Cheung v. United States

In the United States Court of Federal Claims

No. 18-48C

Filed: August 27, 2021

Reissued: December 6, 20211

* * * * * * * * * * * * * * * * ** *

JIM W. CHEUNG, *

*

CHRISTOPHER D. KOS, *

CRAIG P. MILLER, *

*

JACOB O. ONEWOKAE, and *

SEAN E. WRIGHT, *

*

Plaintiffs, *

v. *

*

UNITED STATES, *

*

Defendant. *

* * * * * * * * * * * * * * * * ** *

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.

OPINION

HORN, J.

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,”

1 This Opinion was issued under seal on August 27, 2021. The parties were given the

opportunity to propose possible redactions, but no redactions were proposed. The parties

were also given the opportunity to review the spreadsheets attached to this Opinion. The

time it took to review and verify the spreadsheets accounts for the delay between when

the Opinion was issued under seal and when the Opinion was reissued. The original

Opinion is hereby unsealed and reissued without redaction.

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

2

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.

2Throughout the trial, and in the parties’ post-trial briefings, a period of time is referenced,

which was called ERO 2.0. The parties stipulate during that period “the office tested and

evaluated various initiatives with the goal of improving its operations” in 2017.

3Although the complaint states that the appropriate timeframe should be “since May 1,

2017,” the parties agreed to limit the appropriate timeframe to May 1, 2017 until December

31, 2019 for the purpose of discovery and trial. Defendant appears to walk back on that

agreement by indicating later that the appropriate timeframe continues to the present.

3

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.

FINDINGS OF FACT

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 illegally with the intent to undermine the integrity of the nation’s

immigration laws and border control efforts.

The parties stipulated that “DOs interview witnesses and interrogate suspects, investigate

citizenship status, make arrests, transport suspects, and plan, coordinate, and execute

deportations, among other duties.” The parties stipulated that “[t]he exact nature of a DO’s

day-to-day responsibilities depends on a variety of factors, including the office in which

the DO works and the team to which the DO may be assigned.”

Although none of the named plaintiffs were assigned to the CAP team, the plaintiffs

support the CAP team by monitoring the duty phone after hours. The responsibilities of

the CAP team include answering the “duty phone.” The duty phone is also referred to as

the “night phone” and the “day phone,” depending on the shift covering the duty phone.

During the trial, the parties often referred to the duty phone as the night phone. The court

will refer to the assignment as monitoring the duty phone because, on weekends and

holidays, as discussed below, the overtime duty to monitor the phone was not limited to

a time of day. According to the joint stipulations filed by the parties, the CAP team is

responsible for screening non-citizens who “have been arrested and booked into various

jails and prisons, assess[ing] their immigration status, and tak[ing] appropriate action for

those who are in the country unlawfully.” (brackets added). The parties stipulated that

“ERO St. Paul has operated a ‘night phone’ system for several years,” and the 2009

4

Standard Operating Procedure (SOP) “originally characterized the after-hours duty

coverage as being ‘in support of the Criminal Alien Program.’”4 The 2016 SOP later

characterized the duty phone “to reflect a broader scope,” including more than just CAP

team members to staff the duty phone after-hours, by stating, “an entire sub-office can

elect to assume the after-hours duty rotation for more than a 24-hour period.” The

responsibilities of a DO monitoring the duty phone, according to the “Implementation of

After-Hours On-call Duty Rotation and Responsibilities” letter of intent signed by the Field

Office Director Scott Baniecke on October 17, 2017 were:

• Picking up detainees is a standard expectation, and will be

accomplished as is practicable and in accordance with current

enforcement priorities and policies.

• ERO mission needs and protection of public safety are paramount

and should be the primary consideration in determining the

appropriate law enforcement response. Personal inconvenience to

the DO on-call is generally not an acceptable reason to avoid or

delay making the timely pick-up of a detainee or to take other

appropriate action.

• If a DO determines that a pick-up is not practicable, he/she will notify

the SDDO [Supervisory Detention and Deportation Officer (SDDO)],

annotate log with the reason, and refer case to an at-large SDDO.

• A caged vehicle will be available for these pick-ups.

• DOs will be assigned after-hour duty rotations based on reverse-

seniority.

(emphasis omitted) (brackets added). The 2017 SOP sets out the expectations and

requirements for DO employees. The 2017 SOP includes the following statement:

Personal inconvenience to the DO on-call is generally not an acceptable

reason to avoid or delay making the timely pick-up of a detainee or to take

other appropriate action if a DO determines that a pick-up is not practicable,

he/she will notify the SDDO, annotate log with the reason, and refer case to

an at-large SDDO.

(emphasis in original).

According to the joint stipulations filed and agreed to by the parties, “[e]ffective

October 1, 2017, the Ft. Snelling office implemented new shifts, which kept the office

staffed with DOs on regular shifts through Midnight on non-holiday weekdays, rather than

4 P.M.” when the office had previously closed. The following is the overtime duty phone

schedule outlined to begin on October 1, 2017 in the ERO in St. Paul:

Tuesday: 12:00 A.M. to 7:00 A.M.

Wednesday: 12:00 A.M. to 7:00 A.M.

4 The SOP was revised multiple times during the time period at issue in the above-

captioned case. The court refers to both the 2016 and 2017 SOPs in the findings of fact.

5

Thursday: 12:00 A.M. to 7:00 A.M.

Friday: 12:00 A.M. to 7:00 A.M.

Saturday: 12:00 A.M. to 7:00 A.M.

Saturday 7:00 A.M. to Sunday 7:00 A.M.

Sunday 7:00 A.M. to Monday 7:00 A.M.

Two officers are assigned to monitor the duty phone for each after-hour shift. According

to Supervisor Dustin Halverson, the duty phone shifts are assigned “at least three months

in advance.” Mr. Cheung testified that the duty phone schedule used to be sent “a year

out,” but that now “they schedule it out for two or three months.” Mr. Onewokae testified

that “[s]omeone on management usually assigns or schedules us two months out” to

monitor the duty phone. Mr. Miller testified that shifts to monitor the duty phone are

scheduled “months” in advance. Mr. Kos testified that the duty phone schedule is set

“three months in advance,” but that “it used to almost be out six months to a year.” Mr.

Wright testified that the duty phone shifts were scheduled “[p]ossibly” more than one

month in advance.

All five named plaintiffs testified at the trial, as did two supervisors, Supervisors

Dustin Halverson and Jennifer Skwira, to describe the duty phone program and comment

on the program. Each witness offered input on the issues raised in plaintiffs’ complaint.

The descriptions below of each witness and certain relevant input at trial is summarized

and reflected and is applied to the relevant law in the discussion portion of this Opinion.

Supervisor Halverson

Supervisors Halverson and Skwira, who provided supervisory coverage on a

weekly basis for the after-hours coverage of the duty phone, were supervisors on the CAP

team who testified at the trial. Supervisor Halverson described the duty phone as “the

after-hours phone that our local law enforcement partners call typically when they have a

foreign-born individual that they have booked into custody, and they will contact us via

our duty phone for our officers to determine their alienage and removability.” Supervisor

Halverson also testified that there “is a physical phone in our office, and typically that

phone is then forwarded to whichever on-call officer is assigned to that specific day.”

Supervisor Halverson testified that the responsibilities of DOs who are monitoring the duty

phone as

monitoring any incoming calls from our law enforcement partners via the

after-hours duty phone. They’re responsible for responding to those

telephone calls appropriately, and at times that could mean if they received

a call from a law enforcement agency that required -- regarding a release,

they would be required to respond to that call and pick up the individual from

the local jail. They would be -- they’re responsible also for documenting any

calls that they receive via the after-hours duty phone in our call logs. And

that’s all I can think of.

When asked by plaintiffs’ counsel “what kind of information do you expect that officer to

gather” when the officer answers the duty phone, Supervisor Halverson testified that the

6

DO would ask for the individual in custody’s “name, date of birth, if there’s an FBI [Federal

Bureau of Investigation] number or any sort of identifying number, an A [sic] number,

sometimes a law enforcement partner has that as well. They would ask what that

individual is in custody for, what they were arrested for.” (brackets added). After gathering

that information, Supervisor Halverson testified: “If it was somebody that was amenable

to removal or to be put into proceedings, I would expect that they would place a detainer

on that individual with the local law enforcement agency.” Supervisor Halverson described

a detainer as “a request to the law enforcement partner to notify us upon the alien’s

release.”

Supervisor Halverson’s testimony indicated that “in the past, when a law

enforcement agency honored a detainer, they typically would give us up to 48 hours to

pick up that individual,” but that “[n]ow, we don’t get that 48 hours” and “our deportation

officers are typically given a short period of time.” When asked by plaintiffs’ counsel “[s]o

is it an expectation that officers assigned the night phone be responsible for and make

pickups like you’re describing?” Supervisor Halverson responded, “[y]es.” Supervisor

Halverson testified that he expected a DO to have “their government vehicle, their firearm,

their OC spray, a baton, handcuffs, handcuff key, their cell phone, things like that.” When

asked by plaintiffs’ counsel “do you expect them to be in a state of readiness in order to

perform a pickup if necessary?” Supervisor Halverson testified: “Yes. I mean, I don't

expect them to be sitting at home wearing all of their gear, but I expect that if they received

a call about a release, that they would have their gear available and be able to respond

in a reasonable amount of time.” When asked by plaintiffs’ counsel, “if an officer does not

have a take-home government vehicle, what would you expect them to do?” Supervisor

Halverson answered:

We have take-home vehicles -- or excuse me, we have government

vehicles available in our office. When somebody is assigned to the duty

phone, it’s incumbent upon them to inform their supervisor that they don’t

have a government vehicle to take home and they have the duty phone, so

that supervisor can make sure that there is a vehicle available for them that

they can choose to take home with them, or they can leave it at the office

and if there was a release, they could drive in to the office and pick up the

vehicle and drive it to the facility to pick up somebody. But there’s always a

vehicle available to the officer to either take home or in the office.

Supervisor Halverson also answered that officers cannot use a personal vehicle for a

pickup.

Supervisor Skwira

Supervisor Skwira’s testimony indicated that the duty phone is “a tool for our law

enforcement agencies to notify us or call us if they have someone in custody or

someone’s being released, but it’s a tool so they can connect with us.” Regarding the

expectation of a DO to perform a pickup and whether the policy had changed recently to

require pickups, Supervisor Skwira testified: “No, it’s always been an expectation. Even

back when I was a DDO, we did pickups in the middle of the night.” Regarding the

expectations of a DO on duty, plaintiffs’ counsel and Supervisor Skwira had the following

exchange on cross-examination:

7

Q. Okay. For the officers that are scheduled to have the night phone either

from 12:00 a.m. to 7:00 a.m. on a weekday, or the 24-hour period on the

weekend or a holiday, you expect them to be ready to answer the duty

phone?

A. I expect them to answer the phone unless there’s a reason they can’t.

Q. You expect them to be ready to answer the phone?

A. I expect them to answer if they can. If they’re -- if they’re sleeping and

-- I mean, they should -- being ready, I guess I’m getting confused with

ready, because you make it sound like they should be sitting at a table with

their phone. You know, that’s not exactly how it is on the after-hours phone.

They could be sleeping, they could be out and about, but if the phone comes

in, they need to answer it if they can. If they can’t, then it goes to voicemail.

They just need to answer it and take action on that in a reasonable time, but

they only have to do the phone or do a pickup. They don’t have to do

ACRIMe[5] or any other duties that are along with someone who is on shift.

Plaintiffs’ counsel and Supervisor Skwira had the following exchange on cross-

examination regarding the procedure for when a call comes in:

Q. Do you expect them to be able to perform research in order to properly

respond to an incoming call on the duty phone?

A. Yes.

Q. And do you expect that research to be done on a laptop and looking at

these various databases that they have access to?

A. No, it doesn’t have to.

Q. Okay. Can it be through the laptop -- the databases on their laptop?

A. It can, yes.

Q. And would you leave that to the judgment of the officer on duty for the

night phone shift that we’re talking about to perform that research?

A. Yes.

Q. Can an officer ever have a post of duty when they’re working that is not

at the office?

5 When asked the meaning of the acronym ACRIMe, Supervisor Halverson testified, “I’m

sorry. I don’t know what the acronym stands for,” nor did Supervisor Skwira testify to the

definition of the acronym. It appears the acronym ACRIMe may stand for “Alien Criminal

Response Information System,” according to ICE’s website. DHS/ICE/PIA-020 Alien

Criminal Response Information Management System (ACRIMe), U.S. IMMIGRATION AND

CUSTOMS ENFORCEMENT, https://www.dhs.gov/publication/dhsicepia-020-alien-criminal-

response-information-management-system-acrime (last visited Dec. 6, 2021).

8

A. I don’t know.

Q. Well, earlier in your testimony you stated that their post of duty would be

the office.

A. Well, yes. I’m sorry. I thought you said other.

Q. Is there any other location where it could be?

A. I don’t know, no.

At the trial, each of the named plaintiffs testified. The testimony offered by the five

plaintiffs varied, some was somewhat anecdotal, tentative, and inconsistent with other

testimony in certain respects. Each plaintiff addressed their individual concerns about

what they could or thought they could not do while monitoring the duty phone, what they

might have done while not assigned to monitor the duty phone, and how each plaintiff

dealt with their duty phone responsibilities.

Mr. Cheung

At the time of trial, Mr. Cheung testified that he was scheduled to work his regular

shift Monday through Friday from 7:00 a.m. to 3:00 p.m., and any overtime in addition to

that schedule. Since October 2019 and through the time of the trial, Mr. Cheung had been

assigned to the “Nondetained/ATD [alternative to deportation] unit” in which Mr. Cheung

testified that his role was to “monitor GPS and telephonic check-ins for individuals that

have been released from immigration custody.” (brackets added). Prior to his assignment

on the nondetained and alternative to deportation unit, Mr. Cheung was on the “detention

custody team,” in which he was “responsible for bringing any detainees into our office so

they could continue their immigration hearings and interviews with other officers” as well

as transporting individuals to the “field office from their facility” where ICE-detained

individuals are held. Mr. Cheung also occasionally worked at the “bond window” during

his regular shifts, which is the reception window in which ICE “deal[s] with individuals who

come to our office with questions or check-ins.” (brackets added).

When asked by plaintiffs’ counsel how monitoring the duty phone fits in with his

job duties and responsibilities, Mr. Cheung testified at trial that the duty phone is “part of

our duties of locating, identifying and arresting individuals that have violated U.S.

immigration law.” Mr. Cheung testified that the local law enforcement agencies call the

duty phone number “to notify us [ICE DOs] that a foreign-born individual has come into

their custody and from there we are determining if these are individuals that we would like

to arrest and put them in immigration proceedings.” (brackets added).

Mr. Cheung testified that when a call comes in “notifying us that there is a pickup,

I would start my computer to make sure that this individual is a number that I can arrest.

Once I’ve got that, I let the agency know that I am on my way.” Regarding the number of

calls plaintiffs received, Mr. Cheung testified that the “[l]ow end would be two or one. One

or two calls. High end would be maybe four or five, or more.” When law enforcement

called the duty phone, Mr. Cheung testified that the agents provided the DOs with the

names of the arrested individuals, “the date of birth, FBI number, what they are arrested

for, sometimes they give us the alien registration number.” Mr. Cheung testified “I always

9

respond to the calls. I’m assuming if you don’t respond to the calls, you would get -- they’ll

write you up or some type of punishment for not doing your job.”

