personnel typically do so out of a centralized station to which they must return. They generally do not patrol the streets and therefore are not analogous to our situation involving patrol officers. Likewise, law enforcement personnel with jurisdiction limited to a building or buildings do not patrol streets and therefore are also not similarly situated to the Officers here. We therefore only look to the final category of cases as analogous to our situation.
The most persuasive authority for the City's position is a case handed down by the Fifth Circuit after the parties briefed this motion. Lee v. Coahoma County, 937 F.2d 220 (5th Cir. 1991).
In Lee, sheriff's deputies brought suit against Coahoma County for overtime wages for meal breaks. Like our plaintiffs, the deputies were law enforcement officers who patrolled within the county's jurisdiction. While on patrol, the deputies would take meal periods on a "catch as catch can" basis. Lee, 937 F.2d at 225. They were required to radio out when they took their meal breaks, and they could be called back to duty in the event of an emergency.
The Fifth Circuit upheld the district court's decision that the twenty-minute meal breaks were bona fide meal periods and were not compensable under § 7(k). Lee, 937 F.2d at 225. As an interpretive guide, the Fifth Circuit cited to § 553.223. In particular, the Fifth Circuit quoted § 553.223(b)'s example of compensable meal periods, (law enforcement personnel must remain on call in barracks or be engaged in surveillance activities) and compared the deputies' meal breaks to that example. The Lee court held that the deputies' meal breaks in no way resembled the example found in § 553.233. Id. The court found that it was not dispositive that the deputies could be called if an emergency arose, and that contingency did not mean that they remained on duty. Id.
In its memoranda, the City cites a number of cases, all but one of which we find distinguishable. Three of the cases are distinguishable because they do not fit within the category of cases we find are analogous. Hill v. United States, 751 F.2d 810 (6th Cir. 1984), cert. denied, 474 U.S. 817 (1985) (postal carriers); Baylor v. United States, 198 Ct. Cl. 331 (1972) (building security guards); Agner v. United States, 8 Cl. Ct. 635 (1985), affirmed without opinion, 795 F.2d 1017 (Fed. Cir. 1986) (special police force for the Library of Congress). Atteberry v. Ritchie, 243 Kan. 277, 756 P.2d 424 (1988), can be distinguished because it involved a negotiated employment agreement which specifically addressed the issue of compensation during meal periods. Atteberry, 756 P.2d at 429. The Atteberry Court primarily relied on contractual, not statutory, principles in resolving the dispute.
Finally, the City cites to a Texas Appellate Court case which is directly on point. University Park v. Univ. Park Police Ass'n, 766 S.W.2d 531 (Tex. App. 1989). In University Park, the police officers had identical restrictions on their meal periods as the restrictions at issue here.
Nonetheless, the Texas court held that the meal periods were not compensable because the meal breaks were not predominately spent for the benefit of the city and could be used for the employees' own use and purposes. University Park, 766 S.W.2d at 537. Because University Park arises from the Texas Appellate Court, we look primarily to Lee as the most influential case in support of the City. (See footnote four.)
Likewise, as we analyze the Officers' response, we primarily focus on the two analogous federal cases cited in their brief.
The first case, Wahl v. Wichita, 725 F. Supp. 1133 (D. Kan. 1989) involved Wichita police officers' successful efforts in obtaining overtime pay for their thirty-minute meal periods. Wahl is factually analogous to our situation in that restrictions on the Wichita officers' meal periods are similar to those at issue here.
The Wahl court cited to § 785.19(a), the more general regulation, for the rule that an employee must be completely relieved of duty for the meal time to be noncompensable. Given the restrictions placed upon the meal periods, the Wahl court held that the officers were not completely relieved of duty during their meal breaks and thus were entitled to be paid for that time. Wahl, 725 F. Supp. at 1144.
In the next case, Lamon v. City of Shawnee, 1990 U.S. Dist. LEXIS 15906, 30 Wage & Hour Cas. (BNA) 146 (D. Kan. October 30, 1990), the district court denied the defendant's motion for summary judgment because there existed genuine issues of material fact regarding whether the police department had adopted a § 7(k) payroll scheme. Furthermore, there existed a genuine issue of material fact as to whether the officers had been completely relieved of duty. Thus, the case is distinguishable.
The remaining cases cited by the Officers are state court opinions involving state and municipal wage statutes. Madera Police Officers Assn. v. City of Madera, 36 Cal. 3d 403, 682 P.2d 1087, 204 Cal. Rptr. 422 (1984) (California Supreme Court specifically declined to reach the FLSA issue and instead decided the case under municipal regulations); Prendergast v. Tempe, 143 Ariz. 14, 691 P.2d 726 (Ariz. App. 1984) (Arizona Appellate Court held meal periods were compensable under state statute and municipal ordinance); Rogers v. City of Scottsdale, 25 Wage & Hour Cas. (BNA) 251 (Ariz. Superior Court 1980) (Arizona Superior Court held meal periods were compensable under state statute and municipal ordinance); Los Angeles Fire & Police Protective League v. Los Angeles, 23 Cal. App. 3d 67, 99 Cal. Rptr. 908 (1972) (California Appellate Court held lunch periods not compensable under municipal regulations).
In our final analysis, we are left with two cases which we find most authoritative, Lee and Wahl. We choose to follow Lee over Wahl for two reasons. First, Lee is the higher court and the most recent pronouncement on the issue. The Seventh Circuit instructs district courts to "give respectful consideration to the decisions of the other courts of appeals and follow them whenever we can." Colby v. J.C. Penney Co., Inc., 811 F.2d 1119, 1123 (7th Cir. 1987); Richards v. Local 134, Intern. Broth. of Electrical Workers, 790 F.2d 633, 636 (7th Cir. 1986). We understand this instruction as suggesting that district courts defer to another circuit's analogous opinion instead of another district court's view. Cf. Richards, 790 F.2d at 636 (although decisions of other circuits are not necessarily controlling, district courts should give them substantial weight especially when they reject opinions from other districts upon which the district court seeks to rely). While it is true that Lee has not specifically rejected Wahl, it is clear that these opinions reach opposite conclusions based upon analogous facts. We thus adhere to the Seventh Circuit's instruction and choose to follow Lee.
Second, Lee, as in our situation, involved a § 7(k) employer; Wahl did not. While we suspect that the Wahl court might not have changed its result had the Wichita Police Department adopted a § 7(k) payroll scheme, it would likely have been forced to at least change its analysis in one significant way.
In Lee and Wahl, both courts relied upon federal regulations to guide them in their interpretations of the FLSA. Lee, 937 F.2d at 225; Wahl, 725 F. Supp. at 1138-39. Because Wahl did not involve a § 7(k) employer, it cited to the more general regulation: § 785.19(a). Lee, however, cited to the more specific § 553.223(b) and used the example provided in that section as the basis for its decision. We likewise will look to the more specific regulation, § 553.223(b), and the Fifth Circuit's application of that regulation in, Lee. We find that the restrictions on the Officers' meal breaks, as described in the amended complaint, in no way resemble the type of restrictions described in § 553.223(b) even when we view the restrictions in a light most favorable to the officers. We therefore find the Officers' meal breaks, as described in the amended complaint, are not compensable work time under the FLSA.
For the reasons set forth above, we grant the Officers' motion to amend their complaint, and we grant the City's motion for judgment on the pleadings.
GEORGE M. MAROVICH
UNITED STATES DISTRICT JUDGE
DATED: Jan. 28, 1992