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824 F. 2d 923 - Cole v. Farm Fresh Poultry Inc
824 F2d 923 Cole v. Farm Fresh Poultry Inc
28 Wage & Hour Cas. (BN 369, 107 Lab.Cas. P 34,953
Johnnie Mae COLE, et al., Plaintiffs-Appellants,
FARM FRESH POULTRY, INC., Defendant-Appellee.
Eleventh Circuit.
Aug. 19, 1987.
George C. Longshore, Birmingham, Ala., for plaintiffs-appellants.
Linda Jan S. Pack, Counsel for Appellate Litigation, Office of Solicitor, U.S. Dept. of Labor, Washington, D.C., for amicus curiae.
Constangy, Brooks & Smith, Terry Price and Edward Katze, Atlanta, Ga., for defendant-appellee.
Appeal from the United States District Court for the Middle District of Alabama.
Before RONEY, Chief Judge, JOHNSON, Circuit Judge, and ESCHBACH*, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge.
In this appeal the plaintiffs-appellants argue that the district judge erred in determining that the defendant-appellee Farm Fresh Poultry Co., Inc. ("Farm Fresh") was entitled to the benefit of the Portal-to-Portal Act's good-faith defense. We agree and will reverse and remand the case to the district court.
* Farm Fresh operates a chicken processing plant in Alexander City, Alabama. Johnnie Mae Cole and the other plaintiffs in this action work, or did work, on the eviscerating line at the plant. The line must occasionally be shut down during the working day due to mechanical failures in the plant, delivery trucks' breakdowns, and the like. Prior to the time period at issue in this action Farm Fresh instituted a "thirty-minute rule" in reliance upon the oral advice of a compliance officer for the Wage and Hour Division of the Department of Labor, and upon an interpretative bulletin issued by the division.1 Under the rule employees are compensated when the line is down for less than thirty minutes but are not compensated for inactive periods of thirty minutes or more.
When the Farm Fresh management expects the line to be down for thirty minutes or more, the employees are informed that they are free to do as they please until a specified time at which the plant will resume operation. Most of the plaintiffs live 10 to 20 minutes from the plant and carpool to work each day. Employees who live in the vicinity sometimes go home during these periods of inactivity. Others who can find transportation occasionally go to a local convenience store for a snack or a soft drink. However, most of the employees wait in the break room at the plant.
The plaintiffs brought suit in federal district court in 1985 against Farm Fresh, contending that Farm Fresh's thirty-minute rule violates the minimum wage and overtime compensation provisions of the Fair Labor Standards Act of 1938 ("FLSA"), as amended, 29 U.S.C. Secs. 201, 206, 207, 215(a)(2). The complaint prayed for an injunction against future violations and damages for injury suffered from past violations in the form of unpaid minimum wages and overtime compensation from July 8, 1982. Farm Fresh denied any violation of the FLSA. It also raised an affirmative defense, claiming that it qualified for the "good faith" exemption of 29 U.S.C. Sec. 259 barring the action because it had acted in conformity with and in reliance on the Wage and Hour Division's interpretation of the FLSA.2 29 U.S.C. Sec. 259.
The district court bifurcated the issues of liability and damage and held a bench trial on February 7, 1986. It concluded that Farm Fresh need not pay employees for break periods long enough to allow the employees to use the time effectively for their own purposes. It also found, however, that thirty minutes was not long enough for such effective use, and ruled that the employees "need at least one hour in order to use the time effectively for their own purposes, and, therefore, that any break period less than one hour in duration is compensable time under the Act." The court also concluded, however, that Farm Fresh had acted in good faith compliance with administrative regulation pursuant to section 259, and therefore denied all relief to the plaintiffs. The court did note, however, that "defendants' thirty-minute rule should not be followed in the future and that continued use of the rule would not constitute 'good faith reliance' on these interpretations."
The district court provided the following discussion of the good faith defense of section 259:
By enacting section 10 of the Portal to Portal Act [section 259 of Title 29 of the United States Code], Congress made clear that it did not intend for the Fair Labor Standards Act to subject employers to penalties for such good faith reliance [as Farm Fresh's] on administrative regulations, particularly where the regulations have been interpreted by a compliance officer of the Wage and Hour Division of the Department of Labor, as in this case.
Because defendant's implementation of the thirty minutes rule was a reasonable interpretation of 29 U.S.C. Secs. 785.14-785.16, particularly in light of Mr. Rushing's advice, this court determines that defendant Farm Fresh has acted "in good faith in conformity with and in reliance on" 29 C.F.R. Secs. 785.14-785.16 at all times relevant to this action.
The plaintiffs appeal from the district court's decision.
On appeal the plaintiffs-appellants argue that the district court invoked and applied an incorrect rule of law in determining that Farm Fresh could invoke the protection of the good faith defense of section 259 to bar the suit. This, of course, is a question of law we review de novo. The good-faith defense of section 259 is an objective test that bars actions for violations of the minimum wage or overtime compensation provisions of the FLSA if the employer pleads and proves that the act or omission complained of was (1) taken in good faith and was (2) in conformity with and (3) in reliance on a written administrative interpretation by a designated agency. The agency designated to provide interpretations of the FLSA is the Administrator of the Wage and Hour Division of the Department of Labor.3 See 29 U.S.C. Sec. 259; e.g., Olson v. Superior Pontiac-GMC, Inc., 765 F.2d 1570, 1579 (11th Cir.), modified on other grounds 776 F.2d 265 (1985); Equal Employment Opportunity Commission v. Home Insurance Co., 672 F.2d 252, 263-65 (2d Cir.1982); Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, 661 (4th Cir.1969). The district court did not invoke this standard.
Instead, the district judge held that the good-faith defense was completely satisfied if an employer reacted to an administrative pronouncement as a reasonably prudent person would react under similar circumstances. That query is certainly a component of the good-faith defense, but it serves only to elucidate the proper definition of whether the employer actually showed good faith under the objective standard required by section 259. The showing of objective good faith under such a standard does not satisfy the other necessary components of the defense. E.g., Superior Pontiac-GMC, 765 F.2d at 1579-80; see also, e.g., King v. Board of Education, 435 F.2d 295, 297 (7th Cir.1970), cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 649 (1971). A court must also find that the employer acted "in actual conformity with and in reliance on" the written agency interpretation. 29 U.S.C. Sec. 259. The Second Circuit has noted that
This is not a requirement of a showing of general good faith; the Portal Act language, 'in good faith in conformity with,' precisely links the question of good faith to an act in conformity, and if there is no conformity, general good faith in other respects cannot save the day.
Equal Employment Opportunity Commission v. Home Insurance Co., 672 F.2d 252, 263-65 (2d Cir.1982); see Superior Pontiac-GMC, 765 F.2d at 1579-80.A. The Interpretive Bulletin
Plaintiffs-appellants have specifically argued that the interpretive bulletin at issue, entitled Interpretive Bulletin, Part 785, Hours Worked Under the Fair Labor Standards Act of 1938, as Amended (the "Bulletin"), cannot satisfy the requirements for the good-faith defense under section 259 because it was insufficient to operate as an interpretation of the compensable time requirements of the FLSA. We agree.
The bulletin contains particular provisions from the Code of Federal Regulations, 29 C.F.R. Secs. 785.14-785.16, that provide some guidance to employers regarding the considerations appropriate to a determination of whether waiting time is time worked compensable under the FLSA.4 Farm Fresh argues that the provisions provide the necessary interpretations suited to particular situations necessary for them to qualify as an administrative interpretation under section 259. The Secretary's regulations suggest otherwise; while the introductory sections to other similar subparts of the Code of Federal Regulations expressly note that interpretations in those subparts may be relied upon to establish section 259 defenses, the introductory section to Subpart 785 pointedly declines to make that representation. Compare, e.g., 29 C.F.R. Secs. 783.3, 784.4, 788.5 (all expressly allowing reliance for the purposes of section 259) with id. Sec. 785.2 (making no mention of section 259 and noting only that the subpart should provide a " 'practical guide for employers' " (quoting Skidmore v. Swift & Co., 323 U.S. 134, 138, 65 S.Ct. 161, 163, 89 L.Ed. 124 (1944)).
