text:
    No. 04-5960.
    No. 04-8323.
    No. 04-9126.
    No. 04-9622.
    No. 04-9743.
    No. 04-9794.
    No. 04-9823.
    No. 04-9847.
    No. 04-9873.
    No. 04-9948.
    No. 04-10324.
    No. 04-10365.
    Ash v. Ash et al., Holbrook v. United States, Hairston v. United States Court of Appeals for the Fourth Circuit, Bahrs v. McCann, Warden, DiBartolo v. Lehman, Secretary, Washington Department of Corrections, et al., Gesford v. Johnson, Director, Virginia Department of Corrections, McMillen v. Dormire, Superintendent, Missouri State Penitentiary, Denbow v. Texas, Aguilar v. Patel et al., Purkerson v. Schriro, Director, Arizona Department of Corrections, et al., Chavarry v. United States, Aguayo v. United States,
   ante, p. 1141;

ante, p. 1125;

544 U. S. 989;

ante, p. 1107;

ante, p. 1120;

ante, p. 1143;

ante, p. 1144;

ante, p. 1144;

ante, p. 1108;

ante, p. 1146;

ante, p. 1147; and

ante, p. 1148. Petitions for rehearing denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 04-8531.
    In re Absalon,
   544 U. S. 973. Motion for leave to file petition for rehearing denied.


text:
    September 8, 2005
    No. 05A229.
    Corzine, United States Senator, et al. v. 2005 Defense Base Closure and Realignment Commission et al.
   C. A. 3d Cir. Application for stay and/or preliminary injunction, presented to Justice Souter, and by him referred to the Court, denied.


text:
    No. 05A230.
    Nixon, Attorney General of Missouri, et al. v. Rumsfeld, Secretary of Defense, et al.
   C. A. 8th Cir. Application for injunction, presented to Justice Thomas, and by him referred to the Court, denied.


text:
    September 12, 2005
    No. 04A1010.
    Beckley v. United States.
   Application for bail, addressed to Justice Souter and referred to the Court, denied.


text:
    September 14, 2005
    No. 05-6301 (05A247).
    In re Newton.
   Application for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, denied. Petition for writ of habeas corpus denied.


text:
    No. 05-6302 (05A248).
    Newton v. Texas (two judgments).
   Ct. Crim. App. Tex. Application for stay of execution of sentence of death, presented to Justice Scaua, and by him referred to the Court, denied. Certiorari denied.


text:
    September 20, 2005
    No. 04-1690.
    United States v. Barnett.
   C. A. 6th Cir. Certiorari dismissed under this Court’s Rule 46.1.


text:
    September 22, 2005
    No. 05-6517 (05A271).
    Peoples v. Alabama.
   Sup. Ct. Ala. Application for stay of execution of sentence of death, presented to Justice Kennedy, and by him referred to the Court, denied. Certiorari denied.


text:
    September 26, 2005
    No. 05A273.
    Hickey v. United States.
   C. A. 9th Cir. Application for stay, presented to Justice Scalia, and by him referred to the Court, denied.


text:
    September 27, 2005
    No. 04-1581.
    Wisconsin Right to Life, Inc. v. Federal Election Commission.
   Appeal from D. C. D. C. Probable jurisdiction noted.


text:
    No. 04-1324.
    Day v. Crosby, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Motions of Professor John H. Blume et al. and National Association of Criminal Defense Lawyers for leave to file briefs as amici curiae granted. Certiorari granted.


text:
    No. 04-1327.
    Holmes v. South Carolina.
   Sup. Ct. S. C. Certiorari granted limited to Question 1 presented by the petition.


text:
    No. 04-1371.
    Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit.
   C. A. 2d Cir. Motion of Securities Industry Association et al. for leave to file a brief as amici curiae granted. Certiorari granted.


text:
    No. 04-1414.
    United States v. Grubbs.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted.


text:
    No. 04-1477.
    Jones v. Flowers et al.
   Sup. Ct. Ark. Cer-tiorari granted.


text:
    No. 04-1506.
    Arkansas Department of Health and Human Services et al. v. Ahlborn.
   C. A. 8th Cir. Certiorari granted.


text:
    No. 04-1528.
    No. 04-1530.
    No. 04-1697.
    Randall et al. v. Sorrell et al.; Vermont Republican State Committee et al. v. Sorrell et al.; and Sorrell et al. v. Randall et al.
   C. A. 2d Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 382 F. 3d 91.


text:
    No. 04-1544.
    Marshall v. Marshall.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 04-1704.
    No. 04-1724.
    DaimlerChrysler Corp. et al. v. Cuno et al.; and Wilkins, Tax Commissioner for the State of Ohio, et al. v. Cuno et al.
   C. A. 6th Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. In addition to the questions presented by the petitions, the parties are directed to brief and argue the following question: “Whether respondents have standing to challenge Ohio's investment tax credit, Ohio Rev. Code Ann. §5733.33?” Reported below: 386 F. 3d 738.


text:
    No. 04-9728.
    Samson v. California.
   Ct. App. Cal., 1st App. Dist. Motion of petitioner for leave to proceed in forma pau-peris granted. Certiorari granted.


text:
    September 29, 2005
    No. 05-5565.
    Davis v. Brown, Warden.
   C. A. 9th Cir. Cer-tiorari dismissed under this Court’s Rule 46.


author: Per Curiam.

text:
    DYE v. HOFBAUER, WARDEN
    No. 04-8384.
    Decided October 11, 2005
   Per Curiam.

Tried by a jury for the third time, petitioner Paul Allen Dye was convicted in the Recorders Court in Detroit, Michigan, on two counts of murder and one count of possession of a firearm during commission of a felony. His defense in each of his three trials was that the crimes were committed by one of the prosecution’s key witnesses, who was present at the scene of the crimes.

The Michigan Court of Appeals upheld the convictions on direct review, People v. Dye, No. 136707 (Nov. 28, 1995) (per curiam), App. to Pet. for Cert. 109, and further review was denied by the Supreme Court of Michigan, People v. Dye, 453 Mich. 852, 551 N. W. 2d 189 (1996). Petitioner sought relief in habeas corpus in the United States District Court for the Eastern District of Michigan, alleging various federal constitutional claims. Denied relief, petitioner appealed to the United States Court of Appeals for the Sixth Circuit.

Over the next five years, the Court of Appeals issued various orders and two opinions in the case. 45 Fed. Appx. 428 (CA6 2002) (Dye I); 111 Fed. Appx. 363 (CA6 2004) (Dye II). In Dye I, a majority of a divided three-judge panel ruled the state prosecutor had engaged in flagrant misconduct during the jury trial. On this ground it reversed the District Court’s order denying habeas relief. The panel did not address petitioner’s other claims. 45 Fed. Appx., at 428, n. 1.

Respondent moved for panel or en banc rehearing. In the time between this motion and its disposition one of the judges in the majority retired, and the record was returned to the District Court.

In Dye II, a reconstituted panel granted the petition for rehearing and ruled in favor of respondent. In an opinion authored by the original panel’s dissenting judge, the Court of Appeals held that, although Dye had raised a prosecutorial misconduct claim in state court, the record did not show that he presented it there as a violation of a federal right. “Because the brief filed by the petitioner in his direct appeal to the Michigan Court of Appeals is not in the record, we have no way of determining exactly how he framed the issue in state court.” 111 Fed. Appx., at 364. As further support for its conclusion, the panel noted the Michigan Court of Appeals’ decision analyzed the relevant claim only in terms of state law. The panel concluded, moreover, it would decline . to address the claim even if Dye had properly raised it in state court because the federal habeas corpus petition’s allegations were too vague and general to be considered fairly presented. Ibid. Stating that its previous opinion, Dye I, had disposed of any remaining claims, the Dye II panel vacated the prior judgment and affirmed the District Court’s denial of the habeas corpus petition.

Dye seeks review here. There are two errors in Dye II meriting reversal of the judgment.

