# Cheung v. United States

> United States Court of Federal Claims · December 6, 2021

URL: https://www.frixlaw.com/law-library/cases/5132378

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** December 6, 2021
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5132378

## How later opinions describe it (automated extraction)

- finding that setting up a new management system without legal analysis and with informality “could not have been based on reasonable grounds and made in good faith,” and was in violation of 29 U.S.C. § 216(b)
- finding the government’s burden to be a “continuing obligation to monitor” the OPM regulations and to look at them more than 20 years apart in order to avoid liquidated damages

## Opinion text

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 over

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5132378. Public record. Not legal advice.