The provisions expressly declare that "[w]hether waiting time is time worked under the [FLSA] depends upon particular circumstances," 29 C.F.R. Sec. 785.14, and the determinination involves a consideration of "all the circumstances," id. (quoting Skidmore v. Swift & Co., 323 U.S. 134, 136-37, 65 S.Ct. 161, 163, 89 L.Ed. 124 (1944)). The provisions also expressly declare that
[p]eriods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. .... Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all of the facts and circumstances of the case.
Id. Sec. 785.16. In addition to this language denoting general rules to be applied in light of all of the particular circumstances of each case, the provisions also provide many specific examples of what would and would not constitute hours worked under the FLSA. None of the examples are closely analagous to the situation of the employees working on the eviscerating line at Farm Fresh. Thus while the Bulletin itself provides some examples pertinent to particular situations, no specific guidance is provided for the situation at bar, and the Bulletin itself clearly recognizes that the provisions therein provide only general guidelines to be applied in light of all the particular circumstances of each case. Thus the Bulletin itself does not claim to establish a particular rule upon which an employer may rely in order to determine what length and type of waiting period is compensable time worked under the particular facts of this case. Thus it was in fact simply impossible for Farm Fresh to rely on it. Where an administrative interpretation is insufficient to allow objective reliance the reliance prong of the section 259 defense cannot be met; an employer's actual reliance upon his own incorrect interpretation of a vague and general administrative guideline will not suffice. Equal Employment Opportunity Commission v. Baltimore & Ohio Railroad Co., 632 F.2d 1107, 1112 (4th Cir.1980); Clifton D. Mayhew, Inc., 413 F.2d at 661 (holding that test is objective); cf. King v. Board of Education of City of Chicago, 435 F.2d 295, 297 (7th Cir.1970), cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 649 (1971) (holding that an employer could not rely on a tentative opinion of the Wage and Hour Administrator); Martinez v. Phillips Petroleum Co., 283 F.Supp. 514 (D.Idaho 1968) (good-faith defense allowed where the Administrator in writing informed a certain employer it was exempt from FLSA in response to a particular request that set out the specific circumstances in detail), aff'd 424 F.2d 547 (9th Cir.1970); see also Superior Pontiac-GMC, 765 F.2d at 1579-80 (holding that conformity prong of the section 259 defense must be tested under an objective standard). Administrative interpretations hedged with qualifications, here the caveat that the correct answer depends upon particular circumstances, cannot provide the definitive opinion necessary to raise the statutory bar of section 259. See Equal Employment Opportunity Commission v. Home Insurance Co., 672 F.2d 252, 264-65 (2d Cir.1982); King, 435 F.2d at 297; Central Missouri Telephone Co. v. Conwell, 170 F.2d 641, 648 (8th Cir.1948).
Accepting Farm Fresh's argument that the Bulletin provides sufficient guidance to satisfy the reliance requirement of section 259 would mean that any employer could establish a good-faith defense simply by showing that it "relied" on a general administrative guideline that provided no opinion regarding the employer's particular situation. See Equal Employment Opportunity Commission v. Home Insurance Co., 672 F.2d 252, 264-65 (2d Cir.1982) (holding that reliance was not possible and therefore that section 259's requirements were not satisfied where the guidelines in question there failed to provide relevant guidance). The Bulletin "relied" upon here expressly recognizes that "the periods during which these [waiting periods that are nevertheless worktime] occur are unpredictable." While the attempts of employers to make correct decisions on the basis of general guidelines is prudent and commendable the attempt alone does not raise the statutory bar of section 259. The administrative interpretation relied upon must provide a clear answer to the particular situation in order for the employer to rely on it.
Equal Employment Opportunity Commission v. Home Insurance Co., 672 F.2d 252, 264-65 (2d Cir.1982), provides an instructive parallel. In that case Home Insurance claimed that it relied upon two published opinion letters and a published regulation of the Wage and Hour Administrator. The three documents all stated in essence that "the retirement of employees on the basis of age pursuant to a bona fide retirement plan would not violate the ADEA [Age Discrimination in Employment Act], so long as the plan was not a subterfuge or a device to evade the Act." Id. at 265. The court there explained in rejecting the claim of a good-faith defense under section 259 that
None of the Administrator's statements contained any elaboration of what does or does not constitute subterfuge. In essence, each stated that an employer would comply with the [Age Discrimination in Employment] Act if it complied with Sec. 4(f)(2) [a section of the ADEA]. They thus gave Home no guidance on which to rely to know whether or not its own reduction of the mandatory retirement age constituted subterfuge. In effect Home was left to its own devices to interpret the Act. But as stated in President Truman's message to Congress on his signing of the Portal Act, Sec. 10 was not intended to "make each employer his own judge of whether or not he has been guilty of a violation." Message of President Truman to accompany the Portal-to-Portal Act of 1947, [1947] U.S. Code Cong. & Admin. News 1827 (May 14, 1947).
Id. at 265; accord, e.g., King, 435 F.2d at 297; Central Missouri Telephone, 170 F.2d at 648; Pilkenton v. Appalachian Regional Hospitals, 336 F.Supp. 334, 340 (W.D.Va.1971). The reasoning expressed in Home Insurance Co. applies equally well here. Nothing in the regulations printed within the Bulletin contained any dispositive elaboration regarding how to choose a particular length of waiting period that must be compensated beyond the general language that "[p]eriods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked." 29 C.F.R. 785.116. Thus the guidelines provided some general advice about appropriate factors to consider in determining whether time in particular situations was compensable under the FLSA, but they left individual employers to their own devices in determining compensable time under all the particular circumstances not specifically mentioned as examples in the guidelines. And nothing in the Bulletin provided even any general guidance regarding how to determine how much waiting time would be long enough in particular circumstances to allow employees to make effective personal use of the waiting period.
In addition, Farm Fresh also failed section 259's requirement that the employer act in conformity with the administrative regulation. Farm Fresh did not choose a time long enough to enable its employees to use the time effectively for their own purposes.5 The district judge explicitly found that the eviscerating line employees of Farm Fresh "need at least a one hour break period in order to use the time effectively for their own purposes, and, therefore, that any break period less than one hour in duration is compensable time under the Act."6 The regulation provided no instruction relative to Farm Fresh other than restating the requirements of the FLSA as construed by the courts. The good-faith defense exists in order to protect an employer who "innocently and to his detriment, followed the law as it was laid down to him by government agencies, without notice that such interpretations were claimed to be erroneous or invalid." Olson v. Superior Pontiac-GMC, Inc., 765 F.2d 1570, 1579 (11th Cir.) (quoting Clifton D. Mayfield, Inc. v. Wirtz, 413 F.2d 658, 661 (4th Cir.1969), modified on other grounds 776 F.2d 265 (1985)). Thus it was established essentially as an estoppel defense to protect employers from particular agencies' mistaken interpretations of particular statutory requirements; it does not come into effect until after there has been a failure to comply with the relevant statute due to an erroneous agency interpretation. Here the agency interpretation was correct insofar as it went. Farm Fresh, however, went beyond the interpretation and in so doing failed to comply with the FLSA. We may accept, arguendo, that Farm Fresh made its best effort to comply with the FLSA and the Bulletin but that still does not undercut the crucial fact that the Bulletin stated the general guidelines of the FLSA's compensable time provisions and Farm Fresh failed to apply them correctly.
Home Insurance Co. is again instructive. The court there found that the insurance company could not show compliance with an agency interpretation that merely restated statutory requirements when the agency may well have violated the statutory requirements. The court there remarked on
the jejunity of a Portal Act defense when the interpretation purportedly relied on has done no more that repeat the requirements of the statute: if the employer has acted 'in conformity with' the interpretation he will have obeyed the statute, and the Portal Act defense will be available only when the employer does not need it.
Home Insurance Co., 672 F.2d at 265.
In sum, Farm Fresh's claimed reliance on the Bulletin's interpretation of compensable time fails to accept the Bulletin's own language foreswearing any attempt to provide correct determinations of compensable time in particular circumstances, and it also fails to meet the requirements that the employer's actions be in conformity with and in reliance on the administrative interpretation.
