Bull v. U.S.

• Decision Date: 15 March 2007
• Docket Number: No. 2006-5038.,2006-5038.
• Citation: Bull v. U.S., 479 F.3d 1365 (Fed. Cir. 2007)
• Parties: John W. BULL, et al., Plaintiffs, and David Bailey, Ed Kruzel, John F.M. Leuth, Claudia Monistrol, Jose Rivera, and Todd Stuble, Plaintiffs-Appellees, v. UNITED STATES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

479 F.3d 1365

John W. BULL, et al., Plaintiffs, and David Bailey, Ed Kruzel, John F.M. Leuth, Claudia Monistrol, Jose Rivera, and Todd Stuble, Plaintiffs-Appellees, v.UNITED STATES, Defendant-Appellant.

No. 2006-5038.

United States Court of Appeals, Federal Circuit.

March 15, 2007.

David L. Kern, Kern Law Firm, PC, of El Paso, TX, argued for plaintiffs-appellees.Of counsel on the brief were Richard Tinsman, and Dennis Bujnoch, Tinsman & Sciano Inc., of San Antonio, TX.Also of counsel on the brief was Dawn Finlayson, The Gardner Law Firm, PC, of San Antonio, TX.

Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant.With her on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Kathryn A. Bleecker, Assistant Director.Of counsel was Christian J. Moran.Of counsel on the brief were Robert H. Humphries and Christopher J. Duncan, United States Department of Homeland Security, of El Paso, TX.

Larry J. Adkins, Deputy General Counsel, United States National Treasury Employees Union, of Washington, DC, for amicus curiae.Of counsel on the brief were Gregory O'Duden, General Counsel, Barbara Atkin, Deputy General Counsel, and Irene N. Pantelis, Assistant Counsel.

Before NEWMAN, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit Judge.

CLEVENGER, Senior Circuit Judge.

The United States appeals the October 21, 2005, order and judgment of the United States Court of Federal Claims awarding $287,489.94 in overtime compensation, liquidated damages, and attorneys' fees and costs under the Fair Labor Standards Act, as amended, 29 U.S.C. §§ 201-219("FLSA"), to six Canine Enforcement Officers currently or formerly employed by the Customs and Border Protection Service within the Department of Homeland Security.¹We affirm.

I

A primary responsibility of the Customs and Border Protection Service ("Customs") is to intercept illegal drugs flowing into the United States through this country's many ports of entry ("POE").Customs carries out this responsibility, in part, with the help of detector dogs trained by Canine Enforcement Officers ("CEOs") to find drugs hidden in incoming containers.Training these dogs is not a one-time event, but rather, it is an on-going process that continues throughout the dog's career.One training exercise the dogs repeat regularly is the detection of tightly-rolled terry cloth towels scented with narcotics and hidden in training aid containers of varying complexity.When a dog successfully locates a training towel, his CEO rewards him with some play time using either the recently-found training towel or a clean, unscented towel.Because neither the training aid containers nor the scented towels are available for purchase at the local pet store, the CEOs are tasked with constructing and maintaining the training aid containers, as well as laundering the towels as needed.Both of these tasks are vital to effective dog training.And although they may not be unduly onerous, they are time consuming nevertheless.²Most important, these duties are work that CEOs must perform, under pain of penalty for nonperformance.In spite of that, Customs required the CEOs to do this work on their own time and without compensation.Approximately sixty CEOs eventually became so dissatisfied with this state of affairs that they filed suit against the United States in the United States District Court for the Western District of Texas, seeking overtime pay pursuant to FLSA.The case was subsequently transferred to the Court of Federal Claims on January 26, 2001.

In June of 2004, during the pendency of this suit in the court below, Robert Jacksta, Customs' Executive Director of Border Security and Facilitation at the Office of Field Operations, issued a directive via a memorandum to all POEs changing this historical practice of requiring uncompensated overtime.Jacksta's memorandum read in relevant part:

