Ascencio; Washington; Apodaca; Laura Altenor; Valerie Silvia Carmen Bravo; Casseus; Saint-Remy Magdalena Bolden; Elfise L. James Desfines; Florestal; Ariel Diaz Mor- Charles; Joceline Luis C. Renise ales; Evans; Gonzalez; H. Lourda Marie John Garza; De La Luz Maria Wilkely Exantus; Frejuste; Gonzalez; Gonzalez; Seibo Rosa Salva- Gil Gonzalez; Garcia; Romero; Elvira Maria Gon- Louise V. dor Guerrero Monterrozo; Karina Louigene; Riv- zalez Guox-Ar- Harris; Luis R. Villa Gutierrez; Martinez; queta; Rene I. Me- Marrero; Wanda Yolanda era Monfiston; lendez; Phillipe Medina; Monfort; Juliana A. Elie Francisco Monterrozo; Perdomo; Marie Gabrielle Mon- Luis Per- G. A. Carlos Blanca Torrez; tilus; Quezada; M. Muniz J. Carlos ez; M. Carlos Jesus Pierre; Oguezana; Miguel Frantz Reyes; Rodriguez; A. Donne Ofelia Pinkett; Pierre; Rodriguez; Youbens Valerie Santiago Berenice S. San- Timothy Polynice; Pum- Savage; Guilson tos; D. Charles Sav- Lamont Rodriguez; Christopher Smith; phrey; Vic- Jr.; Glydis A. Alma age, Bayron Rojas; Rodriguez; Eliese Zamora, Sr.; tor Venegas; Francisco Rosier; Cantave; Romain; L. Ismael Zamudio; An- Marie Cheryl Ernst Satchell; E. Ruperto; Craig Donta Carter; Cesar; Malvin William tonio Vickers; Tovar; Pedro Pizarro; Juan Ortiz; Jason Iris N. Cirino Cintron Zheng; Ald- Vasquez; Jie Diana Cisneros; Conquest; Jun Regina Johnie us; Burton; D. Hector Ca- Perez; Clarence Guadalupe Erena Flam- Diaz ban; Lugo; Firana Giddens; Ruben Cardona Georges; Perr er; Marie Desravines; Exume; Gordon; Choi- Gonzalez; Mathurin Maurice Jennifer Galindo; Florestal; Juarez; Kwak; Pedro Gil sius Yoon Soo Everardo J. Lecius; Sergio Herrera; Dul- Moore; Charles Mor- Herminia Carlos Maria Maldonado; Leyva; Mullen; Tracy Colon; ce Jessica Abner Shawn S. ales Murat; Montulus; Ocean; Nock; Bernard Carline Mercelant Lavi A. Pierre-Louis; Pierre; M. Ortega; Pagan Jean Oras; Juan Donel Claudia Ramos; Rodriguez Elizabeth Pointdujour; Santiago; Sarai Michelle Glo- Correa; Rosario; Quinones; Iveett Santos Zaida Pumphrey; Joan R. ria Houston; Anthony Bernarda Ven- T. Romero; M. Jessica Rosar- Amalia E. Ventura; Margarita tura; Sauls; Viergela Aurelia Gil Rivera; Ivray Sen- io Lesly Charles; Ventura; Jean at; Singletary; Annie L. Gil R. Jessie Decembre; Yanick Thornton; Jacques Marie Laura Stephens; Oliver Lima; Delva; Dumonvil Marie Jean llera; Guerrier;

M. Aristen Laumise Lopez;

Hera; America D. Robeldo

Macedo; Reymundo Martinez; To- Mazariegos Velasquez;

mas Jean

Mondestin; Noel; Louis Jean Ramiro Serrano;

Noriega; Miguel A. Ortiz Marrero; Larry

Omaira D. Otero Pierre;

Phillips; Amelice Pi- Gadoul Padilla;

errilus; Angel Santiago Julio

Randy Soto, Claimants, De Jesus Center; Legal

Public Justice Aid Bu-

reau, Incorporated; Legal Aid Justice

Center; Maryland Employment Law-

yers Association; Metropolitan

Washington Employment Lawyers

Association; Secretary Labor, U.S. Labor,

Department Support- Amici

ing Appellant. 09-1917,

Nos. 09-1966. of Appeals,

United States Court Circuit.

Fourth

Argued: Jan. 7, 2011.

Decided: June Stine, Larry

ARGUED: James Wim- Lawson, Steckel, berly, Schneider & Stine, PC, Atlanta, Georgia, for Appel- lants/Cross-Appellees. Christopher C. Brown, Brown, LLP, Levy, Goldstein & Baltimore,' Maryland, for Appel- lees/Cross-Appellants. Nickole Carriean- Winnett, na Department United States Labor, D.C., Washington, for Amici Curi- BRIEF: ae. ON Elizabeth K. Dormi- Lawson, Steckel, ney, Wimberly, Stine, PC, Atlanta, Georgia, Schneider & Appellants/Cross-Appellees. Monisha Center, Cherayil, Public Justice Balti- more, Maryland, for Amici Curiae Public Center, Bureau, Legal Justice Aid Incor- Center, porated, Legal Mary- Aid Justice Association, Employment Lawyers land Metropolitan Washington Employ- Lawyers ment Association. M. Patricia Smith, Labor, Solicitor of C. William Lesser, Solicitor, Acting Associate Pаul Frieden, L. for Appellate Litiga- Counsel tion, Labor, Department United States D.C., Washington, for Amicus Curiae Secretary of Labor. KEENAN,

Before WILKINSON BERGER, IRENE Judges, Circuit C. Judge United States District for the Virginia, sitting District of Southern West by designation. Farms, part by compensable. in part,

Affirmed in vacated Perez v. Mountaire Inc., (D.Md.2009). 499, Judge F.Supp.2d KEENAN published opinion. majority opinion, Judge in which wrote the Additionally, affirm we the district joined. Judge WILKINSON BERGER that holding court’s Mountaire’s violations in concurring part and opinion wrote an and, of the FLSA were not “willful” ac- concurring judgment. in the cordingly, two-year statute of limitations applicable is to the employees’ claims for

