notwithstanding cool prior decisions of this court namely bobo and adams which hold that require driving between home and work by certain federal employees to be of the fair labor standards act recent decisions of the supreme court and brad debts and coke at of this court in patterson hawkins and billings have significantly was this court squarely held that the f l i say must be applied in the federal sector consistently with its application by the united states department of labor in the non federal sectors unless it would be unreasonable to do so here in several utterances the united states department of labor has declared that required home work driving by employees is f l s a compensable these labor department statements include a nineteen ninety five opinion letter by the administrator of the wage an hour division declaring require driving of employer vehicles between home and work sites to be f l s a compensable no provision of the department of labor f l s a field operation handbook declaring required applicable applicable in the non federal public sector which declares that a police officer who is and i'm quoting good than a patrol car to drive home and use on a person business is not working during the travel time even where the radio must be left on so that the officer can respond to emergencies so the important point there is that the labor department has across the board said that required and restricted to work driving by employees in both in the private sector and in the  seven the federal government must apply the fair labor standards act to its employees consistently with the manner in which the department of labor applies it to other employees performing an activity forgot a benefit i would agency under the control and direction of the agency is hours of work now out being required to drive the government's vehicle from home to work fits within that and in particular our clients are not permitted to use the cars for personal business and if they do will they are subject to suspension and discharge and under federal law those cars may only be used for home to work travel without any diversion for personal use which is a no no what do you say of the but i have two two questions really the first is the provision of five five one point four two two and i think it's b the talks about commuting the general principle that commuting is not  construing that regulation that f l say were covered employees commuting time from home to work in from work to home or not hours of work and then skipping down the fact that an employee is driving  from work is not a basis for determining that commuting time is hours of work yes first as to normal the norm home to work driving this is not a normal home to work driving  our clients must get when they get into their car they must go directly to are at their work site they may not drive their child to school they may not drop their wife off they may not decide pounds i think quick meant that is not normal home to work commuting or driving for that matter that is working for the employer and that's the difference with regard  because you are reading in it seems to me some exception for cases in which the employee is not permitted to engage in personal business during the course of the commute that is truly a r point we have the point about billy saying in effect you must do it the same way if the labor department does it so o p m may not deviate to begin with but if you look at the deal well reg the re says normal home to work driving is not an compensable all but if the employee if the employee is permitted to divert use it for personal business then  the labor department isn't that the principle reliance the most direct support well i was in i'm sorry the ambulance driver but you're not doing that then you strike shit right well where are the principle is this is the same as to cases right in the in the in the lead guide but it's official problems is the category that the ambulance drivers listed under well it's in the f if it's in the labor department's field manual record so under a category called special problems which suggest at least to me that there is something that the department is identifying as a special circumstance with ambulance drivers i'm not certain what that would bill your honor but let me go back to your other question and that as part of a work assignment now that is where we are this is a work assignment you take the fan home you have a thousand pounds of equipment in it you then come to the job and so that is the assignment and so that's within the that is within the guidance as well so you have to read the totality of the guidance for the language however commuting time be hours of work to the extent that the employee is required to perform substantial work under the control of the direction of the employing agency eat productive work of a significant nature nature that is an integral and indispensable part of the employees principle activities well that gets you over to the portal act we are in integral and indispensable activity is declared to be plant to carve up the meat and so the supreme court said that the knife sharpening was integral at indispensable at their fork compensable here they are taking this thousand pounds of equipment on top from from the job then paddling every caged in hauling this equipment so that constitutes work in anybody's book landscape has been significantly altered since those decisions but in fact it hasn't been altered in all the cases that were referred to some of which i believe were actually issued principle that courts deference to agency interpretations of the regulations that they administer and specifically dealing with what's essentially happened is that in those cases the appellant's took a certain position as to what the regulations meant and this is the position that appellant's in this case advocate as well but in bowen adams the trial courts and and this court simply did not accept appellants interpretation of what the agency interpretation was  suggested opinions concerning special cases they're not regulations they don't deal directly none of these as well as that by the way the regulation that  mr bernstein cited twenty nine c f r five fifty three point two two one even there realize the argument relies on this the negative pregnant the regulation itself describes a situation and says in that situation the driving is not compensable it doesn't say that if you alter the situation in this specific ways then it is compensable the regulation just doesn't address that question the second circuit decision in rush which was a case involving the department of labor the in the labor department's administration of the f l i say now that supposedly since since the driving in the federal sector must be contrary to adams and contrary to bhopal and contrary to even the right it must be consistent with essentially arguments of department of labor  concerned that's not the issue here but consistent with that bobo and adams are controlling here so there is essentially been no argument offered about why made and rejected before and they haven't they haven't pointed out anything that this court overlooked in bowen adams and they haven't pointed out any where they say  that adams overlooked in fact overlooked the regulations by not referencing regulations now i understand your position is the regulations don't say anything that's particularly helpful to the appellants and therefore it wasn't a case of the court of look