B. The Oral Advice of the Compliance Officer
Farm Fresh also argues that it relied upon the oral advice of a Wage and Hour Division compliance officer in establishing its thirty-minute rule. Farm Fresh argues that this advice constitutes the "written administrative regulation, order, ruling, approval, or interpretation, of the agency of the United States" that the Portal Act contemplates. Because we have already shown that the Bulletin did not provide an interpretation upon which Farm Fresh could rely in order to satisfy section 259, Farm Fresh's argument here must depend solely on the oral advice of the compliance officer. This oral advice of a Compliance Officer cannot serve as the necessary written administrative statement of its position for two reasons, both of which independently defeat Farm Fresh's argument. The first is that in the case of the FLSA the Administrator must provide the written administrative interpretation in order to qualify for relief under section 259. 29 U.S.C. Sec. 259(b); see 29 C.F.R. Sec. 790.19(b); National Automatic Laundry and Cleaning Council v. Shultz, 443 F.2d 689, 700 (D.C.Cir.1971); United States v. Stocks Lincoln-Mercury, Inc., 307 F.2d 266, 270-71 (10th Cir.1962) (reviewing supporting legislative history); see also, e.g., Soler v. G & U, Inc., 615 F.Supp. 736, 747 (S.D.N.Y.1985); Ferrer v. Waterman S.S. Corp., 84 F.Supp. 680 (D.C. Puerto Rico 1949); Anderson v. Arvey Corp., 84 F.Supp. 55 (E.D.Mich.1949). The second is that oral advice cannot qualify as an agency's written interpretation. E.g., Soler, 615 F.Supp. at 747; Pilkenton v. Appalachian Regional Hospitals, 336 F.Supp. 334, 339 (D.Va.1971); 29 C.F.R. Sec. 790.13 (collecting supporting citations to the legislative history). Section 259 explicitly requires that the employer act "in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation...." 29 U.S.C. Sec. 259 (emphasis added). Counsel has presented no arguable reason to ignore the clear and explicit command of Congress. We hold that in order to qualify for the good-faith defense of section 259 the statute's requirement that the agency interpretation be in writing must be obeyed. Accord Soler, 615 F.Supp. at 747; Pilkenton, 336 F.Supp. at 339.
Pursuant to this opinion, the district court's opinion is REVERSED and the case is REMANDED to the district court for further proceedings consistent with this opinion.
RONEY, Chief Judge, dissenting:
I respectfully dissent because in the circumstances of this FLSA case the district court's determination that the employer established the Portal-to-Portal Act good faith defense, 29 U.S.C.A. Sec. 259, is due to be affirmed.
In order to qualify for the Portal Act's good faith defense the employer must show that the act complained of was in good faith, and in conformity with and reliance on any written administrative regulation, order, ruling, approval, or interpretation of an agency of the United States. See Olson v. Superior Pontiac-GMC, Inc., 765 F.2d 1570, 1579 (11th Cir.1985); 29 U.S.C.A. Sec. 259; 29 C.F.R. Sec. 790.13(a). All of these elements are at issue in this case.
The employer satisfies the threshold good faith element by acting as a reasonably prudent employer would have acted under similar circumstances. Olson, 765 F.2d at 1580; 29 C.F.R. Sec. 790.15(a). The regulations at issue in this case permit the employer to fashion a policy of non-compensable waiting time or downtime based on a durational period that is long enough to enable the employees to use the time effectively for their own purposes and on the "facts and circumstances" of the employment situation. See 29 C.F.R. Secs. 785.14-785.16.
The Administrator's regulations do not contain a specific thirty-minute rule. The compliance officer's verbal advice certainly constitutes part of the "facts and circumstances" upon which the employer could rely in fashioning its waiting time policy. At the very least, when the employer develops a durational period for non-compensable downtime in good faith in reliance on the agency's written regulations, it should not be penalized for receiving a compliance officer's advice as to the appropriateness of that action.
The Portal Act's good faith defense requires that the employer act in actual conformity with the regulation upon which it relied. 29 C.F.R. Sec. 790.14(a); Olson, 765 F.2d at 1579-80. Although the elements of good faith and conformity are not synonymous, Olson, 765 F.2d at 1580, where the agency sets forth a "facts and circumstances" standard, the employer is in conformity with the regulation if its action is reasonable. This is the most that the law can expect of the employer. Indeed, this is what the district court held in concluding that "[b]ecause defendant's implementation of the thirty minute rule was a reasonable interpretation of 29 C.F.R. Secs. 785.14-785.16, particularly in light of Mr. Rushing's advice ... Farm Fresh has acted ... 'in conformity with' " the waiting time regulations.
The court holds that Farm Fresh's thirty-minute policy failed section 259's conformity requirement because the district court also found that the production employees "need at least a one hour break period in order to use the time effectively for their own purposes, and, therefore, that any break period less than one hour in duration is compensable time under the Act." Assuming that the district court's one-hour rule is correct, that finding does not negate the district court's conclusion that the thirty-minute policy was reasonably in conformity with the agency's waiting time regulations for the purpose of the Portal Act's good faith defense.
Confronted with an ambiguous administrative interpretation, the Sixth Circuit observed:
The language and legislative history of this Act indicate that courts should be hesitant to impose retroactive minimum wage liability on employers in the face of an administrative interpretation which the employer could plausibly interpret as insulating him from liability. See H.R. No. 71, 80th Cong., 1st Sess. [1947] U.S. Code Cong. & Ad. News 1029, 1036.
Marshall v. Baptist Hospital, Inc., 668 F.2d 234, 238 (6th Cir.1981). In this case, the employer has established all the elements of the good faith reliance defense and section 259 of the Portal-to-Portal Act, therefore, bars the imposition of any back wage liability.
Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the Seventh Circuit, sitting by designation
The interpretative bulletin was provided to the Farm Fresh management and was entitled Interpretive Bulletin, Part 785, Hours Worked Under the Fair Labor Standards Act of 1938, as Amended (the "Bulletin "). The Interpretive Bulletin contained the following provisions of the Code of Federal Regulations:
Sec. 785.14
Whether waiting time is worked under the Act depends upon particular circumstances. The determination involves "scrutiny and construction of the agreements between particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the circumstances. Facts may show that the employee was engaged to wait or they may show that he waited to be engaged." (Skidmore v. Swift, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)) Such questions "must be determined in accordance with common sense and the general concept of work or employment." (Central Mo. Tel. Co. v. Conwell, 170 F.2d 641 (C.A. 8, 1948))
ON DUTY
A stenographer who reads a book while waiting for dictation, a messenger who works a crossword puzzle while awaiting assignments, fireman who plays checkers while waiting for alarms and a factory worker who talks to his fellow employees while waiting for machinery to be repaired are all working during their periods of inactivity. The rule also applies to employees who work away from the plant. For example, a repair man is working while he waits for his employer's customer to get the premises in readiness. The time is worktime even though the employee is allowed to leave the premises or the job site during such periods of inactivity. The periods during which these occur are unpredictable. They are usually of short duration. In either event the employee is unable to use the time effectively for his own purposes. It belongs to and is controlled by the employer. In all of these cases waiting is an integral part of the job. The employee is engaged to wait.
(a) General. Periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived. Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all the facts and circumstances of the case.
(b) Truck Drivers; specific examples. A truck driver who has to wait at or near the job site for goods to be loaded is working during the loading period. If the driver reaches his destination and while awaiting the return trip is required to take care of his employers' property, he is also working while waiting. In both cases the employee is engaged to wait. Waiting is an integral part of the job. On the other hand, for example, if the truck driver is sent from Washington, D.C. to New York City, leaving at 6 a.m. and arriving at 12 noon, and is completely and specifically relieved from all duty until 6 p.m. when he again goes on duty for the return trip the idle time is not working time. He is waiting to be engaged.
The defendants also asserted other defenses that were not reached by the district judge in his opinion below and thus were not possible subjects for discussion in this appeal. We of course express no opinion on those issues
29 U.S.C. Sec. 259 provides in pertinent part:
(a) In any action or any proceeding based on any act or omission on or after May 14, 1947, no employer shall be subject to any liability or punishment for or on account of the failure to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended [29 U.S.C. Sec. 201 et seq.] ... if he pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation, of the agency of the United States specified in subsection (b) of this section, or any administrative practice or enforcement policy of such agency with respect to the class of employers to which he belonged. Such a defense, if established, shall be a bar to the action or proceeding, notwithstanding that after such act or omission, such administrative regulation, order, ruling, approval, interpretation, practice, or enforcement policy is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect.