OPINION “back pay.” Lastly, we affirm the district holding court’s that Mountaire acted in KEENAN, Judge: Circuit good faith and the court’s resulting deci- Perez, employee Luisa an of Mountaire declining sion liquidated damages award Farms, Inc. and Mountaire Farms of Dela- employees. to the ware, Mountaire), (collectively, Inc. filed this action on behalf of herself and similar- I. ly-situated employees (collectively, the em- wages liquidated and ployees) to recover Mountaire a company engages damages under the Fair Labor Standards slaughtering, processing,1 and distribu- (FLSA), §§ Act of 1938 29 U.S.C. et parts. tion of chickens and chicken Moun- for seq., spent donning operates taire chicken processing plants protective during gear workday Millsboro, Selbyville and Delaware. poultry processing plants. Mountaire’s Mountaire pays employees on based district court held the activities time,” begins “line which when the first employees compensa- identified are chicken arrives at the first work station on FLSA, ble as “work” under the and that “production department, line” of each pay employees Mountaire’s failure to and ends when the last chicken leaves the for these activities constituted a violation “production lаst work station on each line.” of the FLSA. pay Mountaire does not its agree We with the district court sub- any spent donning of the time part stantial hold that spent the time protective gear. their doffing protective gear workday and the end of each is Mountaire’s who work on the compensable as “work” under the “production butchering FLSA. line” process- However, based on this Court’s in ing required decision chickens are to wear certain Foods, Inc., Sepulveda Family' protective v. Allen gear, including plugs, ear “bump cert, (4th Cir.2009), smocks, nets, 591 F.3d 209 caps,”2 de- hair and beard —nied, -, U.S. 131 S.Ct. 178 steel-toed Depending rubber boots. (2010), L.Ed.2d 42 job assignment, decided after the dis- employees also are trict court judgment pres- required entered to wear protective gear other case, required ent we are gloves, to hold such as “nitrile/latex/rubber” mid-shift donning protective aprons, safety glasses, gloves, ‍‌‌‌​‌​‌‌​​‌‌‌‌​​‌‌‌‌​​​‌​‌‌‌‌‌‌‌​‌​​​‌‌​‌‌‌‌​​​‌‍cut-resistant gear employees’ meal not gloves, break is chain and sleeves.3 processing hanging, protective gear Chicken includes the 3.All the items of referenced cutting, deboning of chickens. paragraph in this will be referred to collec- tively opinion "protective gear.” in this as "bump cap” plastic 2. A is a that resem- hat bles a helmet. construction company gear provided by in lockers that are by Mountaire’s Moun- required As promulgated by Every Friday, regulations employees the taire. the must rules and Department Agricul- protective gear the States take home all their United stored 416.5, § ture, Occupation- and the 9 C.F.R. in the lockers because the locker rooms Safety and Health Administration al are cleaned on the weekends. 1910.132(a), (OSHA), § the em- 29 C.F.R. employees After the filed their com- protective gear, their ployees must don case, in plaint changеd this Mountaire its smocks, beginning with their before start- policy employees to allow to take their “production the line.” The ing work on Although employees smocks home. employees typically protective don their signed they written forms to indicate that lockers, their in the bath- gear next to policy, many read and understood the em- rooms, area, production in the or ployees taking refrained from the smocks hallways they as walk their work sta- home. tions. employees produc- Once the enter II. area, they protec- must sanitize their tion January employees of two by walking through a foot bath gear tive facilities, Mountaire located Millsboro by sanitizing solution on splashing Delaware, Selbyville, complaint filed a aprons. Employees gloves their who wear against the district court un- Mountaire into a dip gloves sanitizing must their solu- der the FLSA Delaware state law. tion, required are not employees who employees sought The compensation for wash their hands. gloves to wear must spent donning, doffing, the time and sani- employees a thir- provides Mountaire its (hereafter, tizing doffing) meal Al- ty-six unpaid minute break. protective gear. employees The also though required explicitly by not to do so sought compensation spent for time walk- Mountaire, employees all the sani- almost ing to and from their work stations and for boots, gloves before aprons, tize their working during their meal break. The area for their lunch leaving production arising district court bifurcated the claims they may eat without blood break so facilities, from the two different plant parts persons. chicken on their and raw proceeded first consider Millsboro Employees usually aprons doff their (the action), employees’ claims Millsboro At gloves during the meal break. the end subject рresent appeal. which is the of the break, re-entering of the meal before summary judg- Mountaire moved for floor, the are re- production employees ment in the Millsboro action. The district quired by Mountaire’s rules and summary court denied the motion for Department Agriculture reg- and OSHA judgment and ac- certified the Millsboro again protective gear. don their ulations 216(b) § tion as a collective action under shift, of each work before At the end Farms, Perez v. FLSA. Mountaire employees doff their leaving plant, (D.Md. Inc., 670, 673, F.Supp.2d usually protective gear. employees The 2009). hampers locat- place their soiled smocks In March court con- plant’s hallways. day, ed in the Each district pro- the smocks and ducted a bench trial on the Millsboro ac- Mountaire launders trial, parties presented on tion. At the both employees vides clean smocks to its plant’s hallways. expert in the witnesses who testified about the racks located required remaining protective store their amount gear. by employees donning, protective spent doff their time these to don and doffing, walking conducted studies and to and from their expert These witnesses facility to measure the at the Millsboro work stations was 10.2 minutes. by employees the Millsboro spent time trial, After the the district court issued (hereafter, employees) the various opinion an which it held that the time donning doffing. and acts of by donning and doff- spent employees witness, Dr. Rob- employees’ expert ing protective gear their Radwin, videotape group recorded on a ert compensable and end of a work shift is as randomly-selected employees donning Perez, “work” under the FLSA. doffing protective gear and their under F.Supp.2d at 516. The district court also In Dr. Rad- working actual conditions. are compensable held these activities study, donning process began win’s they as “work” when occur mid-shift at the employee acquired an first an item of when employees’ unpaid meal break. Id. at 521. doffing protective gear, process and compensable To calculate the amount of employee released the last ended when the time, compared the district court the stud- of Dr. gear. item of The results Radwin’s by ies conducted Dr. Davis Dr. and Rad- study donning showed that the total mean win, ultimately and declined Dr. accept by doffing employee time an was regarding donning Davis’s conclusions a Using percent 20.879 minutes. “95 confi- Instead, doffing times. the district court interval,”4 dence Dr. Radwin concluded study relied on Dr. Radwin’s to calculate employees spent that the a total time of compensable spent by time the em- day donning per 20.018 minutes and doff- ployees in doffing. the acts of ing protective gear. their However, the district court found that Dr. witness, expert Jerry Mountaire’s Dr. Radwin’s time calculation of 20.879 min- Davis, study in a conducted a conference overestimation,” utes was “a slight and the room, videotape where he recorded on var- district court accordingly found that employees ious who were selected and re- spent donning total time was by recording cruited Mountaire. Before 17 minutes. Id. at 524. study Dr. Davis participants, informed The district court also held that Moun- conducting study a them he was on willfully taire did not violate the FLSA and doffing, partici- that, therefore, applicable statute of pants would be timed while limitations for the FLSA claims under 29 protective gear. par- their As the 255(a) § years, U.S.C. was two rather than ticipants protective donned and doffed the years by three employees. as asserted room, gear in the Dr. conference Davis Additionally, Id. at 527. the district court timed them. Dr. Davis also calculated good held that Mountaire acted in faith “walking by multiplying time” the selected and, accordingly, rejected the employees’ employees’ average walking speed of 3.0 liquidated damages. claim for Id. per by miles hour average distance that the typically walked from III. the locker room to the work station on the Court, production floor. calcula- appeal Based his On to this Mountaire ar- tions, gues Dr. Davis that the total that the court concluded district erred hold- mean, Conley, range sample See D. Barnes & J. Statistical Evi- or below or around the (1986) (de- Litigation, beyond § dence in population unlikely 3.15 at 107 which the true fall). fining a confidence interval as a limit above Coal, R. violated the FLSA Iron & Co. v. Muscoda Local No. ing that Mountaire 590, 598, its failing compensate 321 U.S. 64 S.Ct. pro- (1944) spent donning (defining L.Ed. 949 “work” as beginning and end of gear at the exertion, tective physical or mental whether bur- shifts, their and at meal breaks. their work not, or which densome is controlled or re- employees argue that cross-appeal, On quired by employer pursued nec- concluding that the district court erred essarily primarily for the benefit of two-year applies a statute of limitations to business). employer and his claims and in declin- employees’ FLSA ing liquidated damages. to award workday Under “continuous rule,” compensable workday begins judg review a district court’s We activity” “principal job with the first of a a bench trial under a ment entered after employee’s “princi and ends with the last “mixed standard of review.” Universal Alvarez, 29, pal activity.” 546 U.S. at 126 Int’l, Europa Inc. v. Collezione Furniture 790.6(b)). § (citing S.Ct. 514 29 C.F.R. (4th USA, Inc., 417, 427 Cir. 618 determined, however, This Court has 2010). standard, we review the Under this workday the continuous does not include findings of fact for clear district court’s spent during time a peri “bona fide meal and cоnclusions of law de novo. Id. error Sepulveda, od.” 591 F.3d at 216. determining In whether the FLSA compensate to its em requires Mountaire Although requires FLSA that an they spend donning for the time ployees employer compensate employee an protective gear, begin we “work,” Act the Portal-to-Portal of 1947 language of the stat analysis our with the (the Act), 251-62, §§ Portal 29 U.S.C. provides employers The FLSA ute. employ- amended the FLSA and relieves hourly a minimum pay employees shall obligation compensate ers of the to an wage for all “hours worked.” 29 U.S.C. employee prelimi- for “activities which are 206, statutory requirement §§ 207. This is nary postliminary to or to principal [the] the time at issue is “de applicable unless activity job. or activities” of a The Portal minimis.” See Anderson v. Mt. Clemens compensation Act excludes from such ac- Co., 680, 692, Pottery 328 U.S. 66 S.Ct. prior tivities “occur either to (1946). 1187, L.Ed. 1515 The term 90 any particular workday on at which such FLSA, not defined in the “work” is commences, subsequent or employee to the meaning courts are left determine any particular workday at time on which IBP, Alvarez, Inc. v. the term. See ceases, principal activity he such or activi- 21, 25, 514, U.S. 126 S.Ct. 163 L.Ed.2d 288 254(a)(2). § ties.” 29 U.S.C. (2005). Preliminary postliminary activ applying the term “work” to When however, if compensable, they ities are are FLSA, under the the Su- claims asserted “integral indispensable part an of the has defined the term broad- preme Court [employee’s] principal activities.” Steiner Supreme ly. example, Id. For Court Mitchell, 247, 256, 330, v. 76 S.Ct. U.S. statutory has defined “the workweek” (1956). explained by 100 L.Ed. 267 As during employ- “all time which an include Court, “integral an and indis Supreme necessarily required to be on the ee is activity principal is itself a activ duty pre- pensable” or at a employer’s premises, Alvarez, Anderson, ity for of the Portal Act. purposes workрlace.” scribed U.S. 37,126 690-91, 1187; Tenn. 546 U.S. at S.Ct. 514. at 66 S.Ct. see also Steiner, ap- conjure an Supreme up changing Court first instance where indispensable” “integral showering clearly test clothes and are more an plied the battery workers integral indispensable part prin- to determine whether of the manufacturing plant compensat- should be cipal activity employment of the than in changing clothes at the spent employees.” ed for time the case of these Id. shifts, of work and tak- beginning and end 76 S.Ct. 330. workday. of the ing at the end showers yet This Court has not the “inte- applied 330. The evi- 350 U.S. S.Ct. gral and indispensable” test established showed that presented dence Steiner Steiner, for required we were not to deter- shifts, during employees the at the work application Sepulveda mine its in v. Allen worked with toxic manufacturing plant Foods, case, In Family Inc. that time chemicals, dangerous which emitted fumes spent changing noneompensa- clothes was permeated plant the and created a according ble to a custom or un- practice injury employees. risk of serious to the bargaining agreement der a collective as 249-50, protect 330. To the Id. 76 S.Ct. 203(o) by § was authorized of the FLSA. continuing exposure to workers from the 203(o) (“[Tjhere § See 29 U.S.C. shall be chemicals, practice the and in the custom any spent excluded time in changing industry require employees to was clothes or washing at the or end change and to take showers at clothes the workday of each which was ... excluded 250, end of their work shifts. Id. at by express the terms of or or custom S.Ct. 330. practice under a bona fide collective-bar- law, In with state em- accordance the gaining agreement applicable partic- to the ployer provided employees Steiner its employee.”). ular aсcordingly We ad- with shower facilities and locker rooms. question dressed the donning whether and 251, employer Id. at 76 S.Ct. 330. The doffing protective equipment in a poultry provided also “old but clean work clothes” plant “changing was for purposes clothes” charge employees free of for its to wear that provision. at 214. working.

