Cheung v. United States

CourtCourt of Federal Claims
Docket Number18-48C
Decision Date27 August 2021



No. 18-48C

United States Court of Federal Claims

August 27, 2021

Reissued: December 6, 2021 [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, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C.



Plaintiffs Jim W. Cheung, Christopher D. Kos, Craig P. Miller, Jacob O. Onewokae, and Sean E. Wright, "on their own behalf and on behalf of others similarly situated, "


employees of the United States Department of Homeland Security, Immigration and Customs Enforcement (ICE), filed a complaint in the United States Court of Federal Claims alleging violations of the Fair Labor Standards Act of 1938 (FLSA), as amended, 29 U.S.C. §§ 201-219 (2018) against the United States. The named plaintiffs each work as a Deportation Officer (DO) in ICE's Enforcement and Removal Operations (ERO), St. Paul Field Office, in Ft. Snelling, Minnesota. Plaintiffs had been placed by ICE in on-call status while monitoring the after-hours duty phone and were paid Administratively Uncontrollable Overtime (AUO) compensation for that work. See 5 U.S.C. § 5545(c)(2) (2018); 5 C.F.R. § 551.431(b) (2021). Plaintiffs' complaint alleges two counts: (I) failure to pay FLSA overtime under section 7(k) of the FLSA, 29 U.S.C. § 207(k), and (II) failure to comply with the provisions of Title 5 regarding scheduled overtime. In Count I, plaintiffs also allege that, although plaintiffs are compensated for time spent actively working while monitoring the duty phone, "Defendant is required, under the FLSA, to pay plaintiffs, and those similarly situated, for all time spent in a standby status. 5 C.F.R., § 551.431(a); 29 C.F.R. § 553.221(d)." Plaintiffs contend that

[d]efendant has violated, and continues to violate the FLSA by failing and refusing to compensate plaintiffs and other similarly situated employees for hours of work when plaintiffs, and those similarly situated, spend monitoring but not actively responding to, the night phone, as they are so restricted that their time cannot be effectively used for their own purposes

Plaintiffs allege in Count I: "All of the time that plaintiffs spend monitoring the night phone during the scheduled night phone shifts constitutes compensable hours of work." Plaintiffs also allege in Count I: "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."

In Count II, plaintiffs allege: "Defendant schedules plaintiff deportation officers, and those similarly situated, for shifts spent monitoring and responding to the night phone months in advance of the actual shifts." Plaintiffs also allege in Count II: "The Office of Personnel Management regulations require that work that should have or could have been scheduled in advance to be treated for pay purposes as if it was scheduled in advance of the administrative workweek. 5 C.F.R. § 610.121(b)." Plaintiffs further allege in Count II that "[d]efendant has violated, and continues to violate Title 5 of the U.S. Code by compensating plaintiffs for the time that they spend responding to calls on the night phone as administratively uncontrollable overtime and not regular overtime work."

For both counts, plaintiffs contend that "[p]ursuant 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." In addition, they claim that "[p]laintiffs are entitled to recover attorneys' fees and costs under the Back Pay Act, 5 U.S.C. § 5596 as well as other applicable laws and regulations" for these claims.

After the defendant filed an answer to the complaint, the parties filed cross-motions for partial summary judgment on the issue of liability. The court's Order denied the cross-motions for partial summary judgment and concluded: "Careful review of the totality of the record currently before the court reveals significant differences regarding important material facts relevant to reaching a decision." Therefore, the court ordered the case to


proceed to trial. Prior to the trial, the parties filed a joint motion for partial bifurcation, which stated, in part, "[t]his proposal would not result in a complete bifurcation of damages. Specifically, the parties agree that the upcoming trial should include a resolution of exactly which days and hours-by date and time-were allegedly not paid correctly." The court granted the parties' joint motion to partially bifurcate the issues for trial, as requested, stating: "Payroll computation shall be deferred until after the upcoming trial, however, the parties shall present evidence identifying the dates and hours in dispute."

During the trial, each of the five plaintiffs testified, as did two ICE supervisors for the Criminal Alien Program (CAP) team. Subsequently, plaintiffs and defendant filed post-trial briefs and plaintiffs filed a reply. The trial closing argument also revealed a disagreement between the parties regarding the appropriate timeframe relevant to the determination of liability. Therefore, the parties were directed to and filed a supplemental filing to address the issue in which the parties stated that they "were unable to reach a joint conclusion as to the appropriate way to answer the Court's question and to identify the date range for liability in this case." The parties each provided their own suggestion as to the appropriate time frame.

Plaintiffs argue that the relevant timeframe should begin May 1, 2017, as plaintiffs identified in the complaint, and that the parties agreed "for the purposes of liability, to limit the trial to the time-period through the end of 2019," but "excluding the period during which the paid ERO 2.0[2] overtime shifts were in place." Plaintiffs assert that the "trial record demonstrates that the ERO 2.0 shifts when the duty phone was staffed with paid officers 24 hours per day occurred from June 5 to July 15, 2017." Plaintiffs acknowledge that "[t]here is, of course, no liability for the time period that the duty phone was staffed and paid 24 hours per day because all of the time that the plaintiff Deportation Officers were responsible for the duty phone were compensated." (emphasis in original). Plaintiffs conclude, therefore, that "the appropriate time period for the Court to determine liability in the trial is from May 1 to June 4, 2017 and from July 16, 2017 to December 31, 2019."[3]

Defendant states that "the relevant date range to determine liability remains as indicated by the plaintiffs' complaint: May 1, 2017, through the present." Defendant asserts "through the present" as the relevant timeframe in its portion of the December 1, 2020 status report, despite filing a joint status report with plaintiffs on November 19, 2019 indicating: "The parties will present evidence on damages through December 31, 2019 at trial. In the event that the Court finds in favor of plaintiffs on the issue of liability, the parties will attempt to stipulate on any damages occurring after December 31, 2019." In a December 1, 2020 joint status report, defendant states that the court should examine the ERO 2.0 testing period for liability because the time period is at issue in the complaint.


Defendant, however, argues that, "[r]ather, for those dates when the parties agree that plaintiffs had no responsibility for the night phone, a determination of no liability is appropriate, regardless of whether the Court rules in favor of the plaintiffs or the Government as to other dates." The court's finding of the duration of ERO 2.0 is discussed below. The relevant time frame for determining liability is May 1, 2017 through December 31, 2019 because the parties presented evidence only from May 1, 2017 through December 31, 2019. When reviewing the testimony and exhibits in the record, the court also asked the parties to address the "days and hours-by date and time" findings which the parties had asked the court to address. After reviewing the trial record, including the joint stipulations, the testimony, and admitted exhibits, the court prepared a detailed set of spreadsheets based on the information in the record and identified multiple inconsistencies regarding which the parties were asked to comment with citations to the record. After reviewing the parties' input, the court prepared a detail spreadsheet of the court's post-trial findings on the "days and hours-by date and time" for which the plaintiffs were allegedly not paid correctly. The detailed spreadsheets on the court's findings are attached to this Opinion.


The five named plaintiffs are employed, and have been employed at least since May 1, 2017, each as DOs at ICE in the ERO in St. Paul, 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 are

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

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