Mr. Cheung had a “government-issued laptop” because “[i]t’s a necessity to -- for

my duties as when I’m on standby with the night phone. It helps me conduct records

checks determining whether the individual -- who the individual is.” On the laptop, Mr.

Cheung testified that he uses a government-issued laptop to run “the individual’s name

through their FBI number to see if we ever had contact with them. Also I need the

computer to issue detainers that an individual is somebody we would like to arrest.” Mr.

Cheung also testified that he may contact the ICE resource, Law Enforcement Service

Center (LESC), to provide information about individuals who have been captured, and

that the LESC has “some databases I do not have, and I like to double check my work. I

would call them just to verify if they have the same information.” When asked by

defendant’s counsel whether “there are some databases that you [Mr. Cheung] have

access to that LESC does not have access to,” Mr. Cheung answered, “I believe so, yes.”

Mr. Cheung testified that he has to have internet access when monitoring the duty phone

because “[t]he majority of the databases are accessed through the Internet. There is [sic]

a couple of databases that we can access -- well, it’s still through the -- it’s in our network,

we still have to connect through the Internet for that to happen.” When defense counsel

asked Mr. Cheung whether he could “turn on your government cell phone and make it

into a hotspot to get WiFi access remotely for your laptop,” Mr. Cheung testified “I believe

so, yes” and “I may have done it once before when I was on the fugitive team.”

If ICE has a detainer on an individual, Mr. Cheung testified, “these individuals are

being released and that’s when we have to respond immediately to those specific

pickups.” Mr. Cheung testified also that a detainer “is a request to that local law

enforcement agency to hold that individual until we can arrive to their facility and place

that individual under arrest.” The equipment Mr. Cheung has with him when he performs

a pickup is his “service weapon, my duty belt, handcuffs, handcuff key, my credentials,

my secondary service weapon.” Mr. Cheung testified regarding whether he would put his

gear on while monitoring the duty phone, “I wouldn’t have my service weapon on me with

my kids around me.” Mr. Cheung testified that, after he determined a pickup would be

appropriate, he does the following:

Once I get off the phone, I go into my bedroom and change into my law

enforcement attire. And then I would get in my vehicle, drive to the Fort

Snelling Field Office and get into a government caged vehicle and then from

there I would drive to that local law enforcement agency.

Mr. Cheung testified that he lives “[a]pproximately 25, 30 minutes” away from the office.

When asked how far the detention facilities for ICE are from the ERO St. Paul office, Mr.

Cheung testified, “[t]he Freeborn County Jail is approximately two, two and a half hours

away. Sherburne County is approximately an hour, hour and a half away. I believe the

Carver County Jail is approximately 45 minutes, an hour away. And Kandiyohi, that’s quite

a while, maybe two and a half -- three hour -- two and a half mile [sic] drive without traffic.”

Mr. Cheung testified that once he arrives at a detention center, he provides “detention

paperwork” “called an I-203,” which he believes is “for billing purposes.” After dropping

10

off the individual and paperwork, he would “drive back to the office, drop the vehicle off,”

and

go to my desk and prepare information for the next business day to let the

CAP team know that I took somebody in custody, notify them that on

Monday morning they need to set up a transport for that individual to come

into our office so that individual can be processed.

Mr. Cheung testified:

Due to the current political atmosphere, they [local law enforcement] don’t

honor our detainers. What they do now is do a courtesy call letting us know

this individual is in the process of being released from their custody, and if

we are -- wanted to take this individual into custody, we need to arrive at

their facility prior to him being released.

(brackets added). Mr. Cheung testified that law enforcement is not honoring detainers,

but that it has not always been the case as, “in the past, the facilities would hold onto the

individual. If there was a detainer placed by our agency, the facility would hold that

individual until the next business day.” When defendant’s counsel asked Mr. Cheung if

there have been “any significant changes or trends in 2020 recently that are different than

previous years with respect to call volume,” Mr. Cheung responded: “Yes. A lot of the

local law enforcement agencies are not calling us on new bookings during the night

phone. I don’t know about the day phone, but during the night phone. I believe that’s why

the volume of calls has dropped.”

Mr. Cheung offered a number of statements of how assignment of the duty phone

has worked, including:

It restricts me from partaking into [sic] activities I normally do on my day off.

So essentially I feel like I am working when I am working during this time. It

prevents me from taking my kids to -- taking my kids to the zoo, the science

museum, going to the family cabin. It prevents me from partaking in my

personal hobbies that I like to do on my days off. It essentially restricts me

from me partaking in activities I normally do on my day off.

Mr. Cheung testified regarding monitoring the duty phone on weekends, “[f]or both days,

I wouldn’t -- I would not leave my home. That’s my workstation. I would stay at home until

my shift is over.” Regarding accommodations to their personal life a DO must make while

monitoring the duty phone, Mr. Cheung testified:

If my wife is out of town, or has prior engagements on the weekend, or

weekday, I need to find child care during that time. If a call comes in of a

release and that individual has to be picked up, I have to leave my home to

pick them up, so a babysitter has to be at my home at those times.

Regarding a DO’s ability to sleep while monitoring the duty phone, Mr. Cheung testified,

“I wouldn’t be able to sleep, I would be interrupted with phone calls and I would not get a

good night rest.”

11

When defense counsel asked Mr. Cheung, “[a]re you aware of any written directive

or order that says you must remain in any fixed location during your night phone duty,”

Mr. Cheung responded, “I do not believe so.” Mr. Cheung testified to second-hand

information that “[t]here was a time when I was told by our union representative that

management individual -- an individual -- a management officer stated that we’re not

allowed to mow our lawns during the night phone.”

While monitoring the duty phone, Mr. Cheung also testified that he “browses the

Internet,” watches television, sleeps, plays with his children, and does “tidy up the house.”

When the duty phone is forwarded to his partner while monitoring the duty phone, Mr.

Cheung stated, “I would run errands, personal errands, yes. But I would still have the

phone on, I mean, just in case an emergency would arise, or if an officer -- in this case

Officer Holien -- needed assistance.”6 Mr. Cheung also testified he had monitored the

duty phone at a location other than his home: “many years before we had to do pickups,

I have done it I believe at a friend’s house one time. Not for the whole night, but just for a

few hours. But at that time, we weren’t required to do pickups.” Mr. Cheung testified that

he has left his house once for ten to fifteen minutes while monitoring the duty phone:

It was during the beginning of a snow blizzard and I realized I had ran out

of milk for the kids so I quickly ran to the store, which is down the street, to

pick up milk. With that being said, I wasn’t planning to do a pickup that shift,

due to the Minnesota State Patrol stated that due to the road conditions,

travel is not advised, and I believe a few hours later my supervisor also

agreed that we should not be doing transports on that day.

Mr. Onewokae

At the time of trial, Mr. Onewokae was scheduled to work Monday through Friday

from 6:00 a.m. to 2:00 p.m., and any overtime generally would be in addition to that

schedule.7 Since October 2019, Mr. Onewokae had been assigned to the detention team

of ICE ERO in St. Paul. In this role, Mr. Onewokae testified at trial that his responsibilities

were to “work in the detention room a couple of days a week” to fingerprint non-citizens

as well as “do jail visits for people that are in our custody just to make sure we’re abiding

by the national detention standards [and] [r]espond[ing] to detainee requests.” (brackets

added). Prior to October 2019, Mr. Onewokae was assigned to the “IHP[8] CAP team” in

which he would “infer [sic] foreign-borns in jails and also in prison, determine alienage

and removability and serve immigration documents,” and “[t]ake sworn statements.”

6 Officer Holien is not a named plaintiff in the above-captioned case.

7As detailed above, the shifts for monitoring the duty phone were from midnight until 7:00

a.m. during the weekdays. Mr. Onewokae was still responsible for monitoring the duty

phone while on his regular shift, from 6:00 a.m. until 7:00 a.m.

8 Mr. Onewokae did not define the meaning of the acronym “IHP.” It appears that the

acronym IHP may stand for the “Institutional Hearing Program,” according to a Fact Sheet

from the United States Department of Justice, Executive Office for Immigration Review.

U.S. DEP’T OF JUSTICE, FACT SHEET: INSTITUTIONAL HEARING PROGRAM (January 2018).

12

To set up in order to monitor the duty phone, Mr. Onewokae testified that he has

his “work-issued cell-phone and then I have my work-issued laptop and forms, like a call

log and my computer turned on.” Mr. Onewokae testified that he sets up his laptop and

workstation in the basement “[s]o I don’t disturb my wife and children.” Mr. Onewokae

testified he uses the work-issued cell-phone “to receive calls from the jails or from the . . .

jails or the local PD [police department] or the Law Enforcement Service Center. I use my

laptop to issue detainers, to do records checks.” (brackets added). Mr. Onewokae testified

that, when a call comes in,

usually they [local law enforcement] give you a name of someone that they

want you to check on to see if they’re removable or not, what their status is.

You would do your records check, interview the person right away, and then

according to what you find with the records check or the interview, then you

may need to lodge a detainer.

(brackets added). When Mr. Onewokae was asked by plaintiffs’ counsel, “[d]o you know

if you could be subject to discipline for missing a call?” Mr. Onewokae responded, “I

believe so.” Mr. Onewokae described lodging a detainer as sending a detainer to local

law enforcement,

saying, hey, we want this guy after he’s finished with the jail, we call the

supervisor up and get their okay and we issue an immigration warrant of

arrest along with a detainer, and I’d have to email that to the Law

Enforcement Support Center and they would fax it to the jail on my behalf.

Regarding the requirement of pickups, Mr. Onewokae and plaintiffs’ counsel had

the following exchange:

Q. Okay. What is the typical -- what is your typical experience with law

enforcement agencies regarding holding detainees for ICE?

A. It varies per county jail. Some counties may give you 20 minutes to a half

hour, some may give you an hour, some may gave [sic] you two hours.

Q. Okay. Has that changed over time?

A. Yes.

Q. And how has that changed?

A. Well, previously, the county jails would hold for us for like 72 hours I

believe.

Q. Okay.

A. Usually a lot of times it’s just as long as it takes for them to book that

person out of their custody.

Q. So since it sounds like they now hold them a much shorter time, how has

that changed night phone duty?

A. So we’re expected to do pickups.

13

Q. Who expects you to do pickups?

A. I think it was the former field office director, so management here.

Q. And what is a pickup?

A. So if someone is getting released on a detainer, or we have a detainer

on someone, and the jail is releasing them, then we would pick that

individual up from the county jail.

Q. Okay. Sorry, go ahead.

A. Essentially arrest them and then put them into our custody.

Mr. Onewokae testified, “[y]ou’ve got to be able to respond just as well, you know, so you

have to have your laptop on hand, and be ready to do a transport if needed.” Mr.

Onewokae testified regarding how to perform a pickup of a non-citizen, “I would say best

practice would be to get a caged vehicle because it’s just you picking up that one person.”

Mr. Onewokae testified that he lived “[f]ourteen, 15 minutes” away from the office to get

a caged vehicle. Mr. Onewokae testified that the locations he had to go to in order to

perform pickups “[c]ould be a couple of hours away, could be in the cities here, you know,

30 minutes away from the office, hour and a half, hour.” Mr. Onewokae testified, while

monitoring the duty phone, that when he picks up an individual from a local jail, “[y]ou

have a couple of options. You can either have one of the jails that we house at meet you

[the local police and non-citizen], generally that’s only one of the jails that we have, they’ll

meet you and transport him to their jail, or you would drive all the way to that jail.” (brackets

added). Even if making a pickup would seem impracticable due to the time restraints, Mr.

Onewokae testified, “I was told by management, AFOD [Assistant Field Office Director]

Tim McGrath, to make an attempt to get the person.” (brackets added).

Mr. Onewokae offered statements at trial, including: “generally -- sleep gets

interrupted.” Mr. Onewokae also testified:

Even if I get called, let’s say at 4:00, you know, I wrap up a short call, wrap

up at 4:30, and then there’s no point in trying to get back to sleep because

I’m going to be waking up a half hour or hour later as it is, so half my night’s

sleep is already gone.

Mr. Onewokae testified, “[y]ou kind of have to schedule around it [monitoring the duty

phone]. So whatever day that falls on the weekends, just plan on not doing anything.”

(brackets added). Mr. Onewokae testified that while monitoring the duty phone, he does

not drink, but that he can watch movies on Netflix, sleep, do household chores, and play

with his kids “[t]o a certain extent.” When Mr. Onewokae testified he can play with his

kids, he later clarified that he casually plays with them from home and “[i]t’s not like I can’t

really, you know, walk and take them to the park, or really even drive and take them to

the park, because in case I can get a phone call that I need to go right away for whatever

I get called for.” Mr. Onewokae testified that on May 28, 2018, he went to his in-laws while

monitoring the duty phone. While Mr. Onewokae was at his in-laws, he brought his laptop

and had connection to the internet “[e]ither through their WiFi or through my mobile phone

hotspot.” Mr. Onewokae also testified that he had “possibly” brought his laptop into a store

14

in a backpack while monitoring the duty phone duty before. Mr. Onewokae testified that

they cannot do the research necessary to do when answering the duty phone without an

internet connection. When defense counsel asked Mr. Onewokae if “the number of calls

coming in declined somewhat compared to previous periods” in the last six months of

2019, Mr. Onewokae testified “I believe so” and agreed that the trend continued into 2020.

Mr. Onewokae, who had gone to his in-laws’ home one time while monitoring the duty

phone had the following exchange with defense counsel:

Q. In your view, was it -- you were complying with ICE’s policies when you

took your -- or when you went to your in-laws’ house while you were on the

duty phone, weren't you?

A. I still performed the work. And I put a detainer down and was able to

make calls from that post.

Q. So nothing you did violated any of ICE’s policies, correct?

A. I was still able to respond, yeah. I don’t believe it violated it.

Mr. Miller

At the time of trial, Mr. Miller was scheduled to work Monday through Friday from

6:00 a.m. to 2:00 p.m., and any overtime would be in addition to that schedule. Mr. Miller

was assigned to the at-large team and had been since before May 1, 2017 and until the

trial.9 Mr. Miller testified that, at the time of trial, he was assigned to the at-large team. Mr.

Miller testified at trial that the “at-large team is responsible for locating subjects that have

been ordered removed by an immigration judge or subjects that have a criminal record

that has been deemed removable by the agency and we have to track those subjects

down and try to arrest them.” Because of his duties on the at-large team, Mr. Miller parks

a government-issued vehicle at his home, and, rather than going to the office to perform

his work at the beginning of his shift like the other plaintiffs, he goes “to a location” or to

“the field a lot tracking down our subjects.” Mr. Miller also testified that “the only time we

would be in the office is if we’re processing or need to catch up on some stuff that we

couldn’t be able to do from the car or the field.” Additionally, Mr. Miller testified that,

regarding whether he could do regular shift work from his home, “[d]uring COVID we’ve

been able to do the telework, but before that, no.”

Mr. Miller testified that he sets up to monitor the duty phone in his

basement in my house so I’m away from my kids, so I don’t disturb them if

the phone does go off. I would set up my government-issued phone, my

laptop, make sure it’s hooked up to the WiFi, test everything out, and make

9 As detailed above, and similar to Mr. Onewokae, the shifts for monitoring the duty phone

were from midnight until 7:00 a.m. during the weekdays. Mr. Miller was still responsible

for monitoring the duty phone while on his regular shift, from 6:00 a.m. until 7:00 a.m.