while Id. The The decision in Sepulveda did not reach changed into these “work clothes” when primary upon the issue we are called work, they changed arrived at and out of today, resolve but in fact noted that is “[i]t these “work clothes” and took showers at open question an in this circuit whether the end of their work shifts. Id. donning doffing protective gear and is ... Supreme The Court held that the time ‘integral indispensable’ and principal the spent by changing the activity poultry processing.” Id. How- in taking compen- clothes and showers was ever, two of our sister applied circuits have sable under the FLSA as “work.” Id. at “integral indispensable” the test with In analysis, 76 S.Ct. 330. its regard to the pro- Supreme acknowledged Court gear tective in food processing plants. case not “changing did involve clothes and Co., showering under normal conditions” and In Franklin v. Kellogg 619 F.3d 604 (6th important Cir.2010), stressed the safety health and the Sixth Circuit considered risks associated with process of manu- of employee compensation issue 248-49, facturing batteries. Id. at spent donning safety 76 S.Ct. and doffing food Although the Court did not define protective gear begin- uniforms and phrase “integral indispensable,” ning and the end of work The shifts. protective Court stated that “it would be difficult gear at issue included hair and contrast, In Circuit has in- nets, glasses, plugs, ear Second safety beard more nar- terpreted holding Steiner Id. at 608. “bump caps.” rowly. Gorman v. Consolidated Edi- applied the Steiner The Sixth Circuit (2d Cir.2007), Corp., son test, the activities of dоn- asking whether the court held that is “integral an ning were only “integral indispensable” prin- to a principal activity indispensable” part of activity activity cipal principal when employment. Id. 619-20. of the in a performed lethal environment. in the question answered this Sixth Circuit affirmative, the activities reasoning that Upon op our consideration of these manufacturer, and required by the were views, posing application we conclude and safe and products ensured untainted of the Steiner test is not confined to the Id. at 620. sanitary working conditions. narrow factual circumstances of a lethal manufacturing Rather, environment. as involving

In a and doff case Steiner, Supreme explained Court gear processing at a meat ing protective simply presented the facts of that case an IBP, Inc., v. 339 F.3d 894 plant, Alvarez example activity obvious of an that is “inte (9th Cir.2003), 21, aff'd, ‍‌‌‌​‌​‌‌​​‌‌‌‌​​‌‌‌‌​​​‌​‌‌‌‌‌‌‌​‌​​​‌‌​‌‌‌‌​​​‌‍546 126 S.Ct. U.S. Steiner, gral indispensable.” and 350 U.S. 514, (2005),5 the Ninth 163 L.Ed.2d 288 256, Therefore, at 76 S.Ct. 330. we hold the Steiner test. The applied Circuit also that the applicable Steiner test is to issues activities court considered whether these donning doffing beginning of and at the donning doffing beginning and at the of and the end of work in the poultry shifts “integral a shift were and and end of work Franklin, processing industry. See 6Í9 principal activity to the of indispensable” Alvarez, 619-20; F.3d at at 339 F.3d 902- whether the ac employment, inquiring the OS. “necessary principal to the tivities were for the performed

work and done benefit IV. employer.”

