             Case: 17-15322    Date Filed: 04/05/2019   Page: 1 of 7



                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 17-15322
                         ________________________

                   D.C. Docket No. 6:14-cv-00053-JRH-GRS

R. ALEXANDER ACOSTA,
Secretary of Labor, Department of Labor,

                                                            Plaintiff-Appellee,

                                    versus

BLAND FARMS PRODUCTION & PACKING, LLC,
DELBERT BLAND,
an individual,

                                                          Defendants-Appellants.

                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                        ________________________

                                (April 5, 2019)

Before WILSON, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:

      Bland Farms Production & Packing, LLC runs a packing shed that processes

and packages Vidalia onions grown both by Bland Farms as well as other farmers
              Case: 17-15322     Date Filed: 04/05/2019    Page: 2 of 7


in the area. Shortly after he began growing onions in the 1980s, Delbert Bland was

questioned by the Department of Labor about whether he was paying his packing

shed employees properly. In response, Bland wrote to the Department, requesting

guidance on when he should be paying overtime wages to his packing shed

employees. The Department replied that a farmer is not responsible under the

agricultural exemption from overtime if the packing shed employees were

processing onions grown by the farmer or onions that the farmer had purchased in

the field as long as he had purchased the entire field of onions.

      Bland Farms processed onions in its packing sheds during the 2012-2016

seasons that were grown on land owned and leased by other growers. These

contract growers contracted before planting to sell the onions to Bland Farms that

they grew. Specifically, the contract growers prepared the seedbeds, planted,

transplanted, fertilized, sprayed herbicides and pesticides, irrigated, and harvested.

Bland Farms’ expert agronomist provided free advice and counsel to the contract

growers throughout the season, visiting their farms and advising on the timing of

planting and harvesting, the choice of seed varieties, and the application of

chemicals. The contract growers paid all of the expenses: the seed, fertilizer,

herbicide, pesticide, and labor costs. Bland Farms provided some labor

occasionally and often helped haul the onions out of the field; Bland Farms would

advance cash to the growers when necessary and occasionally harvested the


                                          2
              Case: 17-15322     Date Filed: 04/05/2019   Page: 3 of 7


onions. Bland Farms charged the growers for any provided assistance and

recouped any cash advances. Typically, Bland Farms only paid for those onions

that were marketable, under the “pack-out rate.” Occasionally, Bland Farms paid a

set rate for the onions, regardless of quality, the “across-the-scales” method. The

risk of loss was on the growers through the growing period; they carried their own

crop insurance; Bland Farms took no responsibility for the onions until purchased.

      The Department of Labor filed this action challenging the overtime-exempt

status of Bland Farms’ packing shed employees during the Vidalia onion packing

season in May 2014. After a bench trial, the district court released an order finding

Bland Farms’ packing shed employees did not qualify as exempt employees

because Bland Farms was not so intimately involved in its contract growers’

operations as to make its employees secondary agriculture employees. The court

awarded overtime wages for the 2012-2016 seasons. The court also awarded

liquidated damages from and after the time the Department filed suit, because it

held that although Bland Farms reasonably relied on the Department of Labor’s

advice from the 1980s about when overtime was due, it could not rely on that

advice after the Department filed suit.

      The Fair Labor Standards Act provides an exception to the overtime pay

requirements for “any employee employed in agriculture.” 29 U.S.C. §

213(b)(12). In another section, the FLSA defines agriculture as:


                                          3
                Case: 17-15322        Date Filed: 04/05/2019      Page: 4 of 7


       farming in all its branches and among other things includes the
       cultivation and tillage of the soil, . . . the production, cultivation,
       growing, and harvesting of any agricultural or horticultural
       commodities . . . and any practices . . . performed by a farmer or on a
       farm as an incident to or in conjunction with such farming operations,
       including preparation for market . . . .