15

sure all the calls were forwarded to my phone properly, and start waiting for

the phone calls to begin.

Mr. Miller testified

[i]f we don’t have access to our laptop or if the Internet is not working, a lot

of our databases aren’t working, we would eventually have to call the Law

Enforcement Service Center and they are not as reliable and not as well

versed in establishing the duties that we need or the background that we

would need to see and use because since it’s not in front of us, we are

relying on a third party to get our records.

Mr. Miller also added that the LESC “have been known to make a lot of mistakes.” Mr.

Miller further added that the LESC “can’t create any of your detainers if one needs to be

lodged or if the subject is determined to be a removeable alien,” but that the LESC can

fax documents, if necessity requires, to a specific location for a DO if a DO monitoring the

duty phone does not have a fax machine. Mr. Miller testified that he tries to collect the

“Social Security number” and “their state booking number” of the potential non-citizens

because “the more information that’s provided, the easier it is for us to do our records

checks on our computers and relay the proper information back to them.” Mr. Miller

testified that he would run queries in the databases

that we have available to us to see if the subject is believed to be a foreign-

born or has since been nationalized or has become a lawful permanent

resident. And then I’ll put that in my notes and then I will relay that back to

the corresponding agency that called earlier and let them know what our

decision would be with that subject.

Mr. Miller testified that a detainer is

an I-247 [a Department of Homeland Security Form] notice that we send to

a jail that has a foreign-born alien and it would have the subject’s name, FBI

number, if you found one, date of birth, and it would have a warrant of

arrest[10] and then another sheet that would have in a few various languages

saying you’ve been served a detainer.

(brackets added). Mr. Miller testified, “[a] pickup is when you would actually have to go to

the jail in your government-issued vehicle with all your duty gear, badge, credentials,

weapon and stuff.” Mr. Miller also added he brings, “of course, my driver’s license.”

Pickups cannot be performed in personal vehicles, because, according to Mr. Miller, “[i]t’s

against the rules and you can get in a lot of trouble, fired, and a whole lot of other things.

Insurance reasons, safety reasons.” Mr. Miller testified that he performs duty phone

interviews, which occur when he “would leave my house, go to the jail for a pickup, wait

for them to release the subject, make sure it’s the same subject that I’m picking up that I

10 Mr. Miller testified regarding the warrant of arrest to which he was referring, “[t]hey

[local law enforcement] don’t classify it as a real warrant that’s not been signed off by a

real judge, and depending on the county, some of them are accepted and some of them

are turned away.”

16

have on my paperwork, and then it looks like I had to direct book him into” a detention

facility. Mr. Miller testified that “[i]t seems like we get less and less time once they call and

want to release them. We used to get a decent amount of time, and now it’s like as soon

as they hang up they want you there, which is sometimes impossible.” Mr. Miller, however,

testified, “[a]t the early part of the few years, it was pretty busy, and then since then, due

to the political stuff and the COVID, it’s slowed down a little bit, but we still have our fair

share when we are covering the phone of phone calls coming through.”

Mr. Miller also testified, “even though I might not be taking a phone call, I still might

have to be called into action to take phone calls or to do pickups, so I’m still relegated to

my basement.” Mr. Miller testified, “[i]t’s horrible because you keep anticipating that a

phone call is going to happen, whether it comes in or not, because you want to be alert

and ready for the phone call, and at the same time you try to get sleep and it’s a constant

battle. You always wake up fatigued and tired the next day.” Mr. Miller testified that

monitoring the duty phone “feels like I’m glued to my phone and being -- if I’m doing my

night phone duties like at home, I would be doing them in the basement and I would feel

like I was confined there and wouldn’t be able to leave.” Mr. Miller testified that he would

stay “in the basement, waiting for the phone to ring. Just because of the circumstances

of phone calls, I wouldn’t want anyone to hear our conversation since it is a sensitive

nature, I wouldn’t want anyone in the public to hear, or hear my conversation just if -- it’s

just not worth it. So I just stay home and don’t do much of anything.” Mr. Miller also

testified, “I can’t just be off shopping or with my friends or with my family. I just stay home

and wait for the calls.”

Mr. Miller testified that, if his family were to get takeout food, he “would ask my wife

to see if she could go grab some food, but I would not be the one going to get the food

because I would be staying at my house making sure I’m responding to those phone

calls.” Mr. Miller testified that “going for takeout is a big no-no” in a government vehicle.

Mr. Miller also testified that,

if my kid tripped and cracked her head open, me being a father and if I got

a phone call, I’m going to probably weigh the totality of that circumstance

with if my kid is hurting and then take the necessary time to take care of that

situation and then call the agency back or someone else to handle it.

Mr. Miller testified that if the weather was extreme, because “we do get a lot of snow” in

Minnesota, or if a family emergency “were to arise,” then he would communicate the issue

to his “first-line supervisor or whoever was the supervisor covering the night phone or

duty phone at the time.” Mr. Miller testified that “[i]t was my understanding that you had

still had to make a successful effort to make and return all phone calls, and if not, it was

my understanding that you would probably receive disciplinary action.” Mr. Miller testified,

“I know they [a DO who missed a phone call] were written up and I know the union was

involved, and that’s about as much as I know, but they were asked to speak with their

supervisor with a union rep.” When Mr. Miller was asked by defense counsel, “[a]re you

aware of any official order or anything you would consider an official order that expressly

says you can’t leave your home while you have the night phone?” Mr. Miller answered,

“[i]t’s implied on how they worded it in the email or how they direct it to everybody during

the staff meetings.”

17

Mr. Kos

At the time of trial, Mr. Kos was scheduled to work Monday through Friday from

7:30 a.m. to 3:30 p.m., and any overtime would be in addition to that schedule. Mr. Kos,

similar to Mr. Cheung, was assigned to the nondetained unit. At trial, he described his

duties by stating:

I’m essentially like a probation officer. I have several thousand people on

my docket, which I monitor their cases. They will check in periodically at the

building. I will run criminal histories. I will see if they’ve re-offended and

possibly be taking people back into custody. I’ll also attempt to obtain travel

documents for those who are already a final order, and if I’m able to obtain

the travel documents, then we would have SLRFF[11] in order to arrest them.

Mr. Kos had been assigned to the nondetained team for three years. Prior to being

assigned to the nondetained team, he was on the detention team, similar to Mr.

Onewokae’s team, in which Mr. Kos stated that his duties were “coordinating with all our

facilities that board our detainees, so you’ll coordinate through computer, through

telephone, bring in people for court. You also deal with all the new arrests coming in. You

keep order and security down in the detention room.”

Mr. Kos also offered his view of the impact of phone duty including that he sets up

for his shift to monitor the duty phone in either his kitchen or in his basement, and that he

has his “phone set up. I’ll bring my binder, which has all my interview sheets, any -- if it

helps with translations, and I have some sheets in there that help with that. It has many

documents in it.” Mr. Kos also testified that “I bring my computer, my keyboard, and my

mouse, and I hook that all up, along with the telephone, and, you know, that’s essentially

it.” Mr. Kos testified, “I put the phone right by my head, on the table, where I sleep on the

couch downstairs when I have the phone.”

Mr. Kos testified that when answering the duty phone, he gathers “country of origin,

any identifiers,” and their name in order “to be able to 100 percent say this person is who

we say it is.” Mr. Kos testified that the checks he runs are through at least six databases

after a call comes into the duty phone. Mr. Kos testified that the LESC could assist his

research, but that “[i]t’s hit or miss with the LESC. Sometimes you can get a guy who is

amazing at running stuff, and then other times you don’t even know if the information they

gave you is valid. So it runs the gamut.” Mr. Kos testified that the call volume “used to be

a lot more. Lately, one to two.” Mr. Kos also testified, “[s]o with COVID, you know, the

likelihood of calls has greatly decreased, but you’re still getting calls, yes. On the

weekend, I don’t know, four to five.”

Mr. Kos testified regarding monitoring the duty phone:

So the duty phone has evolved over time. At one point years ago, you would

just get inundated with telephone calls from jails throughout a five-state

area, and you’d have to interview several people and do your duties as

11 Mr. Kos did not provide a definition of the acronym “SLRFF” in his testimony.

18

necessary. If you were going to send a detainer, you would do that work. It

has now evolved into where you do pickups and answer the phone.

Mr. Kos and plaintiffs’ counsel had the following exchange at trial:

Q. Okay. Prior to this time, do you recall whether or not pickups were part

of the expectations for the officer working night phone duty?

A. No, they weren’t.

Q. Do you know -- do you have any understanding why this change was

made?

A. I’m grasping way back there. Yeah, things have changed. You know,

we’re a political yo-yo, Immigration. We’re a very unpopular division of the

Government, not very well liked, and it’s a constant yo-yo. I believe what

probably precipitated this was our detainers weren’t being honored

anymore by numerous facilities. So before they would hold on to an

individual and Monday morning you could just go over and pick that person

up. Well, that all changed.

Mr. Kos testified that a “pickup is when a jail calls and states that this person’s ready for

release. You’ve got to be ready and go get that individual.” Mr. Kos testified that “when

I’ve been hit with pickups, it’s either right in the Twin Cities, 50 miles from my house, or

way south of the Cities, and that was the Watonwan [County Jail], which was, you know,

four hours plus.” (brackets added). Mr. Kos also testified that he also “still do[es] get calls

from North Dakota, South Dakota, Nebraska, Iowa. It’s rare, but I have had it happen.”

Mr. Kos testified, regarding whether he has turned on lights and sirens for a pickup, that

he has “Never. Never. No. That’s something you learn -- I was deputy sheriff. No I’m --

unless it’s an emergency, there’s no lights, no sirens going on.” Whether there has been

discipline for failure to respond to a call, Mr. Kos testified, “I don’t know for a fact if there’s

ever been actual, like, time on the beach, figuratively speaking, but, yes, I do know people

have been spoken to and tongue-lashed over it, sure.” Mr. Kos testified,

I don’t recall missing many pickups, ever. I’d say one or two. I do remember

calling SDDO Halverson on one occasion and just, “Sorry, I slept through

the phone calls.” And as soon as I got up, I addressed it and, you know, got

right back to him. He basically told me, you know, “Hey, we know you do a

good job.” So, no, there was no discipline to me. I get along good with my

supervisors. There is no discipline on that.

Mr. Kos testified

[t]he best way to explain it [monitoring the duty phone] is if anyone’s

experienced a snow day, you’re not going anywhere. You’re confined to

your house pretty much. Yeah, okay, did you go out and take out the

garbage? Yes, I did. Hey, and I did go check the mailbox. But you’re really

not doing anything.

Mr. Kos testified, “I mean, obviously, it gives you a little more liberty, but, I mean, you’ve

still got to be ready to respond. I can’t run up north.” At trial, Mr. Kos explained, “I’ve

19

received calls before to go to Watonwan, which is probably four hours from my house. It

gives you a little PTSD going. So whether that phone rings or not, I’m not peacefully

sleeping.” Mr. Kos also testified that despite a call being short, it could interrupt his sleep

while monitoring the duty phone: “I take a minimum of 15 minutes per phone call on time,

so I could end up, if it was a quick call, getting a half hour of pay, yet you were up half the

evening.” Mr. Kos testified that he has “anxiety” while monitoring the duty phone:

“Generally I don’t fall asleep. Sometimes -- and then I figure if it’s going to ring, it gets

busy 2 to 3. If I can just stay up until then, and then, you know, if I fall asleep, I fall asleep,

and hopefully the phone wakes you up.”

Mr. Kos testified that he had made a quick trip out to the gas station while

monitoring the duty phone, but that would generally “be on a weekend. I mean at midnight,

I have no reason to have to run out.” Mr. Kos testified that, when not monitoring the duty

phone, that he sees his wife’s family and attends the sporting events of his three children.

Mr. Kos testified that he had once gone camping while monitoring the duty phone:

I had predetermined that my partner would do any and all pickups if I

answered all the telephone calls. So whichever day we did go camping, I

recall getting calls, and what I did is basically set up -- hooked up to the

WiFi, brought my computer and all of that and telephone, and did it from the

cab of our pickup truck.

Mr. Kos also testified that he has monitored the duty phone at a coworker’s house before,

as well “to help him out” because “he was a former supervisor that had not done CAP or

-- CAP phone duties in years,” “I have found over time it is easier to just self-isolate

yourself and do your duties and be done with it,” and “he lives five minutes from the office.”

Mr. Kos also testified that he had gone to his partner’s home to watch Minnesota Vikings

football games while monitoring the duty phone as well.12 When Mr. Kos was asked by

defense counsel, “[a]re you aware of any written order or directive that requires you to

remain in any fixed location during your night phone duty?” Mr. Kos answered, “[n]o. We

tried to narrow management down on that and haven’t really received a good response.”

Mr. Wright

At the time of trial, Mr. Wright was scheduled to work Monday through Friday from

8:00 a.m. to 4:00 p.m., and any overtime would be in addition to that schedule. Mr. Wright

testified that, at the time of trial, he was on the “post-order custody review chain within

the detained docket.” Describing his position, Mr. Wright testified at trial, “individuals who

express a fear of -- a reasonable fear or credible fear of returning to their country, we set

12 Mr. Kos also disclosed during his testimony at trial that

over a hundred times I’ve had this phone, and I’ve done it honorably. I have

had one indiscretion in which it did involve the Vikes [Minnesota Vikings],

and I went to a restaurant/bar, and we viewed the game, we ate, and then I

did partake in some alcohol while having the phone.

(brackets added).

20

them up for an interview with Chicago asylum officers who would then make a

determination as to whether the claim is legitimate.” Mr. Wright also testified that

after they’ve been found whether they have a claim or don’t have a claim

after immigration judge review, and I’ll follow that all the way through up until

the case proceedings, and if they’re ordered removed, then I process the

case to set them up for removal. If they’re granted benefit, then I ensure

that they are released from our custody.

Mr. Wright also offered his observations on the impact of monitoring the duty phone

on his time, including set up. To set up for the duty phone, Mr. Wright testified that he is

“either camped out down here in the basement or I recently cleaned and claimed the

office upstairs, and I’m just -- I’m waiting around on the couch for the phone to ring, hoping

not to wake up the rest of my household -- especially now that we have a dog.” Mr. Wright

testified he needs “WiFi and internet connection” in order to perform research on his

laptop while monitoring the duty phone. Mr. Wright testified that when he answers the

duty phone, “I want to know any information they can give me, what charges they’re

arrested for, anything I can use to help figure out through our systems exactly who this

individual is.” Mr. Wright also testified that “[s]ometimes I’m able to actually interview the

individual and talk to them to determine alienage and whether they have any benefits and

where they were born and get that sort of information.” Additionally, Mr. Wright testified,

“we attempt to determine identity and alienage to see whether that individual has a legal

right to be in the United States, whether they're in possession of any benefits that will

allow them to remain in the United States.”

Mr. Wright testified that he would

run computer checks through our systems to see if this person has ever

been encountered, if they have any benefits, if they have been naturalized.

