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USCA1 Opinion
December 29, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1750
LYNN MARTIN, SECRETARY OF LABOR,
Plaintiff, Appellant,
v.
COVENTRY FIRE DISTRICT,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Higginbotham,* Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Paul L. Frieden, Attorney, with whom Marshall J. Breger,
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Solicitor of Labor, Monica Gallagher, Associate Solicitor, and William
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J. Stone, Counsel for Appellate Litigation, were on brief for
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appellant.
Gregory P. Piccirilli with whom Vincent J. Piccirilli and
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Piccirilli & Sciacca were on brief for appellee.
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* Of the Third Circuit, sitting by designation.
BREYER, Chief Judge. The Coventry Fire District
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failed to pay some of its employees overtime pay as mandated
by the Fair Labor Standards Act, 29 U.S.C. 207. The
Secretary of Labor sued the Fire District. The district
court awarded damages but denied the Secretary's request for
an injunction prohibiting future violations. The Secretary
appeals. She points out that the Act calculates ordinary
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employee overtime as time and one half for hours worked in a
week in excess of 40. It calculates "public fire fighter"
overtime specially, however, (reflecting their special
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working conditions) as time and one half for hours worked in
excess of 212 hours in a consecutive 28-day period. 28
U.S.C. 207(k). She says the district court, when
calculating damages, wrongly used the special "fire fighter"
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rule. In her view, it should have used the ordinary
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employee rule instead. She adds that the court should have
issued an injunction. We find her appeal without merit and
affirm the district court. 1. Damages. The district
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court calculated the amount of "unpaid overtime
compensation," 29 U.S.C. 216(b), by subtracting what the
statute defines as a fire fighter's normal working hours
(212 hours per 28 days, which we simplify as 53 hours per
week), see 29 U.S.C. 207(k); 29 C.F.R. 553.201(a),
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553.230, from the total time each employee actually worked.
The result (when multiplied by the overtime pay rate) was a
total deficiency of about $10,000. The court doubled this
amount in light of the statutory double damage requirement
for all but "reasonable," "good faith" mistakes. See 29
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U.S.C. 216(b), 260.
The Secretary argues that the court erred in
subtracting (from total hours each employee worked) what the
statute defines as a fire fighter's normal working hours (53
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hours per week). See 29 U.S.C. 207(k); 29 C.F.R.
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553.201(a), 553.230. Rather, she says, the court should
have subtracted what the statute defines as an ordinary
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employee's normal working hours (40 hours per week). See 29
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U.S.C. 207(a). The result would have been far more
"overtime" hours, a total deficiency of $63,000, and a total
"doubled" deficiency of about $126,000, not $20,000.
The Secretary concedes that Coventry is a fire
department and that the law applicable to fire departments
initially required it to pay $10,000 (based on 53 hour
weeks), not $63,000 (based on 40 hour weeks), in overtime
payments. But, she argues, the special provision for fire
departments is written literally as an exemption from the
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general overtime rule. And, the Secretary adds, we must
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read this statutory exemption literally. Thus, although a
fire department should generally pay overtime by following
the special fire department "53 hour" rule, if it fails to
pay overtime and violates the special fire department rule,
this special fire department rule no longer applies; the
general "40 hour" rule instead applies; and we must
calculate damages on the basis of the general "40 hour"
rule, not the special fire department "53 hour" rule.
It is easier to understand the Secretary's
argument if one examines the language of the statute itself.
The general rule, contained in section 207(a), provides:
Except as otherwise provided in
this section, no employer shall employ
any of his employees . . . for a
workweek longer than forty hours unless
such employee receives compensation [for
the extra hours] . . . at a rate not
less than one and one-half times the
regular rate . . . .
29 U.S.C. 207(a). The special "fire department" rule,
contained in section 207(k), provides:
No public agency shall be deemed to
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have violated subsection (a) of this
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section with respect to the employment
of any employee in fire protection
activities . . . if . . . in a work
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period of 28 consecutive days the
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employee receives for tours of duty
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which in the aggregate exceed . . [212]
hours [i.e., an average of 53 hours per
week] . . . compensation at the rate not
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less than one and one-half times the
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regular rate . . . .
29 U.S.C. 207(k) (emphasis added); see also 29 C.F.R.
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553.201(a), 553.230. The Secretary argues that, since the
Fire District's employees did not receive the time and a
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half that subsection (k) requires, subsection (k) is
inapplicable; hence subsection (a) applies; and subsection
(a) requires time and a half after 40 hours, not after
(roughly speaking) 53 hours.
Like the district court, we find this argument
unconvincing. For one thing, it produces an odd result.
The statute's damages provisions make clear that an employer
who fails to pay statutorily required overtime 1) must
simply pay the overtime owed (if the violation is merely
technical and in good faith), or 2) must pay twice that
amount (where the violation is not in good faith), or 3)
must suffer more serious penalties (where the violation is
wilful). See 29 U.S.C. 216, 260. The Secretary's
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interpretation would make special industry employers such as
fire departments (whose normal work week is defined as, say,
53, rather than 40, hours) pay more than the overtime owed
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(in the case of technical "good faith" violations) and more
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than twice the overtime owed (in the case of other
violations). There is no obvious explanation for assessing
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a kind of penalty against special industry employers where
there is no particular reason for any penalty (in the case,
say, of a technical "good faith" violation), or for
assessing an especially heavy penalty where there is no
reason to make the penalty especially severe.
