Cheung v. United States

Reissued for Publication: March 22, 2024 ^[1]

David Ricksecker, McGillivary Steele Elkin LLP, Washington, D.C., for plaintiffs. With him were Gregory K. McGillivary, T. Reid Coploff, and Matthew D. Purushotham, McGillivary Steele Elkin LLP, Washington, D.C.

Daniel B. Volk, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Martin F. Hockey, Jr., Acting Director, Commercial Litigation Branch, and Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C.

OPINION

MARIAN BLANK HORN Judge.

FINDINGS OF FACT

Plaintiffs Jim W. Cheung, Christopher D. Kos, Craig P. Miller, Jacob O. Onewokae, and Sean E. Wright, at all times relevant to their claims in the above captioned case, were employees of the United States Department of Homeland Security, Immigration and Customs Enforcement (ICE). See Cheung v. United States, 157 Fed.Cl. 508, 508 (2021). Attached to the court's earlier detailed trial Opinion on liability, see id., was a detailed chart regarding the hours worked by each of the five named plaintiffs, which is discussed more fully below.^[2]

The plaintiffs challenged having been placed by ICE in on-call status and that they were paid Administratively Uncontrollable Overtime (AUO) under 5 U.S.C. § 5545(c)(2), and not paid as scheduled overtime under the overtime provisions of the Fair Labor Standards Act (FLSA) in 29 U.S.C. § 207(a)(1). See Cheung v. United States, 157 Fed.Cl. at 511, 551. In their complaint, plaintiffs alleged that they were owed overtime under 29 U.S.C. § 207(k) of the FLSA, and that ICE had failed to comply with the provisions of the Back Pay Act, 5 U.S.C. § 5596, regarding scheduled overtime. Plaintiffs further alleged in their complaint in the following paragraphs

55. Pursuant to 29 U.S.C. § 216(b), plaintiffs are entitled to recover liquidated damages in an amount equal to their back pay damages for the defendant's failure to pay overtime compensation

56. Pursuant to the Back Pay Act, 5 U.S.C. § 5596 plaintiffs are entitled to recover interest on their back pay damages for the defendant's failure to pay them overtime compensation

57. Plaintiffs are entitled to recover attorneys' fees and costs under 29 U.S.C. § 216(b), the Back Pay Act, 5 U.S.C. § 5596, as well as other applicable laws and regulations.

Pursuant to the FLSA, AUO pay is "extra compensation" at a "premium rate." See 29 U.S.C. §§ 207(h)(2), (e)(5)-(7). Because AUO pay was paid to plaintiffs in lieu of FLSA overtime, the parties raised and briefed issues regarding how to calculate FLSA damages to account for the AUO that was incorrectly paid to plaintiffs during the damages period.

The parties also briefed the issues of liquidated damages, as well as the plaintiffs' request for attorneys' fees and costs.

The plaintiffs each worked as Deportation Officers (DOs) in ICE's Enforcement and Removal Operations (ERO), at least since May 1, 2017, at the St. Paul Field Office, in Fort Snelling, Minnesota, which covers a five-state area of responsibility, including Minnesota, North Dakota, South Dakota, Nebraska, and Iowa. According to the DO Position Description, the major duties and responsibilities of a DO at the time were

to perform law enforcement duties to investigate, identify, locate, arrest, detain, prosecute, and remove foreign nationals who pose a threat to national security and public safety, as well as those that enter the United States illegally with the intent to undermine the integrity of the nation's immigration laws and border control efforts.

Id. at 513. In addition, plaintiffs were sometimes responsible for "monitoring the duty phone after hours." Id. At trial, one of the plaintiffs' supervisors testified that DOs who were monitoring the duty phone were responsible for

monitoring any incoming calls from our law enforcement partners via the after-hours duty phone. They're responsible for responding to those telephone calls appropriately, and at times that could mean if they received a call from a law enforcement agency that required - regarding a release, they would be required to respond to that call and pick up the individual from the local jail. They would be - they're responsible also for documenting any calls that they receive via the after-hours duty phone in our call logs.

Id. at 515.