First, the Court of Appeals was incorrect in Dye II to conclude that, when seeking review in the state appellate court, petitioner failed to raise the federal claim based on prosecutorial misconduct. The Court of Appeals examined the opinion of the state appellate court and noted that it made no mention of a federal claim. That, however, is not dispositive. Failure of a state appellate court to mention a federal claim does not mean the claim was not presented to it. “It is too obvious to merit extended discussion that whether the exhaustion requirement. . . has been satisfied cannot turn upon whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in petitioner’s brief in the state court. . . .” Smith v. Digmon, 434 U. S. 332, 333 (1978) (per curiam).

Contrary to the holding of the Court of Appeals, the District Court record contains the brief petitioner filed in state court, and the brief sets out the federal claim. The fourth argument heading in his brief before the Michigan Court of Appeals states: “THE PROSECUTOR DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL BY NUMEROUS INSTANCES OF MISCONDUCT.” App. to Pet. for Cert. 80 (capitalization in original). Outlining specific allegations of prosecutorial misconduct, the text of the brief under this argument heading cites the Fifth and Fourteenth Amendments to the Constitution of the United States. It further cites the following federal cases, all of which concern alleged violations of federal due process rights in the context of prosecutorial misconduct: Donnelly v. DeChristoforo, 416 U. S. 637 (1974); Berger v. United States, 295 U. S. 78 (1935); United States v. Valentine, 820 F. 2d 565 (CA2 1987); United States v. Burse, 531 F. 2d 1151 (CA2 1976).

This is not an instance where the habeas petitioner failed to “apprise the state court of his claim that the ... ruling of which he complained was not only a violation of state law, but denied him the due process of law guaranteed by the Fourteenth Amendment.” Duncan v. Henry, 513 U. S. 364, 366 (1995) (per curiam). Nor is this a case where a state court needed to look beyond “a petition or a brief (or a similar document)” to be aware of the federal claim. Baldwin v. Reese, 541 U. S. 27, 32 (2004). The state-court brief was clear that the prosecutorial misconduct claim was based, at least in part, on a federal right. It was error for the Court of Appeals to conclude otherwise.

A second reason the Dye II panel denied relief was that the habeas petition filed in the United States District Court presented the prosecutorial misconduct claim in too vague and general a form. This alternative holding cannot rescue the Dye II judgment, for it, too, is incorrect. The habeas corpus petition made clear and repeated references to an appended supporting brief, which presented Dye’s federal claim with more than sufficient particularity. See Fed. Rules Civ. Proc. 81(a)(2), 10(c). As the prosecutorial misconduct claim was presented properly, it, and any other federal claims properly presented, should be addressed by the Court of Appeals on remand.

The motion to proceed informa pauperis and the petition for eertiorari are granted. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


text:
    SCHRIRO, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS v. SMITH
    No. 04-1475.
    Decided October 17, 2005
   Per Curiam.

In 1982, an Arizona jury convicted respondent Robert Douglas Smith of first-degree murder, kidnaping, and sexual assault. He was sentenced to death. The convictions and sentence were affirmed on direct appeal, and Smith’s state petitions for posteonviction relief proved unsuccessful. Smith then filed a petition for a writ of habeas corpus in the United States District Court for the District of Arizona. In none of these proceedings did Smith argue that he was mentally retarded or that his mental retardation made him ineligible for the death penalty. Smith had, however, presented evidence in mitigation during the sentencing phase of his trial showing that he had low intelligence.

The District Court denied Smith’s petition for habeas corpus in 1996. Following several rounds of appeals, remands, and petitions for certiorari to this Court (including one successful petition by the State, see Stewart v. Smith, 536 U. S. 856 (2002) (per curiam)), and after we had issued our decision in Atkins v. Virginia, 536 U. S. 304 (2002), the case returned to the Ninth Circuit. Shortly thereafter, Smith asserted in briefing that he is mentally retarded and cannot, under Atkins, be executed. The Ninth Circuit ordered suspension of all federal habeas proceedings and directed Smith to “institute proceedings in the proper trial court of Arizona to determine whether the state is prohibited from executing [Smith] in accordance with Atkins.” App. to Pet. for Cert. A-2. The court further ordered that the issue whether Smith is mentally retarded must “be determined ... by a jury trial unless the right to a jury is waived by the parties.” Ibid.

The State’s petition for certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded. The Ninth Circuit erred in commanding the Arizona courts to conduct a jury trial to resolve Smith’s mental retardation claim. Atkins stated in clear terms that “ ‘we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’ ” 536 U. S., at 317 (quoting Ford v. Wainwright, 477 U. S. 399, 416-417 (1986); modifications in original). States, including Arizona, have responded to that challenge by adopting their own measures for adjudicating claims of mental retardation. While those measures might, in their application, be subject to constitutional challenge, Arizona had not even had a chance to apply its chosen proee-dures when the Ninth Circuit pre-emptively imposed its jury trial condition.

Because the Court of Appeals exceeded its limited authority on habeas review, the judgment below is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

      Srmth’s motion to proceed informa pauperis is also granted.


text:
    KANE, WARDEN v. GARCIA ESPITIA
    No. 04-1538.
    Decided October 31, 2005
   Per Curiam.

Respondent Garcia Espitia, a criminal defendant who chose to proceed pro se, was convicted in California state court of carjacking and other offenses. He had received no law library access while in jail before trial — despite his repeated requests and court orders to the contrary — and only about four hours of access, during trial, just before closing arguments. (Of course, he had declined, as was his right, to be represented by a lawyer with unlimited access to legal materials.) The California courts rejected his argument that his restricted library access violated his Sixth Amendment rights. Once his sentence became final, he petitioned in Federal District Court for a writ of habeas corpus under 28 U. S. C. § 2254. The District Court denied relief, but the Court of Appeals for the Ninth Circuit reversed, holding that “the lack of any pretrial access to lawbooks violated Espitia’s constitutional right to represent himself as established by the Supreme Court in Faretta [v. California, 422 U. S. 806 (1975)].” Garcia Espitia v. Ortiz, 113 Fed. Appx. 802, 804 (2004). The warden’s petition for certiorari and respondent’s motion for leave to proceed in forma pauperis are granted, the judgment below is reversed, and the case is remanded.

A necessary condition for federal habeas relief here is that the state court’s decision be “contrary to, or involv[e] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” § 2254(d)(1). Neither the opinion below7 nor any of the appellate cases it relies on, identifies a source in our case law for the law library access right other than Faretta. See id., at 804 (relying on Bribiesca v. Galaza, 215 F. 3d 1015, 1020 (CA9 2000) (quoting Milton v. Morris, 767 F. 2d 1443, 1446 (CA9 1985))); ibid. (“Faretta controls this case”).

The federal appellate courts have split on whether Faretta, which establishes a Sixth Amendment right to self-representation, implies a right of the pro se defendant to have access to a law library. Compare Milton, supra, with United States v. Smith, 907 F. 2d 42, 45 (CA6 1990) (“[B]y knowingly and intelligently waiving his right to counsel, the appellant also relinquished his access to a law library”); United States ex rel. George v. Lane, 718 F. 2d 226, 231 (CA7 1983) (similar). That question cannot be resolved here, however, as it is clear that Faretta does not, as § 2254(d)(1) requires, “clearly establis[h]” the law library access right. In fact, Faretta says nothing about any specific legal aid that the State owes a pro se criminal defendant. The Bribiesca court and the court below therefore erred in holding, based on Faretta, that a violation of a law library access right is a basis for federal habeas relief.

The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


text:
    EBERHART v. UNITED STATES
    No. 04-9949.
    Decided October 31, 2005
   Per Curiam.

