In re: Bam! Pizza Management

Petitioners argued they could reimburse drivers "using a reasonable approximation rather than a driver's 'to-the-penny' costs," Pet. at 7, and the drivers bore the burden of maintaining records to show that reasonable approximations were inadequate. Conversely, "West argued the FLSA's minimum-wage requirements effectively require employers to reimburse delivery drivers for the actual costs of using their personal vehicles, or at least to ensure that any reimbursement fully covers those costs so that wages are not reduced below the statutory minimum." Id. at 8. She asserted that it is an employer's burden to maintain records regarding the adequacy of reimbursements. The district court ruled in favor of West: "Ultimately, how to comply with law is left to an employer's discretion, but whether to comply is not. The Court therefore holds that [Petitioners] are required to pay their employees the minimum wage 'in full' and cannot use a reasonable approximation of expenses which is lower than the actual costs."

Pet'rs' App. at 13. (It later described this decision as requiring Petitioners to "reimburse their pizza delivery drivers' vehicle expenses 'to the penny.'" Id. at 16.) The court also held that Petitioners "must maintain records of expenses to demonstrate that they paid employees the minimum wage." Id. at 14. The court decided if Petitioners' records were insufficient, it would proceed under the burden-shifting framework developed in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946). Petitioners moved the district court to certify an interlocutory appeal. The district court denied the motion. It concluded Petitioners showed that the issues were controlling questions of law, but not that there is a substantial ground for difference of opinion or that answering the questions would materially advance the termination of the litigation.

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See 28 U.S.C. § 1292(b) (listing requirements to certify interlocutory appeal). The court held that an interlocutory appeal would not negate the need for a trial, would not simplify the issues at trial, and would not significantly reduce the scope of discovery because

"[t]he reasonable approximation and the actual cost standard both demand that Plaintiffs provide evidence of employees' costs to demonstrate that the reimbursement rate was insufficient." Pet'rs' App. at 27-28; see also id. at 29 ("In summary, the present case sits on parallel tracks whether a reasonable approximation or actual expense standard is used. Defendants have failed to establish that this case is one in which extended and expensive proceedings probably can be avoided by immediate final decision of controlling questions encountered early in the action." (citation and internal quotation marks omitted)).

DISCUSSION

Petitioners now request this court issue a writ of mandamus "directing the district court to vacate its orders . . . to the extent they: (1) impose a 'to-the-penny' reimbursement requirement for drivers' personal vehicle expenses; and (2) create a novel recordkeeping obligation requiring employers to generate and maintain records of drivers' personal vehicle expenses." Pet. at 6. They "further request the Court instruct the district court to proceed under the correct legal framework wherein the FLSA permits employers to reimburse drivers' personal vehicle expenses based on reasonable approximations, not individualized determinations of actual costs." Id.

"Three conditions must be met before a writ of mandamus may issue": (1) the petitioner "must have no other adequate means" of relief; (2) "the petitioner must

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demonstrate that his right to the writ is clear and indisputable"; and (3) "the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances." In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1187 (10th Cir. 2009) (internal quotation marks omitted). Petitioners have not met these conditions. First, although Petitioners argue that they have no adequate alternate means of relief, we disagree. The district court declined to certify an interlocutory appeal, but Petitioners can seek correction of any error in a direct appeal after the entry of final judgment. Where a direct appeal will be available, "it cannot be said that the litigant has no other adequate means to seek the relief he desires." Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (per curiam) (internal quotation marks omitted). Petitioners assert that an appeal after final judgment is not an adequate remedy because they "must proceed through expansive and burdensome litigation under a legal framework that cannot be meaningfully reviewed until after final judgment, when the damage from that framework will be complete and irreversible." Pet. at 10. Petitioners do not sufficiently explain how the case could not be relitigated upon remand, should this court reverse the district court's rulings on direct appeal. They also fail to counter the district court's estimation that deciding the legal issues earlier would not significantly alleviate the expense and burdens of discovery. In any event, however, the desire to avoid the expense and efforts of further litigation while awaiting a final judgment is insufficient to justify a writ of mandamus. The Supreme Court long ago rejected this line of argument:

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Circuit courts of appeals, with exceptions not now material, have jurisdiction to review only final decisions of district courts . . . . Respondents stress the inconvenience of requiring them to undergo a trial in advance of an appellate determination of the challenge now made to the validity of the indictment. We may assume, as they allege, that that trial may be of several months' duration and may be correspondingly costly and inconvenient. But that inconvenience is one which we must take it Congress contemplated in providing that only final judgments should be reviewable. Where the appeal statutes establish the conditions of appellate review an appellate court cannot rightly exercise its discretion to issue a writ whose only effect would be to avoid those conditions and thwart the Congressional policy against piecemeal appeals in criminal cases. Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 29-30 (1943). Although Roche speaks to criminal cases, concerns about piecemeal litigation also apply in civil cases. See, e.g., Kerr v. U. S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 403 (1976). Second, Petitioners have not demonstrated a clear and indisputable right to relief.

"[W]e will grant a writ only when the district court has acted wholly without jurisdiction or so clearly abused its discretion as to constitute usurpation of power." Cooper Tire,

568 F.3d at 1186 (internal quotation marks omitted). Petitioners argue the district court erred in determining the appropriate method of reimbursement and in directing how the litigation would proceed with regard to recordkeeping and burdens of proof. But "[i]t is not appropriate to issue a writ 'when the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction.'" Id. at 1187 (quoting Schlagenhauf v. Holder, 379 U.S. 104, 112 (1964)). Petitioners' assertions are insufficient to justify extraordinary relief. Although the district court's "rulings may be wrong, . . . they do not amount to clear abuse of discretion, or the abdication or

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usurpation of judicial power." Boughton v. Cotter Corp., 10 F.3d 746, 751 (10th Cir.

1993).

Finally, in light of Petitioners' failure to satisfy the first two conditions, we cannot conclude that a writ is appropriate in these circumstances.

CONCLUSION

We deny the petition for a writ of mandamus. Entered for the Court

Per Curiam

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