29 U.S.C. § 203(f). We have stated that “processing on a farm of commodities

produced by other farmers is incidental to, or in conjunction with, the farming

operation of the other farmers and not incidental to, or in conjunction with, farming

operations of the farmers on whose premises the processing is done. Such

processing is therefore not within the definition of agriculture.” Mitchell v.

Huntsville Wholesale Nurseries, Inc., 267 F.2d 286, 290 (5th Cir. 1959). 1

       Bland Farms argues that its direction and supervision of the farming

operations of its growers is more extensive than was the direction and supervision

by Huntsville of its growers. However, the actual facts of Huntsville, see id. at 288

n.2, are extremely similar to the facts of the instant case with respect to the

autonomy of the contract growers in their farming operations. Furthermore,

although both Huntsville and Bland Farms provided advice and counsel and

sometimes cash advances to their contract growers, “these things are not farming.”

Id. at 291. Because Huntsville held that the direction and supervision did not



1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.

                                                4
              Case: 17-15322     Date Filed: 04/05/2019    Page: 5 of 7


transform the farming operations of the Huntsville growers so as to constitute

farming operations of Huntsville—i.e., because the farming operations of the

growers in Huntsville remained farming operations of the growers and not farming

operations of Huntsville—and because we are not persuaded that the direction and

supervision of Bland Farms over its growers is materially distinguishable from that

exercised by Huntsville, we conclude, as did the court in Huntsville, that the

farming operations of Bland Farms’ growers should not be considered to be

farming operations of Bland Farms. See also Sweetlake Land & Oil Co. v. NLRB,

334 F.2d 220, 221, 223 (5th Cir. 1964). Thus, Bland Farms’ packing shed

employees were not employed in agriculture when they packed the growers’

onions. Those employees were therefore entitled to overtime pay, and we affirm

the district court’s award of back wages.

      “Any employer who violates [29 U.S.C. § 207] shall be liable to the

employee . . . in the amount of . . . [her] unpaid overtime compensation . . . and in

an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). A court

may award no liquidated damages “if the employer shows to the satisfaction of the

court that the act or omission giving rise to such action was in good faith and that

he had reasonable grounds for believing that his act or omission was not a violation

of the [FLSA].” 29 U.S.C. § 260. Whether an employer acted in good faith and

had reasonable grounds for believing its act or omission was not a violation of the


                                            5
              Case: 17-15322     Date Filed: 04/05/2019    Page: 6 of 7


FLSA has both a subjective and objective component. Dybach v. Fla. Dep’t of

Corr., 942 F.2d 1562, 1566 (11th Cir. 1991). Subjective good faith means the

employer had an honest intention to ascertain what the FLSA requires and to act in

accordance with it. Id. Objective good faith means the employer had reasonable

grounds for believing its conduct comported with the FLSA. Id.

      In the district court, Bland Farms argued that it acted in good faith and with

reasonable belief that it was complying with the FLSA for two reasons: first, its

reliance on the Department’s letter, and second, its reasonable belief, wholly aside

from that letter, that it was in compliance with the FLSA because of its extensive

control over the farming operations of its growers. The district court found that

Bland Farms initially acted in good faith and with reasonable belief that it

complied with the FLSA when it relied upon the Department’s letter. However,

the court found that it ceased to have good faith after the Department filed suit.

Thus, the court awarded liquidated damages for the period after the filing.

However, in doing so, the court ignored Bland Farms’ second argument: its

reasonable belief, aside from the Department’s letter, that it was in compliance

with the FLSA; that is, its reasonable belief that “Bland Farms was actually the

farmer of the onions its employees processed.” Because the district court failed to

address this second ground in its calculation of liquidated damages, we vacate and

remand the portion of its order regarding liquidated damages so that it may address


                                          6
              Case: 17-15322     Date Filed: 04/05/2019   Page: 7 of 7


this argument. In so doing, we recognize that the district court has broad discretion

under the Act to determine liquidated damages.

      AFFIRMED in part, VACATED in part and REMANDED.




                                          7
