
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),                     ___                                         -3-                                          3             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                                         -4-                                          4             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                                         -5-                                          5                       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                                         -6-                                          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.             _________ __                                         -7-                                          7                       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"] . . . .                                         -8-                                          8             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                                         -9-                                          9             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                                         -10-                                          10             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.                       _________                                         -11-                                          11