Federal Rule of Criminal Procedure 33(a) allows a district court to “vacate any judgment and grant a new trial if the interest of justice so requires.” But “[a]ny motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty, or within such further time as the court sets during the 7-day period.” Rule 33(b)(2). This deadline is rigid. The Rules provide that courts “may not extend the time to take any action under [Rule 33], except as stated” in Rule 33 itself. Rule 45(b)(2). The Court of Appeals for the Seventh Circuit has construed Rule 33’s time limitations as “jurisdictional,” permitting the Government to raise noncompliance with those limitations for the first time on appeal. 388 F. 3d 1043, 1049 (2004). However, there is “a critical difference between a rule governing subject-matter jurisdiction and an inflexible claim-processing rule.” Kontrick v. Ryan, 540 U. S. 443, 456 (2004). Rule 33 is an example of the latter. We grant the petition for certiorari and the motion for leave to proceed informa pauperis, and reverse the judgment of the Seventh Circuit.

HH

Petitioner Ivan Eberhart was convicted of one count of conspiring to distribute cocaine. On the last day available for post-trial motions, he moved for judgment of acquittal or, in the alternative, for a new trial. That motion raised a single ground for relief — an alleged flaw in a transcript that had been published to the jury. Nearly six months later, petitioner filed a “supplemental memorandum” supporting his motion. Two additional grounds appeared in that filing — admission of potential hearsay testimony into evidence, and the District Court’s failure to give a so-called “buyer-seller instruction” to the jury. 388 F. 3d, at 1047-1048. Rather than arguing, however, that the untimeliness of the supplemental memorandum barred the District Court from considering the issues it raised, the Government opposed it on the merits.

The District Court granted the motion for a new trial, citing all three grounds raised by petitioner. The judge concluded that “‘none of these concerns standing alone or in pairing would cause me to grant a new trial,’ ” but that taken together, they “ ‘persuade me that the interests of justice require a new trial.’” Id., at 1048. The judge also predicted that “‘a new trial will quite likely lead to another conviction.’” Ibid.

On appeal, the Government pointed to the untimeliness of petitioner’s supplemental memorandum, and argued that the District Court had abused its discretion in granting a new trial based on the arguments that the memorandum had raised. The Court of Appeals reversed the grant of a new trial, finding that the District Court had lacked jurisdiction to grant one. The Seventh Circuit observed: “The Supreme Court has held that Rule 45(b)’s prohibition on extensions of time is ‘mandatory and jurisdictional.’” Id., at 1049 (quoting United States v. Robinson, 361 U. S. 220, 229 (1960), and citing United States v. Smith, 331 U. S. 469, 474, n. 2 (1947)). Based on Robinson and Smith, the Seventh Circuit explained, “ ‘[w]e have previously emphasized that [Rule 33’s] 7-day period is jurisdictional, and that the court is without jurisdiction to consider even an amendment to a timely new trial motion if it is filed outside the seven day period, absent a timely extension by the court or new evidence.’” 388 F. 3d, at 1049 (quoting United States v. Washington, 184 F. 3d 653, 659 (CA7 1999)).

The Court of Appeals did, however, express some misgiving. After describing the holding of Kontrick, it commented that “[t]he reasoning of Kontrick may suggest that Rule 33’s time limits are merely inflexible claim-processing rules that could be forfeited if not timely asserted.” 388 F. 3d, at 1049. It concluded, however, that even if Kontrick had undermined Robinson and Smith, “we are bound to follow them until expressly overruled by the Supreme Court.” 388 F. 3d, at 1049 (citing Agostini v. Felton, 521 U. S. 203, 237 (1997)).

II

In Kontrick, we determined that defenses made available by the time limitations of Federal Rules of Bankruptcy Procedure 4004 and 9006 may be forfeited. 540 U. S., at 458-460. They are not “jurisdiction[al],” but are instead “claim-processing rules,” that may be “unalterable on a party’s application” but “can nonetheless be forfeited if the party asserting the rule waits too long to raise the point.” Id., at 456. In Kontrick, the debtor responded on the merits to a creditor’s untimely objection to his discharge. He did not raise the untimeliness issue, and the court resolved the merits in favor of the creditor. On motion for reconsideration and on appeal, the debtor raised the argument that Rules 4004 and 9006 “have the same import as provisions governing subject-matter jurisdiction.” Id., at 455. We rejected this assertion and found that the debtor had forfeited the timeliness argument.

The Rules we construed in Kontrick closely parallel those at issue here. Like a defendant wishing to move for a new trial under Federal Rule of Criminal Procedure 33, a creditor wishing to object to a debtor’s discharge in Chapter 7 liquidation proceedings has a set period of time to file with the court (measured, in the latter context, from “the first date set for the meeting of creditors”). Fed. Rule Bkrtcy. Proc. 4004(a). If a creditor so moves, “the court may for cause extend the time to file a complaint' objecting to discharge.” Rule 4004(b). And using language almost identical to Federal Rule of Criminal Procedure 45(b)(2)’s admonition that “[t]he court may not extend the time to take any action under Rules 29, 33, 34, and 35, except as stated in those rules,” Bankruptcy Rule 9006(b)(3) states that “[t]he court may enlarge the time for taking action under Rules 1006(b)(2), 1017(e), 3002(c), 4003(b), 4004(a), 4007(c), 8002, and 9033, only to the extent and under the conditions stated in those rules.”

It is implausible that the Rules considered in Kontrick can be nonjurisdictional claim-processing rules, while virtually identical provisions of the Rules of Criminal Procedure can deprive federal courts of subject-matter jurisdiction. Nothing in Rules 33 or 45 or our cases requires such a dissonance. Moreover, our most recent decisions have attempted to brush away confusion introduced by our earlier opinions. “Clarity would be facilitated,” we have said, “if courts and litigants used the label 'jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.” Kontrick, 540 U. S., at 455. We break no new ground in firmly classifying Rules 33 and 45 as claim-processing rules, despite the confusion generated by the “less than meticulous” uses of the term “jurisdictional” in our earlier eases. Id., at 454.

The Seventh Circuit correctly identified our decisions in Smith and Robinson as the source of the confusion. 388 F. 3d, at 1049. Since we have not “expressly ovérruled” them, it held, petitioner’s appeal had to be dismissed. Ibid. Those cases, however, do not hold the limits of the Rules to be jurisdictional in the proper sense that Kontrick describes. See 540 U. S., at 455. We need not overrule Robinson or Smith to characterize Rules 33 and 45 as claim-processing rules.

In Smith, the District Judge rejected a Rule 33 motion for a new trial, and the conviction was affirmed on appeal. 331 U. S., at 470. After the defendant was taken into custody, the District Judge changed his mind. Purporting to act under the authority of Rule 33, he issued an order vacating his earlier judgment and granting a new trial. Id., at 471. Although we observed in a footnote that “[t]he policy of the Rules was not to extend power indefinitely but to confine it within constant time periods,” id., at .473-474, n. 2, that observation hardly transforms the Rules into the keys to the kingdom of subject-matter jurisdiction. Rather, as we emphasized in the text, the District Judge could not use Rule 33 to sidestep a pre-existing basic principle of judicial process — that once a final judgment is issued and the court of appeals considers a case, a district court has no power to act on it further. This was a consequence, however, not of the Rule, but of the Rule’s failure to alter prior law. Smith does not address the effect of untimely arguments in support of a motion for new trial when, as here, the district'court is still considering post-trial motions and the case has not yet been appealed.