(b) The agency referred to in subsection (a) of this section shall be--
(1) in the case of the Fair Labor Standards Act of 1938, as amended [29 U.S.C. Sec. 201 et seq.]--the Administrator of the Wage and Hour Division of the Department of Labor....
See supra note 1 (setting out the text of 29 C.F.R. Secs. 85.14--785.16)
Farm Fresh argues that both the district court's finding of at least one hour and its own rule of thirty minutes were reasonable interpretations of the administrative interpretation, and that this should satisfy the requirements for section 259. However, the difference between thirty minutes and one hour is undoubtedly significant under the circumstances of this case, especially since the district court found that at least one hour would be necessary. The difference between thirty minutes and one hour actually points up the inherent insufficiency of the Bulletin to support a section 259 defense in this case--the Bulletin 's general guidelines do not explicitly provide any particular answer to the circumstances faced by Farm Fresh
The plaintiffs-appellants also asserted on appeal that the district court erred "in concluding that the employees at Fresh Farm can make effective use of down time which exceeds one hour." This contention misreads the district court's opinion, for the opinion in fact read that "these employees [the plaintiffs-appellants] need at least a one hour break period in order to use the time effectively for their own purposes...." Thus the district court did not find that one hour or slightly more was enough; it only found that at least one hour would be necessary. This is thus the wrong forum in which to argue the exact amount of time that is necessary for plaintiffs-appellants to make effective use of it for their own purposes; plaintiffs-appellants will be free on remand to argue what exact amount of time is enough, whether it is one hour exactly or a longer period. Neither plaintiffs-appellants nor defendant argues in this appeal that the correct finding should be that less than one hour would allow effective personal use of the time, and there is, in any case, sufficient support in the record to preclude us from concluding that the district court was clearly erroneous

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Story from Unbothered
Why We Should Support Black TikTokers Now More Than Ever
Stephanie Long
Photographed by Lauren Maccabbee.
Social media has become a place of refuge, particularly for the Black community. And as the world shifts in response to COVID-19, the novel virus affecting hundreds of thousands worldwide, we've seen an increase in social media activity — especially on the prominent short-form video app TikTok.
From Elizabeth Warren's hilarious take on "Flip the Switch" to Megan Thee Stallion doing the #SavageChallenge, we've watched everyone from Justin Bieber to Mariah Carey replicate a dance made popular on the social media platform. At the heart of many these viral moments are Black creators. And as a record 3.3 million Americans have filed for unemployment, many are looking for safe and reliable ways to make money amid the coronavirus pandemic. Getting credit for creating a viral moment can mean the difference between paying your bills or not during this gravely difficult time.
We witnessed just how easily TikTok videos can lead to internet fame with Jalaiah Harmon's "Renegade" dance. But it wasn't until her choreography, which the 14-year-old Atlanta native created in September 2019, was performed by others that she received credit. Before that, TikTokers like Addison "Rae" Easterling and Charli D'Amelio shined in the spotlight as potential creators of the routine. Later, Harmon received a shoutout from K Camp, the artist who recorded "Lottery," to which Harmon's dance is performed. And in February, she teamed up with Easterling and D'Amelio to perform the dance together — five months after she first created it.
Like we hit the lottery 🔥🆙🐐 !! W/ @charlidamelio @addisoneasterling 💕 I know we snapped 🔥🔥
A post shared by Jalaiah S. Harmon🐐💕 (@jalaiah) on Feb 16, 2020 at 1:40pm PST
Harmon told The New York Times in February that she was happy to see her dance across the internet, but she wanted to receive credit. Understanding that viral moments often result in increased social media following, media opportunities and more, Harmon said she felt she could have built a name for herself.
"I think I could have gotten money for it, promos for it, I could have gotten famous off it, get noticed," she said. "I don't think any of that stuff has happened for me because no one knows I made the dance."
Keara "Keke" Wilson, whose TikTok handle is @keke.janajah, recently went viral after creating a catchy dance routine to rapper Megan Thee Stallion's "Savage." After first posting the dance to TikTok on March 10, she watched her views skyrocket to millions in a matter of a week after posting it again a day later and cross-sharing on Instagram. Soon afterward, Megan Thee Stallion shared Wilson's dance on her Instagram page, and it wasn't long before Janet Jackson, Tamar Braxton and others joined in on the challenge. Now you can't scroll through your Instagram timeline without seeing someone's attempt at the routine, especially with so many people staying home to combat the spread of coronavirus. The 19-year-old Mansfield, OH, native expressed how significant receiving credit can be for Black creators.
"It's very frustrating when the credit is not given where credit is due to us young Black people," Wilson tells R29Unbothered. "I can't speak for others, but I feel that I have done something really cool and the whole world is doing what I have created."
Wilson, a former cheerleader and competitive dancer, says the recognition has led to paid opportunities.
"Knowing that people are reaching out to me and want to pay me to dance to their new song or beats has been an awesome experience for me," she shares. "This encourages me to continue to do what I love to do, which is dance."
Creator of the #SavageChallenge 💓🔥 @theestallion thank you so much for reposting me🥰🥰 add me on tiktok keke.janajah! NOW everyone let me see y'all #savagechallenge 🤗 #kekejanajah
A post shared by CREATOR OF SAVAGE CHALLENGE 🔥 (@queen.kekeeee) on Mar 15, 2020 at 9:04am PDT
Though TikTok does not provide sources of income directly, the platform has raised her profile. Wilson, who says she's always had a passion for dance and wants to one day become a youth choreographer, currently creates routines for TikTok songwriters. She's also received nods from artists like R&B singer Queen Naija and KaiCash, who currently has a single with Chris Brown. Her dance has been covered by The Root, and she was also interviewed by writer Danielle Young on Instagram Live.
"The love and support from all the views, likes and followers — I wouldn't be where I am [without them]," Wilson acknowledges.
The platform has also opened doors for influencers in the beauty industry. In early March, Rihanna opened Fenty Beauty's first TikTok house as a means to support five beauty TikTokers — Emmy Combs (@emmycombss), Makayla (@makayladid), Savannah Palacio (@savpalacio), Kamaboko Gonpachiro (@challxn) and Dawn (@thedawndishsoap). The group appeared on Fenty Beauty's TikTok account, sharing makeup tutorials, collaborating on viral posts and more. This undoubtedly created a valuable opportunity for mass exposure that could ultimately lead to monetary gain.
Like so many social media platforms before it, it's becoming increasingly clear that TikTok is a driver of potential revenue. To be frank, not receiving recognition can leave a hole in your pocket. This reality becomes that much more salient in the wake of a pandemic, as many are left trying to find new ways to support themselves and their families.
"At this point, it's like it's messing with money," Dubsmasher Essence Marie told Yahoo Lifestyle in February of social media creators not being properly credited for their work. Essence, like Harmon, has seen her work recreated across social platforms, without receiving credit as the originator. "It's like, so many opportunities that could have been ours have been taken away from us because of the fact that people don't know that that stuff has originated from us."
Which lip was your favorite?!? 💄❤ #fentybeautyhouse @sephora @fentybeauty
A post shared by Makayla (@makayladid) on Mar 16, 2020 at 8:17pm PDT
In its community guidelines, TikTok does encourage its users to report others who violate someone else's copyrights, trademarks, or other intellectual property rights. A spokesperson for TikTok tells R29Unbothered that they are always exploring ways to support the community.
"TikTok's team builds connections with creators — offering insights and inviting them to unique opportunities for the many communities who are coming together through TikTok," the company shares. "Creators love TikTok because it's real and fun, and we work to make sure that they not only have the tools they need to be their best creative selves on TikTok but also continue to have a positive experience. Ultimately, we're focused on ways to inspire creativity, bring joy, and add value for our community."
In February, TikTok invited Harmon and others to perform different versions of "Renegade" during the NBA All-Star game. That same month, the social media platform hosted its first-ever #MakeBlackHistory Creator Summit as a means to honor those at the center of creating the culture that attracts many of its users.