of the Id. at 902-03. that turn apply The Ninth Circuit concluded We now Stein indispensable” present test set forth er test to the facts of the “integral and case. regard any binding authority was satisfied with to the the absence of defin Steiner donning doffing protective ing “integral indispensable,” and of all the the term and However, Circuit, gear at Id. at 903. the we observe that the Ninth in its issue. decision, compensation provided court excluded from the time Alvarez a definition of doffing phrase analysis “non- that follows the of employees spent and safety by considering and the conduct at issue unique” gear such as hard hats Steiner although gear employer’s principal in the context of the goggles, holding such activities. the Ninth Circuit’s defi “integral indispensable” also was and Under Alvarez, employment, doffing activities of nition in and principal gear beginning at the spent donning doffing protective and those of and the “integral at end of a work shift are acts and items was “de minimis.” Id. 903-04. Court, ing compensability walking appeal Supreme the em- of time. Id. 5. On to the ployers challenge did the Ninth Supreme walking not Court held that time is Alvarez that, Steiner, holding light Circuit’s of don- compensable it after the if occurs equipment ning protective and is principal activity employee’s of the first Alvarez, compensable under the Portal Act. employee's principal the end of the last before Instead, 32, 546 U.S. at 126 S.Ct. 514. 37, activity. Id. at 126 S.Ct. 514. ruling employers appealed separate regard- employer’s principal Donning Doffing to the A. at indispensable” Beginning and End Work activity are: when Shifts 1) necessary principal per- to the work matter, contrary As an initial 2) formed; the em- primarily benefit suggestion, to Mountaire’s we decline to Alvarez, at ployer. 339 F.3d 902-03. See distinguish employees’ protective gear necessary principal activity An act to a if is “specialized” “generic.” as either or This law, by required by company that act distinction was not made in Steiner. The work at clothes issue Steiner were sim per- nature of the policy, by or work ply described as “old but clean work (citing at formed. C.F.R. Id. clothes,” Supreme and the Court did not n.65).6 790.8(c) § circuit Other courts “special.” characterize the clothes as See have a similar definition of the term used Steiner, U.S. 76 S.Ct. 330. indispensable.” Frank- “integral and See Thus, we hold these terms are not lin, 620; v. 619 F.3d Bonilla Baker “integral indispens relevant to our Constr., Inc., Concrete analysis, able” and we do not classify the (11th Cir.2007). employees’ protective gear in this manner. agree that the defi- two-part Because we To employ determine whether the employed nition the Ninth Circuit in ees’ acts of donning provides Alvarez a consistent construct for beginning and the end their work shifts test, application apply Steiner we “integral indispensable” are to Moun two-part definition to determine principal activity, taire’s we first consider whether the employees’ donning acts of those necessary whether acts are to the beginning and at the and the end principal work processing. of chicken See “integral of work shifts are and indispens- Alvarez, 339 F.3d at 902-03. Mountaire principal able” to Mountaire’s activities. dispute does not the district finding court’s Alvarez, In adopting this definition from that employees required the are as a mat reject we Mountaire’s contention this ter of federal protec law to wear certain effectively appli- definition will undermine gear “production tive on the line.” These require- cation of the Portal Act. The legal requirements regula are based on definition, ments of this an act be concerning tions promulgated by sanitation necessary principal pri- to the work and the United States Department Agricul of marily employer, ture, benefit the ensure that on safety regulations and established employee only by 1910.132(a); § an will compensated be OSHA. See C.F.R. § C.F.R. 416.5. such acts that are principal essential to the activity, merely rather than those that pre- In order to comply legal with these re- temporal cede or follow in a sense the quirements, company policy Mountaire’s performance principal activity. of that employees mandates that the don and sa- Therefore, we turn now to consider the nitize certain items before entering the present acts of and in the production employees area. The must don case, which beginning occur at the and nets, the “bump caps,” and hair and beard end of employees’ the work prevent falling shifts. order to hair from into the 790.8(c), Secretary interpre- changing § The of employer’s Labor has issued clothes on an explain meaning tive premises during workday may princi- statements that the be a "principal pal activity changing "required by activities” as stated the Portal if clothes is law, § Act. example, by by See C.F.R. 790.8. For employer, rules of the or the nature according to footnote 65 of 29 C.F.R. of the work.” employees doffing primarily The are re- products. chicken benefit Alvarez, types plugs, of ear quired specific to wear Mountaire. 902-03. on which section of vary depending which recognized The court district Also, located. plant employee employees’ donning and doffing protec- employees must don smocks gear beginning tive and end of their prevent food contamination. aprons work the employees by pro- shifts benefits to chicken important Clean smocks are so tecting workplace them from hazards. processing that Mountaire launders the However, the district court found that daily provides them to the smocks primarily these activities benefit Moun- charge. free employees by “protecting] products taire from required also are to sani- contamination, helping] keep workers’ protective by gear walking tize their down, compensation payments keeping] through splashing a foot bath and sani- minimum, shielding] missеd time to a tizing aprons. Employ- solution on their company pain from suffering pay- gloves dip gloves ees who wear must their Perez, ments.” F.Supp.2d at 518. solution, sanitizing into a Based the considerable factual record required gloves who are not to wear must before us establishing importance Any employ- Mountaire wash hands. protective gear ensuring safety comply company ee who fails to with these line,” and sanitation of “production we subject discipline rules is or termi- conclude that the acts of don- employees’ nation. ning at the beginning and the The district court concluded that certain primarily end of their work shifts benefit necessary pro- activities are for chicken Mountaire. cessing though even these activities are required by company law or policy. not Because these acts of and doff- although The district court found that em- ing protective gear are not to wear clean ployees required employees’ end of the work shifts are nec- gloves, the nature of the work makes this essary processing chicken Mountaire’s necessary employees so that the can hold Mountaire, primarily and benefit we con- safely handling the knives while the blood “integral clude that these activities are and fat from and the chickens. indispensable” processing. chicken We amply This factual record demonstrates find further for support this conclusion donning doffing that the and of the em- Supreme the Court’s recent discussion of a ployees’ protective gear beginning at the Alvarez, closely related issue. the necessary and end of work shifts is to their post-donning pre-doff- Court held that and “production work on the line.” The over- ing spent walking between the locker riding safety concerns of and sanitation room in a production and the line food plainly mandate this conclusion. processing plant compensable, was because rule, workday” under the “continuous the conclusion that activi Our these compensable workday all activi- includes necessary are to chicken processing, ties ties that occur beginning “after the of the however, inquiry does not of itself end the employee’s principal activity first and be- “integral are whether these activities and employee’s princi- fore the of the last Alvarez, end indispensable” to that work. 30, 37, pal activity.” 546 at 40-41, U.S. S.Ct. at 126 S.Ct. 514. We also U.S. holding, 514. Based on this the Court supports must consider whether the record necessarily employees’ accepted a conclusion that the acts of the conclusion of the case, donning doffing present that the and Under facts courts below however, “integral indispens- and change company in that case was Mountaire’s activity pro- of food principal to the policy able” does not alter our conclusion. Even 32, 126 514. The id. at S.Ct. cessing. assume, See deciding, if we without that doffing that and Court clarified Secretary’s position on this issue has mer- workday the continuous began and ended it, the district court found Mountaire’s activity ‘integral and “any is because Perez, policy “illusory.” “take home” was ‘principal activity’ to a is indispensable’ F.Supp.2d According at 519-20. ” activity.’ ‘principal Id. itself court, the district even after the “take policy changed, many employees home” parties Alvarez did not Although continued to leave their smocks at challenge appeal the conclusion that plant. The district court concluded that it doffing protective gear donning and was “onerous,” “illogical,” “impracti- was integral indispensable principal to the employees cаl” for to take their smocks it activity poultry processing, would be home, provides because Mountaire ham- illogical Supreme to conclude dirty pers provides smocks and clean walking held the time to Court would have free of charge. it smocks compensable be if entertained serious regarding compensability doubts factual record supports This the district activities them- employees court’s conclusion that do view, Accordingly, in our it selves. meaningful option not have a to don and employees’ manifest that the acts of don- protective gear doff their at home. More- ning principal are activities over, employees’ jobs, the nature of the beginning that mark the and the end of including compliance the need for strict workday. Under the continuous work- measures, with sanitation necessitates that therefore, rule, day employees are en- employees gear don and doff their compensation titled to for those activities workplace. their therefore We conclude activities, any other such sanitizing as employees’ that the acts of walking, which occur between the first end principal and last activities. See id. compensable “work,” work shifts are as S.Ct. despite policy allowing Mountaire’s stated nevertheless, argues, Mountaire its pro- to don and doff certain changed company that once it its policy to equipment tective at home. allow to take home their smocks, donning doffing and activities Donning Doffing B. Midr-Shifb and the end of each work shift longer compensable no were as nextWe address the issue whether the “work.” In support argument, employees’ donning its acts of doffing at relies on a compensable Mountaire memorandum issued their meal break are as by Secretary which, еffect, Labor “work” under the FLSA. anAs initial matter, stated that donning disagree is not com we with Mountaire’s ar- pensable if employees option gument have “the that our holding Roy County v. (4th ability Cir.1998), to change required gear Lexington, into the 141 F.3d 533 at Wage home.” See DOL & Hour Adv. requires analysis us focus our on the 31, 2006); (May whole, Mem. No.2006-2 unpaid see also meal break as a rather than Mesa, City Bamonte v. employees spend donning on the time the (9th Cir.2010). 1227-31 and doffing protective gear. their Our persons,” such a their the district court found Roy does not counsel decision outweighs that the benefit to Mountaire result. employees. the benefit to the Id. emergency medical ser- Roy, In certain requested compensation personnel vice factual findings well-sup- These are break, they were meal because their entire and, ported by present record there- respond call” to required to be “on fore, applied should be in the resolution of during the entire break. emergencies Furniture, appeal. this See Universal analysis of conducting In an F.3d 544. at 427. If writing we were on a clean break, denied the entire meal this Court slate, we would hold that based on the concluding compensation, the claim for findings, district court’s factual these activ- whole, predomi- as a period, that the meal part ities are not of the “bona fide meal Id. at nately employees. benefitted the period” compensable but are as “work” workday under the continuous rule.7 See however, case, In the the em- present Alvarez, 514; 546 U.S. at 126 S.Ct. for their ployees compensation do not seek Roy, F.3d at 545. Rather, employees

entire meal break. bound, however, are by circuit We compensation only peri- for the time seek held, precedent. Sepulveda, this Court ods in which the acts of and doff- law, as a matter of that оf donning acts occur, they allege occur ing activities doffing occurring and after em before and after their “bona fide meal before ployees eat their non-compensa meals are Therefore, we are not confronted period.” part ble because these acts are of the an issue whether the entire meal here with period.” “bona fide meal 591 F.3d at 216. period predominately employ- benefits the Alternatively, this Court concluded that er, decide whether the time but instead spent employees conducting the time occur, periods during which these activities non-compensable such activities was on the compensation sought, pre- and for which is ground the time was de minimis.8 Id. dominately employer. See id. benefit full The text of the Court’s discussion of court found that the em- district in Sepulveda this issue was as follows: acts of ployees’ Lastly, by helping compensa- seek meal break benefit Mountaire they products’ exposure spend during “limit tion for the time [Mountaire’s] products ensure that are lunch breaks few to bacteria and Perez, items, washing, walking and clean.” to and from uncontaminated noncompens- the cafeteria. This time is F.Supp.2d Although at 521. the district able, however, it part because of a acknowledged court period, being also from able to eat “with- bona fide meal see 29 C.F.R. benefit (“Bona periods § fide meal products out blood and other chicken 785.19 are argument compensation 7. Mountaire also maintained at oral 8. Because issue of for don- donning doffing at the meal break is ning doffing Sepulveda that and and was limited to compensable ground not on the additional ques- the meal break and did not include the employees have to eat.” We that the "don't compensation donning doffing tion оf for because, argument apart find no merit in this beginning employ- at the and the end of the argument ignores aspect, the from its fatuous shifts, de ees’ work this Court's minimis anal- by required state the fact that Mountaire is only ysis applied to in that case also these employee provide a meal to an if law to break taking place activities at the meal break. Id. employee the works 7.5 or more consecutive 707(a). § hours. See 19 Del.Code 370 worktime.”), and, alternative, Nevertheless, in the because the