Nor does Robinson address that circumstance. Defendants were 11 days late in filing their notices of appeal under (what was then) Rule 37. The Government responded not by contesting the merits of the appeal, but by moving to dismiss on the basis of untimeliness. 361 U. S., at 221. The Court of Appeals determined that if the District Court found that the untimely notices of appeal sprang from “excusable neglect,” it could allow the appeals. On remand, the District Court so found. Id., at 222. We held that the Court of Appeals was wrong in having failed to dismiss under Rule 45(b). Id., at 229-230. Robinson is correct not because the District Court lacked subject-matter jurisdiction, but because district courts must observe the clear limits of the Rules of Criminal Procedure when they are properly invoked. This does not mean that limits like those in Rule 33 are not forfeitable when they are not properly invoked. Despite its narrow and unremarkable holding, Robinson has created some confusion because of its observation that “courts have uniformly held that the taking of an appeal within the prescribed time is mandatory and jurisdictional.” Id., at 229 (emphasis added). Indeed, we used the phrase “mandatory and jurisdictional” four times in the opinion. And subsequent opinions have repeated this phrase, attributing it directly or indirectly to Robinson. See, e. g., Hohn v. United States, 524 U. S. 236, 247 (1998); Budinich v. Becton Dickinson & Co., 486 U. S. 196, 203 (1988); Griggs v. Provident Consumer Discount Co., 459 U. S. 56, 61 (1982) (per curiam); Browder v. Director, Dept. of Corrections of Ill., 434 U. S. 257, 264, 271-272 (1978). But see Houston v. Lack, 487 U. S. 266, 269 (1988) (reversing an order dismissing an appeal as jurisdictionally out of time when “[n]either the District Court nor respondent suggested that the notice of appeal might be untimely”); Thompson v. INS, 375 U. S. 384, 386 (1964) (per curiam) (permitting appeal, when petitioner conceded that post-trial motions were served late, in part because petitioner “relied on the Government’s failure to raise a claim of untimeliness When the motions were filed”).

As we recognized in Kontrick, courts “have more than occasionally used the term 'jurisdictional’ to describe emphatic time prescriptions in rules of court.” 540 U. S., at 454. See also ibid, (citing Robinson as an example of when we have been “less than meticulous” in our use of the word “jurisdictional”). The resulting imprecision has obscured the central point of the Robinson case — that when the Government objected to a filing untimely under Rule 37, the court’s duty to dismiss the appeal was mandatory. The net effect of Robinson, viewed through the clarifying lens of Kontrick, is to admonish the Government that failure to object to untimely submissions entails forfeiture of the objection, and to admonish defendants that timeliness is of the essence, since the Government is unlikely to miss timeliness defects very often.

Our more recent cases have done much to clarify this point. For instance, in Carlisle v. United States, 517 U. S. 416 (1996), we held that a court may not grant a postverdict motion for a judgment of acquittal that is untimely under Federal Rule of Criminal Procedure 29(c) when the prosecutor objects. As we pointedly noted in Kontrick, our holding in Carlisle did not “characterize [Rule 29] as ‘jurisdie-tional.’ ” 540 U. S., at 454-455. See also Scarborough v. Principi, 541 U. S. 401, 413-414 (2004) (relying on Kontrick to hold that time limitations on applications for attorney’s fees under the Equal Access to Justice Act, 28 U. S. C. § 2412(d)(1), did not implicate subject-matter jurisdiction).

After Kontrick, it is difficult to escape the conclusion that Rule 33 motions are similarly nonjurisdictional. By its terms, Rule 45(b)(2) has precisely the same effect on extensions of time under Rule 29 as it does under Rule 33, and as we noted in Kontrick, Federal Rule of Criminal Procedure 45(b) and Bankruptcy Rule 9006(b) are both “modeled on Federal .Rule of Civil Procedure 6(b).” 540 U. S., at 456, n. 10. Rule 33, like Rule 29 and Bankruptcy Rule 4004, is a claim-processing rule — one that is admittedly inflexible because of Rule 45(b)’s insistent demand for a definite end to proceedings. These claim-processing rules thus assure relief to a party properly raising them, but do not compel the same result if the party forfeits them. Here, where the Government failed to raise a defense of untimeliness until after the District Court had reached the merits, it forfeited that defense. The Court of Appeals should therefore have proceeded to the merits.

We finally add a word about the approach taken by the Court of Appeals. Although we find its disposition to have been in error, we fully appreciate that it is an error shared among the circuits, and that it was caused in large part by imprecision in our prior cases. Our repetition of the phrase “mandatory and jurisdictional” has understandably led the lower courts to err on the side of caution by giving the limitations in Rules 33 and 45 the force of subject-matter jurisdiction. Convinced, therefore, that Robinson and Smith governed this case, the Seventh Circuit felt bound to apply them, even though it expressed grave doubts in light of Kontrick. This was a prudent course. It neither forced the issue by upsetting what the Court of Appeals took to be our settled precedents, nor buried the issue by proceeding in a summary fashion. By adhering to its understanding of precedent, yet plainly expressing its doubts, it facilitated our review.

* * *

The judgment of the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


author: Justice Stevens

text:
    IBP, INC. v. ALVAREZ, individually and on behalf of all others similarly situated, et al.
    No. 03-1238.
    Argued October 3, 2005
    Decided November 8, 2005

      Stevens, J., delivered the opinion for a unanimous Court.

      Carter G. Phillips argued the cause for petitioner in No. 03-1238 and for respondent in No. 04-66. With him on the briefs in No. 03-1238 were Joseph R. Guerra, Rebecca K. Wood, Michael J. Mueller, and Joel M. Cohn. On the brief in No. 04-66 was Graydon G. Stevens.

      Thomas C. Goldstein argued the cause for petitioners in No. 04-66 and for respondents in No. 03-1238. With him on the briefs in No. 04-66 were Amy Howe, Kevin K. Russell, Pamela S. Karlan, Timothy B:Fleming, Lori B. Kisch, and William C. Nugent. On the brief in No. 03-1238 were David N. Mark, William Rutzick, and Kathryn Goater.

      Irving L. Gornstein argued the cause for the United States as amicus curiae supporting respondents in No. 03-1238 and petitioners in No. 04-66. With him on the brief were Solicitor General Clement, Deputy Solicitor

      General Hungar, Howard M. Radzely, Allen H. Feldman, Steven J Mandel, and Michael P. Doyle.

      Together with No. 04-66, Tum et al. v. Barber Foods, Inc., dba Barber Foods, on certiorari to the United States Court of Appeals for the First Circuit.

      A brief of amici curiae urging reversal in No. 04-66 was filed for the National Employment Lawyers Association et al. by Sandra Thourot Krider, Marissa M. Tirona, Patricia A. Shiu, and Catherine K. Ruckelshaus.

      Briefs of amici curiae urging reversal in No. 03-1238 and affirmance in No. 04-66 were filed for the Chamber of Commerce of the United States of America et al. by Samuel Estreicher, Meir Feder, Robin S. Conrad, Robert Costagliola, and Quentin Riegel; and for the National Chicken Council et al. by David R. Wylie and D. Christopher Lauderdale.

        Jonathan P. Hiatt, . James B. Coppess, and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal in No. 04-66 and affirmance in No. 03-1238.

   Justice Stevens

delivered the opinion of the Court.

These consolidated cases raise questions concerning the coverage of the Fair Labor Standards Act of 1938 (FLSA), as amended by the Portal-to-Portal Act of 1947, with respect to activities of employees who must don protective clothing on the employer’s premises before they engage in the productive labor for which they are primarily hired. The principal question, which is presented in both cases, is whether the time' employees spend walking between the changing area and the production area is compensable under the FLSA. The second question, which is presented only in No. 04-66, is whether the time employees spend waiting to put on the protective gear is compensable under the statute. In No. 03-1238, the Court of Appeals for the Ninth Circuit answered “yes” to the first question, 339 F. 3d 894 (2003); in No. 04-66, the Court of Appeals for the First Circuit answered “no” to both questions, 360 F. 3d 274,281 (2004). We granted certiorari to resolve the conflict. 543 U. S. 1144 (2005).

I

As enacted in 1938, the FLSA, 29 U. S. C. §201 et seq., required employers engaged in the production of goods for commerce to pay their employees a minimum wage of “not less than 25 cents an hour,” § 6(a)(1), 52 Stat. 1062, and prohibited the employment of any person for workweeks in excess of 40 hours after the second year following the legislation “unless such employee receives compensation for his employment in excess of [40] hours ... at a rate not less than one and one-half times the regular rate at which he is employed,” id., § 7(a)(3), at 1063. Neither “work” nor “workweek” is defined in the statute.