Kudzi Chikumbu, Director of Creator Community, TikTok US, said in a blog post that month, "We believe that TikTok, at its best, creates opportunities for users to create content that resonates with others and helps them build a stronger community. We recognize that for many users TikTok allows them to showcase their creativity and reach new heights, and it's important to us that we are celebrating the diverse voices that exist on the platform."
The actions TikTok has taken in recent months are commendable, but the platform could do more to protect its users' creative capital in the future. In cases similar to Harmon's, it's clear there's still room to better ensure appropriation doesn't drown out Black creators.
In the meantime, we as users of these apps can ensure we're doing what we can to give influencers their flowers. Wilson says even the smallest gesture can go a long way.
"[It's as simple as] tagging the creator and giving them credit where credit is due."
We Need To Give Black TikTokers Their Flowers
Unbothered • Entertainment • The Latest • Pop Culture
written by Stephanie Long
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1. Tomahawk are an experimental alternative metal/alternative rock band from the United States.
Mike Patton could record himself belching into a dictaphone and stick some reverb on it and fans would still clamour over it, such is the frenzy the man causes. Oddfellows isn't like that though, thankfully, or unfortunately (depending on how broken you are). Out of the gazillion projects he's shrieked and gurgled on, Tomahawk is the one most likely to appeal to your average Faith No More listening gumby, being as they are, a relatively straightforward rock band, although they'd still make a litany of Foo Fighters fans feel dumber than they already are.


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Laurence Brown stands next to his bi-plane in Agua Prieta, Sonora. Seated in the rear cockpit is Bisbee reporter and photographer Fred McKinney. The Photograph was taken on June 20, 1915, when Brown was flying bombing and scouting missions in Sonora, Mexico for the Carranza government and General Elias Calles' Constitutionalist Army.
Little is known about Laurence Brown – even his name is in question. He was an American and just 17 years old when he flew his bi-plane over the border and joined Calles' Army to fight Pancho Villa in May of 1915. He was paid $500 a month.
On his first mission, Brown flew east from Agua Prieta to Naco, Sonora. The town had been declared a neutral port of entry in late 1914, and only a small contingent of soldiers remained there. American soldiers were camped right across the border, and in the town itself, buildings, streets and the few remaining citizens bore the scars of battle.
Maintaining an altitude of 3,500 feet, which kept his plane out of rifle range, Brown made a wide arc so his military passenger could view the town and see across the border as far as Bisbee some miles distant. He then turned south to follow the Naco-Cananea railroad.
He flew about 70 miles that day and observed the enemy soldiers of General Maytorena and the troop trains and fortifications surrounding Cananea before flying back to Agua Prieta.
He was popular with General Calles and his officers, sharing the general's mess tent and receiving payment in gold, but his quick acceptance was resented by many of the regular troops. A ride in the aircraft, however, usually brought the troops around and gave them a respect for his skills and derring-do.
Brown's aircraft became the subject of an official protest to the United States government, when he flew over Douglas and violated U.S. airspace while trying to gain altitude out of Agua Prieta. No action was taken against him, however, because the U.S. government supported Carranza and found it politically expedient to ignore the incident.
The accumulated stress of flying combat missions without relief took its toll on Brown and his airplane. Wind-blown sand fouled the engine, the sun weakened wing fabric, parts took a long time arriving and mechanics had to improvise repairs. The last day of August, Brown crashed south of Agua Prieta. Although unhurt, his confidence was shaken.
He finally called it quits in late October. By then Pancho Villa's army was moving toward Agua Prieta from the south and a huge battle was expected.
Brown didn't stop for press interviews, but boarded a train in Douglas and disappeared.
Photo courtesy Bisbee Mining & Historical Museum; research by Tom Vaughn. ©Arizona Capitol Times.


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For 2016, FitRated.com's Top Home Gyms Over $2,000 have been reviewed and are above. As you can see, these models feature an incredible amount of exercises and the ability to lift more weight (compared to lower priced models). Manufactures also give consumers additional reason to consider home gyms over $2,000 with plenty of extras including workout DVDs and part upgrades.
Home gyms over $2,000 feature different types of resistance, though weight stack home gyms might be the most popular in this price range. If you want a weight stack home gym, it's important to consider this price range. Last but not least, Bowflex and BodyCraft have sort of created a great rivalry here as the two prestigious exercise manufactures are clearly the frontrunners in home gyms over $2,000. The result? Both companies are constantly pushing each other for the title of best commercial/premium home gym manufacture. That's good news for the consumer!


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Q: Increased system CPU time in non-threaded regions of OpenMP code I am experiencing a very peculiar issue. I am parallelizing parts of a very large code (about 600MB of source code) using OpenMP, but I'm not getting the speedups I expected. I profiled many parts of the code using omp_get_wtime() to get reliable estimates, and I discovered the following: the OpenMP parts of my code do have better wall times when I use more threads, however when I turn the threads on the program has increased system cpu time usage in parts of the code where there are no omp pragmas at all (e.g., time spent in IPOPT). I used grep for pragma to make sure. Just to clarify, I know for sure from my profiling and code structure that the threaded parts and the parts where I get the slowdowns run in completely different times.
My code consists of two main parts. The first is the base code (about 25MB of code), which I compile using -fopenmp, and the second is third-party code (the remaining 575MB) which is not compiled with the OpenMP flag.
Can anyone think of a reason why something like this could be happening? I can't fathom it being resource contention since the slowdowns are in the non-threaded parts of the code.
I am running my code on a 4-core (2 physical cores) Intel-i7 4600U compiled using clang++-3.8 in Ubuntu 14.04, with -O3 optimizations.
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Home Entertainment Celebs
Rolling Stones' Keith Richards (Almost) Quits Drinking
Keith Richards and Charlie Watts of the Rolling Stones perform during a concert at Friends Arena in Stockholm, Sweden, October 12, 2017. TT NEWS AGENCY/Stina Stjernkvist via REUTERS
LOS ANGELES (Reuters)
Keith Richards, the hard-partying lead guitarist of the Rolling Stones, has quit drinking – almost – saying he "just got fed up with it"
"It's been about a year now," Richards told Rolling Stone magazine in an interview. "I pulled the plug on it. I got fed up with it."
Richards, 74, who has said his favorite tipple for decades has been whiskey or vodka, said he still had a glass of wine occasionally and a beer.
"It was time to quit. Just like all the other stuff," he told the magazine, referring to his past addiction to cocaine, heroin and other hard drugs. Richards has said he quit drugs after a 1977 arrest in Canada for heroin possession.
Bandmate Ron Wood, who battled alcoholism for years, said Richards was easier to work with since giving up drink.
"Much more mellow. He's open to more ideas," Wood said in the interview, published on Wednesday
"I think the Keith that we used to know and love had this cutoff point where if he had one more, he'd go over the top and he'd be nasty. The cutoff point became shorter and shorter, you know, and he realized that," Wood added.
The Rolling Stones will launch their next North American tour in April.
(Reporting by Jill Serjeant; editing by Jonathan Oatis)


The following information is intended to assist buyers, particularly those who have not had any experience buying at auction and those who are new to our sales. Our staff will be happy to help if there is anything you do not fully understand, for more information please contact the office.
As auctioneers we sell on behalf of the vendor whose identity, for reasons of confidentiality, is not disclosed without consent.
Estimates are a guide to the buyer only and are designed solely to assist buyers by indicating what sort of purchase price may be reached for a particular lot. The lower estimate may represent the reserve price on some occasions. Estimates do not include the Buyers Premium or VAT (where chargeable). Estimates can be subject to change and any alterations will be announced by the auctioneer before the sale.
Wilkinson's Auctioneers charge a buyer's premium of 20%.Unless indicated, no VAT will be payable on the hammer price and the premium will be shown inclusive of VAT. (The VAT inclusive with the premium is not normally recoverable by the buyer.)However, occasionally VAT is charged on the hammer price at the appropriate rate. In these cases the lots will be indicated in the catalogue and announced by the auctioneer.
Buyers intending to export goods should ascertain (a) whether an export licence is required and (b) whether there is any specific prohibition on importing goods of that character because, e.g. they may contain prohibited materials such as ivory. Imported goods of this nature will require a Cites Certificate in order to sell. For more information on any lots of this nature please contact us.