not activities Sepulveda Anderson v. Mt. donning minimis. See Cle- involved meal break de Co., 680, 692, poultry processing 328 at a Pottery plant, U.S. 66 mens (“When (1946) and the character of 1187, L.Ed. 1515 those activities cannot 90 S.Ct. distinguished substantively be from the ac- concerns a only the matter in issue few here, tivities at required issue we are to beyond of seconds or minutes work follow this holding resolving Court’s that hours, working such trifles scheduled issue. Prince-Oyibo, See United States v. may disregarded.”). be (4th Cir.2003). 494, Accord- Id. ingly, we conclude that the employees are compensation not entitled to for the time resolving In this issue as a matter of spent donning doffing protective gear law, in Sepulveda appears the Court to incident period.11 to the meal Sepulveda, holding Roy, have from our departed at F.3d 216. which instructs that the issue em- whether ployees to receive compensa- are entitled C. Calculation Compensable Time of tion a of particular per- as result activities Having determined the time formed incident to a meal break presents spend donning and doffing “a question by appro- of fact to be resolved and the end of the work priate findings of the trial court.” Roy, compensable, shifts is we turn to consider (quoting Skidmore v. the amount of time that employees spend 134, 136-37, Swift, 323 U.S. 65 S.Ct. completing these In аctivities. order to (1944)). Skidmore, 89 L.Ed. 124 calculate the time that Supreme specifically against Court advised spend donning doffing, the district “lay[ing] a legal down formula to resolve court expert testimony considered the cases so varied in [FLSA] their facts.”9 Dr. Davis and Dr. Radwin. Thus, U.S. 65 S.Ct. 161. we that the in Roy requires conclude decision Mountaire, According to the district “predominant analysis benefit” factual court in rejecting erred the results of Dr. the district court conducted in the Davis’s study largely accepting Dr. present case.10 Radwin’s conclusions regarding the calcu- Additionally, language 9. Roy, of 29 C.F.R. ance. See Resolving 141 F.3d at 785.19, § Sepulveda support cited in its compensation the issue conclusion that meal break and doff- doffing at a meal break as a matter of law ing noncompensable, suggests is that such a effectively eliminates court’s consideration finding opposed legal would be factual as usually unique given facts that are to a in nature. case, thereby impairing ability employ- compensation perform- ees to receive for the 10. The Sepulveda appears decision in to have ance of predominantly activities that benefit assumed, regard without to the nature and employer. performed, duration of the activities that ‍‌‌‌​‌​‌‌​​‌‌‌‌​​‌‌‌‌​​​‌​‌‌‌‌‌‌‌​‌​​​‌‌​‌‌‌‌​​​‌‍the part activities were aof primary 11.Because we are bound period” simply "bona fide they meal because holding Sepulveda, we do not discuss its immediately occurred before and after the holding alternative employ- that the time employees ate their mid-shift meal. The de- spent donning ees at the meal compensation termination of entitlement FLSA, however, only break was "de minimus.” We note under the necessarily fac- Sepulveda any tual in record in does not depends nature because the outсome contain particular regarding on the expended facts per- activities involved and the in the required amount of time perform- for their formance of these activities. find no measurements when the re- time. We compensable of lation argument. piece equipment. The dis- leased their last Ac- in Mountaire’s merit Mountaire, its reasons for clearly cording stated to Dr. Radwin should trict court study results. The Dr. Davis’s rejecting not have included in his measurements the study that Dr. Davis’s court found period employees’ acqui- district between the that did ... exercise” an “academic gear donning was of the and their of the sition normal employees’ not reflect the gear, period and the time between their Perez, F.Supp.2d doffing process. piece and their release of the last court also observed at 512. The district gear. the randomly not select

that Dr. Davis did in The First Circuit addressed this issue study, permitted for his but participants Foods, Inc., 274, Turn v. Barber par- the supervisors to choose Mountaire (1st Cir.2004), grounds, rev’d on other any exclude members of ticipants and to IBP, Alvarez, 21,126 Inc. v. 546 U.S. S.Ct. class. Of additional concern plaintiff (2005). There, 163 L.Ed.2d 288 court, study Dr. Davis’s did to the district approved jury defining court instructions “the realities of the not take into account donning process including as the em- it was conduct- employees’ work” because ployees’ obtaining gear, acts in and the all in a conference room where ed doffing process the time including as nec- gear provided employ- was required essary place gear in a designated Based on these find- ees on a table. Id. bin or locker. Id. 282-83. We further court ings, conclude that the district we that the First holding observe Circuit’s on refusing in did not abuse its discretion in this issue Turn is consistent with the study. on the results of Dr. Davis’s rely position Secretary of the of Labor.12 See сontrast, the district court described Wage DOL & Adv. Mem. No.2006-2 n.l “practical real- study Dr. Radwin’s as 2006). (May of the time evaluation study Dr. consid- process.” Id. Radwin’s We conclude that the First Circuit’s employees spent the time that walk- ered holding Secretary’s position and the are congested hallways and to various ing here, con- persuasive because Mountaire protective gear. locations to obtain the employees’ the location of the don- trolled study court found that The district ning plant, and these participants randomly were selected and necessary employees’ are to the abili- acts videotape under actual were recorded jobs. ty to do their ob- working conditions. The district court pieces gear tained various at different on the results of Dr. Rad- therefore relied by locations selected Mountaire. Moun- study compensable to calculate the win’s taire on racks locat- provided clean smocks time. congested hallways, employ- ed in and the gear their other protective ees stored objections

Mountaire raises two con- Em- First, provided by company. lockers cerning study. Dr. Radwin’s Moun- gear donned their beside their ployees that Dr. Radwin erred taire asserts lockers, bathrooms, in the production beginning his measurement of the area, busy hallways they or in the as employees acquired process when Because of equipment, ending and in his walked to their workstations. piece first principles Although Secre- cordance with the stated in Skid- we are not bound memorandum, 139-40, tary's we conclude U.S. at 65 S.Ct. 161. more. 323 entitled to deference in ac- memorandum is conditions, Radwin, employees provided by the were not Dr. and now pro- these we protective gear their as always to don able ceed to calculate the compensable time they their smocks. soon as obtained based on the Dr. study. results of Radwin’s shift, employ- the work the At the end of rationale, Based the district court’s on gear designated at various ees doffed their “outliers,” adjusting after for the total plant placed the most locations within compensable donning doffing time for in protective gear of their their lockers. peri- was seventeen minutes.13 From this deposited their soiled minutes, od of seventeen we must exclude hampers placed in that Mountaire smocks required the amount of time for mealtime that, hallways. in the We conclude based donning doffing facts, properly on the district court these precluded are recovering by from our deci- by spent employ- found that the time sion in Sepulveda. According to Dr. Rad- protective gear ees acquiring after study, win’s the mean time for mealtime it, doffing but before and after donning and doffing is 6.796 minutes. it, fully gear discarding compensa- until Therefore, the total spent donning time ble. and end of separate argument, raises a Mountaire workday equals 10.204minutes. however, concerning Dr. Radwin’s method of calculating by the time expended D. “De Minimis” Issue According Mountaire,

employees. Dr. Radwin the total improperly calculated We now consider Mountaire’s compensable by adding time the mean expended claim that the time by the em activity. times of each Mountaire asserts ployees in at the be that compensable time instead should have ginning and the end of their work shifts is by adding been calculated together de minimis and therefore noncompensable, expended by minimum amounts of time notwithstanding our holding that these ac best-performing employee complet- part tivities are of the workday continuous ing activity. each find no merit in this We “integral acts indispensable” as argument because suсh a method of calcu- principal activity. Mountaire’s As the Su lation would not account for fact that preme has explained, Court the de minimis ages workers of different and states of precludes employees rule recovering from well-being, varying degrees agility, with compensable work “[w]hen the matter engaged are performance of these only issue concerns a few seconds or Thus, a activities. calculation based on the beyond minutes of work the scheduled provides summation of mean times a more Anderson, working hours.” 328 U.S. at representation accurate of the amount 692, 66 S.Ct. 1187. employees working According time that to the plant Court, actually spend compensation for doffing. “[s]plit-second ab We justified therefore conclude that the district surdities” is not policy court relying did not err mean times the FLSA. Id. brief,

13. Dr. Radwin opening concluded that the mean don- recalculation in its Mountaire ning equaled 20.879 min- any argument concerning has waived the dis- utes. The district court found that this cal- adjustment trict court’s of Dr. Radwin's cal- "slight culation was a overestimation” and 28(a)(9)(A); R.App. culations. See Fed. P. concluded that the correct calculation was I.N.S., (4th v. Cir. Yousefi 17 minutes. Because Mountaire failed to 2001) curiam). (per challenge the method of the district court’s

