Ninth Circuit Finally Hears Oral Argument on “Donning and Doffing” Cases

The Ninth Circuit convened in Las Vegas, Nevada, on Monday, June 1, 2009 to hear two appeals involving “donning and doffing” cases brought by public safety personnel. Meyers Nave wrote the briefs for the League of California Cities and the California State Association of Counties, and attended oral argument.

The Ninth Circuit judges assigned to the cases are Gould, Rawlinson and George (district court judge sitting by designation).

The two cases argued are Bamonte, et al. v. City of Mesa, and Maciel, et al. v. City of Los Angeles. Both cases were argued and submitted, and the Ninth Circuit will issue its ruling at some indeterminate point in the future.

The judges appear poised to dismiss the Maciel appeal on procedural grounds. The City won the Maciel case in the lower court, but appealed because of two rulings that might affect other litigation: (1) the determination that donning and doffing safety gear was compensable time, and (2) the holding that the time in question was not “de minimus.” Because the City won in the lower courts—on the grounds that even if the time was compensable it would still not reach the threshold under the FLSA requiring overtime—the Court seemed poised to dismiss the case without resolving the two questions.

With respect to Bamonte, where the merits will unquestionably be decided, it is difficult to determine how the Court will rule. Judge Rawlinson asked the most questions, and appeared sympathetic to the argument that the police officers’ ability to “don and doff” at home (versus a requirement to change at the station) is “critical.” Judge Rawlinson asked questions throughout the argument. Judges George and Gould asked fewer questions, and did not reveal their thinking.

It is difficult to predict the outcome of cases simply from what occurs during oral argument, and there is no way to predict with certainty when the Ninth Circuit will issue its decision. We will continue to monitor these cases and keep our clients informed.