Sometimes I get phone calls for individuals who come in and they tell the

jail that they were born in Mexico, and the jail doesn’t inquire further, and

then they’re a U.S. Citizen. I can determine that with their name and date of

birth and Social Security number, things of that nature, to discover alienage,

whether the person has a benefit and whether we need to go further in the

investigation as to their status in the United States.

Mr. Wright testified regarding the volume of calls while monitoring the duty phone in the

more recent years, “[t]he call volume has dropped.” Mr. Wright and defense counsel had

the following exchange:

Q. Okay. Is it fair to say that the time spent working AUO while monitoring

the duty phone has decreased over time?

A. Yes.

Q. Okay. That decline seems to be apparent in -- especially in the second

half of 2019, correct?

A. That is correct.

21

Q. Okay. And has that trend continued into 2020?

A. Yes, it has.

Q. So would you agree that the call volume has gone down?

A. Yes.

Q. Okay. Have the number of pickups gone down as well?

A. From my perspective, yes.

Q. So do you remember the last time you did a pickup?

A. No, I don’t, actually.

Q. Okay. Would you say it’s been more than six months?

A. Yes.

Q. More than a year, would you say?

A. Possibly.

When Mr. Wright was asked by defense counsel, whether Mr. Wright was disciplined for

missing a phone call, Mr. Wright testified, “[n]o, because I immediately responded.”

Mr. Wright testified that a pickup is performed when “somebody that we need to

pick up because of their status in the United States, the nature of their criminality, and we

have to go and pick them up from that facility. Hopefully we can arrive there before the

person has been released.” In order to perform a pickup, Mr. Wright testified:

I leave my house. I go to the office and I pick up the van keys for one of our

transport vans, and I then proceed to the -- to where I need to go to pick

that person up and bring them back and take them to where they are going

to be spending the -- in custody.

Mr. Wright testified that “it was ruled that we cannot demand facilities hold people for us.

So it’s just asking them [local law enforcement] to please hold this individual until we can

get someone out to pick them up, take them into our custody, and start the removal

proceedings.” (brackets added). Mr. Wright testified,

[i]t went from calling us for every foreign-born national who came into

custody and assisting us to determine that information and holding them for

us to now barely getting a call, and if you get a call, it’s from either someone

saying that they’re releasing the person in the next 30 minutes or the person

is a U.S. citizen.

When asked by plaintiffs’ counsel, “[w]as there a time period where there -- where pickups

were not a part of night phone duty?” Mr. Wright responded, “[n]ot that I’m aware of.”

22

As for restrictions on his behavior while monitoring the duty phone, Mr. Wright

testified that he has young children who play sports and participate in cheerleading, so

his weekends are normally spent attending tournaments, which he indicated he cannot

attend while monitoring the duty phone. Mr. Wright testified, “I don’t sleep. I am up

because I have sleep issues, so I’m afraid I will miss a phone call.” Mr. Wright testified

that he was able to do some household chores, such as washing the dishes while

monitoring the duty phone. Mr. Wright testified, “[t]he fact that you have a government

computer which has law enforcement sensitive material, law enforcement sensitive

websites, accessing it in public view is a violation of the CI[13] -- of the -- of what we’re

supposed to be doing.” When Mr. Wright was asked by defense counsel, “[h]as a

supervisor ever told you you have to remain at home while monitoring the night phone,”

Mr. Wright answered, “[n]ot that I can recall.”

ERO 2.0

According to the joint stipulations provided by the parties, as well as the trial

testimony offered by Supervisor Halverson, during ERO 2.0, plaintiffs were “paid as

scheduled overtime (not as administratively uncontrollable overtime (AUO))” for the

entirety of the shift while monitoring the duty phone. The plaintiffs in the above-captioned

case request compensation at the rate of one and one-half their normal compensation,

the rate for scheduled overtime, for the entire time spent monitoring the duty phone not

just for the time spent actively working while monitoring the duty phone, similar to how

the plaintiffs were paid during ERO 2.0. Plaintiffs state 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,” which was during ERO 2.0. (emphasis in original). Because,

according to both parties’ and Supervisor Halverson’s testimony, plaintiffs were

compensated for their entire shifts at one and one-half during ERO 2.0, the court

determines that the ERO 2.0 dates are excluded from the analysis because, according to

plaintiffs, the amount plaintiffs were paid was in violation of the FLSA.

The exact timeframe of ERO 2.0, however, is at issue between the parties.

Plaintiffs argue in their section of a joint status report submitted to the court:

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. See JX 10; JX 13 (emails re overtime shifts). The evidence also

shows that, after July 15, 2017, the Government began to, again, schedule

uncompensated night phone duty shifts. See JX 14 (explaining that the 4

p.m. to midnight weekday duty phone shift would go into effect on July 16,

2017); JX 15 (July 14, 2017 email regarding scheduling the remaining open

4 p.m. to midnight duty phone shifts); JX 16 (ERO 2.0 tracking document

showing data from 6/5/17 to 7/15/17).

13 Mr. Wright did not define the acronym “CI.”

23

The basis for plaintiffs’ contentions in the above-quoted paragraph are Joint Exhibits 10,

13, 14, 15, and 16, which were presented, and admitted, at trial. First, plaintiffs note Joint

Exhibit 10, which is an email from Supervisor Skwira sent on May 23, 2017 to all five

plaintiffs detailing an “Overtime Opportunity.” Supervisor Skwira states in the May 23,

2017 email, “[a]s part of the ERO 2.0 process the idea of different shifts are being explored

to cover after-hour calls and pick-ups” and that “[t]he St. Paul Field Office will be testing

alternative shifts from Monday, June 5 through Friday, June 16.” The shifts Supervisor

Skwira outlines are “1500 - 2300 (Monday through Friday, June 5 - 16),” “2300 - 0700

(Saturday, June 10 & Sunday, June 11),” and “0700 - 1500 (Saturday, June 10 & Sunday,

June 11).” The second exhibit plaintiffs rely on as support is Joint Exhibit 13, which is an

email from Supervisor Halverson sent on July 7, 2017, which states “[t]he St. Paul Field

Office will continue to offer overtime for alternative shifts from Saturday, July 8 - Saturday,

July 15.” The third exhibit plaintiffs use as support is Joint Exhibit 14, which is an email

from ICE Assistant Field Office Director Jason Sieving on July 7, 2017 attaching a

“Revised White Paper” for information regarding “Team and duty assignments

following the initial ERO 2.0 testing phase.” (capitalization and emphasis in original).

In the “White Paper,” the “recommended changes” based on “data provided during the

ERO 2.0 test phase” were to “occur on July 16, 2017 and go through the end of the fiscal

year.” This “Revised White Paper” also states, however, that ERO 2.0 “started on April

24, 2017 and ends on July 7, 2017.” Although the “Revised White Paper” indicates that

ERO 2.0 was recommended to begin on April 24, 2017, there is no other evidence in the

record before the court that the overtime plaintiffs were scheduled for during ERO 2.0

occurred prior to June 5, 2017. The fourth exhibit plaintiffs use as support is Joint Exhibit

15, which is a set of emails sent by ICE Assistant Director Sieving on July 13, 2017 and

July 14, 2017 revealing that shifts from “1600 - 0000” needed to be filled. Plaintiffs indicate

that the shifts beginning at “1600” indicate ERO 2.0 is over. The fifth exhibit is Joint Exhibit

16, which is labeled by the parties as an “OT [overtime] Test Document,” (brackets

added), although the term “OT Test Document” does not appear to be within Joint Exhibit

16. Joint Exhibit 16 is a fifty-four page document which appears to list when calls came

into the duty phone from June 5 until July 15, but the year is not stated within the

document.

Plaintiffs also argue in their portion of the December 1, 2020 joint status report:

On August 25, 2017, SDDO Halverson emailed an officer informing the

officer of the duties he expected the officer to perform during his night phone

shift which started on a Sunday morning. JX 18. Similarly, the union

representing the Deportation Officers in the St. Paul Field Office filed a

grievance regarding an officer who had been ordered by SDDO Halverson

to perform a pickup during a weekend night phone shift on August 27, 2017.

JX 23. If the duty phone had been staffed and paid 24 hours per day until

September 2017, as counsel for Defendant seemed to contend during oral

argument, the officer involved in that grievance would not have been

assigned night phone duty without compensation.

(emphasis in original). To support plaintiffs’ contention that ERO 2.0 was not continuing

until August 27, 2017, plaintiffs cite to Joint Exhibits 18 and 23. Joint Exhibit 18 is an email

24

from Supervisor Halverson to DO William Robinson, who is not a named plaintiff in this

case, which indicates Mr. Robinson had “the late shift beginning Sunday morning” on

August 27, 2017. Plaintiffs also utilize Joint Exhibit 23, in which the American Federation

of Government Employees (AFGE) Local 3928 submitted to Assistant Director Sieving a

“Duty Phone Memorandum of Understanding Violation” on behalf of DO Jon Ross, also

not a named plaintiff in the case before the court, who was represented by AFGE ICE

Chief Steward James Grizzell. In the memorandum, Mr. Grizzell asserted that there was

a violation of “the Duty Phone agreement” also occurring on August 27, 2017. The March

14, 2016 agreement to which Mr. Grizzell refers is found in Joint Exhibit 6, in which the

agreement states regarding “AFTER HOURS RESPONSE:”

Outside normal business hours, the DO will answer the after-hours phone

whenever practicable. Officers will take appropriate action on calls based

upon current enforcement priorities and policies including, but not limited to,

a return call to the law enforcement agency (LEA) to inform the LEA if any

action will be taken. This return call shall be within a reasonable amount of

time as determined by the DO and the situation.

(emphasis and capitalization in original). In Joint Exhibit 23, the following was alleged to

be in violation of the March 14, 2016 agreement in Joint Exhibit 6:

1) On Sunday, August 27, 2017, DO Jon Ross had been assigned the duty

phone to answer calls from local law enforcement agencies. He had the

duty phone for a 24 hour period during his day off.

2) At approximately 11:00 am, DO Ross received a call from the Hennepin

County Jail stating that they were going to release a foreign born individual

they had previously arrested.

3) DO Ross was entertaining guests at his home and was too busy to travel

to the jail. He called Supervisory Detention and Deportation Officer (SDDO)

Patrick Kenney, to notify him of the release and to inform him that he was

too busy to complete the jail pick up.

4) SDDO Kenney asked DO Ross if DO William Robinson was available to

complete the jail pick up. DO Ross informed SDDO Kenney that DO

Robinson was busy moving his son to his new college residence and did

not answer the phone.

5) SDDO Kenney told DO Ross to contact SDDO Dustin Halverson and

notify him of the pending release.

6) DO Ross sent a text message to SDDO Halverson to notify him of the

release and that he was too busy to respond.

25

7) SDDO Halverson then ordered DO Ross to leave his guests and

complete the jail pick up.

8) Neither SDDO Kenney nor SDDO Halverson offered to do the jail pick

up.

Mr. Grizzell asserted in Joint Exhibit 23:

The Union was not given the opportunity to bargain this explicit change in

working conditions before it was implemented by management. On March

14, 2016, Management and the Union bargained and made an agreement

regarding the duties and obligations of Deportation Officers assigned to the

Duty Phone. The agreement clearly does not require any DO to complete a

jail pick up during their off duty hours. When SDDO Halverson ordered DO

Ross to complete a jail pick up on his day off, he clearly violated the terms

of the agreement.

Subsequently to this grievance, a new agreement was entered into on October 17, 2017

which specifically stated: “Picking up detainees is a standard expectation, and will be

accomplished as is practicable and in accordance with current enforcement priorities and

policies.”

The court notes that Joint Exhibit 19 also supports the contention by plaintiffs that

ERO 2.0 was over by August 27, 2017 because Joint Exhibit 19 is an email sent on August

27, 2017 to Supervisor Halverson regarding the incident detailed in Joint Exhibit 23.

Plaintiffs argue “there is no evidence supporting” the contention that the ERO 2.0 shifts

continued into September 2017.

Defendant argues, however, in its portion of the same joint status report:

The trial evidence indicates that ERO 2.0 proceeded beyond July 15, 2017,

apparently to September 3, 2017. Appendix B to Def. Post-Trial Br. at 5,

ECF 75-2, Response to ¶ 16 (citing Trial Tr. 768:14-19). However, plaintiffs

make a compelling point, above, that the grievance discussed in JX 23

seems to indicate that the night phone was being used on Sunday, August

27, 2017, suggesting that even if some ERO 2.0 initiatives were continuing,

the scheduled overtime shifts may not have continued until September 3,

2017.

Ultimately, this is an issue for plaintiffs. Plaintiffs are trying to convince the

Court to rule that they were not compensated correctly on certain days, so

they should be identifying exactly which days they think that they were not

compensated correctly.

Defendant does not disagree that ERO 2.0 began June 5, 2017, but defendant disagrees

on the end date of ERO 2.0. The basis for defendant arguing that ERO 2.0 lasted until

September 3, 2017, rather than July 15, 2017, which the plaintiffs allege, is only one

26

source identified in the transcript. When plaintiffs’ counsel was questioning Supervisor

Halverson, plaintiffs’ counsel asked about Joint Exhibit 21. Plaintiffs’ counsel had the

following exchange with Supervisor Halverson:

Q. Generally, do you recognize what this email [Joint Exhibit 21] is?

A. Yes.

Q. Okay. And what is it?

A. It appears to be an email that I sent to my boss that documented -- I’m

sorry, I’m just looking at the date.

Q. Sure.

A. I guess I don’t know the date, that documents the releases and the

pickups that we had from July 17th, 2017, through September 3rd, 2017.

Q. And is that -- sorry. Is that time period what we’ve been referring to as

ERO 2.0 for these overtime shifts?

A. Yeah, I believe it took place during that time, yes.

(brackets added).

The court notes that Joint Exhibit 17 and Joint Exhibit 25 also contain some

additional information regarding the duration of ERO 2.0. In Joint Exhibit 17, a July 20,

2017 email from Supervisor Halverson regarding the “Late shift” states in relevant part

“[s]ince the establishment of the two late shifts, there have been some questions about

what the primary duties will be on those shifts.” The date of this email, July 20, 2017,

indicates that the shifts had recently changed, although when that change occurred is not

clear in the email. In Joint Exhibit 25, a letter to Peter Fehlen, then ICE Vice President of

the American Federation of Government Employees Local 3928 from Field Office Director

Scott Baniecke, Director Baniecke specifically referred to ERO 2.0 as the “ERO 2.0 ‘Beta

Test Phase’ (April to July 2017)” in a September 19, 2017 “MOU [Memorandum of

Understanding] for New Shifts in the St. Paul AOR [Area of Responsibility].” Although

defendant argues in favor of a September 3, 2017 end date, the evidence does not

support a conclusion that the ERO 2.0 test period lasted beyond July 15, 2017, especially

based on Supervisor Halverson’s unclear recollection at trial. Although July 16, 2017 is

referenced in the record, it seems that the reference was to the start date of a change,

particularly because of the August 27, 2017 grievance. Based on the strong evidence in

the record before the court, the court concludes that ERO 2.0 lasted from June 5, 2017

until July 15, 2017.