373 rule, fore, that the employ- this Court concluded the de minimis applying In additionally compensated amount of time could not be aggregate the ees consider we are otherwise le any they the FLSA for extra time for which under the compensation. See DOL to gally they entitled at the site to ensure that spent work (May No.2006-2 n.l Adv. Mem. Wage & to their work shifts on would be able start 2006). not, sug 31, do as Mountaire We stating holding, After this this time. Id. group or of tasks each task gests, evaluate that the ten-minute inter- Court observed period if the time to determine separately de minimis. Id. This val at issue was ap Mountaire’s Adopting minimis. is de necessary was not additional observation purpose the of would undermine proach to resolution the factual the Court’s allowing employers parcel to by the FLSA holding, of its issue was basis that, of tasks when groups into work small that the we therefore conclude observation consid always would be separately, viewed merely is dicta. Therefore, reject we minimis. ered de consider wheth approach and Mountaire’s the decision in Because Green spent amount of time aggregate er the issue, present does not control we day begin each must address whether shifts, a total the end of the work ning and period per of 10.204 minutes doffing time minutes, is de minimis. of 10.204 and, therefore, non day is de minimis holding under compensable however, that 10.204 argues, Mountaire 692, at 1187. Anderson. 328 U.S. S.Ct. a matter of law. de minimis as minutes is date, To we have not articulated factors argument, Mountaire re- support of its determining considered in whether a be v. holding this Green lies on Court’s Co., period is de minimis. particular 177 F.2d Nut & Chocolate Planters Cir.1949). (4th However, Circuit, to Moun- According v. the Ninth Lindow (9th taire, adopted “a ten-minute States, 1057, this Court F.2d 1062-63 United establishing that otherwise rule” Green Cir.1984), holding adopted by in a three of non- activities are rendered compensable circuits, articulated three factors our sister activities do not compensable when those conducting a de minimis to consider when day. per a of ten minutes exceed total (1) difficulty the analysis: practical recording employer would encounter has disagree that this Court estab- We (2) time; the total amount of additional Green, rule.” In lished such a “ten-minute (3) time; regularity compensable they re- were employees argued De Asen of the additional work. See also their work station present to be quired Inc., Foods, 500 F.3d Tyson cio v. of their- work ten minutes before start Cincinnati, (3d Cir.2007); City Brock v. therefore, and, entitled to com- were shifts (6th Cir.2001); Kosa 804-05 236 F.3d period that ten-minute each pensation for Assocs., Radiology kow v. New Rochelle at 188. This Court sum- day. 177 F.3d (2d Cir.2001). P.C., 706, 719 We on marily rejected employees’ claim factors set forth in conclude that these were not the basis practical a ba provide Lindow useful for ten actually required present to be analy type to conduct this sis on which work, starting merely but minutes before factors, adopt a By these we applying sis. ar- employer were admonished necessarily minimis re analysis that de enough soon rive at their work stations change that will quires inquiry a factual on time. Id. There- be able to start work Lindow, case-by-case basis.14 See 738 elude that aggregate per this amount em- ployee also significant. regard factor, reg- With to the third the factor, regard to the first we ob- With ularity work, of the additional it is undis- present in the experts serve that both case puted that these activities of the amount were able to measure of time at doffing beginning the and the end of the required by employees to don and doff employees’ work occur regularly shifts protective gear before and after their work Therefore, each workday. on based the Thus, in expended shifts. the time these three that adopted factors we have from activities is not so miniscule that it would Lindow, we conclude that compensable the difficult as a practical be to measure mat- time at and the end of the 1062-63; ter. See id. at see also 29 C.F.R. employees’ work shifts is not de minimis § 785.47. thus, and, compensable is under Second, aggregate we consider FLSA. amount compensable time involved. nevertheless, argues, Mountaire that it employees There are who “opted into” should not required be to compensate the the Millsboro action. Each of these em- employees for the time spent donning and ployees being paid was at a rate of ten doffing protective gear at begin- hour,' dollars per and each would be enti- ning shifts, and the end of the work be- tled to for compensation 10.204 minutes of any cause calculation of such time would per day. work Applying figures these to impose unreasonable and substantial ad- weeks, an fifty annual work schedule of the ministrative difficulties Mountaire. amount compensable per time employee regard, that Mountaire asserts that such is about per year, 42.5 hours which a calculation of time would be cost-pro- compensation amounts to of about $425 hibitive, cumbersome, and inefficient. per employee per year. We conclude that Mountaire asks that we also consider the per employee this annual amount signifi- practical consequences of type this of re- cant for an employee earning ten dollars quirement, including that employers will hour, per because that annual rep- amount compelled be “micro-manage” resents a full wages. week’s amount of time employees spend donning and doffing to ensure that employees Additionally, currently are not wasting during time these activi- compensation seek period for a of more ties. years, than six due in part passage to the

of time since filing of their complaint.15 opinion, In our Mountaire overstates the Therefore, year period over the six at issue extent of administrative difficulties in- here, employee each is entitled to addition- volved the calculation of the time re- al compensatiоn $2,550. of about quired We con- for donning at the be- 14. We observe that holding finding our alternative present period to the of 10.204 Sepulveda, concluding spent that the time minutes. at the meal break was de minimis, analysis does not assist our here. opinion, 15. weAs hold later in this the dis- The Court did opinion not state in its correctly trict court determined that a two- Sepulveda required the amount of time year applied statute of limitations to the em- Thus, those doffing. Therefore, activities of ployees' six-year peri- claims. any in the absence of stated factual basis for compensation od for which is due that reflects the Court's conclusion that the time period plus passage involved limitations of time minimis, was de apply we are unable to since the complaint. filed their approaches to this issue. taken employees’ work different the end of ginning Alvarez, at 902-03 with Compare a time- already has Mountaire shifts. Gorman, Because there be modified that could system keeping authority directly address- binding was no employees spend that the the time include compensation issue of for the don- ing the further activities. We these performing gear ning protective poli- free set Mountaire is observe shifts, of work we beginning and the end nonessen- employees’ restricting cies clearly district court did not hold that the donning and doff- during the tial conduct concluding that Mountaire not err did Thus, we conclude ing process. willfully by failing the FLSA to violate unpersuasive, are arguments Mountaire’s activi- compensate employees its for these employees are enti- that the and we hold Therefore, finding such a of ties. absent minutes for 10.204 compensation tled to “willfulness,” conclude that the two- we they spend the time work shift for per applies. of limitation 29 year statute See gear prоtective their donning and 255(a). § U.S.C. end of work beginning and the at the shifts. B. The also seek to recov

V. damages. review the liquidated er We A. denying liquidated decision district court’s argue cross-ap on Roy, 141 damages for abuse discretion. court con the district erred peal that FLSA violations cluding that Mountaire’s provides for mandato The FLSA Act, the Portal “willful.” Under

were not ry liquidated damages equal an amount subjects an of “willful”violations finding a unpaid compensation. overtime 29 to the a three-year, than employer to a rather 216(b). Act, § the Portal Under U.S.C. of limitations for “back two-year, statute however, court, in its dis sound district 255(a). § liability. 29 U.S.C. pay” cretion, liquidated award may refuse to employer if “the shows damages to willfulness, the em To establish of the court that the act or satisfaction that the ployees had burden show action was in giving rise to such omission disre or showed reckless employer “knew that he had reasonable good faith and conduct matter of whether its gard for the believing that his act or grounds for omis by McLaugh prohibited the statute.” was of the 29 was not a violation [FLSA].” sion Co., 128, 486 U.S. lin v. Shoe Richland employer § 260. The bears U.S.C. 1677, S.Ct. L.Ed.2d establishing de this proof burden (1988). find review the district court’s We Diner, Inc., Donovan v. Bel-Loc fense. error. lack of willfulness clear ing of a (4th Cir.1985). 1113,1118 (4th Deiriggi, 985 F.2d Martin v. Cir.1992). case, credit the this we district that Mountaire’s acts were pres- finding to the court’s explained, prior have