Bidders are required to register before the sale commences and lots will be invoiced to the name and address on the registration form. Some form of identification may be required if you are unknown to us. The highest bidder is the buyer. In the event of a dispute, the auctioneer will determine the buyer, or at his discretion re-offer the lot. All lots become the responsibility of the buyer at the fall of the hammer, but remain the legal property of the vendor until paid for in full. All lots should be paid for within seven days of the sale.
Commission & Telephone Bids: if you are unable to attend the sale the auctioneers will be happy to execute commission bids. Buyers can complete a commission bid form online, or download a form and post it to us. Forms are also available from the office and may be sent by post or fax. This service is FREE and confidential. To leave a commission bid, the 'top limit' should be given. This is the hammer price to which you would bid up to if you were present at the auction. Any buyer wishing to bid by telephone during the sale must make arrangements in advance as telephone lines are limited. The auctioneers do not accept any responsibility for any errors or omissions arising from commission or telephone bids.
Methods of Payment: any cheques tendered will need to be cleared before removal of the goods is permitted.
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Paying by Debit or Credit Cards: payments can be made by Switch, MasterCard and Visa Cards. (There is no surcharge, however some cards are not accepted, please check within the office).
Paying by Cheque all cheques should be payable to "Wilkinson's Auctioneers Ltd" for the total amount due. Cheques for large amounts will be cleared before goods are released unless prior arrangements have been made with the auctioneer.
We request that payments are made within a timely manner, unless otherwise agreed with the auctioneer we apply a 14 day period after the saleday, within which all invoices should be settled in full.
If payments are delayed for any reason, by prior arrangement with the auctioneer, a deposit and delayed final payment shall be agreeable if possible in a timely manner agreed by both parties. In the event the final payment is not made within the appropriate time frame the deposit shall be forfeited to cover any costs incurred.
Collection and storage; it is important that goods are paid for and collected promptly, a two week grace period is permitted without charge. After this period storage charges are applicable.
Electrical Goods. It is essential that lots which were originally operated by mains electricity be checked by a qualified electrician before use. They may not comply with the current statutory requirements and as such are offered solely for display of historical purpose.
Consignments must be made to the sale room by any stated deadline and at your expense. We may be able to assist you with this process but any liability incurred to a carrier for haulage charges is solely your responsibility. Please contact us for more information.
Loss and damage warranty. We charge 1.5% insurance plus VAT on the sold items.
We do not charge for the photography of items. The copyright in respect of all photographs shall be the property of us, the auctioneer, as is the text of the catalogue.
Reserves: you are entitled to place a reserve prior to the auction a reserve on any lot consigned, being the minimum hammer price at which that lot may be sold. Reserves must be reasonable and we may decline to offer goods which in our opinion would be subject to an unreasonably high reserve. A reserve once set cannot be changed except with our consent. Goods offered subject to a reserve will be agreed between us before the sale. We may sell lots below the reserve provided we account to you for the same sale proceeds as you would have received had the reserve been the hammer price. If you specifically give us "discretion" we may accept a bid of up to 10% below the formal reserve.
Electrical items. Goods not certified as safe by an electrician (unless antiques) will not be accepted for sale. They must be removed at you expense on your being notified. We reserve the right to dispose of unsafe goods as refuse, at your expense.
Soft furnishings. The sale of soft furnishings is strictly regulated by statute law in the interests of fire safety. Goods found to infringe safety regulations will not be offered and must be removed at your expense.
Descriptions: where the seller chooses to provide information as to the provenance or any other details regarding items entered into a sale it is essential that this information is accurate. There is strict liability for the accuracy of descriptions under modern consumer legislation and in some circumstances responsibility lies with sellers if inaccuracies occur. We will assume that you have approved the catalogue description of your lots unless informed to the contrary. Where we are obliged to return the price to the buyer when the lot is a deliberate forgery and we have accounted to you for the proceeds of sale you agree to reimburse us the sale proceeds. The liability to reimburse the sale proceeds shall not arise where you are acting reasonably and honestly and are unaware of the forgery but we are or ought to have been aware of it.
Unsold and withdrawn items may with your consent be re-offered at a future sale. Where we deem an item unsaleable you must collect such items form the saleroom promptly on being so informed. Otherwise, storage charges may be incurred. We reserve the right to charge for storage in these circumstances at a reasonable daily rate.
You authorise us to deduct any agreed commission and any expenses incurred. You authorise us in our discretion to negotiate a sale by private treaty not later than the close of business the day of the sale in the case of lots unsold at auction.
After sale settlement of the net sum due to you normally takes place within 14 days cheque to the seller with the contact details provided to us, unless the buyer has not paid for the goods.
"auctioneer" means the firm of Wilkinson's Auctioneers Ltd.
"hammer price" means the level of bidding reached (at or above any reserve) when the auctioneer beings down the hammer.
To apply any proceeds of sale of other Lots due or in future becoming due to you towards the settlement of the total amount due and to exercise a lien (that is a right to retain possession of) any of your property in our possession for any purpose until the debt due its satisfied.
Warranty of Title & Availability: the seller warranty to the auctioneer and you that the seller is the true owner of the property consigned or is properly authorised by the true owner to consign it for sale and is able to transfer good and marketable title to the property free from nay third party claims.
Terms of Sale: the seller acknowledges that Lots are sold subject to the stipulations of these Conditions in their entirety and on the Terms of Consignment as notified to the consignor at the time of the entry of the Lot.
Descriptions & Condition Reports: whilst we seek to describe lots accurately, it may be impractical for us to carry out exhaustive due diligence on each lot. Prospective buyers are given ample opportunities to view and inspect before any sale and they (and any independent experts on their behalf) must satisfy as to the accuracy of any description applied to a lot. Prospective buyers also bid on the understanding that, inevitably, representations or statements by us as to authorship, genuineness, origin, date, age, provenance, condition or estimated selling price involve matters of opinion. We undertake that any such opinion shall be honestly and reasonably held and accept liability for opinions given negligently or fraudulently. Subject to the foregoing neither we the auctioneer nor our employees or agents nor the seller accept liability for the correctness of such opinions and all conditions and warranties, whether relating to description, condition or quality of lots, express, implies or statutory, are hereby excluded. Any Lot which proves to be a deliberate forgery (as defined) may be returned to us by you within 21 days of the auction provided it is in the same condition as when bought, and is accompanied by particulars identifying it from the relevant catalogue description and a written statement of defects. If we are satisfied from the evidence presented that the Lot is a deliberate forgery we shall refund the money paid by you for the Lot including any buyer's premium.
All details held on file related to buyers/sellers and under bidders are held in the strictest confidence, are not shared with any external agencies apart from those required by law and can be removed/destroyed upon request.


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Olympic Winter Games
Host City Election, Olympic News
IOC President encourages 2022 Applicant Cities to get creative
Delegates from the six cities vying to host the 2022 Olympic Winter Games will return home equipped with valuable insight into the bidding process following a three-day Applicant City Seminar hosted by the International Olympic Committee that concluded today in Saint-Sulpice, Switzerland.
Led by Olympic Games Executive Director Gilbert Felli and Head of Bid City Relations Jacqueline Barrett, the seminar focused on a range of important themes and requirements, in particular legacy and sustainability, which the representatives from Almaty (Kazakhstan), Beijing (China), Krakow (Poland), Lviv (Ukraine), Oslo (Norway) and Stockholm (Sweden)* were encouraged to adapt to fit their local needs to best serve their cities, regions and nations.
Speaking at the seminar, IOC President Thomas Bach called on the delegates to be creative with their bid projects and engage as soon as possible with their respective publics to explain the benefits hosting the Games could bring and to build support. "The IOC has a great deal of excellent information and know-how to pass on to Applicant Cities but they should also be confident enough in their projects not to restrict themselves solely to the blueprints of the past", he said.
"Only by taking their own initiatives, based on how they see the Olympic Games benefitting their unique circumstances and the local population, will they be able to get the most out of their projects. We are here to listen as well as provide them with guidance."
Forming part of the bid city education programme, the Seminar walked the delegates through the details of the bid process, providing them with a comprehensive introduction to the complexity, scope and scale of hosting an Olympic Games.