Our early cases defined those terms broadly. In Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U. S. 590 (1944), we held that time spent traveling from iron ore mine portals to underground working areas was compensa-ble; relying on the remedial purposes of the statute and Webster’s Dictionary, we described “work or employment” as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Id., at 598; see id., at 598, n. 11. The same year, in Armour & Co. v. Wantock, 323 U. S. 126 (1944), we clarified that “exertion” was not in fact necessary for an activity to constitute “work” under the FLSA. We pointed out that “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen.” Id., at 133. Two years later, in Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680 (1946), we defined “the statutory workweek” to “includ[e] all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.” Id., at 690-691. Accordingly, we held that the time necessarily spent by employees walking from timeclocks near the factory entrance gate to their workstations must be treated as part of the workweek. Id., at 691-692.

The year after our decision in Anderson, Congress passed the Portal-to-Portal Act, amending certain provisions of the FLSA. Based on findings that judicial interpretations of the FLSA had superseded “long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation,” 61 Stat. 84, it responded with two statutory remedies, the first relating to “existing claims,” id., at 85-86, and the second to “future claims,” id., at 87-88. Both remedies distinguish between working time that is compensable pursuant to contract or custom and practice, on the one hand, and time that was found compensable under this Court’s expansive reading of the FLSA, on the other. Like the original FLSA, however, the Portal-to-Portal Act omits any definition of the term “work.”

With respect to existing claims, the Portal-to-Portal Act provided that employers would not incur liability on account of their failure to pay minimum wages or overtime compensation for any activity that was not compensable by either an express contract or an established custom or practice. With respect to “future claims,” the Act preserved potential liability for working time not made compensable by contract or custom but narrowed the coverage of the FLSA by excepting two activities that had been treated as compensable under our eases: walking on the employer’s premises to and from the actual place of performance of the principal activity of the employee, and activities that are “preliminary or post-liminary” to that principal activity.

Specifically, Part III of the Portal-to-Portal Act, entitled “future claims,” provides in relevant part:

“Sec. 4. Relief from Certain Future Claims Under the Fair Labor Standards Act of 1938... —
“(a) Except as provided in subsection (b) [which covers work compensable by contract or custom], no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended,... on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act—
“(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
“(2) activities which are preliminary to or postlimi-nary to said principal activity or activities,
“which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.” 61 Stat. 86-87 (codified at 29 U. S. C. § 254(a)).

Other than its express exceptions for travel to and from the location of the employee’s “principal activity,” and for activities that are preliminary or postliminary to that principal activity, the Portal-to-Portal Act does not purport to change this Court’s earlier descriptions of the terms “work” and “workweek,” or to define the term “workday.” A regulation promulgated by the Secretary of Labor shortly after its enactment concluded that the statute had no effect on the computation of hours that are worked “within” the workday. That regulation states: “[T]o the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday, the provisions of [§ 4] have no application.” 29 CFR § 790.6(a) (2005). Similarly, consistent with our prior decisions interpreting the FLSA, the Department of Labor has adopted the continuous workday rule, which means that the “workday” is generally defined as “the period between the commencement and completion on the same workday of "an employee’s principal activity or activities.” § 790.6(b). These regulations have remained in effect since 1947, see 12 Fed. Reg. 7658'(1947), and no party disputes the validity of the continuous workday rule.

In 1955, eight years after the enactment of the.Portal-to-Portal Act and the promulgation of these interpretive regulations, we were confronted with the question whether workers in a battery plant had a statutory right to compensation for the “time incident to changing clothes at the beginning of the shift and showering at the end, where they must make extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower in facilities which state law requires their employers to provide ....” Steiner v. Mitchell, 850 U. S. 247, 248 (1956). After distinguishing “changing clothes and showering under normal conditions” and stressing the important health and safety risks associated with the production of batteries, id., at 249, the Court endorsed the Court of Appeals’ conclusion that these activities were compensable under the FLSA.

In reaching this result, we specifically agreed with the Court of Appeals that “the term ‘principal activity or activities’ in Section 4 [of the Portal-to-Portal Act] embraces all activities which are an ‘integral and indispensable part of the principal activities,’ and that the activities in question fall within this category.” Id., at 252-253. Thus, under Steiner, activities, such as the donning and doffing of specialized protective gear, that are “performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a)(1).” Id., at 256.

The principal question presented by these consolidated cases — both of which involve required protective gear that the courts below found integral and indispensable to the employees’ work — is whether postdonning and predoffing walking time is specifically excluded by § 4(a)(1). We conclude that it is not.

Petitioner m No. 03-1238, IBP, Inc. (IBP), is a large producer of fresh beef, pork, and related products. At its plant in Pasco, Washington, it employs approximately 178 workers in 113 job classifications in the slaughter division and 800 line workers in 145 job classifications in the processing division. All production workers in both divisions must wear outer garments, hardhats, hairnets, earplugs, gloves, sleeves, aprons, leggings, and boots. Many of them, particularly those who use knives, must also wear a variety of protective equipment for their hands, arms, torsos, and legs; this gear includes chain link metal aprons, vests, plexiglass arm-guards, and special gloves. IBP requires its employees to store their equipment and tools in company locker rooms, where most of them don their protective gear.

Production workers’ pay is based on the time spent cutting and bagging meat. Pay begins with the first piece of meat and ends with the last piece of meat. Since 1998, however, IBP has also paid for four minutes of clothes-changing time. In 1999, respondents, IBP employees, filed this class action to recover compensation for preproduction and postproduction work, including the time spent donning and doffing protective gear and walking between the locker rooms and the production floor before and after their assigned shifts.

After a lengthy bench trial, the District Court for the Eastern District of Washington held that donning and doffing of protective gear that was unique to the jobs at issue were compensable under the FLSA because they were integral and indispensable to the work of the employees who wore such equipment. Moreover, consistent with the continuous workday rule, the District Court concluded that, for those employees required to don and doff unique protective gear, the walking time between the locker room and the production floor was also compensable because it occurs during the workday. The court did not, however, allow any recovery for ordinary clothes changing and washing, or for the “donning and doffing of hard hat[s], ear plugs, safety glasses, boots [or] hairnetfs].” App. to Pet. for Cert, in No. 08-1238, p. 65a.

The District Court proceeded to apply these legal conclusions in making detailed factual findings with regard to the different groups of employees. For example, the District Court found that, under its view of what was covered by the FLSA, processing division knife users were entitled to compensation for between 12 and 14 minutes of preproduction and postproduction work, including 3.3 to 4.4 minutes of walking time.

The Court of Appeals agreed with the District Court’s ultimate conclusions on these issues, but in part for different reasons. 339 F. 3d 894 (CA9 2003). After noting that the question whether activities “ ‘are an integral and indispensable part of the principal activities’” within the meaning of Steiner is “context specific,” 339 F. 3d, at 902, the Court of Appeals endorsed the distinction between the burdensome donning and doffing of elaborate protective gear, on the one hand, and the time spent donning and doffing nonunique gear süch as hardhats and safety goggles, on the other. It did so not because donning and doffing nonunique gear are categorically excluded from being “principal activities” as defined by the Portal-to-Portal Act, but rather because, in the context of this case, the time employees spent donning and doffing nonunique protective gear was “‘de minimis as a matter of law.’ ” Id., at 904.

IBP does not challenge the holding below that, in light of Steiner, the donning and doffing of unique protective gear are “principal activities” under §4 of the Portal-to-Portal Act. Moreover, IBP has not asked us to overrule Steiner. Considerations of stare decisis are particularly forceful in the area of statutory construction, especially when a unanimous interpretation of a statute has been accepted as settled law for several decades. Thus, the only question for us to decide is whether the Court of Appeals correctly rejected IBP’s contention that the walking between the locker rooms and the production areas is excluded from FLSA coverage by § 4(a)(1) of the Portal-to-Portal Act.