As we case, not “willful” as evidence Mountaire’s ‍‌‌‌​‌​‌‌​​‌‌‌‌​​‌‌‌‌​​​‌​‌‌‌‌‌‌‌​‌​​​‌‌​‌‌‌‌​​​‌‍had not addressed the ent this Court Roy, 141 F.3d at 548. donning good faith. See employees’ acts whether issue produced evidence of its begin- Mountaire also gear at the doffing protective company by showing faith good shifts are the end of their work ning and Wylie, an of David relied on the advice indispensable” poultry “integral and attorney by the National Chicken have retained our sister circuits processing, and Council. See id. presented job Mountaire does a fine explaining why donning court fourteen letters and the district and end of the Wylie in which he inter- memoranda from workday compensable. The court right- preted donning and cases from var- ly notes that presents this case a different jurisdictions, provided updates ious on question Sepulveda Family v. Allen than surveys plant Depart- conducted Foods, Inc., (4th Cir.2009). 591 F.3d 209 Labor, poultry compa- ment of and advised There, we addressed whether donning and companies nies on how the could alter or doffing personal protective gear was practices maintain their to remain com- “changing for purposes clothes” of 29 FLSA, pliance interpreted by with the as 203(o), § provision U.S.C. but that applies The district different courts. court found exclusively to the bargaining collective “clearly” changed poli- that Mountaire its Sepulveda context. expressly reserved Wylie’s cies information based and ad- question of whether donning and doff- vice. ing protective equipment outside of the that the We conclude district court did bargaining collective compensa- context is clearly finding not err in that Mountaire id. ble, 214, agree and I for the most good acted in faith attempting to follow part that it is. Wylie. Although Wylie the advice of did not specifically advise Mountaire as its le- respect With to doffing lunch-break and counsel, gal provided but the advice on (sections D), IV.B and I write behalf of a private group, interest in- simply to note that the Fair Labor Stan- formation was nonetheless relevant to dards Act does not require every con- policy Mountaire’s concerns and was not troversy over ever-smaller increments of overtly suspect in its conclusions. There- time litigated be out to three dеcimal fore, we affirm the district court’s denial of places. The de minimis rule in place at liquidated damages. Supreme Court and the impos- circuits es some outer process, limits on this and I VI. requiring believe that compensation of conclusion, we affirm the district lunchtime would ex- court’s judgment on the FLSA claims re- ceed those limits here. lating to donning activities at the beginning and end employ- of the shifts,

ees’ work and vacate the district I. court’s judgment regarding the mid-shift The de minimis doctrine is not in some claims. We also af- embryonic state. firm the Were this a district court’s decision matter of applying a two-year first impression, statute limitations and I would denying have some hesi- employees’ request liquidated for dam- in saying tation that a de minimis excep- ages. qualifies tion the Fair Labor Standards Act. The rule has no statutory obvious PART,

AFFIRMED IN VACATEDIN derivation, it preferable and would be for PART

Congress rather than the courts to supply WILKINSON, Judge, Circuit many decades, its content. For however, concurring in part concurring in the Congress has declined to address the de judgment: minimis doctrine and has left the courts to happy

I am develop essentially to concur it part substantial as a matter of federal in Judge thoughtful opinion. Keenan’s It common law.

377 ery, opening assembling bound by Thus find ourselves a doc- windows and we 692-93, are origins trine we not free to sharpening whose tools.” Id. at 66 S.Ct. question. Supreme The Court and numer- 1187. While the Portal-to-Portal Act of adopted ous have de minimis circuits eventually superseded Anderson’s rule, respect higher I believe a holding employer’s walking on authority the broad consensus of our premises preliminary post- and other afford obliges us to that rule sister circuits liminary compensable, activities were see meaningful some content. § 254(a), 29 U.S.C. it left undisturbed Anderson’s that de minimis holding peri- ap- The minimis doctrine first FLSA de nоncompensable. ods of work are v. Mt. Pot- peared in Anderson Clemens Co., 680, 1187, 66 S.Ct. tery 328 U.S. The circuit have not courts hesitated to (1946). case, In that L.Ed. 1515 the Su- apply holding of Anderson other compensability preme Court addressed cases amounts of involving small work- activity of a everyday walking of the See, Lojack Corp., time. e.g., Rutti v. punching after time card. workstation (9th Cir.2010) 1046, (filling F.3d 1057-58 only Though employer paid for line minimal out at home de minim- paperwork time, in up could clock to four- is); York, Singh v. City New began their shift teen minutes before Cir.2008) (additional (2d 371-72 com- walking. time for order leave sufficient muting time carrying due to briefcase de Id. at Court con- S.Ct. minimis); IBP, Inc., v. Alvarez compensable working cluded that the (9th Cir.2003) 894, (donning 903-04 presumptively included “the minimum time safety goggles hardhats and de at spent walking ordinary in an necessarily minimis); IBP, Inc., 1123, Reich v. 38 F.3d rate the most direct route from time along (10th Cir.1994) (same); 1 1126 n. Aiken v. 692, at clock to bench.” Id. 66 S.Ct. work (6th 753, City Memphis, 190 F.3d 758 walking time was at 1187. Such estimated Cir.1999) (dog-care during duties handlers’ anywhere seconds to min- eight from 30 minimis); commute de Bobo v. United 683, 1187. utes. Id. at 66 S.Ct. States, (Fed.Cir.1998) 1465, 136 1468 F.3d Supreme recognized, Court howev- (same); City York Reich v. New Transit er, that compensable time “must be com- (2d Auth., Cir.1995) 646, 45 652-53 F.3d in realities of puted light of the the indus- (same); States, v. 738 F.2d Lindow United 692, trial Id. at 66 S.Ct. As world.” (9th Cir.1984) 1057, (reviewing log 1063-64 result, in the matter con- issue “[w]hen clarifying log book and entries de minim- only cerns a few seconds or minutes of is); E.I. du Pont De Nemours & Co. v. hours, beyond working work the scheduled (4th Cir.1955) 133, Harrup, 227 F.2d 136 may disregarded.” such be Id. The trifles (counting cash before start of cashier shift ultimately Court concluded that the “de Co., minimis); de v. & 172 Frank Wilson rule can doubtless be to applied minimis Cir.1949) 712, (7th in, F.2d (clocking 716 walking much of time.” It also Id. receiving supervisors, from instructions noted minimis that the de doctrine would tools, obtaining walking to work sta- place took apply to activities minimis). Following all de tion lead of bench, including “putting aprons work on Anderson, thеse de minimis shirts, many peri- overalls, removing taping or regular, daily ods involved occurrences. arms, cots, greasing putting finger pre- See, Alvarez, 903-04; work, e.g., at paring equipment productive IBP, Inc., turning lights Reich v. F.3d at 1126 n. 1. on switches for and machin- standard, knowledged of this that a presence Given the de minimis rule is nec- it widespread adoption, essary its is obvious that because “[t]he workweek contem- requir- “a balance between we must strike plated by computed [the must be FLSA] pay an to for activities it ing employer light of the realities of the industrial its and the need to requires of world,” and those “realities of the industri- ‘split-second avoid absurdities’ that ‘are al world” must include the commonsense justified by actuality of not the work- computations observation that the of ever ” Rutti, ing conditions.’ 596 F.3d at 1057 smaller may eventually increments of time Lindow, 1062). (quoting On become they so onerous that should not be hand, give the one to de minimis rule subject litigation. of endless 328 U.S. too broad a reach would contradict con- 692, 66 S.Ct. 1187. At I least can think gressional by denying proper intent effect of no reason for a de minimis rule other to a statute that is “remedial and humani- than preventing companies being from Coal, tarian in Tenn. purpose.” Iron & R. saddled with ceaselessly litigable computa- 123, Co. v. Muscoda Local No. 321 U.S. just over “a tions few seconds or minutes.” 590, (1944). 88 L.Ed. S.Ct. This case litigation illustrates the diffi- Congress obviously desired in the FLSA culties that the de minimis rule was meant protect those whose lives and families to forestall. dispute order to resolve a depend upon a decent wage, see 29 U.S.C. over donning and doffing activities that 202(a), § recognized and we have this case minutes, each take but a parties few as one purpose where humanitarian required were dueling experts hire ac- must FLSA be accorded effect. The cоmpanied by teams of assistants who col- jobs performed by poultry workers lectively studied employees. almost 400 indisputably important. this case are While it is true that However, experts “both jobs performed poultry plant present case were able measure the production can tough, repeti- lines also be amount of tive, required by difficult, employees to and the workers here don and doff protective gear,” undeniably Majority are within the core class of 374, Op. at experts the “health, often felt it neces- whose efficiency, and sary carry to computations their general out to no well-being” the FLSA was intend- fewer than places. Indeed, three decimal protect. ed to reasons, Id. For these I am one expert’s analysis happy join required him to scroll to the court in concluding that frame-by-frame through videos of donning doffing donning and beginning and and doffing employees in end of order to workday is measure not de minimis.1 their times to within aof second. 1/30 II. Farms, Inc., Perez v. Mountain 610 hand, On the just 499, (D.Md.2009). other we cannot toss F.Supp.2d 507 Thus the the de minimis rule aside. Presumably, expended time in these activities does the Supreme recognized Court present computational role of problems prac- as a the de minimis in doctrine FLSA cases for tical matter. For despite measurement Anderson, a reason. the Court precision race, ac- fit for an Olympic the duel- My good colleagues donning assert that doffing this Court's of and at the and observation in Green v. Planters Nut & Choco- end workday of the in this case falls outside Co., (4th Cir.1949), rule”, late any F.2d 187 that a such "ten-minute simply Green is period uncompensated ten-minute inapposite. of work There is no need to address its force, de merely was minimis “is Majority precedential dicta.” lest we use dicta to over- Op. at 373. But because the 10.204 minutes rule asserted dicta. staggeringly compensable); came different v. Consol. Edison ing experts to Gorman (2d Cir.2007) (se- 586, hardly necessary Corp., It to conclusions. seems dispute curity procedures this as a entering that sort of semes before state work- litigation. place veritable invitation to extensive not compensable); Bonilla v. Baker Constr., Inc., 1340, Concrete 487 F.3d rale, no compa- some minimis Absent de (11th Cir.2007) (same). 1344-45 But these liability fairly predict its for the ny could persistent problems of measurement and fragments time without the aid smallest of Hy- demarcation mimic the heads of the counsel, then, pres- even legal of and one, cut two spring up dra: down and factually litigation of uncertain out- ence simply its stead. There is no of quantum leaves unclear as employers comes to judicial or agency guidance that can con- liability. For magnitude potential vey precisely ac- companies what small one, as there in cases such this seems little compensable many tivities are and how practical possibility of consensus between minutes fractional seconds should be parties regarding how much time If Supreme allotted them. is Court Here, for compensated. be exam- should prepared jettison the de minimis doc- large gulf ex- ple, lay between two trine, exists, But long is fine. so as it plaintiffs’ perts’ calculations: whereas there must be some outer limits on the donning doffing found expert granular sort metrics have charac- an throughout day average took litigation. terized kind of this minutes, 20.879 id. at Mountaire’s ex- re- pert concluded that those activities minutes, only 10.2 at 512.