As noted above, the parties also asked the court to determine “exactly which days

and hours—by date and time” were worked by the plaintiffs in this case from May 1, 2017

27

until December 31, 2019 during the first trial phase on liability, although much of this

information is more informative for determining damages if liability is found for each of the

named plaintiffs. The court collected the available evidence from the record and

developed spreadsheets, which revealed numerous discrepancies in the records before

the court after the trial. One spreadsheet was developed by the court for each named

plaintiff with commentary and indications of the discrepancies in order for the parties to

offer their respective comments to the court in supplemental briefs. The court understands

that by allowing such testimony to be gathered during the first phase of the trial on liability,

it might be possible to have the witnesses appear to testify only once, without the need

for second trial appearances by each of the named witnesses. Based on the records and

submissions by the parties before the court, attached to this Opinion are the final

spreadsheets listing the days and hours the court has determined were worked by each

plaintiff, as well as how many hours were worked, and on which shift, by each plaintiff

while monitoring the duty phone.

DISCUSSION

Standby or On-Call

As indicated above, the parties requested to bifurcate the issues of damages and

liability in the case, and the court granted the request. The court, however, also granted

the parties’ additional request during the first phase of the case that the court determined

“exactly which days and hours—by date and time” for each of the five individual plaintiffs.

The liability issues before the court during the first trial phase, therefore, are the type and

amount of pay to which each of the plaintiffs are entitled when monitoring the duty phone

after hours, and whether the plaintiffs’ pay should be paid using a standby or on-call duty

basis, as well as whether plaintiffs are entitled to regularly scheduled overtime

compensation or AUO compensation. Plaintiffs also claim that they are entitled to

liquidated damages as a result of violations of the FLSA. See 29 U.S.C. § 207(k) (2018).

Prior to the trial, the parties submitted a joint statement of issues of fact and law, an exhibit

list, a witness list, and stipulation of facts for trial. In the joint statement of issues of fact

and law, the parties agreed to the numbered issues below regarding standby status:

1. Whether Plaintiffs are in standby status while covering the after-hours

duty phone (“night phone duty”), such that the entire duration of the

assignment constitutes hours of work for purposes of determining overtime

compensation under the Fair Labor Standards Act of 1938 (FLSA), codified

as amended at 29 U.S.C. §§ 201-219, or whether Plaintiffs are in on-call

status, such that only time actively responding to the night phone constitutes

hours of work.

2. Whether, while on night phone duty, Plaintiffs are “restricted by official

order to a designated post of duty and [are] assigned to be in a state of

readiness to perform work with limitations on the employee’s activities so

substantial that the employee cannot use the time effectively for his or her

own purposes.” 5 C.F.R. § 551.431(a)(1) (describing standby status).

28

(alterations in original). Within the joint statement of issues of fact and law, the parties

each provided an individual, not agreed to section within the joint statement of issues of

fact and law. Plaintiffs added the following issue regarding monitoring the duty phone:

“Whether the restrictions on Plaintiffs during their night phone shifts render them unable

to effectively use their time for personal pursuits or whether they are free to use their time

effectively for personal pursuits when not actively fielding phone calls or performing

pickups.” The defendant, in its individual portion of the joint statement of issues of fact

and law, indicated it did not agree that the way plaintiffs wrote the issue quoted

immediately above is as “precise” as the second joint issue the parties wrote together.

Next, in their joint statement of issues of fact and law, both parties agreed to the

definition of on-call status in their submission, including:

3. Whether, while on night phone duty, Plaintiffs are “allowed to leave a

telephone number or to carry an electronic device for the purpose of being

contacted, even though the employee is required to remain within a

reasonable call-back radius.” 5 C.F.R. § 551.431(b)(1) (describing on-call

status).

4. The extent to which Plaintiffs are “allowed to make arrangements such

that any work which may arise during the [night duty phone] period will be

performed by another person.” 5 C.F.R. § 551.431(b)(2) (describing on-call

status).

(brackets in original). Plaintiffs argue that the correct status was on standby, and not on-

call, while monitoring the duty phone and that the standby classification would entitle

plaintiffs to receive regular overtime compensation, rather than AUO compensation.

Defendant, however, argues that plaintiffs’ correct status was on-call status while

monitoring the duty phone and that AUO compensation is appropriate.

Background of the FLSA

Regarding the rate of overtime to be paid to an employee, the FLSA provides that:

Except as otherwise provided in this section, no employer shall employ any

of his [or her] employees who in any workweek is engaged in commerce or

in the production of goods for commerce, or is employed in an enterprise

engaged in commerce or in the production of goods for commerce, for a

workweek longer than forty hours unless such employee receives

compensation for his [or her] employment in excess of the hours above

specified at a rate not less than one and one-half times the regular rate at

which he is employed.

29 U.S.C. § 207(a)(1) (brackets added). The FLSA also provides that “any employee in

law enforcement activities” are subject to higher thresholds than forty hours per week to

qualify for overtime pay. See 29 U.S.C. § 207(k). The “regularly scheduled workweek,” 5

29

C.F.R. § 550.103 (2021), for law enforcement officers, is 42.75 hours per week, instead

of the “40 hours” in another government employee’s workweek. See 29 U.S.C. § 207(k);

5 C.F.R. § 550.111 (2021); 29 C.F.R. § 553.201(a) (2021); 29 C.F.R. § 553.230(c) (2021);

see also Dep’t of Labor, Fire Protection and Law Enforcement Employees of Public

Agencies; Study of Average Number of Hours Worked, 48 Fed. Reg. 40,518 (Sept. 8,

1983).

Congress assigned the authority to regulate the employment of federal employees

to the Civil Service Commission and then to United States Office of Personnel

Management (OPM), instead of to the United States Department of Labor (DOL), which

regulates administration of the FLSA to non-federal employees, to “‘assure consistency

with the meaning, scope, and application established by the rulings, regulations,

interpretations, and opinions of the Secretary of Labor which are applicable in other

sectors of the economy.’” Zumerling v. Devine, 769 F.2d 745, 750 (Fed. Cir. 1985)

(quoting H.R. Rep. No. 93–913, at 28 (1974)) (emphasis in Zumerling v. Devine). The

regulation cited to by both parties in their June 26, 2020 joint statement of issues of fact

and law as being controlling for purposes of determining whether the plaintiffs before this

court are in standby or on-call status while monitoring the duty phone, 5 C.F.R. § 551.431,

is authorized by the statutes at 5 U.S.C. § 5542(c) and 29 U.S.C. § 204(f). See 5 C.F.R.

§ 551.431; see, e.g., Miscellaneous Changes in Compensation Regulations, 64 Fed. Reg.

69165, 69180 (Dec. 10, 1999). The statute at 5 U.S.C. § 5542 is titled “Overtime Rates:

Computation” and defines the applicable hourly workweek and compensation rates.

Plaintiffs in the above-captioned case are subject to section 7(k) of the FLSA14 because

14 Section 7(k) of the FLSA is codified at 29 U.S.C. § 207(k):

(k) Employment by public agency engaged in fire protection or law

enforcement activities

No public agency shall be deemed to have violated subsection (a) with

respect to the employment of any employee in fire protection activities or

any employee in law enforcement activities (including security personnel in

correctional institutions) if--

(1) in a work period of 28 consecutive days the employee receives

for tours of duty which in the aggregate exceed the lesser of (A) 216

hours, or (B) the average number of hours (as determined by the

Secretary pursuant to section 6(c)(3) of the Fair Labor Standards

Amendments of 1974) in tours of duty of employees engaged in such

activities in work periods of 28 consecutive days in calendar year

1975; or

(2) in the case of such an employee to whom a work period of at least

7 but less than 28 days applies, in his work period the employee

receives for tours of duty which in the aggregate exceed a number

of hours which bears the same ratio to the number of consecutive

30

of their role as law enforcement personnel for ICE. Therefore 5 U.S.C. § 5542(c) is

relevant to plaintiffs:

(c) Subsection (a) shall not apply to an employee who is subject to the

overtime pay provisions of section 7 of the Fair labor [sic] Standards Act of

1938. In the case of an employee who would, were it not for the preceding

sentence, be subject to this section, the Office of Personnel Management

shall by regulation prescribe what hours shall be deemed to be hours of

work and what hours of work shall be deemed to be overtime hours for the

purpose of such section 7 so as to ensure that no employee receives less

pay by reason of the preceding sentence.

5 U.S.C. § 5542(c) (2018) (brackets added). The FLSA statute at 29 U.S.C. § 204(f)

states:

The Secretary is authorized to enter into an agreement with the Librarian of

Congress with respect to individuals employed in the Library of Congress

to provide for the carrying out of the Secretary’s functions under this chapter

with respect to such individuals. Notwithstanding any other provision of this

chapter, or any other law, the Director of the Office of Personnel

Management is authorized to administer the provisions of this chapter with

respect to any individual employed by the United States (other than an

individual employed in the Library of Congress, United States Postal

Service, Postal Regulatory Commission, or the Tennessee Valley

Authority). Nothing in this subsection shall be construed to affect the right

of an employee to bring an action for unpaid minimum wages, or unpaid

overtime compensation, and liquidated damages under section 216(b) of

this title.

29 U.S.C. § 204(f) (2018).

The United States Supreme Court has indicated that the analysis regarding

whether an employee is in on-call or on standby duty status are questions of fact. See

Skidmore v. Swift & Co., 323 U.S. 134, 136-37, 139 (1944). Additionally, the Supreme

Court held that “an employer, if he chooses, may hire a man to do nothing or to do nothing

but wait for something to happen.” Armour & Co. v. Wanock, 323 U.S. 126, 133 (1944)

(“Readiness to serve may be hired, quite as much as service itself, and time spent lying

days in his work period as 216 hours (or if lower, the number of hours

referred to in clause (B) of paragraph (1)) bears to 28 days,

compensation at a rate not less than one and one-half times the regular rate

at which he is employed.

29 U.S.C. § 207(k) (emphasis in original).

31

in wait for threats to the safety of the employer’s property may be treated by the parties

as a benefit to the employer.”). According to a decision issued by the United States Claims

Court, and affirmed by the Court of Appeals for the Federal Circuit, when plaintiffs “are

not restricted to the headquarters offices nor to their residences,” and are “free to follow

their individual private pursuits, subject only to the requirements to remain sober, to

remain within the beepers range, and to maintain a log of referred calls,” and are

“compensated at premium rates” when a call does require work, the plaintiffs are on-call

instead of on standby duty. Allen v. United States, 1 Cl. Ct. 649, 651, aff’d, 723 F.2d 69

(Fed. Cir. 1983).15 In Havrilla v. United States, a Judge of the United States Court of

Federal Claims found that plaintiffs were in standby status because, during plaintiffs’

respective lunch breaks, while working for the United States Navy, they were required to

be in eyesight of their duty station to hand out weapons or equipment and be prepared to

assist if anyone came to the station to check out the weapons or equipment. See Havrilla

v. United States, 125 Fed. Cl. 454, 465-66 (2016) (“Because the undisputed facts in this

case establish that Plaintiffs’ entire 8.5–hour shifts are spent in activities that

predominantly benefit the Navy, rather than the Plaintiffs, the Court concludes that the

entirety of the shifts constituted compensable work time.”). In Akpeneye v. United States,

another Court of Federal Claims decision, the Judge of the Court of Federal Claims found

that, although the requirement by the Pentagon for employees to remain on campus and

in uniform during their lunch break benefitted the employer, “the requirements to stay in

uniform and at the workplace do not transform a noncompensable meal period into

compensable time.” Akpeneye v. United States, 138 Fed. Cl. 512, 529 (2018).

Although the parties seemed to agree in their June 26, 2020 joint statement of

issues of fact and law that the FLSA regulation at 5 C.F.R. § 551.431 should apply to the

court’s analysis of standby and on-call status, the defendant changed its argument after

the trial. In its post-trial brief, defendant adds that the Federal Employees Pay Act (FEPA)

statute at 5 U.S.C. § 5545(c) (2018), rather than the FLSA statutes and regulations,

should be controlling for the court’s analysis. Plaintiffs, however, continue to maintain that

5 C.F.R. § 551.431, promulgated under 29 U.S.C. § 204(f) and 5 U.S.C. § 5542(c), is

controlling for purposes of this court’s analysis. The regulation at 5 C.F.R. § 551.431

states:

(a)(1) An employee is on duty, and time spent on standby duty is

hours of work if, for work-related reasons, the employee is restricted by

official order to a designated post of duty and is assigned to be in a state of

15 In an unreported decision, the United States Court of Appeals for the Federal Circuit

affirmed the finding of a Judge of the United States Court of Federal Claims that a plaintiff

was on-call because the plaintiff carried a “pager or cellular telephone” to “respond to a

hospital call to return to perform a procedure,” but was “not required to remain at any

particular location-such as the hospital or her residence” and Ms. Miller “may move about

and engage in any activity consistent with responding to a page or telephone call and

returning to the hospital within one hour, if necessary.” See Miller v. United States, No.

11-766C, 2015 WL 136647, at *1-*2 (Fed. Cl. Jan. 9, 2015), aff’d, 627 F. App’x 932 (Fed.

Cir. 2016).

32

readiness to perform work with limitations on the employee’s activities so

substantial that the employee cannot use the time effectively for his or her

own purposes. A finding that an employee’s activities are substantially

limited may not be based on the fact that an employee is subject to

restrictions necessary to ensure that the employee will be able to perform

his or her duties and responsibilities, such as restrictions on alcohol

consumption or use of certain medications.

(2) An employee is not considered restricted for “work-related

reasons” if, for example, the employee remains at the post of duty

voluntarily, or if the restriction is a natural result of geographic isolation or

the fact that the employee resides on the agency’s premises. For example,

in the case of an employee assigned to work in a remote wildland area or

on a ship, the fact that the employee has limited mobility when relieved from

duty would not be a basis for finding that the employee is restricted for work-

related reasons.

(b) An employee will be considered off duty and time spent in an on-

call status shall not be considered hours of work if:

(1) The employee is allowed to leave a telephone number or to carry

an electronic device for the purpose of being contacted, even though the

employee is required to remain within a reasonable call-back radius; or

(2) The employee is allowed to make arrangements such that any

work which may arise during the on-call period will be performed by another

person.

5 C.F.R. § 551.431. The statute at 5 U.S.C. § 5545(c) states:

(c) The head of an agency, with the approval of the Office of Personnel

Management, may[16] provide that--

(1) an employee in a position requiring him regularly to remain at, or

within the confines of, his [or her] station during longer than ordinary

periods of duty, a substantial part of which consists of remaining in a

standby status rather than performing work, shall receive premium

pay for this duty on an annual basis instead of premium pay provided

by other provisions of this subchapter, except for irregular,

unscheduled overtime duty in excess of his [or her] regularly

16The court notes that the deferential language in the initial clause of 5 U.S.C. § 5545(c),

and specifically the word “may,” is important to the court’s final decision because, as

discussed below, the standby standards under 5 U.S.C. § 5545(c) appear to apply only if

the head of an agency with OPM approval has indicated an employee is eligible for 5

U.S.C. § 5545(c) compensation.