Drawing from a wealth of material from the IOC and previous host cities, discussions ranged from transport to finance, with a day devoted to individual workshops on sports, the athlete experience, Olympic villages, the Paralympic Games, accommodation, the Olympic Games concept, media operations, technology and marketing.
The seminar was conducted by experts from the IOC administration and specialists from former host cities, including Neale Coleman and Bill Morris from London 2012 and John McLaughlin from Vancouver 2010.
In addition to briefings and workshops on the fundamentals of staging the Games, heavy emphasis was placed on the fact that the organisation of the Games is very much a team effort, with all levels of government, commercial partners, public services, community groups, local populations and sports authorities involved in the successful organisation of such a complex event. Clear dialogue and engagement among all relevant parties is therefore crucial to building a cohesive and smooth-running bid campaign and, if awarded the event, a memorable Olympic Winter Games in 2022.
Click here for information on the Candidature Acceptance Procedure.
* The cities will be listed in alphabetical order until such time as the official drawing of lots is carried out by the IOC EB in December 2013. The order of drawing of lots will then be used until the election of the 2022 host city.
Tags Host City Election , Olympic News
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Q: Reading from Excel file failing (ORA-00947-not enough values) Using the first method i am writing the query results to xls file and using second i am uploading to destination DB. It works fine with the Excel files created by the first method. If i edit any created excel file it fails to read some cells and throws error. Any body faced this issue. Any solution or suggesion.
TIA
public void exportData(Map<String, String> queries,Connection conn) {
    Connection connection=conn;
    try{
            List<String> list1=new ArrayList<String>(queries.keySet());
            for(int j=0;list1.size()>j;j++){
                Workbook book1=new HSSFWorkbook();
                Sheet Sheet1= book1.createSheet("sheet1");
                PreparedStatement preparedStatement = connection.prepareStatement(queries.get(list1.get(j)));
                ResultSet resultSet = preparedStatement.executeQuery();
                ResultSetMetaData rsmd=resultSet.getMetaData();
                boolean isDataAvail = resultSet.next();
                if(isDataAvail){
                    Row headerRow = Sheet1.createRow(0);
                    for (int i = 1; i <= rsmd.getColumnCount(); i++) {
                        Cell cell1 = headerRow.createCell(i-1);
                        cell1.setCellValue(rsmd.getColumnName(i));
                        }
                    int row=1;
                    do {
                        Row row1 = Sheet1.createRow(row);
                        for (int i = 1; i <=rsmd.getColumnCount(); i++) {
                            Cell cell2 = row1.createCell(i-1);
                            String s=rsmd.getColumnTypeName(i);
                            if(s.equalsIgnoreCase("NUMBER")){
                                if(resultSet.getString(i)==null)
                                cell2.setAsActiveCell();
                                else{
                                cell2.setCellValue(resultSet.getDouble(i));
                                }
                            }else if(s.equalsIgnoreCase("VARCHAR2")||s.equalsIgnoreCase("VARCHAR")){
                                if(resultSet.getString(i)==null)
                                cell2.setAsActiveCell();
                                else
                                cell2.setCellValue(resultSet.getString(i));
                                }else if(s.equalsIgnoreCase("DATE")){
                                if(resultSet.getDate(i)==null)
                                cell2.setAsActiveCell();
                                else{
                                cell2.setCellValue((Date)resultSet.getTimestamp(i));
                                CellStyle style = book1.createCellStyle();
                                style.setDataFormat(HSSFDataFormat.getBuiltinFormat("m/d/yy h:mm"));
                                cell2.setCellStyle(style);
                                }
                                }else{
                                cell2.setCellValue(resultSet.getString(i));
                                }
                            } row++;
                    }while (resultSet.next());
                    String fname1=folder+list1.get(j)+".xls";
                    FileOutputStream output;
                         output=new FileOutputStream(new File(fname1));
                    book1.write(output);
                    output.close();
                    listOfDataTables.add(list1.get(j));
                    fileNum++;
                    query++;
                    logger.info("F.no."+fileNum+"."+list1.get(j)+"--File created successfully");
                    }
                else{
                    query++;
                    logger.info("No data found for table"+"("+query+")     :"+list1.get(j));
                    }
                resultSet.close();
            }
            }
        catch (Exception exception) {
            logger.info("*****ERROR*****"+exception);
            logger.log(Level.SEVERE, exception.getMessage(), exception);
            exception.getLocalizedMessage();
            exception.printStackTrace();
            status="ERROR";
        }
        finally {
            if (connection != null) {
                try {
                    connection.close();
                } catch (Exception e) {
                    logger.info("*****ERROR*****"+e);
                    e.printStackTrace();
                }
            }
        }
    }

public int dataTransfer(String fileName,Connection connection) {
        int no=0;
        String fName=folder+fileName+".xls";
        try {
        Statement preparedStatement =connection.createStatement();
        FileInputStream inputFile = new FileInputStream(fName);
        POIFSFileSystem myFileSystem = new POIFSFileSystem(inputFile);
        HSSFWorkbook myWorkBook = new HSSFWorkbook(myFileSystem);
        HSSFSheet mySheet = myWorkBook.getSheetAt(0);
        Iterator<Row> rowIterator = mySheet.iterator();
        String insertQuery="";
        String columnQuery="";
        if(rowIterator.hasNext()){
            columnQuery="insert into "+fileName+"(";
                        Row row = rowIterator.next();
                        Iterator<Cell> cellIterator = row.cellIterator();
                        while (cellIterator.hasNext())
                        {
                        Cell cell = cellIterator.next();
                        columnQuery=columnQuery+cell.getStringCellValue()+",";
                        no++;
                        }
                        columnQuery=columnQuery.substring(0, columnQuery.length()-1);
                        columnQuery=columnQuery+") values (";
                        }
        int rowCounter=0;
        int set=0;
        while (rowIterator.hasNext() && set<=no)
        {
            insertQuery=columnQuery;
                        Row row = rowIterator.next();
                        Iterator<Cell> cellIterator = row.cellIterator();
                        while (cellIterator.hasNext())
                        {
                            Cell cell = cellIterator.next();
                                if(cell.getCellType()==Cell.CELL_TYPE_NUMERIC){
                                    if(HSSFDateUtil.isCellDateFormatted(cell)){
                                        double temp=cell.getNumericCellValue();
                                        Date date = HSSFDateUtil.getJavaDate(temp);
                                            String dateFmt = cell.getCellStyle().getDataFormatString();
                                            String strValue = new CellDateFormatter(dateFmt).format(date);
                                            strValue="to_date("+"'"+strValue+"'"+",'mm/dd/yyyy hh24:mi')";
                                            insertQuery=insertQuery+strValue+",";
                                    }else{
                                        insertQuery=insertQuery+cell.getNumericCellValue()+",";
                                    }
                                }
                                else if(cell.getCellType()==Cell.CELL_TYPE_STRING)
                                    insertQuery=insertQuery+"'"+cell.getStringCellValue()+"',";
                                else if(cell.getCellType()==2){
                                    insertQuery=insertQuery+cell.getDateCellValue()+",";
                                }
                                else if(cell.getCellType()==Cell.CELL_TYPE_BLANK)
                                    insertQuery=insertQuery+"null,";
                        }
                        insertQuery=insertQuery.substring(0, insertQuery.length()-1);
                        insertQuery=insertQuery+")";
                        preparedStatement.addBatch(insertQuery);System.out.println(insertQuery);
                        rowCounter++;
                    }
                    preparedStatement.executeBatch();
                    inputFile.close();
                    listOfProcessedTables.add(fileName);
                    preparedStatement.close();
                    return rowCounter;
            }
            catch (Exception exception) {
                    logger.info("*****ERROR*****"+exception);
                    exception.printStackTrace();
                    logger.log(Level.SEVERE, exception.getMessage(), exception);
                    StatusCount++;
                    return 0;
            }
            }


It's not that hard to sell a home in today's San Francisco real estate market, but I'm not saying that anyone can do it. As you know, real estate sales are complicated and full of risk and liability. Most homeowners are way too subjective or emotional to effectively market and sell a home themselves.