quired id. III. adversary system, In our calculations case, In this doffing the lunchtime to be unlikely such as these are ever a cut- donning the de falls on minimis side of and-dried matter. Of course courts can those The substantial limits. differences always step gritty to resolve details begin- between to the proper computation any relevant ning day of the on hand end the one See, IBP, case. particular e.g., Alvarez v. lunch (9th Inc., Cir.2003), affd, support other this First hand conclusion. 21,126 514, 163 546 U.S. S.Ct. L.Ed.2d 288 all, of time the amount involved (2005) (post-donning walking compen- relatively lunchtime sable); walking (pre-doffing id. time com- expert, minor. plaintiffs’ on whose Foods, Inc., Turn pensable); v. Barber 360 study findings, court based district its (1st Cir.2004), F.3d 281-82 rev’d on doffing found that at the start lunch of the Alvarez, 41-42, at grounds, other 546 U.S. average required only break an of 2.571 514 (pre-donning waiting 126 S.Ct. time minutes, post-lunch only and 4.225 donning compensable); Majority Op. not at 372 Perez, minutes. (“time F.Supp.2d at 509. by spent ac- after Both are than half of less the time quiring protective gear their but before it, plaintiffs’ expert necessary found for doff- donning doffing gear and until after ing and at the end it, Turn, donning and discarding fully compensable”); day, (same); respectively. of the Id. this to Majority at While Op. 360 F.3d at (mean degree, be sure is a of the de minimum difference donning rather than necessarily contemplates minimis compensable); v. doctrine time Musch Indus., Inc., that such differences as this significant Domtar 587 F.3d 860-61 Cir.2009) (7th may preclude compensation, if matters (post-shift showering not significant, never degree were there Lunchtime doffing also dif- minimis rule at all. beginning-and would be no de fers from its end-of-day counterpart because the former is incident figures likely But even those small over- to a bona fide meal period, specifi- which is state the actual amount of time involved. cally exempted compensation from by a Although plaintiffs’ expert concluded regulation that itself up breaks the contin- donning and doffing the total workday. uous § See 29 C.F.R. 785.19 minutes, ‍‌‌‌​‌​‌‌​​‌‌‌‌​​‌‌‌‌​​​‌​‌‌‌‌‌‌‌​‌​​​‌‌​‌‌‌‌​​​‌‍day throughout was 20.879 (“Bona periods fide meal are not work- figure court found that district “to be a time.”). Given the combination brevity slight overestimation of the total time” and and the bracketing of a non-compensable to 17 minutes. reduced it Id. 524. If break, doffing meal time be- ap- the reduction the district court fore and after lunch compen- cannot be of plied to the total time collectively applied sable character.2 Striking the balance proportionately to lunchtime way this advantages has the of following donning individually the district —and by standards laid down Supreme gave why court no indication it should Court, respecting our own circuit prece- not—then these lunchtime activities would dent, and of recognizing that in this diffi- minutes, occupy only 2.093 3.440 re- area, cult doctrinal arguments put spectively, for a total of less than six min- by forth the employees and Mountaire utes. each have points of merit. It is true that even such small incre- IV. aggregated ments of time can be over time I admit to some applying any discomfort produce an impressive-sounding num- sort of balancing act where the Fair Labor ber. But the mere fact multiplication Standards Act appear does not provide minimis cannot be used to scrap the de However, one. I believe that the de min- altogether. rule For like the lunchtime imis standard by articulated the Supreme case, in this other Court requires Anderson it. And if one daily periods of work have been found de is to undertake in this case the sort of de minimis, see, Anderson, e.g., 328 U.S. at inquiry minimis mandated Anderson 692-93, 66 S.Ct. 1187 (walking to work and the decisions of our own and sister bench pre-shift preparations de min- circuits, it cannot lead to some stark all-or- imis); Alvarez, (don- 903-04 nothing disposition in favor of either man- ning and doffing of hardhats safety agement or labor. minimis); IBP, goggles Inc., de Reich v. (same), 38 F.3d at 1126 n. 1 and there is no way The best recognize that fact is number so small that a multiplier suitable way indeed the mаjority recog- has large. cannot make nized ih—to credit on the one hand the Sepulveda dispute law."); IBP, employees’ Inc., did not matter of Reich v. compensation entitlement ("the under the FLSA spent putting at 1126 n. 1 on and issue, frequently Roy a factual County see v. taking [non-unique gear] off de is minimis as 533, (4th Lexington, 141 F.3d Cir. law"). a matter of This is not inconsistent 1998), recognized but instead that in the cir- Roy, with for the fact that some issues are case, Sepulveda judgment cumstances of the tried under Fed.R.Civ.P. 52 does not render as a appropriate. matter of law was universally inapplicable. Fed.R.Civ.P. 56 Roy 4; Alvarez, at 217 n. see also did application not even involve of the de ("The time it takes to [don doff] non- doctrine, very point minimis at issue here. unique protective gear is de as a minimis America, United States beginning and doffing at the Plaintiff-Appellee, hand and on the other workday, end of lunch-break making the lesser to avoid v. perpetual donning a matter of doffing my approach I concede litigation. $79,650.00 America from Bank of Seized analytical line cleaner no provides herein Ending 8247, at Bank of Account three-factor Lindow the loose than does Turnpike, America, River 7400 Little area is caselaw this formulation. Annandale, Virginia, in the Name of mush, redeemably albeit one itself a Afework, Defendant-Appellee, Girma compensate work- the need recognizes without driv- fairly performed work ers Afework, Claimant-Appellant. Girma liti- crazy microscopic with companies

ing 10-1291, Nos. 10-1294. while outcomes good gation. Once may be emi- analytically impure that are Appeals, States Court of United re- de minimis doctrine nently just. The Fourth Circuit. road, I travel that the courts to quires colleagues my distinguished believe Argued: Jan. 2011. reached, through perhaps dis- and I have 9,May Decided: routes, destination. proper tinctive 2, 2011.

As Corrected: June America, UNITED STATES

Plaintiff-Appellant,

v.

$79,650.00 BANK FROM OF SEIZED IN ACCOUNT ENDING

AMERICA AMERICA, AT BANK OF TURNPIKE, AN-

LITTLE RIVER VIRGINIA,

NANDALE, IN THE AFEWORK, De-

NAME OF GIRMA

fendant-Appellee, Afework, Claimant-

Girma

Party in Interest.

Case Details

Case Name: Perez v. Mountaire Farms, Inc.

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jun 7, 2011

Citation: 650 F.3d 350

Docket Number: 09-1917, 09-1966

Court Abbreviation: 4th Cir.