Lynn Martin v. Conventry

• Court: Court of Appeals for the First Circuit
• Decided: December 29, 1992
• Docket: 92-1750
• Status: Published

Opinion

USCA1 Opinion

December 29, 1992

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-1750

                           LYNN MARTIN, SECRETARY OF LABOR,

                                Plaintiff, Appellant,

                                          v.

                               COVENTRY FIRE DISTRICT,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                         Higginbotham,* Senior Circuit Judge,
                                        ____________________
                              and Boudin, Circuit Judge.
                                          _____________

                                 ____________________

            Paul  L.  Frieden,   Attorney,  with  whom  Marshall  J.   Breger,
            _________________                           _____________________
        Solicitor of Labor, Monica Gallagher, Associate Solicitor, and William
                            ________________                           _______
        J.  Stone,  Counsel  for  Appellate  Litigation,  were  on  brief  for
        _________
        appellant.
            Gregory  P.  Piccirilli  with  whom  Vincent  J.  Piccirilli   and
            _______________________              _______________________
        Piccirilli & Sciacca were on brief for appellee.
        ____________________

                                 ____________________

____________________

        _____________________

* Of the Third Circuit, sitting by designation.

BREYER, Chief Judge.   The Coventry  Fire District
                               ___________

             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
                                                                 ________

             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
                       _________

             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"
                                                   _______

             rule.    In  her view,  it  should  have  used the  ordinary
                                                                 ________

             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
                                               _______

             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
                                                                   ___

             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
                                  ___________________________________

             hours  per week).    See  29  U.S.C.     207(k);  29  C.F.R.
                                  ___

                553.201(a), 553.230.  Rather,  she says, the court should

             have  subtracted what  the  statute defines  as an  ordinary
                                                                 ________

             employee's normal working hours (40 hours per week).  See 29
             _______________________________                       ___

             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
                                                      _________

             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
                                             __________________
                       have  violated  subsection  (a) of  this
                       _______________________________
                       section with respect  to the  employment
                       of  any  employee  in   fire  protection
                       activities  . .  . if  . .  . in  a work
                                          __
                       period  of  28   consecutive  days   the
                                                            ___
                       employee  receives  for  tours  of  duty
                       __________________
                       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
                                   ________________________
                       regular rate . . . .

             29 U.S.C.   207(k)  (emphasis added); see also 29  C.F.R.   
                                                   ________

             553.201(a), 553.230.   The Secretary argues  that, since the

             Fire  District's employees  did not  receive the time  and a
                                             ___

             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
                        ___

             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
                                             ____

             (in the case of technical "good faith"  violations) and more
                                                                     ____

             than  twice   the  overtime  owed  (in  the  case  of  other

             violations).  There is  no obvious explanation for assessing

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                                          6

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
                                                        ___ ______    ___

             Antonio Metro.  Transit Auth.,  469 U.S. 528,  555-56 (1985)
             _____________________________

             (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.
             ___ ____________________________________________________

             Atlanta,  920  F.2d  800,  802-03,  806  (11th  Cir.  1991);
             _______

             Kohlheim v. Glynn County, 915 F.2d 1473, 1476-77, 1481 (11th
             ________    ____________

             Cir. 1990); Craven v. City of Minot, 730 F. Supp. 1511, 1513
                         ______    _____________

             (D.N.D.  1989); International Ass'n.  of Firefighters, Local
                             ____________________________________________

             349 v.  City of Rome, 682  F. Supp. 522, 526,  531 (N.D. Ga.
             ___     ____________

             1988);  Jacksonville Professional Fire Fighters Ass'n, Local
                     ____________________________________________________

             2961  v.  City  of  Jacksonville,  685  F.  Supp.  513,  527
             ____      ______________________

             (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
                           ____________________________________
                       overtime   compensation    [doubled   to
                       _______________________
                       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 . . .
                                                                 __

             the  employee receives  .  . .  compensation"  to mean  that
             ______________________          ____________

             "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
              _______                    ________________________________

             overtime (for it  says that  the employer  does not  violate
             ________

             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
                            ____     _______________________________

             U.S. 26, 35  (1990); INS v.  Cardozo-Fonseca, 480 U.S.  421,
                                  ___     _______________

             446-48  (1987); Chevron  U.S.A., Inc.  v. Natural  Resources
                             _____________________     __________________

             Defense Council, Inc., 467 U.S. 837, 843 n.9 (1984), we find
             _____________________

             the  statute clear.   And,  we find  the calculation  of the

             district court correct.

                       2. The Injunction.   The Secretary asked the court
                          ______________

             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
                                                                ___ _____

             v. Big  Bear Market  No. 3,  825 F.2d  1381, 1383  (9th Cir.
                _______________________

             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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