For another thing, we have found no indication in
the legislative history of the Fair Labor Standards Act that
Congress intended to impose any such special damages or
special penalty rules. To the contrary, that history shows
only that Congress intended to distinguish fire fighters
from other employees in respect to the number of hours that
constitute the normal working week. The Senate Report on
the bill, states, for example,
Congress established . . . special
provisions in recognition of the special
needs of governments in the area of
public safety and the unusually long
hours that public safety employees must
spend on duty. Section 7(k) was
intended to alleviate the impact of the
FLSA on the fire protection and law
enforcement activities of state and
local government by providing for work
periods of up to 28 days (instead of the
usual seven-day workweek) [and]
establishing somewhat higher ceilings on
the maximum number of hours which could
be worked before overtime compensation
had to be paid . . . .
S. Rep. No. 99-159, 99th Cong., 1st Sess. 5 (1985),
reprinted in 1985 U.S.C.C.A.N. 651, 653.
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Further, despite the fact that the language at
issue here has been operative since 1985, see Garcia v. San
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Antonio Metro. Transit Auth., 469 U.S. 528, 555-56 (1985)
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(applying FLSA to local government employees), in none of
the cases we encountered has a court ever adopted the
linguistic interpretation the Secretary of Labor here seeks.
See Atlanta Professional Firefighters Union, Local 134 v.
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Atlanta, 920 F.2d 800, 802-03, 806 (11th Cir. 1991);
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Kohlheim v. Glynn County, 915 F.2d 1473, 1476-77, 1481 (11th
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Cir. 1990); Craven v. City of Minot, 730 F. Supp. 1511, 1513
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(D.N.D. 1989); International Ass'n. of Firefighters, Local
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349 v. City of Rome, 682 F. Supp. 522, 526, 531 (N.D. Ga.
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1988); Jacksonville Professional Fire Fighters Ass'n, Local
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2961 v. City of Jacksonville, 685 F. Supp. 513, 527
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(E.D.N.C. 1987).
Finally, the language of the statute, taken
literally, does not require the result for which the
government argues. The damages provision of the statute
says:
Any employer who violates the
provisions of . . . section 207 [i.e.,
the "overtime" section, parts of which
we have quoted above] . . . shall be
liable to the . . . employees affected
in the amount of their . . . unpaid
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overtime compensation [doubled to
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include "liquidated damages"] . . . .
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29 U.S.C. 216(b) (emphasis added). One can easily read
the underlined words ("the amount of their . . . unpaid
overtime compensation") to refer, in the case of fire
department employees, to the amount of overtime compensation
as effectively defined by section 207(k), the special fire
department overtime subsection, not the general section
207(a). Nor does subsection (k)'s own language stand in the
way of this result, for one can read the condition "if . . .
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the employee receives . . . compensation" to mean that
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"insofar as" the Fire District pays the "unpaid overtime
compensation" awarded by the district court, its employees
will have "received" their time and a half, and it will no
longer be deemed to have violated subsection (a).
Interestingly enough, the Secretary of Labor's
reading of the language of subsection (k) is, in a sense,
not totally literal. A totally literal reading of
subsection (k) would require that the employee actually
"receive" his overtime pay during the period he works the
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overtime (for it says that the employer does not violate
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subsection (a) if the employee "in a work period of 28
consecutive days receives" the overtime payment as defined).
The Secretary quite properly understands, however, that
statutory language, like all language, derives its meaning
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from context. A sign that says "no animals in the park"
does not mean "no picnic oysters," nor does it mean "no
children," nor is it "ambiguous" in this respect.
Similarly, the words "in a work period of 28 consecutive
days the employee receives" do not mean that the employee
must receive his paycheck the same month. And, in our view,
the words "unpaid overtime compensation" refer, in the case
of fire department employees, not to payment for every hour
over 40, but to the compensation as calculated in accordance
with the special subsection (k) fire department overtime
definition. To hold otherwise would not represent a literal
reading of language, but, rather, by ignoring context and
purpose, would distort the statute's plain meaning.
Using "traditional tools of statutory
construction," Dole v. United Steelworkers of America, 494
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U.S. 26, 35 (1990); INS v. Cardozo-Fonseca, 480 U.S. 421,
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446-48 (1987); Chevron U.S.A., Inc. v. Natural Resources
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Defense Council, Inc., 467 U.S. 837, 843 n.9 (1984), we find
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the statute clear. And, we find the calculation of the
district court correct.
2. The Injunction. The Secretary asked the court
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for additional relief, namely, to enjoin the Fire District
permanently from violating the overtime provisions in the
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future. The district court found that the Fire District's
violations arose out of its failure to understand the Act's
requirements. The court found that this failure was
careless, but inadvertent. The Fire District, in the
court's view, had not intended to violate the Act and had
complied with the Act from the time that it learned about
the Act's requirements. The court concluded that there was
"no evidence of any threatened future violation." The
record supports all these findings. We therefore find no
abuse of the district court's legal authority to determine
whether or not a permanent injunction is needed. See Brock
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v. Big Bear Market No. 3, 825 F.2d 1381, 1383 (9th Cir.
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1987) (holding that a district court's discretion is not
"unbridled" and that it must weigh finding of violation
against factors indicating reasonable likelihood that
violations will not recur, such as intent to comply,
extraordinary efforts to prevent recurrence, absence of
repetitive violations, and absence of bad faith).
The judgment of the district court is
Affirmed.
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Document Info
Docket Number： 92-1750
Filed Date： 12/29/1992
Precedential Status： Precedential
Modified Date： 9/21/2015