IBP argues that the text of § 4(a)(1), the history and purpose of its enactment, and the Department of Labor’s interpretive guidance compel the conclusion that the Portal-to-Portal Act excludes this walking time from the scope of the FLSA. We find each of these arguments unpersuasive.

Text

IBP correctly points out that our decision in Steiner held only that the donning and doffing of protective gear in that case were activities “integral and indispensable” to the workers’ principal activity of making batteries. 350 U. S., at 256. In IBP’s view, a category of “integral and indispensable” activities that may be compensable because they are not merely preliminary or postliminary within the meaning of § 4(a)(2) is not necessarily coextensive with the actual “principal activities” which the employee “is employed to perform” within the meaning of § 4(a)(1). In other words, IBP argues that, even though the court below concluded that donning and doffing of unique protective gear are “integral and indispensable” to the employees’ principal activity, this means only that the donning and doffing of such gear are themselves covered by the FLSA. According to IBP, the donning is not a “principal activity” that starts the workday, and the walking that occurs immediately after donning and immediately before doffing is not compensable. In effect, IBP asks us to create a third category of activities — those that are “integral and indispensable” to a “principal activity” and thus not excluded from coverage by § 4(a)(2), but that are not themselves “principal activities” as that term is defined by § 4(a)(1).

IBP’s submission is foreclosed by Steiner. As noted above, in Steiner we made it clear that §4 of the Portal-to-Portal Act does not remove activities which are “‘integral and indispensable’” to “‘principal activities’” from FLSA coverage precisely because such activities are themselves “ ‘principal activities.’ ” Id., at 253. While Steiner specifically addressed the proper interpretation of the term “principal activity or activities” in § 4(a)(2), there is no plausible argument that these terms mean something different in § 4(a)(2) than they do in § 4(a)(1). This is not only because of the normal rule of statutory interpretation that identical words used in different parts of the same statute are generally presumed to have the same meaning. E. g., Sullivan v. Stroop, 496 U. S. 478, 484 (1990). It is also because § 4(a)(2) refers to “said principal activity or activities.” 61 Stat. 87 (emphasis added). The “said” is an explicit reference to the use of the identical term in § 4(a)(1).

Indeed, IBP has not offered any support for the unlikely proposition that Congress intended to create an intermediate category of activities that would be sufficiently “principal” to be compensable, but not sufficiently principal to commence the workday. Accepting the necessary import of our holding in Steiner, we conclude that the locker rooms where the special safety gear is donned and doffed are the relevant “place of performance” of the principal activity that the employee was employed to perform within the meaning of § 4(a)(1). Walking to that place before starting work is excluded from FLSA coverage, but the statutory text does not exclude walking from that place to another area within the plant immediately after the workday has commenced.

Purpose

IBP emphasizes that our decision in Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, may well have been the proximate cause of the enactment of the Portal-to-Portal Act. In that case we held that the FLSA mandated compensation for the time that employees spent walking from time-clocks located near the plant entrance to their respective places of work prior to the start of their productive labor. Id., at 690-691. In IBP’s view, Congress’ forceful repudiation of that holding reflects a purpose to exclude what IBP regards as the quite similar walking time spent by respondents before and after their work slaughtering cattle and processing meat. Even if there is ambiguity in the statute, we should construe it to effectuate that important purpose.

This argument is also unpersuasive. There is a critical difference between the walking at issue in Anderson and the walking at issue in this case. In Anderson the walking preceded the employees’ principal activity; it occurred before the workday began. The relevant walking in this case occurs after the workday begins and before it ends. Only if we were to endorse IBP’s novel submission that an activity can be sufficiently “principal” to be compensable, but not sufficiently so to start the workday, would this case be comparable to Anderson.

Moreover, there is a significant difference between the open-ended and potentially expansive liability that might result from a rule that treated travel before the workday begins as compensable, and the rule at issue in this case. Indeed, for processing division knife users, the largest segment of the work force at IBP’s plant, the walking time in dispute here consumes less time than the donning and doffing activities that precede or follow it. It is more comparable to time spent walking between two different positions on an assembly line than to the prework walking in Anderson.

Regulations

The regulations adopted by the Secretary of Labor in 1947 support respondents’ view that when donning and doffing of protective gear are compensable activities, they may also define the outer limits of the workday. Under those regulations, the few minutes spent walking between the locker rooms and the production area are similar to the time spent walking between two different workplaces on the disassem-bly line. See 29 CFR § 790.7(c) (2005) (explaining that the Portal-to-Portal Act does not affect the compensability of time spent traveling from the place of performance of one principal activity to that of another). See also § 785.38 (explaining, in a later regulation interpreting the FLSA, that “[w]here an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked

IBP argues, however, that two provisions in the regulations point to a different conclusion — the use of the phrase “whistle to whistle” in discussing the limits of the “workday,” §790.6, and a footnote stating that postchanging walking time is not “necessarily” excluded from the scope of § 4(a)(1), § 790.7(g), n. 49.

The “whistle to whistle” reference does reflect the view that in most situations the workday will be defined by the beginning and ending of the primary productive activity. But the relevant text describes the workday as “rougkly the period ‘from whistle to whistle.’” §790.6(a) (emphasis added). Indeed, the next subsection of this same regulation states: “ ‘Workday’ as used in the Portal Act means, in general, the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” § 790.6(b). IBP’s emphasis on the “whistle to whistle” reference is unavailing.

The footnote on which IBP relies states:

“Washing up after work, like the changing of clothes, may in certain situations be so directly related to the specific work the employee is employed to perform that it would be regarded as an integral part of the employee’s ‘principal activity.’ This does not necessarily mean, however, that travel between the washroom or clothes-changing place and the actual place of performance of the specific work the employee is employed to perform, would be excluded from the type of travel to which section 4(a) refers.” § 790.7(g), n. 49 (emphasis added; citations omitted).

This footnote does indicate that the Secretary assumed that there would be some cases in which walking between a locker room where the employee performs her first principal activity and the production line would be covered by the FLSA and some cases in which it would not be.. That assumption is, of course, inconsistent with IBP’s submission that such walking is always excluded by §4(a), just as it is inconsistent with respondents’ view that such walking is never excluded. Whatever the correct explanation for the Secretary’s ambiguous (and apparently ambivalent) statement may be, it is not sufficient to overcome the clear statements in the text of the regulations that support our holding. And it surely is not sufficient to overcome the statute itself, whose meaning is definitively resolved by Steiner.

For the foregoing reasons, we hold that any activity that is “integral and indispensable” to a “principal activity” is itself a “principal activity” under § 4(a) of the Portal-to-Portal Act. Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity is excluded from the scope of that provision, and as a result is covered by the FLSA.

III

Respondent in No. 04-66, Barber Foods, Inc. (Barber), operates a poultry processing plant in Portland, Maine, that employs about 300 production workers. These employees operate six production lines and perform a variety of tasks that require different combinations of protective clothing. They are paid by the hour from the time they punch in to computerized timecloeks located at the entrances to the production floor.

Petitioners are Barber employees and former employees who brought this action to recover compensation for alleged unrecorded work covered by the FLSA. Specifically, they claimed that Barber’s failure to compensate them for (a) donning and doffing required protective gear and (b) the attendant walking and waiting violated the statute.

After extensive discovery, the Magistrate Judge issued a comprehensive opinion analyzing the facts in detail, and recommending the entry of partial summary judgment in favor of Barber. That opinion, which was later adopted by the District Court for Maine, included two critical rulings.

First, the Magistrate Judge held that “the donning and doffing of clothing and equipment required by the defendant or by government regulation, as opposed to clothing and equipment which employees choose to wear or use at their option, is an integral part of the plaintiffs’ work [and therefore are] not excluded from compensation under the Portal-to-Portal Act as preliminary or postliminary activities.” App. to Pet. for Cert, in No. 04-66, pp. 36a-40a.