33

scheduled weekly tour. Premium pay under this paragraph is

determined as an appropriate percentage, not in excess of 25

percent, of such part of the rate of basic pay for the position as does

not exceed the minimum rate of basic pay for GS-10 (including any

applicable locality-based comparability payment under section 5304

or similar provision of law and any applicable special rate of pay

under section 5305 or similar provision of law) (or, for a position

described in section 5542(a)(3) of this title, of the basic pay of the

position), by taking into consideration the number of hours of actual

work required in the position, the number of hours required in a

standby status at or within the confines of the station, the extent to

which the duties of the position are made more onerous by night,

Sunday, or holiday work, or by being extended over periods of more

than 40 hours a week, and other relevant factors; or

(2) an employee in a position in which the hours of duty cannot be

controlled administratively, and which requires substantial amounts

of irregular, unscheduled overtime duty with the employee generally

being responsible for recognizing, without supervision,

circumstances which require the employee to remain on duty, shall

receive premium pay for this duty on an annual basis instead of

premium pay provided by other provisions of this subchapter, except

for regularly scheduled overtime, night, and Sunday duty, and for

holiday duty. Premium pay under this paragraph is an appropriate

percentage, not less than 10 percent nor more than 25 percent, of

the rate of basic pay for the position, as determined by taking into

consideration the frequency and duration of irregular, unscheduled

overtime duty required in the position.[17]

5 U.S.C. § 5545(c) (emphases in original) (brackets added).

Defendant argues in its supplemental brief that “the FLSA is inextricably linked to

Title 5 for Federal employees.” Defendant argues that

the calculation of an employee’s regular rate—necessary to determine

FLSA overtime compensation due—depends on the pay the employee is

otherwise due for an hour of work. In the private sector, an employee’s

normal compensation would ordinarily be determined based on an

employment contract, along with any relevant regulations promulgated by

the U.S. Department of Labor. For Federal employees, normal

compensation is ordinarily determined by Title 5, along with any relevant

OPM regulations.

17The issue of whether plaintiffs should be compensated under the administratively

uncontrollable payment structure is also an issue the plaintiffs raised in this case and is

addressed later in this Opinion.

34

Defendant further argues that “the calculation of an employee’s regular rate” of pay for

determining of what any overtime pay should be, “depends on the pay the employee is

otherwise due for an hour of work” because 29 U.S.C. § 207(a) states that overtime

compensation is “one and one-half times the regular rate” of pay. See 29 U.S.C. § 207(a).

Defendant maintains that “[i]t is not possible to calculate an employee’s regular rate based

on the FLSA provisions codified in Title 29 alone,” but that “normal compensation is

ordinarily determined by Title 5, along with any relevant OPM regulations.” (citing Adams

v. United States, 391 F.3d 1212, 1221 (Fed. Cir. 2004), and Abreu v. United States, 948

F.2d 1229, 1233 (Fed. Cir. 1991)). Defendant argues:

As the Federal Circuit has explained, “Congress created a ‘flotsam of

incomplete legislation’ when it extended the FLSA to cover federal

employees already covered by Title 5.” Alamo, 850 F.3d at 1353. Congress

charged OPM with the task of “administer[ing] the FLSA as it related to

federal workers and . . . resolv[ing] any conflicts between Title 5 pay

entitlements and entitlements under the FLSA.” Lanehart v. Horner, 818

F.2d 1574, 1577 (Fed. Cir. 1987); 29 U.S.C. § 204(f). Thus, in FLSA cases,

the Court’s role is often to “ensure that OPM has put together the various

pieces of pay entitlement in a way that eliminates gaps and minimizes

overlaps.” Abreu, 948 F.2d at 1236.

(alterations in original). Defendant argues that the court should turn to the regulation at 5

C.F.R. § 551.401, titled “Basic principles,” regarding hours of work which are detailed in

5 C.F.R. § 551.401, including for what constitutes hours of work. The regulation at 5

C.F.R. § 551.401 states:

(a) All time spent by an employee performing an activity for the benefit of

an agency and under the control or direction of the agency is ‘‘hours of

work.’’ Such time includes:

(1) Time during which an employee is required to be on duty;

(2) Time during which an employee is suffered or permitted to work; and

(3) Waiting time or idle time which is under the control of an agency and

which is for the benefit of an agency.

5 C.F.R. § 551.401(a) (2021). Defendant also argues that “OPM expounds upon 5 C.F.R.

§ 551.401(a)(3), with a section specifically addressing the standards for standby versus

on-call status. 5 C.F.R. § 551.431.” Defendant argues “[t]he standard that OPM has

adopted for when an employee is in a compensable standby duty status under its FLSA

regulations, 5 C.F.R. § 551.431, is materially identical to the standard it has adopted in

its regulations implementing Title 5.” Defendant then compares 5 C.F.R. § 551.431 with

5 C.F.R. §§ 550.112(k)-(l). The regulations at 5 C.F.R. §§ 550.112(k)-(l), which are

promulgated pursuant to 5 U.S.C. § 5545, state:

35

(k) Standby duty. (1) An employee is on duty, and time spent on

standby duty is hours of work if, for work-related reasons, the employee is

restricted by official order to a designated post of duty and is assigned to be

in a state of readiness to perform work with limitations on the employee’s

activities so substantial that the employee cannot use the time effectively

for his or her own purposes. A finding that an employee’s activities are

substantially limited may not be based on the fact that an employee is

subject to restrictions necessary to ensure that the employee will be able to

perform his or her duties and responsibilities, such as restrictions on alcohol

consumption or use of certain medications.

(2) An employee is not considered restricted for ‘‘work-related

reasons’’ if, for example, the employee remains at the post of duty

voluntarily, or if the restriction is a natural result of geographic isolation or

the fact that the employee resides on the agency’s premises. For example,

in the case of an employee assigned to work in a remote wildland area or

on a ship, the fact that the employee has limited mobility when relieved from

duty would not be a basis for finding that the employee is restricted for work-

related reasons.

(l) On-call status. An employee is off duty, and time spent in an on-

call status is not hours of work if—

(1) The employee is allowed to leave a telephone number or carry

an electronic device for the purpose of being contacted, even though the

employee is required to remain within a reasonable call-back radius; or

(2) The employee is allowed to make arrangements for another

person to perform any work that may arise during the on-call period.

5 C.F.R. §§ 550.112(k)-(l) (2021) (emphases in original). Defendant also points to

language in the “Review of Comments on Proposed Regulations” for Miscellaneous

Changes in Compensation Regulations regarding 5 C.F.R. §§ 550, 551 and which refers

to 5 C.F.R. § 551.431(a)(1) and 5 C.F.R. § 550.112(k)(1) as “parallel rule[s],” notably not

incorporating the entirety of the regulations at 5 C.F.R. § 551.431 and 5 C.F.R.

§ 550.112(k)-(l). See Miscellaneous Changes in Compensation Regulations, 64 Fed.

Reg. 69,165, 69,167 (Dec. 10, 1999) (brackets added). According to defendant:

“[r]egardless of whether an employee is exempt or non-exempt under the FLSA, the OPM

regulations apply an identical standard for determining whether an employee is in standby

duty status, and the statutory underpinning for that standard is 5 U.S.C. § 5545(c)(1).

Compare 5 C.F.R. § 551.141-.144 with 5 U.S.C. § 5545(c)(1).”

Defendant argues “when a FLSA non-exempt Federal employee works standby

hours exceeding the applicable FLSA overtime threshold, the straight time (the ‘one’ in

FLSA’s ‘one and one-half’) is supplied by the employee’s pay under Title 5, with the FLSA

36

providing the ‘additional half-time bonus,’ Alamo[ v. United States], 850 F.3d [1349,] 1353

[(Fed. Cir. 2017)].” (brackets added). Defendant argues: “In rejecting the Alamo plaintiffs’

FLSA claims, the Federal Circuit explained that ‘by design in Title 5, Congress and OPM

intended federal employees working standby hours to receive less pay than those who

actively work during their entire regularly scheduled overtime.’ 850 F.3d at 1353.”

(brackets added). Defendant notes:

The Federal Circuit was quite aware that the Alamo plaintiffs brought their

claims under the FLSA. 850 F.3d at 1351 (“Appellants . . . appeal the Court

of Federal Claims’ determination that the government properly

compensates them for their regularly scheduled overtime work under the

Fair Labor Standards Act.”). That did not make Title 5 any less relevant in

discerning the intent of Congress with respect to overtime pay for standby

duty. Id. at 1353 (citing 5 U.S.C. § 5545(c)(1); see also id. at 1353 n.3

(explaining in a footnote: “Although the FLSA does not distinguish between

standby and actively worked time when defining ‘work,’ Title 5 draws such

a distinction.”).

Defendant further argues:

If the Court were to agree with plaintiffs’ position that 5 U.S.C. § 5545(c)(1)

is irrelevant and that they may establish entitlement to standby

compensation under the FLSA without regard to Title 5, the Court would not

only open an unauthorized alternative track to qualifying for standby

compensation, but would also grant plaintiffs far more compensation than

Congress and OPM intended to pay for standby duty. Rather than

“balanc[ing] the regular inconvenience . . . of confinement to a duty station

for longer than ordinary work hours [with] the reality that . . . these hours

[may be spent] sleeping, reading, eating, playing games on a smartphone,

and the like,” as Congress intended, Alamo, 850 F.3d at 1352, the Court

would open the door to a FLSA specific permutation of standby in which a

Federal employee recovers the same compensation for an hour of standby

as he or she would recover for an hour of active work.

(alterations in original). Defendant, however, states that ultimately “this case simply

requires the Court to apply the plain language of 5 C.F.R. § 551.431 to the facts of the

case.” Regarding which authority, 5 U.S.C. § 5545 or 5 C.F.R. § 551.431, should be used

to make a decision in this case, defendant further states in a footnote:

Both 5 U.S.C. § 5545(c)(1) and 5 C.F.R. § 551.431 are controlling in this

case. We do not understand there to be any disagreement as to the

controlling nature of the regulation [5 C.F.R. § 551.431]. Plaintiffs’

contention that 5 U.S.C. § 5545(c)(1) is not controlling because they are

pursuing their claim under the FLSA is without merit because standby status

is not specific to the FLSA. As discussed above, there are not—and cannot

be—separate standards for whether a FLSA exempt Federal employee is

37

in standby status versus a FLSA non-exempt Federal employee. If the

employee is in standby status under 5 U.S.C. § 5545(c)(1), he or she gets

paid accordingly, with FLSA non-exempt employees receiving the additional

half-time payment for FLSA overtime hours. Because the regulation

captures the statutory criteria and is fully consistent with the statute, the

Court could simply apply the plain language of 5 C.F.R. § 551.431, without

needing to resort to the underlying statute. Nonetheless, the statute remains

a controlling authority as to the standby issue presented by Count I of the

complaint.

(brackets added).

In plaintiffs’ March 15, 2021 supplemental brief, plaintiffs argue “[w]hether or not

the time at issue is compensable under the FLSA is completely unrelated to Title 5

premium pay under Section 5545(c)(1) or (2).” (emphasis omitted). Plaintiffs argue

regarding the standby pay and AUO pay in 5 U.S.C. § 5545(c) that

[b]oth of these payments are premium pays that federal agencies can elect

to pay to employees if they determine that certain criteria are met. They are

not mandatory payments, but federal courts have held that once an agency

exercises its discretion to make the payments, it must follow the rules

specific to that payment. Moreover, an agency’s decision to pay one of

these Title 5 premium payments does not obviate the Agency’s obligation

to comply with the overtime requirements of the Fair Labor Standards Act

(FLSA), including the requirement to provide additional FLSA pay for each

overtime hour worked.

(emphasis in original). Plaintiffs note that ICE elected to pay plaintiffs with AUO before

and after ERO 2.0. Plaintiffs argue that although defendant seeks to have the court

analyze this case through the lens of the Title 5 statutory provisions for standby or on-call

status, “[t]he reason that Plaintiffs seek FLSA overtime for the hours is that (1) the

Defendant does not count or compensate the time as hours of work and (2) the time is

compensable under the FLSA.” Plaintiffs argue, “[t]he Government, however, attempts to

bootstrap Title 5 standby pay regulations into the Courts’ [sic] analysis of this FLSA issue,

but those regulations are irrelevant because the Government has not opted to pay

Plaintiffs with Title 5 standby pay.” (emphasis in original).

Plaintiffs argue, with respect to federal employees, “OPM’s regulations expressly

command that FLSA pay is in addition to Title 5 standby pay.” (citing 5 C.F.R. § 551.513

(2021)). The regulation at 5 C.F.R. § 551.513 states:

Overtime pay under this subpart shall be paid in addition to all pay, other

than overtime pay, to which the employee is entitled under title 5, United

States Code, or any other authority. An employee entitled to overtime pay

under this subpart and overtime pay under any authority outside of title 5,

38

United States Code, shall be paid under whichever authority provides the

greater overtime pay entitlement in the workweek.

5 C.F.R. § 551.513. The court notes that the regulation at 5 C.F.R. § 551.513 provides

that an employee may receive both AUO compensation, as well as FLSA one and one-

half overtime compensation. Plaintiffs state:

The Government’s brief willfully conflates Title 5 standby pay and FLSA

overtime. These are not the same thing. FLSA overtime is a mandatory

payment that must be made for all hours worked above the applicable

threshold to FLSA non-exempt employees. Title 5 standby pay is a

discretionary payment that agencies can elect to make to employees if it

determines that certain criteria are met. The mere ability of the Agency to

elect to compensate employees with Title 5 standby pay (something it has

indisputably not done) does not render the FLSA inapplicable to Plaintiffs.

(emphases in original). Plaintiffs state: “Employees covered by the FLSA must be paid

for all hours of work. 29 U.S.C. § 207(a). Federal employees, including Plaintiffs, are

covered by the FLSA. 29 U.S.C. § 203(e)(2)(A).” Plaintiffs argue:

As OPM has explained, payments under 5 U.S.C. § 5545(c) are

discretionary payments. Once an agency makes the decision to certify a

position to receive premium pay under Section 5545(c), then the employee

“shall” receive the premium pay. Doe v. U.S., 463 F.3d 1314, 1325 (2006).

Here, however, the Government has not certified the Plaintiffs’ position to

receive Title 5 standby pay and, accordingly, Title 5 standby pay is not

relevant to Plaintiffs’ claims.

(emphasis in original). Plaintiffs argue that “[t]here is no such discretionary element to

FLSA pay. To the contrary, FLSA payments are mandatory and cannot be waived.” (citing

Barrentine v. Ark.-Best Freight Sys., 450 U.S. 728 (1981)). Plaintiffs contend, “[b]ecause

the time Plaintiffs are responsible for the duty phone are all hours of work under the FLSA,

the Government must compensate the Plaintiffs for them.” Therefore, plaintiffs argue, in

addition to the fact that plaintiffs were never authorized to receive Title 5 standby pay,

that

the Agency could not do so because of the number of hours the employees

are on a duty phone rotation. They are on seven-hour duty phone shifts on

weekdays and 24-hour duty phone shifts on weekends and holidays. See

Joint Statement of Fact 17. The rotation means that the Plaintiffs would not

meet the minimum number of hours every week for the Government to even

consider paying them Title 5 standby pay. See 5 C.F.R. § 550.144(a)(3).

39

The regulation plaintiffs cite, 5 C.F.R. § 550.144(a)(3), states:

(a) An agency may pay the premium pay on an annual basis referred to in

§ 550.141 to an employee who meets the requirements of that section, at

one of the following percentages of that part of the employee’s rate of basic

pay which does not exceed the minimum rate of basic pay for GS–10

(including any applicable locality-based comparability payment under 5

U.S.C. 5304 or special rate of pay under 5 U.S.C. 5305 or similar provision

of law):

...