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You are here: Home / Blog Article / Challenges to the Rule of Law in Times of Crisis Series: America strikes again – Thoughts on Biden's first military airstrike in Syria
Challenges to the Rule of Law in Times of Crisis Series: America strikes again – Thoughts on Biden's first military airstrike in Syria
May 28, 2021 by Francisco Lobo
A U.S. Air Force B-1B Lancer flies over northern Iraq after conducting air strikes in Syria against ISIL targets. Photo Credit: US Department of Defense, Public Domain.
This article is part of our series on Challenges to the Rule of Law in Times of Crisis. Read the series introduction at this link.
America is back in business, and a significant part of its stock in trade is the use of military force. Syria knows as much after being hit by two consecutive administrations in the past four years. Whatever differences Donald Trump and Joe Biden may have in style, demeanour, rhetoric, and politics, when it comes to the use of force their international record so far looks very similar.
Although the US is not formally engaged in an international armed conflict with the state of Syria, over the last years it has deployed military personnel on Syrian territory to stave off the threat of ISIS, and reportedly also to provide a geopolitical counterweight against Russian presence in the region. Moreover, the US has carried out military airstrikes on Syrian territory, most notably in 2017, again in 2018 alongside European allies, and recently on 25 February 2021. Ironically, Trump's strikes against the Syrian government in 2017 and 2018 were prompted by an ostensible humanitarian rhetoric that is absent in Biden's justification for his recent decision to strike Iran-backed non-governmental militias operating in Syria.
Indeed, among other grounds such as self-defence and an alleged mandate by the international community, four years ago Trump famously invoked humanitarian concerns in light of the shock produced by the Syrian government's use of chemical weapons against its own population. Conversely, no chemical weapons were involved this time, and Biden steered clear of such humanitarian rhetoric and stuck to the traditional right of self-defence under the UN Charter to address attacks against US and its allies in Iraq.
This recent strike has been met with immediate condemnation by international law experts, mainly on the grounds that the right of self-defence must be exercised – always in a necessary and proportionate manner – against an armed attack that has occurred, or that is imminent. Since Biden's strike was carried out ten days after the events motivating it, this US extraterritorial response seems to be too late to qualify as self-defence against an ongoing or imminent threat. Rather, it has been decried as an act of armed reprisal, which is illegal under international law.
Many questions remain to be answered or at least discussed from an international law perspective, bearing on the proverbial who, when and what. These include the legality of the use of force by one single state with no mandate in lieu of the collective security system represented by the UN Security Council; the deterrence of future threats instead of responding to current or past attacks; and the possibility of considering a series of discrete but coherent actions, in this case by non-governmental actors, as a single armed attack under the 'accumulation of events' doctrine.
Alongside international law, legal experts have also reflected on the justification for this recent attack under US domestic law, especially considering that this time the battered Authorization for the Use of Military Force or 'AUMF' – passed by the US Congress in 2002, its use spanning over two decades of strikes against Iraq, ISIS, and Iranian official Qasem Soleimani – was left on the shelf. Instead, Biden claimed to have direct authority under the US Constitution to conduct the attack.
Thus, the picture legal experts have painted when analysing Biden's debutant strike is one of plausible justification under domestic law, and of highly dubious lawfulness under international law.
But even if all lawyers agreed that the attack was illegal under both domestic and international law, is the legal rationale the only one we need to take into account to assess Biden's first use of military force? Is there something else we might say from a moral perspective? Even notorious legal positivists admit there is always room for moral scrutiny beyond the law. This becomes particularly relevant when legal discourse is quickly exhausted, as it is often the case with the scant provisions of international law bearing on the use of force. What will we do when we label an act as illegal, and yet global powers continue to commit it? Will we surrender to the cynicism of realpolitik, or will we fall back to a broader normative language to keep our moral judgments on the ball?
In the case of the use of force between nations, the articulation of such moral enquiries has taken over the centuries the form of the 'Just War' tradition, which unfolds into two separate lines of inquiry: when is it justified to resort to armed force (jus ad bellum)? And, what is permitted and prohibited in the conduction of hostilities once the war has begun (jus in bello)? In recent years the discussion has branched out into new avenues, including jus post bellum and jus ad vim (from the Latin vim or 'force'). The latter was first suggested by Michael Walzer in the preface to the 2006 fourth edition of his canonical Just and Unjust Wars. Reflecting on the controversial invasion of Iraq a few years before, Walzer wrote:
"the Iraqi case invites us to think about the use of force-short-of-war; the containment regime of 1991-2003 that the UN endorsed and the United States enforced is only one possible example of this use. (…) force-short-of-war obviously comes before war itself. The argument about jus ad bellum needs to be extended, therefore, to jus ad vim. We urgently need a theory of just and unjust uses of force. This shouldn't be an overly tolerant or permissive theory, but it will certainly be more permissive than the theory of just and unjust war." (p. xv)
And we may add, certainly more permissive than international law, which clearly prohibits any 'use of force' by states under article 2(4) of the UN Charter, with very few exceptions (i.e. self-defence and Security Council authorization). But as we saw, the law is not the only framework to analyse instances of the use of force, and some scholars have taken up Walzer's challenge, laying the groundwork for a new theory of jus ad vim. Among such theorists we find Daniel Brunstetter and Megan Braun, who in 2013 published their influential article titled "From Jus ad Bellum to Jus ad Vim: Recalibrating Our Understanding of the Moral Use of Force."
According to these authors under jus ad vim a just cause for using force is aggression, whether by states or non-state actors, warranting recourse to the right of self-defence. The use of force must be also proportional, a last resort, authorized by a legitimate authority, and carried out with the right intent (all traditional jus ad bellum criteria). The thrust of their argument is that the use of force must always reduce the probability of escalation. In other words, vim resulting in bellum evidences a failure in the application of the characteristically de-escalatory rationale underlying jus ad vim. As to international law, Brunstetter and Braun argue that jus ad vim should ideally be anchored in that normative regime, but if international law proves to be too narrow to respond to the needs of states, then it will have to evolve through customary law to mirror the evolution of our shared ethical judgments.
Based on the foregoing, can we say that the recent US airstrike in Syria satisfies jus ad vim? There might be some room to argue that US forces and allies were attacked in Iraq and, therefore, that the use of force-short-of-war in self-defence was warranted. And even if we were extremely generous as to concede that the other criteria of last resort, legitimate authority, and right intent were met, a considerable problem from the perspective of jus ad vim remains: however localized and discriminate, such attacks risked escalating hostilities in an already hot and unstable environment. And considering the heavy involvement of Russia in the Syrian quandary, the risk of escalation of the armed conflict to turn into a Cold War-style proxy war between the US (and its allies) and Russia (and its allies) must be an ever-present consideration in every policy decision made by the US, regardless of who sits in the Oval Office.
America is back in business, but for many it just feels like business as usual. Yet, this does not mean that the use of force can continue simply unchecked or that we should surrender to pure realism, for there is a full normative framework in place to assess the legality and morality of such acts under the principles of international law, jus ad bellum and jus ad vim. By using the legal view as a departure point for further moral discussion, the interplay between all these standards offers the potential to strengthen our convictions and hone our judgments about the use of force and war.
Francisco Lobo
Francisco Lobo is a PhD Candidate in the Department of War Studies at King's College, London.
He is a lawyer graduated from the University of Chile. He holds an LL.M. in International Legal Studies from New York University (sponsored by the Fulbright Commission), and a Master of Laws specializing in International Law from the University of Chile. He is a lecturer of International Law, Human Rights Law, International Criminal Law, and Legal Theory, in Santiago of Chile.
He has worked as an NYU Fellow of International Law and Human Rights at the International Law Commission of the United Nations (2018), where he assisted the Special Rapporteur on Peremptory Norms of General International Law (ius cogens), in New York and Geneva. He has also worked as a legal advisor at the Ministry of Foreign Affairs of the Republic of Chile (2019-2020).
His research interests include International Law, Human Rights, the Law of Armed Conflict and the Just War tradition, and International Criminal Law, as well as a multidisciplinary approach to the phenomenon of violence from the perspective of history, philosophy and ethics.
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Filed Under: Blog Article, Feature, Series Tagged With: Biden, Challenges to the Rule of Law in Times of Crisis Series, Francisco Lobo, Joe Biden, President Biden, President Joe Biden, United States, United States of America, USA