Second, the Magistrate Judge rejected petitioners’ claims for “compensation for the time spent before obtaining their clothing and equipment.” Id., at 33a. Such time, in the Magistrate Judge’s view, “could [not] reasonably be construed to be an integral part of employees’ work activities any more than walking to the cage from which hairnets and earplugs are dispensed . . . .” Ibid. Accordingly, Barber was “entitled to summary judgment on . any claims based on time spent walking from the plant entrances to an employee’s workstation, locker, time clock or site where clothing and equipment required to be worn on the job is to be obtained and any claims based on time spent waiting to punch in or out for such clothing or equipment.” Id., at 33a-34a.

The Magistrate Judge’s opinion did not specifically address the question whether the walking time between the production line and the place of donning and doffing was encompassed by § 4 of the Portal-to-Portal Act, and thus excluded from coverage under the FLSA. Whatever the intended scope of the Magistrate’s grant of partial summary judgment, the questions submitted to the jury after trial asked jurors to consider only whether Barber was required to compensate petitioners for the time they spent actually donning and doffing various gear.

Before the case was submitted to the jury, the parties stipulated that four categories of workers — rotating, setup, meatroom, and shipping and receiving associates — were required to don protective gear at the beginning of their shifts and w;ere required to doff this gear at the end of their shifts. The jury then made factual findings with regard to the amount of time reasonably required for each category of employees to don and doff such items; the jury concluded that such time was de minimis and therefore not compensable. The jury further concluded that two other categories of employees — maintenance and sanitation associates — were not required to don protective gear before starting their shifts. Accordingly, the jury ruled for Barber on all counts.

On appeal, petitioners argued, among other things, that the District Court had improperly excluded as noneompensa-ble the time employees spend walking to the production floor after donning required safety gear and the time they spend walking from the production floor to the area where they doff such gear. The Court of Appeals rejected petitioners’ argument, concluding that such walking time was a species of preliminary and postliminary activity excluded from FLSA coverage by §§ 4(a)(1) and (2) of the Portal-to-Portal Act. 360 F. 3d, at 281. As we have explained in our discussion of IBP’s submission, see Part II, supra, that categorical conclusion was incorrect.

Petitioners also argued in the Court of Appeals that the waiting time associated with the donning and doffing of clothes was compensable. The Court of Appeals disagreed, holding that the waiting time qualified as a “preliminary or postliminary activity” and thus was excluded from FLSA coverage by the Portal-to-Portal Act. 360 F. 3d, at 282. Our analysis in Part II, supra, demonstrates that the Court of Appeals was incorrect with regard to the predoffing waiting time. Because doffing gear that is “integral and indispensable” to employees’ work is a “principal activity” under the statute, the continuous workday rule mandates that time spent waiting to doff is not affected by the Portal-to-Portal Act and is instead covered by the FLSA.

The time spent waiting to don — time that elapses before the principal activity of donning integral and indispensable gear — presents the quite different question whether it should have the effect of advancing the time when the workday begins. Barber argues that such predonning waiting time is explicitly covered by § 4(a)(2) of the Portal-to-Portal Act, which, as noted above, excludes “activities which are preliminary to or postliminary to [a] principal activity or activities” from the scope of the FLSA. 29 U. S. C. § 254(a)(2).

By . contrast, petitioners, supported by the United States as amicus curiae, maintain that the predonning waiting time is “integral and indispensable” to the “principal activity” of donning, and is therefore itself a principal activity. However, unlike the donning of certain types of protective gear, which is always essential if the worker is to do his job, the waiting may or may not be necessary in particular situations or for every employee. It is certainly not “integral and indispensable” in the same sense that the donning is. It does, however, always comfortably qualify as a “preliminary” activity.

We thus do not agree with petitioners that the predonning waiting time at issue in this case is a “principal activity” under §4(a). As Barber points out, the fact that certain preshift activities are necessary for employees to engage in their principal activities does not mean that those preshift activities are “integral and indispensable” to a “principal activity” under Steiner. For example, walking from a time-clock near the factory gate to a workstation is certainly necessary for employees to begin their work, but it is indisputable that the Portal-to-Portal Act evinces Congress’ intent to repudiate Anderson’s holding that such walking time was compensable under the FLSA. We discern no limiting principle that would allow us to conclude that the waiting time in dispute here is a “principal activity” under §4(a), without also leading to the logical (but untenable) conclusion that the walking time at issue in Anderson would be a “principal activity” under §4(a) and would thus be unaffected by the Portal-to-Portal Act.

The Government also relies on á regulation promulgated by the Secretary of Labor as supporting petitioners’ view. That regulation, 29 CFR § 790.7(h) (2005), states that when an employee “is required by his employer to report at a particular hour at his workbench or other place where he performs his principal activity, if the employee is there at that hour ready and willing to work but for some reason beyond his control there is no work for him to perform until some time has elapsed, waiting for work would be an integral part of the employee’s principal activities.” That regulation would be applicable if Barber required its workers to report to the changing area at a specific time only to find that no protective gear was available until after some time had elapsed, but there is no such evidence in the record in this case.

More pertinent, we believe, is the portion of § 790.7 that characterizes the time that employees must spend waiting to check in or waiting to receive their paychecks as generally a “preliminary” activity covered by the Portal-to-Portal Act. See § 790.7(g). That regulation is fully consistent with the statutory provisions that allow the compensability of such collateral activities to depend on either the agreement of the parties or the custom and practice in the particular industry.

In short, we are not persuaded that such waiting — which in this case is two steps removed from the productive activity on the assembly line — is “integral and indispensable” to a “principal activity” that identifies the time when the continuous workday begins. Accordingly, we hold that §.4(a)(2) excludes from the scope of the FLSA the time employees spend waiting to don the first piece of gear that marks the beginning of the continuous workday.

IV

For the reasons stated above, we affirm the judgment of the Court of Appeals for the Ninth Circuit in No. 03-1238. We affirm in part and reverse in part the judgment of the Court of Appeals for the First Circuit in No; 04-66, and we remand the case for further proceedings consistent -with this opinion.

It is so ordered.

      The most pertinent definition provides:. “‘Employ includes to suffer or permit to work.” 52 Stat. 1060, 29 U. S. C. §203(g).

       Part II of the Portal-to-Portal Act, entitled “existing claims,” states in relevant part:
      “Sec. 2. Relief From Certain Existing Claims Under the Fair Labor Standards Act of 1938 ... —
      “(a) No employer shall be subject to any liability or punishment under the Fair Labor Standards Act... (in any action or proceeding commenced prior to or on or after the date of the enactment of this Act), on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any activity of an employee engaged in prior to the date of the enactment of this Act, except an activity which was compensable by either—

        “(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or
      “(2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee was employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer.” 61 Stat. 85 (codified at 29 U. S. C. § 252(a)).

       The regulation provides in full:
      “Section 4- of the Portal Act does not affect the computation of hours worked within the ‘workday’ proper, roughly described as the period ‘from whistle to whistle,' and its provisions have nothing to do with the compen-sability under the Fair Labor Standards Act of any activities engaged in by an employee during that period. Under the provisions of section 4, one of the conditions that must be present before ‘preliminary’ or ‘postlimi-nary’ activities are excluded from hours worked is that they ‘occur either prior to the time on any particular workday at which the employee commences, or subsequent to the time on any particular workday at which he ceases’ the principal activity or activities which he is employed to perform. Accordingly, to the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday, the provisions of that section have no application. Periods of time between the commencement of the employee’s first principal activity and the completion of his last principal activity on any workday must be included in the computation of hours worked to the same extent as would be required if the Portal Act had not been enacted. The principles for determining hours worked within the ‘workday’ proper will continue to be those established under the Fair Labor Standards Act without reference to the Portal Act, which is concerned with this question only as it relates to time spent outside the ‘workday’ in activities of the kind described in section 4.” § 790.6(a) (footnotes omitted).