(3) A position in which the employee has a basic workweek requiring fulltime

performance of actual work, and is required, in addition, to remain on

standby duty: 14 to 18 hours a week on regular workdays, or extending into

a nonworkday in continuation of a period of duty within the basic

workweek—15 percent; 19 to 27 hours a week on regular workdays, or

extending into a nonworkday in continuation of a period of duty within the

basic workweek—20 percent; 28 or more hours a week on regular

workdays, or extending into a nonworkday in continuation of a period of duty

within the basic workweek—25 percent; 7 to 9 hours on one or more of his

[or her] regular weekly nonworkdays—15 percent; 10 to 13 hours on one or

more of his [or her] regular weekly nonworkdays—20 percent; 14 or more

hours on one or more of his [or her] regular weekly nonworkdays—25

percent.

5. C.F.R. § 550.144(a)(3) (2021) (brackets added). Plaintiffs argue:

There is no exception from the FLSA that says that the federal government

is not required to compensate hours of work if the minimum number of

standby pay or AUO hours under Title 5 are not worked. Instead, the FLSA

requires the Government to compensate the FLSA non-exempt Plaintiffs for

all hours of work. See 29 U.S.C. § 207(a).

Regarding the Alamo v. United States decision that defendant used to support its

position, plaintiffs argue:

In Alamo [v. United States], the plaintiffs contended that the Government

improperly calculated their FLSA overtime by counting all regularly

scheduled overtime hours as compensated with Title 5 standby pay as the

straight-time portion of their FLSA overtime pay. Id. [Alamo v. United States,

850 F.3d at 1351-52] The Court rejected the Alamo plaintiffs’ claims and

held that the calculation was proper and that, for employees who receive

Title 5 standby pay, the proper calculation for FLSA overtime for regularly

scheduled overtime hours is that the Title 5 premium counts as the straight

time payment and the employees must receive an additional half-time

payment to comply with the FLSA. Id. See 5 C.F.R. § 551.512(b).

40

(emphasis in original) (brackets added). Plaintiffs argue: “The reason that Alamo is

inapplicable to Plaintiffs’ claims here is very simple: the Government does not pay the

Plaintiffs annual premium pay for standby hours under Title 5 nor does it pay any FLSA

overtime pay for many of the hours that the Plaintiffs’ work.” Plaintiffs cite to a decision

issued by the Federal Labor Relations Authority (FLRA), U.S. Department of Commerce,

National Oceanic and Atmospheric Administration, Office of NOAA Corps Operations,

Atlantic Marine Center, Norfolk, Virginia and International Brotherhood of Electrical

Workers, 55 FLRA 816 (1998), which was an appeal from an arbitration.18 Plaintiffs argue

that the FLRA decision determined that payment for standby duties is different depending

on whether overtime occurred under the FLSA or under Title 5. Plaintiffs argue: “The

same is true here. The Government cannot avoid compensating Plaintiffs for all their

hours of work under the FLSA by refusing to provide a discretionary Title 5 premium pay.

The Government must compensate the Plaintiffs for the duty phone shifts with FLSA

overtime.” Plaintiffs argue “[t]he provisions of 5 C.F.R. § 551.431 implement standby pay

under the FLSA. See 5 C.F.R. § 551.101.” In a footnote, plaintiffs argue:

The FLSA, however, must be administered in the federal sector in a manner

that is consistent with DOL’s implementation of the FLSA in the private

sector. See AFGE v. OPM, 821 F.2d 761, 769-70 (D.C. Cir. 1987) (“In

promulgating regulations, OPM is nevertheless obliged to exercise its

administrative authority in a manner that is consistent with the Secretary of

Labor's implementation of the FLSA. When the civil service and FLSA

systems conflict, OPM must defer to the FLSA so that any employee entitled

to overtime compensation under FLSA receives it under the civil service

rules.”) (emphasis supplied) (citing Fair Labor Standards Amendments of

1974, H.R. Rep. 913, 93d Cong., 2d Sess. 28 (1974), U.S. Code Cong. &

Admin. News 1974, p. 28.).

(emphasis in original). Plaintiffs further argue:

if the Government had made the determination that it was going to pay

Plaintiffs standby pay under 5 U.S.C. § 5545(c)(1), which it did not, and had

actually provided the Plaintiffs that payment, it could then have used the

FLSA payment methodology approved by the Court in Alamo. See 5 C.F.R.

§ 551.512(b). Because the Government provided the Plaintiffs with no pay

for the time, it still must compensate them with time-and-a-half overtime to

comply with the mandates of the FLSA. 5 C.F.R. § 551.512(a).

Plaintiffs state: “OPM regulations make clear that FLSA overtime pay is in addition to Title

5 premium pay. 5 C.F.R. § 551.513. Title 5 overtime and the FLSA are not the same

thing.”

18Although plaintiffs cite to the FLRA decision, the FLRA decision is not precedential for

United States Court of Federal Claims.

41

Defendant argues in its supplemental response:

To the extent plaintiffs are arguing that, although the Government could

have elected to pay them standby pay under the authority of 5 U.S.C.

§ 5545(c)(1), the fact that it has not done so means that, if the Court rules

in plaintiffs’ favor, they should now recover a windfall of greater

compensation than would otherwise have been payable under the formula

approved in Alamo, that issue is a damages question not currently before

the Court at this phase of proceedings. By contrast, if plaintiffs are arguing

that they may qualify as being in standby under the FLSA even though they

do not—or perhaps even because they do not—qualify as a being in

standby for purposes of Title 5, such arguments only serve to highlight the

key point we make: For Federal employees, there are not separate

standards for what qualifies as standby status under Title 5 versus under

the FLSA.

(footnote omitted). Defendant argues that there is “one identical standard” across the Title

5, the OPM regulation, and the DOL regulation for defining standby duty. Compare 5

U.S.C. § 5545(c)(1), with 5 C.F.R. § 551.431(a), and 5 C.F.R. § 550.112(k). Defendant

nonetheless asserts, which is at odds with defendant’s earlier assertion that 5 U.S.C.

§ 5545(c) should be controlling, that “[t]he parties agree that 5 C.F.R. § 551.431 is

controlling,” the FLSA standby regulation.

In Alamo v. United States, a decision cited by both parties, the United States Court

of Appeals for the Federal Circuit stated

because Title 5 and the FLSA “do not mesh with the machined precision of

the gears in a Swiss watch,” we interpret these statutes and regulations in

a way that “ensure[s] that OPM has put together the various pieces of pay

entitlement in a way that eliminates gaps and minimizes overlaps.”

Alamo v. United States, 850 F.3d 1349, 1353 (Fed. Cir. 2017) (alteration in original)

(quoting Abreu v. United States, 948 F.2d at 1236). The Federal Circuit had indicated

earlier in Doe v. United States:

The appellants base their argument on the relationship between the FLSA

and the Federal Employees Pay Act, 5 U.S.C. §§ 5541–5550a (“FEPA”).

Section 5542(a) of FEPA provides that federal agencies must provide

overtime pay to their employees for “hours of work officially ordered or

approved in excess of 40 hours in an administrative workweek, or ... in

excess of 8 hours in a day.” Subsections (a)(1)-(5) of section 5542 specify

the rates at which an agency’s employees are to be paid. Before 1974,

overtime compensation for federal employees was governed exclusively by

FEPA. Aaron v. United States, 56 Fed. Cl. 98, 100 (2003). In that year,

Congress enacted the Fair Labor Standards Amendments of 1974, Pub.L.

No. 93–259, § 6(a), 88 Stat. 55, which extended FLSA coverage to federal

employees. For federal employees who held positions that were not

42

expressly exempted from the FLSA, agencies ensured compliance with

both FEPA and the FLSA by requiring that compensation be computed

under both statutes and paying the non-exempt employees the greater

amount. See, e.g., Alexander v. United States, 32 F.3d 1571, 1575–76

(Fed. Cir. 1994). In 1990, FEPA was amended by the Federal Employees

Pay Comparability Act (“FEPCA”), Pub.L. No. 101–509, § 210, 104 Stat.

1389. Among other changes, FEPCA amended section 5542 by adding

subsection (c). Following an amendment in 1992, that section now provides

as follows:

Subsection (a) [which requires that federal employees be paid

overtime pay for work in excess of eight hours in a day or 40

hours in a week] shall not apply to an employee who is subject

to the overtime pay provisions of section 7 of the Fair Labor

Standards Act of 1938. In the case of an employee who would,

were it not for the preceding sentence, be subject to this

section, the Office of Personnel Management shall by

regulation prescribe what hours shall be deemed to be hours

of work and what hours of work shall be deemed to be

overtime hours for the purpose of such section 7 so as to

ensure that no employee receives less pay by reason of the

preceding sentence.

The effect of section 5542(c) was to “eliminate[ ] the need to calculate and

compare an FLSA nonexempt employee’s overtime pay entitlement under

two laws in order to pay the greater overtime benefit. Instead, employees

who are nonexempt under the FLSA of 1938, as amended, always receive

overtime pay under FLSA as provided in part 551 of title 5, Code of Federal

Regulations.” Aaron, 56 Fed. Cl. at 102 (quoting Pay Administration Under

the Fair Labor Standards Act; Overtime Pay Provisions, 57 Fed. Reg.

59,277 (Dec. 15, 1992)).

Doe v. United States, 513 F.3d 1348, 1356-57 (Fed. Cir. 2008) (hereinafter 2008 Doe)

(alterations in original). Section 5542(c) remains unchanged since the Federal Circuit’s

decision in 2008 Doe. See 5 U.S.C. 5542(c). The Federal Circuit in the 2008 Doe decision

stated, “section 5542(c) provides that non-exempt employees should be paid overtime

compensation under the FLSA rather than under FEPA,” 2008 Doe, 513 F.3d at 1357

(citing 5 U.S.C. § 5542(c)). The Federal Circuit in the 2008 Doe decision indicated,

“section 5542(c) simply states that subsection (a) does not apply to employees who are

covered by the FLSA,” noting the narrow application of this provision of the statute. See

2008 Doe, 513 F.3d at 1357. Furthermore, when a final rule was published regarding

overtime pay administration under the FLSA, OPM stated in the preliminary

“SUPPLEMENTARY INFORMATION” to the regulations addressed in “Pay

Administration Under the Fair Labor Standards Act; Overtime Pay Provisions” while

discussing the Federal Employees Pay Comparability Act’s change to 5 U.S.C. § 5542(c):

Section 210 of the Federal Employees Pay Comparability Act of 1990

(FEPCA) eliminates the need to calculate and compare an FLSA

43

nonexempt employee’s overtime pay entitlement under two laws in order to

pay the greater overtime benefit. Instead, employees who are nonexempt

under the Fair Labor Standards Act of 1938, as amended, always receive

overtime pay under the FLSA, as provided in part 551 of title 5, Code of

Federal Regulations.

Pay Administration Under the Fair Labor Standards Act; Overtime Pay Provisions, 57

Fed. Reg. 59,277 (Dec. 15, 1992) (capitalization in original).

The United States Court of Appeals for the Federal Circuit in an earlier case, but

with the same name, Doe v. United States, 463 F.3d 1314 (Fed. Cir. 2006), cert. denied

549 U.S. 1321 (2007) (hereinafter 2006 Doe), addressed the permissive language of 5

U.S.C. § 5545(c). In the 2006 Doe decision, 9,000 United States Department of Justice

attorneys brought an action seeking pay for overtime work and holiday work, including a

claim for pay under 5 U.S.C. § 5545(c)(2), AUO pay. See id. at 1316, 1322. As noted by

this court above, the language of 5 U.S.C. § 5545(c) applies to both standby pay at

§ 5545(c)(1) and AUO pay at § 5545(c)(2). See 5 U.S.C. § 5545(c) (“The head of an

agency, with the approval of the Office of Personnel Management, may provide that . . .”).

The plaintiffs in the 2006 Doe decision argued that the provision at the beginning of 5

U.S.C. § 5545(c) made the AUO compensation provision a money-mandating statute for

purposes of jurisdiction in the United States Court of Federal Claims. When analyzing

jurisdiction, the Federal Circuit stated:

By using the word “may,” the statute gives the “head of an agency” the

discretion to allow AUO pay for employees in particular positions, although

this discretion is somewhat limited because the agency may only award

AUO pay to employees in positions that meet the requirements listed in

section 5545(c)(2). Further, once the agency makes a determination that a

particular position is entitled to AUO pay, the employee “shall” receive

premium pay under the statute. Thus, the statute is money-mandating

because once a condition is met, namely that the head of an agency states

that a position meets the criteria listed in subsection (c)(2), the statute

requires payment to employees with that position. See Fisher [v. United

States], 402 F.3d at 1175; Samish [Indian Nation v. United States], 419 F.3d

at 1364–65 (citing Perri [v. United States], 340 F.3d at 1342–43).

2006 Doe, 463 F.3d at 1325.

In Alamo, referenced above, another Federal Circuit decision addressing 5 U.S.C.

§ 5545 of the FEPA, Army paramedics and emergency medical technicians who alleged

that their overtime pay was improperly calculated. Plaintiffs in Alamo were paid in

accordance with standby pay detailed in 5 U.S.C. § 5545(c)(1) and argued that they were

entitled to additional overtime payment under the FLSA. See Alamo v. United States, 850

F.3d at 1352. The Federal Circuit, however, rejected plaintiffs’ claim and found plaintiffs

were not entitled to additional overtime pay under the FLSA. The Federal Circuit stated

that

giving the EMTs additional straight time payment would create a significant

“overlap,” as they would receive a full time-and-a-half overtime payment for

44

the same work that their standby pay already covers. The EMTs have not

demonstrated that Congress or OPM intended federal workers to receive

such a windfall, particularly where the very nature of standby work means

that the employees are not actively working all hours for which they receive

pay.

Id. at 1353. The plaintiffs in Alamo, however, unlike the plaintiffs in the above-captioned

case, were already authorized to receive the discretionary standby overtime pay

authorized by 5 U.S.C. § 5545.

In the case currently before this court, ICE had not opted to pay plaintiffs standby

compensation under the discretionary 5 U.S.C. § 5545(c)(1) framework. Because the

plaintiffs were not elected by the agency to be paid under the 5 U.S.C. § 5545(c)(1)

framework, plaintiffs would be covered by the FLSA because they are non-exempt

employees, as stipulated to by the parties: “ICE classifies plaintiffs as non-exempt for

purposes of the overtime requirements of the FLSA.” The Federal Circuit in the 2008 Doe

decision stated, “section 5542(c) provides that non-exempt employees should be paid

overtime compensation under the FLSA rather than under FEPA.” 2008 Doe, 513 F.3d at

1357 (citing 5 U.S.C. § 5542(c)). Because plaintiffs are both non-exempt from the FLSA

and ICE did not choose to pay plaintiffs standby compensation under 5 U.S.C.

§ 5545(c)(1), a requirement to be eligible for 5 U.S.C. § 5545(c)(1), plaintiffs are not

subject to the standby framework under 5 U.S.C. § 5545(c)(1). The FLSA framework for

standby compensation is in the regulation at 5 C.F.R. § 551.431. This court finds 5 C.F.R.

§ 551.431 is the governing framework for determining whether plaintiffs monitoring duty

phone were on standby status or on-call status while monitoring the duty phone after

hours.