In the court's detailed post-trial Opinion on liability, the court determined

If the supervisors had looked to the FLSA, and specifically 5 U.S.C. § 5545(c)(2), the supervisors would have noted that plaintiffs' duty to monitor the duty phone, regulated by shifts scheduled in advance, was not subject to AUO compensation because plaintiffs' shifts were scheduled one month, or more, in advance according to the testimony at trial and plaintiffs are not required to be on duty without supervision. Defendant in the Minneapolis St. Paul ICE Office should have done more to determine the appropriate compensation for plaintiffs when monitoring the duty phone and, therefore, failed to act in good faith.

Cheung v. United States, 157 Fed.Cl. at 557. The Opinion on liability continued:

The court has found this language to be clear that plaintiffs' obligation to monitor the duty phone in shifts scheduled at least one month in advance is regular overtime work, not subject to AUO compensation. If the defendant-supervisors had received training on, or regularly consulted, the relevant provisions of the statutes and regulations, rather than relying mostly on a summary Guide and a single email chain in the record, and more diligently pursued getting to the correct answer, defendant would have

realized that plaintiffs should have been classified in on-call status and should have been receiving one and one-half pay for the time they spent monitoring the duty phone. Defendant's efforts to determine whether plaintiffs were subject to AUO compensation or regular overtime compensation were insufficient. Plaintiffs have proven that ICE did not demonstrate to the satisfaction of the court that the act or omission which gave rise to the decisions would meet the good faith test and that there were reasonable grounds for believing that the omission was not a violation of the Fair Labor Standards Act of 1938. See 29 U.S.C. § 260 (brackets added).

Cheung v. United States, 157 Fed.Cl. at 562-63.

In its earlier trial Opinion on liability, the court concluded that while monitoring the duty phone, "plaintiffs were on an on-call status," as defined by the FLSA implementing regulations and, therefore, plaintiffs should be compensated for overtime pursuant to the FLSA, rather than be paid AUO compensation, see Cheung v. United States, 157 Fed.Cl. at 557. The earlier trial Opinion on liability stated:

[T]he plaintiffs, who when actively working, albeit engaged in demanding and challenging law enforcement responsibilities, were in on-call status while monitoring the duty phone after-hours. The court also finds that the plaintiffs were entitled to one and one-half pay for the compensable time spent actively working under the FLSA [Fair Labor Standards Act]. Liquidated damages in the amount of double the actual damages are appropriate for the named plaintiffs for the period at issue in this case.

Cheung v. United States, 157 Fed.Cl. at 563-64 (alterations added).

At the liability trial, the parties referenced a period of time called ERO 2.0, and the parties stipulated that during the ERO 2.0 timeframe "the office tested and evaluated various initiatives with the goal of improving its operations" in 2017. Id. at 512 n.2. "During ERO 2.0, plaintiffs were 'paid as scheduled overtime (not as administratively uncontrollable overtime (AUO))' for the entirety of the shift while monitoring the duty phone." Id. at 527. There was some dispute between the parties at the liability trial as to the duration of the ERO 2.0. See id. at 527-30. This court stated, in the earlier trial Opinion on liability, that "[b]ased on the strong evidence in the record before the court, the court concludes that ERO 2.0 lasted from June 5, 2017 until July 15, 2017." Id. at 530 (alteration added).

The court, in its earlier trial Opinion on liability, further determined:

Plaintiffs' shifts to monitor the duty phone in the above-captioned case were controlled administratively by a schedule which was sent out at least one month in advance. Plaintiffs each knew, in advance, when they were responsible to monitor the duty phone. Additionally, plaintiffs' shifts as DOs were set by plaintiffs' supervisors, and plaintiffs were not to be on overtime duty to monitor the duty phone, except when they were scheduled to do so

by their supervisors. Plaintiffs should not have received AUO compensation for monitoring the duty phone because they were neither "in a position in which the hours of duty cannot be controlled administratively," nor were the DOs in a situation "which requires substantial amounts of irregular, unscheduled overtime duty with the employee generally being responsible for recognizing, without supervision, circumstances which require the employee to remain on duty," as required by 5 U.S.C. § 5545(c)(2). The statute at 5 U.S.C. § 5545(c)(2) indicates that an employee may qualify for AUO compensation if the employee is "in a position in which the hours of duty cannot be controlled administratively," and "which requires substantial amounts of irregular,