       IBP does not contend that this clothes-changing time fully compensated respondents for the preproduction and postproduction time at issue in this case.

       The District Court explained:
      “Walking time is compensable if it occurs after the start of the workday. 29 U. S. C. § 254(a). Walking time is excluded under the Portal to Portal Act only if it occurs ‘either prior to the time on any particular work day at which such employee commences or subsequent to the time on any particular work day at which he ceases such principal activity or activities.’ Id. The work day begins with the commencement of an employee’s principal activity or activities and ends with the completion of the employee’s activity ....” App. to Pet. for Cert, in No. 03-1238, pp. 53a-54a.

       In fact, as noted above, in Steiner we specifically endorsed the view of the Court of Appeals that the definition of “principal activity or activities” in §4 encompassed activities ‘“integral and indispensable’” to those principal activities. We did not make any distinction between § 4(a)(1) and § 4(a)(2). 350 U. S., at 253.

       The claims brought by these workers are no longer part of this case.

       As explained below, our analysis would be different if Barber required its employees to arrive at a particular time in order to begin waiting.


author: Justice Breyer

text:
    UNITED STATES v. OLSON et al.
    No. 04-759.
    Argued October 12, 2005
    Decided November 8, 2005

      Breyer, J., delivered the opinion for a unanimous Court.

      Deanne E. Maynard argued the cause for the United States. With her on the briefs were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, Mark B. Stern, and Dana J. Martin.

      Thomas G. Cotter argued the cause and filed a brief for respondents.
   Justice Breyer

delivered the opinion of the Court.

The Federal Tort Claims Act (FTCA or Act) authorizes private tort actions against the United States “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U. S. C. § 1346(b)(1). We here interpret these words to mean what they say, namely, that the United States waives sovereign immunity “under circumstances” where local law would make a “private person” liable in tort. (Emphasis added.) And we reverse a line of Ninth Circuit precedent permitting courts in certain circumstances to base a waiver simply upon a finding that local law would make a “state or municipal entit[y]” liable. See, e. g., Hines v. United States, 60 F. 3d 1442, 1448 (1995); Cimo v. INS, 16 F. 3d 1039, 1041 (1994); Cameron v. Janssen Bros. Nurseries, Ltd., 7 F. 3d 821, 825 (1993); Aguilar v. United States, 920 F. 2d 1475,1477 (1990); Doggett v. United States, 875 F. 2d 684, 689 (1989).

I

In this case, two injured mine workers (and a spouse) have sued the United States claiming that the negligence of federal mine inspectors helped bring about a serious accident at an Arizona mine. The Federal District Court dismissed the lawsuit- in part upon the ground that their allegations were insufficient to show that Arizona law would impose liability upon a private person in similar circumstances. The Ninth Circuit, in a brief per curiam opinion, reversed this determination. It reasoned from two premises. First, where “‘unique governmental functions’” are at issue, the Aet waives sovereign immunity if “ ‘a state or municipal entity would be [subject to liability] under the law [...] where the activity occurred.’” 362 F. 3d 1236, 1240 (2004) (citing Hines, supra, at 1448, and quoting Doggett, supra, at 689, and Concrete Tie of San Diego, Inc. v. Liberty Constr., Inc., 107 F. 3d 1368, 1371 (CA9 1997)). Second, federal mine inspections being regulatory in nature are such “ ‘unique governmental functions,’ ” since “there is no private-sector analogue for mine inspections.” 362 F. 3d, at 1240 (quoting in part Doggett, supra, at 689). The Circuit then held that Arizona law would make “state and municipal entities” liable in the circumstances alleged; hence the FTCA waives the United States’ sovereign immunity. 362 F. 3d, at 1240.

II

We disagree with both of the Ninth Circuit s legal premises.

A

The first premise is too broad, for it reads into the Act something that is not there. The Act says that it waives sovereign immunity “under circumstances where the United States, if a private person,” not “the United States, if a state or municipal entity,” would be liable. 28 U. S. C. § 1346(b)(1) (emphasis added). Our cases have consistently adhered to this “private- person” standard. In Indian Towing Co. v. United States, 350 U. S. 61, 64 (1955), this Court rejected the Government’s contention that there was “no liability for negligent performance of ‘uniquely governmental functions.’ ” It held that the Act requires a court to look to the state-law liability of private entities, not to that of public entities, when assessing the Government’s liability under the FTCA “in the performance of activities which private persons do not perform.” Ibid. In Rayonier Inc. v. United States, 352 U. S. 315, 318-319 (1957), the Court rejected a claim that the scope of FTCA liability for “ ‘uniquely governmental’” functions depends on whether state law “imposes liability on municipal or other local governments for the negligence of their agents acting in” similar circumstances. And even though both these cases involved Government efforts to escape liability by pointing to the absence of municipal entity liability, we are unaware of any reason for treating differently a plaintiff’s effort to base liability solely upon the fact that a State would impose liability upon a municipal (or other state governmental) entity. Indeed, we have found nothing in the Act’s context, history, or objectives or in the opinions of this Court suggesting a waiver of sovereign immunity solely upon that basis.

B

The Ninth Circuit’s second premise rests upon a reading of the Act that is too narrow. The Act makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances.” 28 U. S. C. § 2674 (emphasis added). As this Court said in Indian Towing, the words “ ‘like circumstances’ ” do not restrict a court’s inquiry to the same circumstances, but require it to look further afield. 350 U. S., at 64; see also S. Rep. No. 1400, 79th Cong., 2d Sess., 32 (1946) (purpose of FTCA was to make the tort liability of the United States “the same as that of a private person under like circumstance, in accordance with the local law”)- The Court there considered a claim that the Coast Guard, responsible for operating a lighthouse, had failed “to check” the light’s “battery and sun relay system,” had failed “to make a proper examination” of outside “connections,” had “fail[ed] to check the light” on a regular basis, and had failed to “repair the light or give warning that the light was not operating.” Indian Towing, 350 U. S., at 62. These allegations, the Court held, were analogous to allegations of negligence by a private person “who undertakes to warn the public of danger and thereby induces reliance.” Id., at 64-65. It is “hornbook tort law,” the Court added, that such a person “must perform his ‘good Samaritan’ task in a careful manner.” Ibid.

The Government in effect concedes that similar “good Samaritan” analogies exist for the conduct at issue here. It says that “there are private persons in ‘like circumstances’” to federal mine inspectors, namely, “private persons who conduct safety inspections.” Reply Brief for United States 3. And other Courts of Appeals have found ready private person analogies for Government tasks of this kind in FTCA cases. E.g., Dorking Genetics v. United States, 76 F. 3d 1261 (CA2 1996) (inspection of cattle); Florida Auto Auction of Orlando, Inc. v. United States, 74 F. 3d 498 (CA4 1996) (inspection of automobile titles); Ayala v. United States, 49 F. 3d 607 (CA10 1995) (mine inspections); Myers v. United States, 17 F. 3d 890 (CA6 1994) (same); Howell v. United States, 932 F. 2d 915 (CA11 1991) (inspection of airplanes). These cases all properly apply the logic of Indian Towing. Private individuals, who do not operate lighthouses, nonetheless may create a relationship with third parties that is similar to the relationship between a lighthouse operator and a ship dependent on the lighthouse’s beacon. Indian Towing, supra, at 64-65, 69. The Ninth Circuit should have looked for a similar analogy in this case.

III

Despite the Government’s concession that a private person analogy, exists in this case, the parties disagree about precisely which Arizona tort law doctrine applies here. We remand the case so that the lower courts can decide this matter in the first instance. The judgment of the Ninth Circuit is vacated, and the ease is remanded for proceedings consistent with this opinion.

It is so ordered.