The first policy treated herein concerns the care and maintenance of "reward" towels used in detector dog training.As outlined in the Detector Dog Training Manual (Section 3, pg. 94) and the Canine HandbookCIS HB 3200-07A dated August 2002, (Chapter 5, paragraph 5.9), the type of reward a legacy Customs detector dog receives for responding to an odor for the detection of which he has been trained is a retrieving towel constructed of a terry cloth material.After each use, the retrieving towel must be properly cleaned, and the officer must use caution to ensure that the retrieving towel is not contaminated with the odor(s) of cleaning detergents, etc.For this reason, it is required that the retrieving towel be washed in plain hot water and rinsed in cold water.Further, paragraph 5.9.2 of the Canine Handbook states that "the port management will ensure that only clean towels are utilized."In order to guarantee that this procedure is properly implemented, each Director, Field Operations shall take the necessary measures to fulfill the requirement to maintain clean retrieving towels used in training of our detector dogs.Necessary measures could include the immediate purchase and setup of a washer and dryer or the use of contract services.If necessary, on a rotating basis, canine officers may be directed to spend all or part of a normal duty shift washing and drying training towels consistent with the Handbook requirements, through whatever means are made available by management.

Secondly, each Port Director is to provide direction to [the Office of Field Operations] canine officers, reminding them that supervisory approval is required before performing any overtime work, either on or off the work site; and that the performance of any work-related tasks, including, but not limited to, the construction of detector dog training aids, will be accomplished only during the officer's normal duty hours.For example, during those times that the detector dog is resting, the canine officer can construct training aids or roll and tape towels.Port Directors and Supervisors will ensure that during all periods of downtime (e.g., while the detector dog is resting or during any spare time at the beginning or end of shifts), all canine officers are engaged in performing official duties.Supervisors will also advise [the Office of Field Operations] canine officers who construct training aids outside their normal duty hours that they will not be compensated for the time spent performing such tasks.

Joint App.at 469-70.

Then, on August 3, 2004, the government moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), arguing that the plaintiffs' claims should be dismissed because "the Customs Officer Pay Reform Act (COPRA or the Act), 19 U.S.C. §§ 261,267 (2000), enacted in 1993, is the exclusive pay system for CEOs, excluding them from coverage under FLSA."Bull v. United States,63 Fed.Cl. 580, 581(2005)(footnote omitted)("Bull I").The court denied the motion.Id., at 590.The court held that COPRA, as correctly interpreted, only covers overtime compensation for officially assigned overtime work.The court concluded that the work at issue in this case, while required, was not officially assigned.The CEOs were required—on pain of discipline or termination—to construct and maintain training aid containers and to launder towels on their own time without compensation simply because Customs did not "officially assign" those tasks.See Digital audio recording: Oral Argument in Case No.2006-5038, at 2:11 (Dec. 4, 2006)("Oral Argument").³The court concluded that non-officially assigned overtime work is properly compensated under the terms of FLSA.Bull I,at 589.

In addition, due to the large number of plaintiffs, the court sought to simplify the upcoming bench trial by directing each side to select three trial plaintiffs to proceed.The parties complied, and a six-day trial commenced on May 3, 2005.Shortly thereafter, the parties submitted post-trial briefs for the court's consideration.On September 27, 2005, the court issued its written opinion explaining its conclusions that Customs had violated FLSA willfully, and that all six plaintiffs are entitled to compensation for 2 hours per week for "laundering and processing training towels," and 1.5 hours per week for "[c]onstructing training aids."Bull v. United States,68 Fed.Cl. 212, 276(2005)("Bull II").No damages were awarded for any overtime work performed after the distribution of the Jacksta memorandum.Id., at 220.

The court then ordered the parties to "jointly calculate and present to the court the amount of compensation to which each representative plaintiff is entitled in accordance with [the hours of overtime found by the court]."Id., at 276.The parties were unable to reach an agreement, however, because certain plaintiffs had originally sought less than the amount of overtime awarded by the court.Thus, according to the government, the court's award should have been interpreted as a maximum that would not create a windfall for such plaintiffs.The court disagreed, explaining that "the reasonable time which the court is charged to determine will be more than the approximated time some plaintiffs have claimed and less than the approximated time others have claimed."Bull v. United States,68 Fed.Cl. 276, slip op. at 5(Oct. 14, 2005)("Bull III").Having lost that dispute, the government subsequently agreed to an appropriate amount of compensation due to each plaintiff.The agreed-upon amount was then doubled pursuant to the court's award of liquidated damages based on its finding that Customs had not acted in good faith by denying overtime pay.A final judgment in the amount of $287,489.94 was entered against the United States on October 21, 2005.This appeal followed.We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

II

"In reviewing decisions of the...