In their post-trial brief, the plaintiffs argue that they were on standby status while

monitoring the duty phone, and allege:

The “designated post of duty” can be at the officer’s home if that is where

they are performing work. Plaintiffs may not practically leave either their

home or work location once they establish their workstation for the night

duty phone period. They are effectively restricted to a designated post of

duty while they are monitoring the night phone and accessing databases on

their government laptops unless they are performing a required “pick up.”

(internal citations omitted). Plaintiffs further argue they are restricted by official order to a

designated post of duty:

Defendant requires DOs monitoring the night phone to answer all calls.

Handling these calls requires that DOs perform research using a number of

government databases accessible only from their government laptops.

Accessing these databases requires an internet connection. In addition, ICE

prohibits DOs from using a government vehicle for a non-government

purpose or from transporting a family member or friend in a government

45

vehicle. The combined effect of these requirements is that DOs cannot

leave their homes during night phone duty and still comply with ICE policies

governing performance of such duty.

(internal citations omitted). Plaintiffs also argue that they are

effectively confined to their homes or some other fixed location while

responsible for the night phone and cannot engage in any personal activities

that take them outside their homes nor which would prevent them from

immediately accessing their phones and computers, such as shopping,

visiting restaurants, mowing their lawns, or playing outdoors with their kids

because such activities would take them away from the required access to

a government computer and/or government vehicle.

Plaintiffs, except for Mr. Wright who worked from home due to COVID-19 health-related

reasons, have not had their home officially considered their post of duty. Moreover,

plaintiffs’ counsel stated in plaintiffs’ post-trial reply that the agency “failed to designate

their homes as a ‘designated post of duty.’” Plaintiffs argue in their post-trial brief that

[g]iven the requirement that they be ready to respond to frequent calls and

their need to access government databases, unless they are actively

executing a pickup, plaintiffs may not leave their workstations -whether that

be at home, in the office or some similar location (such as a co-workers

house) -because they must maintain a state of readiness to field and

respond to calls to the night duty phone, perform research and be prepared

to perform pickups.

Plaintiffs argue that “[w]hile responsible for the night phone, plaintiffs must answer all

calls, no matter the time of day.” Plaintiffs also assert, “[d]uring the time periods that they

are assigned to night phone duty, Plaintiffs are required to answer the phone and

immediately respond to issues raised by local law enforcement.” Plaintiffs point out that

[s]ince 2017, most of the law enforcement agencies covered by the St. Paul

Field Office will not hold the non-citizens until the Ft. Snelling office reopens.

Frequently, the local agencies will release the non-citizen within a short time

period of notifying the Agency meaning that pickups are extremely time-

sensitive for the DOs covering the night phone.

(internal citations omitted). Plaintiffs also state, “SDDO Halverson admitted he expects

DOs to be in a state of readiness such that ‘if they received a call about a release, that

they would have their gear available and be able to respond in a reasonable amount of

time.’” Plaintiffs state that, “DOs are subject to counseling or discipline for failing to answer

the night phone when called or failing to perform pickups when a non-citizen is being

46

released by local law enforcement.”19 Plaintiffs quote Armour v. United States, in which

the Supreme Court held: “Refraining from other activity is often a factor of instant

readiness to serve, and idleness plays a part in all employments in a stand-by capacity.

Readiness to serve may be hired [by an employer], quite as much as service itself.”

Armour v. United States, 323 U.S. at 133. Plaintiffs also argue, regarding a case involving

employees of the United States Navy, Havrilla v. United States, and discussed above:

In Havrilla, this Court rejected the defendant’s argument that interruptions

to the plaintiffs’ meal periods were de minimis because “the time Plaintiffs

spend “waiting to be interrupted . . . is itself time spent working.” 125 Fed.

Cl. at 465. Similarly, in this case, an integral part of Plaintiffs’ jobs is to “wait

for something to happen,” whether it be a call from law enforcement agency

or the need to perform a pickup.

Plaintiffs argue in their post-trial brief: “The heavy restrictions placed on plaintiffs’

activities during their night phone duty are so prohibitive that they cannot effectively use

their time for their own purposes.” Plaintiffs argue: “Defendant requires DOs monitoring

the night phone to answer all calls. Handling these calls requires that DOs perform

research using a number of government databases accessible only from their government

laptops. Accessing these databases requires an internet connection.” (internal citations

omitted). According to plaintiffs, “[e]ven when the plaintiffs are not actively answering calls

or performing pickups, they are restricted to waiting by their phones and their laptops for

incoming calls.” Plaintiffs argue:

When handling calls to the night phone, the DOs must be able to access

several computer databases that they use to determine whether a non-

citizen detained by law enforcement is in the country legally and whether

the individual is someone whom ICE wishes to detain and remove from the

United States.

Plaintiffs also assert that “[d]uring night phone duty, DOs receive calls so frequently that

they typically are not able to sleep,” although there was repeated testimony that the

frequency of the calls had decreased in recent times. Plaintiffs argue: “The frequency of

the night phone calls places a greater restriction on plaintiffs’ activities during their night

phone duty than the restriction placed on fire fighters in Renfro[ v. City of Emporia]. 948

F.2d [1529,] 1535 [(10th Cir. 1991)] (3-5 calls on average in 24 hours).” (internal citations

omitted) (brackets added). Plaintiffs compare their circumstances to the Renfro v. City of

Emporia decision in which the United States Court of Appeals for the Tenth Circuit

determined whether the firefighters were severely limited based on the number of calls

19The court notes, however, plaintiffs did not cite any regulation or policy that a DO would

face counseling or discipline for a failure to respond to phone calls or other responsibilities

on night phone duty. The trial testimony offered only statements of some of the plaintiffs

that they believed that ICE employees could be subject to such discipline. In fact, the trial

testimony of Mr. Kos indicated that he had not been disciplined for sleeping through phone

calls.

47

the firefighters received while on duty. See Renfro v. City of Emporia, 948 F.2d at 1531

(“the number of callbacks firefighters received ranged from zero to thirteen per day, but

averaged approximately four to five per day”). Plaintiffs in the above-captioned case

contend that the DOs are emergency-based because a non-citizen could be released if

not attended to as soon as possible. Plaintiffs focus a large portion of their post-trial

briefings on the factors identified by the United States Court of Appeals for the Ninth

Circuit in Berry v. County of Sonoma, 30 F.3d 1174, 1183 (9th Cir. 1994), to determine

whether a plaintiff is in standby or on-call status. Those factors, established by the Ninth

Circuit, however, while they can offer guidance, are not binding on this court, although

another Judge of the United States Court of Federal Claims has previously utilized these

guidelines to reach a determination on standby versus on-call status. See Hickman v.

United States, 43 Fed. Cl. 424, 443 (1999). The factors, as outlined in its decision in Berry

v. County of Sonoma, and quoted in the Hickman v. United States decision are:

(1) whether there was an on-premises living requirement; (2) whether there

were excessive geographical restrictions on employee’s movements; (3)

whether the frequency of calls was unduly restrictive; (4) whether a fixed

time limit for response was unduly restrictive; (5) whether the on-call

employee could easily trade on-call responsibilities; (6) whether use of a

pager could ease restrictions; and (7) whether the employee had actually

engaged in personal activities during call-in time.

Hickman v. United States, 43 Fed. Cl. at 443 (quoting Berry v. Cnty. of Sonoma, 30 F.3d

at 1183).

Plaintiffs contend that, although they were classified by ICE as on-call while

monitoring the duty phone, the proper classification should be on standby status. Plaintiffs

argue in their post-trial briefs that the testimony at trial demonstrated that their “work

responsibilities during night phone duty make engaging in personal activities during these

shifts a practical impossibility. Plaintiffs must vigilantly monitor the night phone and

respond to any call received.” Plaintiffs allege that their “activities during night phone duty

are restricted to those that will not impede them from answering all calls that come in to

the duty phone and those that will not impede their ability to perform pickups immediately.”

In order to monitor the duty phone, plaintiffs argue that they must “sit in their basements

or sleep on their couches instead of in their beds so as not to disturb their families and to

ensure that they are close to their government phone and government computer.”

Plaintiffs assert: “When performing night phone duty, DOs must use a government-issued

cell phone and a government-issued laptop to handle incoming calls to the night phone

and must use a government-issued vehicle to perform pickups.” Additionally, plaintiffs

argue that, “[a]ll of these restrictions make engaging in any personal activity with family

members outside the home during night phone duty impossible. The plaintiffs’ time is not

their own during the night phone shifts.”

48

Plaintiffs state that they

cannot engage in numerous everyday activities that would take them away

from their homes. Their situation during night phone duty is not analogous

to a medical professional who can leave a pager or cell phone number and

simply call in. DOs are working the minute they get a call from local law

enforcement and have immediate work responsibilities during and

immediately after those calls. The Plaintiffs do not receive a call to the night

phone and then have 30 minutes or an hour to respond.

(emphasis in original).

In response, defendant argues in its post-trial brief that plaintiffs “failed to

demonstrate that they are restricted by any official order to a designated post of duty while

covering the night phone, and their claim therefore fails at this first step,” as required

under 5 C.F.R. § 551.431. The regulation at 5 C.F.R. § 551.431(b) states:

(b) An employee will be considered off duty and time spent in an on-call

status shall not be considered hours of work if:

(1) The employee is allowed to leave a telephone number or to carry an

electronic device for the purpose of being contacted, even though the

employee is required to remain within a reasonable call-back radius; or

(2) The employee is allowed to make arrangements such that any work

which may arise during the on-call period will be performed by another

person.

5 C.F.R. § 551.431(b). Defendant notes “plaintiffs argue that they are effectively confined

to their homes while covering the night phone,” but defendant argues that “plaintiffs’

constructive-home-confinement argument cannot succeed,” because “[t]he Federal

Circuit has already rejected it.” (citing Huskey v. Trujillo, 302 F.3d 1307, 1312-13 (Fed.

Cir. 2002)). Defendant also argues, “[n]ot only is there an absence of any evidence of the

requisite official order, there is ample evidence demonstrating that no such order has ever

been issued, and that plaintiffs understand that.” Defendant then cites to plaintiffs’

answers when questioned at the trial which indicate that all plaintiffs were aware that a

supervisor had not told them that they could not leave their homes while monitoring the

duty phone. Defendant also argues that plaintiffs’ “own testimony rebuts” the “assertion”

that DOs cannot leave their homes while monitoring the duty phone and still comply with

the ICE requirements for monitoring the duty phone. Defendant further highlights when

“plaintiff Onewokae testified that he did not violate any ICE policy when he visited his in-

laws’ home while covering the night phone;” and when “Plaintiff Kos recounted how he

handled a night phone assignment while on a family camping trip.” “On another occasion,

Plaintiff Kos went to a bar to eat and watch a Minnesota Vikings football game while

49

covering the night phone,” which Mr. Kos did indicate might not have been appropriate.20

Defendant states that plaintiffs’ “own actions prove that they do not even perceive

themselves to be under any such order.”

In defendant’s post-trial brief, defendant argues that whether an employee is in a

state of readiness is a direction which comes down from the employer, and it is not a self-

imposed state of readiness crafted by the employee (citing Huskey v. Trujillo, 302 F.3d at

1313-14). Defendant also argues that Mr. Kos’ “camping trip,” “Plaintiff Onewokae’s

experience visiting his in-laws,” “Plaintiff Cheung’s shopping trips,” and “Plaintiff Kos’s

visit to the bar,” “and trips to the convenience store,” “reflect that plaintiffs recognize that

there is no requirement that they sit by their laptops.” Defendant also argues “[t]he

frequency with which plaintiffs have actually engaged in personal activities is immaterial.

As an initial matter, the majority of the coverage hours are during overnight hours, when

plaintiffs would mostly be sleeping during their idle time, not visiting a zoo.”

Defendant claims in its post-trial brief that “about 85 percent overall” of the time

plaintiffs have monitored the duty phone, from May 1, 2017 until December 31, 2019, was

idle time. Defendant also claims that “about 44.5 percent of the time” of shifts plaintiffs

monitored the duty phone did not show a single call. Defendant further argues regarding

how to classify the duty phone assignments:

[A]n employer could hardly operate an on-call system if it could not insist on

the employee being able to answer the phone and remaining within the

geographic vicinity. Indeed, the regulation makes clear that being reachable

by phone and remaining within a reasonable call-back radius are indications

of being on-call, not in standby duty status. 5 C.F.R. § 551.431(b)(1).

Defendant argues that “[t]he testimony from both of the supervisor witnesses reflects that

they have never attempted to prohibit a plaintiff from engaging in any personal activity

during night phone idle time.” Defendant argues: “That plaintiffs may feel the on-call

periods are disruptive to their personal lives does not mean that they are not being

compensated in accordance with law.”

Defendant also contends that plaintiffs’ reliance on the firefighter case, Renfro v.

City of Emporia, 948 F.2d 1529, is inappropriate. Defendant argues that, because

“plaintiffs’ night phone work does not involve responding to emergencies,” that the Renfro

factors do not apply, citing Armitage v. City of Emporia, 982 F.2d 430, 432 (10th Cir.

1992).21 Defendant cites to Mr. Kos’ testimony on cross-examination to support its

assertion that plaintiffs are not responding to emergencies:

20Mr. Kos did note that while at the bar he did consume some alcohol and described it

as his “one indiscretion.”

21 The court notes that in Armitage v. City of Emporia, an appeal regarding “backpay to

city police detectives for lunch periods and time spent on call,” in which

50

Q. Have you ever had an occasion where you’ve turned on your lights or

sirens for a pickup?

A. Never. Never. No. That’s something you learn -- I was a deputy sheriff.

No, I’m -- unless it's an emergency, there’s no lights, no sirens going on.

And every vehicle you get into, you’ve got to hunt for half the stuff in these

vehicles. It’s not your normal vehicle.

Defendant asserts: “The parties’ stipulations, along with extensive trial evidence,

establish that plaintiffs carry an electronic device—a Government-issued mobile phone—

for the purpose of being contacted while they are covering the night phone.” Defendant

also contends in a footnote in its post-trial brief, “[j]ust as ICE has not imposed any fixed

response time, it also has not imposed any specific geographic radius within which

plaintiffs must remain.” Defendant also argues, and plaintiffs do not rebut, that “plaintiffs

are freely permitted to switch their on-call rotations with other officers.”

[t]he detectives also rotated standby duty and each detective was on call

one week out of six. The standby detective was paid $30 per week, plus

overtime for the time actually worked. The standby detective was provided

with a pager so he did not have to remain near a phone, although he was

required to stay in the vicinity in order to call in within ten minutes of being

paged, and report to the station within twenty minutes if necessary. The

detectives were called back, on average, less than two times per week of

on call duty.

Armitage v. City of Emporia, 982 F.2d at 431. The Tenth Circuit explained that

[i]n the instant case, the detectives were allowed to do as they pleased while

on call, as long as they remained sober, could be reached by beeper and

were able to report to duty within twenty minutes of responding to the page.

They were called in on average less than two times per week, as opposed

to the twenty to thirty times per week for the firefighters in Renfro. The

firefighters were required to report within twenty minutes of a call, in full

gear, and subject to discipline if late. Renfro, 948 F.2d at 1537.

Furthermore, the detectives were called in to investigate crimes which had

been committed, as opposed to responding to emergencies in progress.

The firefighters were “lying in wait for emergencies [which was] a benefit to

the employer and thus compensable under FLSA.” Id. at 1538

(distinguishing Norton and Boehm, where the employees were not waiting

to respond to emergencies). Although the detectives' services are certainly

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