court's opinion in adams there's always certain level of detail in any opinion the discussion of the regulations is the sum of the regulations or at least one of them is discussed in this court's opinion opinions in both local and adams that it has some greater detail on the regulations i assume that when this court decided adams it was aware of the trial court's discussion of the regula and i think in that context i would i would infer that the court was aware of the arguments concerning the regulations the court did not say we think that the agency  now i'm i'm it's unclear to me exactly what encompassed by that requirement what's your view well i think what that statute says is there that was adopted to address actually as the legislative history indicates that was adopted to address situations like the one referred to in that opinion letter right he backed the  effect is even if you have a situation of the specialized kind of driving like these service employees is something a conflict typically a series repairman or somebody who's juice in the area job is to drive from service employees that if if they were acquired to drive their you know repair their van or whatever they used on the job to drive to their first appointment first customer at the beginning of the day straight from home and drive back home in that vehicle from the last customer the department of labor took the view that that home to work driving would be compensable in that situation and what the statute specifically says on in that situation i guess any you know analogous situation is that's what they were concerned with was that even in that situation in if this driving was subject to an agreement they don't make clear exactly what they mean by agreement but it would certainly include a collective bargaining agreement or any agreement between the employer and the employees  that they would be doing this driving and that and not as and it would not be considered a work requirement or hours of work that it wouldn't have to be considered hours of work because there had been many the o p m has separate rules about whether and in what circumstances the time of driving to the emergency site is compensable one of the reasons this case is very narrow is as as was true in adams we had a settlement where we resolved all the f l s a issues in in the case rather than the question of time so we spent home to work arriving in a government vehicle so this case then just to make sure that i mentioned this case deals only with the let's say the the owner mary day in which you drive to the ordinary place of work and from it from home and from the ordinary place of work to home and that you aren't specifically directed to another location that's what we're talking about although out i wouldn't necessarily say that it's the ordinary place of work  you have places where we have situations that are not in this case but there are other cases where there's something called field work where someone is assigned to work at a field location in the same general area that you know that about that you know ten hours away for a period of time maybe a few days or weeks or two and that becomes as his workplace at that time but can still is not in other words is long we're talking about is commuting typically commuting to the to the office to the usual work site and that's essentially what we're dealing with here there's no there's no claim or no evidence that these plaintiffs were in their commutes were or driving to but otherwise why would they or would they would do it right that was the reason why they used a vehicle so that the vehicles the available in the event that they're called upon to reveal your point that when those cases that's that that's all been taken care of that's what we're driving issue is the only issue left this area anything in the record here with respect to the question of who pays for well the vehicle the fuel the maintenance the insurance anything about any of those factors i don't recall i think it's in the record that the government pays for it it's a government vehicle and some percentage of the wrist the restrictions on the use of the vehicle is not it's not a job restriction in terms of the work duties there are simply restrictions on you can't use government vehicles for personal use so that's associated with the use of government property pointed out in adam's i would never put the issue about the interpretation of the ex was was raised i think is one of the one of the appellant's arguments in adams in a petition for a rehearing on bank tonight so and there's no issue here about the genuine issue about deference to agency regulations the so there's basically no reason to overrule this court's prior precedent and no basis therefore to reverse the decision of the court below the only other argument the palette offers is a procedural one which i don't know if i need to do to dwell on in terms of the court ninety ninety six amendment the amendment provides god where there was an agreement employees may waive their right to be compensated and the labor department recently issued proposed regulations saying precisely that so where there is no agreement and in this case there is an added we no agreement under that amendment the word the driving remains agreement here and therefore that amendment doesn't apply at mr brilliant in his argument to the court of appeals never argued that the abed and their plight but in adams the court of appeals decided it did and proceeded its entire opinion on a mistaken interpretation of the amendment and that is simply what happened now beyond that mr brilliant is mistaken when he says that in so far as the labor department is concerned rice is controlling that is not the fact right was a case that the secretary lost in the second circuit after the district court had ruled its way and the second circuit said this hunt to work driving dragging dogs back and forth is not compensable that was the basis for the decision in both well in this court well i will tell you this that if brand  x had been on the books at that time rice would have been decided otherwise and adams would have been decided otherwise and and burble would have been decided otherwise and the government proceeds reinvent brand x all the time in this court as judges mayor will recall in michael simon design versus united states the government cited relied upon brand  in patterson in hudson brand x is for the government a way to defend the agency decisions and the only time that the government has the side the ground x doesn't apply is in this case agency read the code of appeal says that this is the construction of the statute agency comes back and in a chevron step to issuing regulations at chevron step two says no this is the way we read the statute eight and the court of appeals said now we previously decided that's not the correct reading supreme court says what's the agency has come back if chevron step one is not satisfied you get to chevron step two then the court of appeals has to get them difference to what the agency has done that occurred after the the court's first decision now why is that here the cause in at page nine eighty five three of grand acts justice thomas said that it matters not which came first the agency's decision or the came first its construction would prevail whereas if the agencies came first the agencies construction would command chevron deference yet whether congress has delegated to an agency the authority to interpret a statute