# Petition for Writ of Certiorari — Marticiuc v. City of Houston

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1880%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 879

## Text

)
INTHE 03 13 8 JUL 17 2003

Supreme Court of the Anited States

HANS MARTICIUC, et al.,
Petitioners,

¥.

CiTy OF HOUSTON, TEXAS,
Respondents.

On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

MICHAEL T. LEIBIG *
MARGO PAVE
ZWERDLING, PAUL, LEIBIG, KAHN &
WOLLY, P.C.
1025 Connecticut Avenue, N.W. *
Suite 712
Washington, D.C. 20036-5420.
(202) 857-5000

ROBERT A. ARMBRUSTER

HOUSTON POLICE OFFICERS’ UNION
Office of Legal Counsel

1600 State Street, Suite 200
Houston, Texas 77007

(832) 200-3420

ROBERT J. THOMAS

ROBERT J. THOMAS, P.C.
1302 Waugh, No. 826
Houston, Texas 77019-4944
(281) 924-3019

* Counsel of Record Counsel for Petitioners

Sl

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001 \\ cy )

VAN

QUESTION PRESENTED

Section 207(0) of the Fair Labor Standards Act, 29 U.S.C.
§ 207(0) (West 2000), as amended, 29 U.S.C. § 201 et seq.
(“FLSA”) defines the circumstances under which a public
employer is permitted to deny requests for the use of accrued
compensatory time. The question presented here is whether
requests for use of compensatory time may be denied on the
basis of a system which grants time off within a reasonable
period after the request (the employer designated approach),
or whether the specific time requested by the employee must
be granted absent undue disruption to the employer (the
employee choice approach).

The Fifth Circuit decision in this case adopted the em-
ployer designated approach. However, the employee choice
approach is applied outside the Fifth Circuit by the U.S.
Department of Labor and by district courts in Massachusetts,
Wisconsin, North Carolina, Virginia and California. The
issue is before the Sixth Circuit pending oral argument in
Beck v. City of Cleveland, Case No. 02-3669, and was
decided under a third collective bargaining agreement defer-
ral approach in Aiken v. City of Memphis, 190 F.3d 753 (6th
Cir. 1999). There is clearly a split among the federal courts
of the United States regarding how the FLSA, a major federal
statute, is to be applied to govern the use of accrued
compensatory time.

il
~ PARTIES TO THE PROCEEDING BELOW |
PLAINTIFFS/APPELLANTS/PETITIONERS |

In addition to Petitioners Houston Police Officers Union
and Hans Marticiuc, the following are members of the City of
Houston Police Department and are also Petitioners. For
convenience, they are referred to as “the Officers.”

tr ae remny cnet Sata

Adams, Fredtrena C., Adams, Jimmy A., Adams, Rodney

Adkins, Glenda, M. Adkins, Tim L., Aguirre, Mark A.

Alcantara, Anthony, Alexander Robert, Ray Allard, Jeffery,

F., Allen, Charles, Allen, Larry, Jean, Alsbrooks, Ruston,

Keith, Amato, Michael, C., Anaya, Sofir, Andrade, Tracy, ‘
Ann, Arceo, Aristotle, A., Arcizo, David, Arias, Ruben,

Arjona, Efren, H., Arms, Calvin, D., Amold, Dan, W.,

Ashford, Roosevelt, Atkins, Jr., Donald, Bacon, John, K..,

Bailey, Gary, Wayne, Bailey, Mark, C., Balderaz, David,
Baldwin, Orus, Baker, Ball, John, D., Ballard, Charles, A.,
Baralt, Gerald, F., Barnes, John, Barthe, Harold, A., Barton,
Randal, Lee, Baskin, David, Alan, Batch, Michelle, Batiste,
Markquette, James, Batts, Brent, S., Bedner, Michael, Bell,
Jimmy, T., Benavidez, Daniel, D., Benefield, Paul, S.,
Bennett, Bryan, K., Bennett, J., L., Bennett, Jon, P.,
Benningfield, Debbie, L., Bernard, Charles, W., Berry, Jr.,
Jamerson, Bickel, Jeffrey, E., Blake, Richard, J. Blake,
Ronnie, S. Bland, Jacques, French Blankinship, Gary, L.
Bogar, John, A. Bohn III, Harold, D. Booker, Jr., Leon
Boone, Samuel, E. Booth, William, Borgstedte, Steven, M.
Borza, Ronald, J. Bosworth, James, E. Boucher, Lisa E.,
Bowers, Stephen M., Boyer, Douglas, R., Boyle, Timothy J.,
Brady, Robert C., Brandon, Jerri L., Brashier, Joseph Roy,
Bratton, Melanie A., Bratton, Terry, Breen, Michael Kelly,
Brogden, Donald W., Brooks, Ronnie,P., Broome III,
Cleveland, Broughton, Reginald D., Brown, Daniel T.,
Brown, Daryl W., Brown, Gary A., Brown, Steven, Brown,
William Kenneth, Browne, David E., Bryant, Chris W.,
Buchala, Michael A., Buller, Val R., Bumstead, James

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Randall, Burmester, John H.G., Burke, Andrea, Burnett,
Cathy N., Burnett, Troy Lee, Buse, Darrin M., Buttitta,
Joseph A., Button, Gary, W. Byrd, Jr., Earnest Cadriel, Joel,
F. Cain, Steven, Calaway, Phillip, B. Calderon, Raul,
Calderon, Ricardo, Calderon, Ruben, Calley, Jason, A.
Calley, Matthew, . Cambric, Robert, Cameron, Curtis, L.
Cannady, David, Brent Cannon, B., R. Canton, Thurman,
Cantu, Jesus A. Cantu, Juan F. Captain, Gail R. Cargill,
Jimmy D. Carnot, J. M. Carr, Charles M. Carr, Paul, Carr,
Tommy J. Carroll, Jessie L. Carter, Reginald B. Cashdollar,
Reid Matthew Casko, Stephen F. Castaneda, Rodolfo A.
Cates, William C. Cato, Kelly Michelle Cavaliere III, Peter
V. Cegielski, Albin C. Cegielski, Christopher M. Cervantes,
Ismael, Chamberlain, L. E. Chambers, Leonard, Chance,
Erol, Chance, Gary W. Chapa, Arnoldo, Chappell, Roger W.
Charrier, Michael R. Chase, Jay R. Chavez, Jr. Brigido
Chavez, Henry, Chavez, Vincent L. Cherrington, Ronald W.
Chimney, Eric L. Chubirka, Dennis, Cinco, Nolan P.
Cisneros, Jr. Mauro Clark, Laura W. Clark, Matt, Clarke, J.
T. Clawson, Cynthia S. Clement, Cheryl A. Clements, Robert
M. Clevenger, Brian, Clopton, Kerry G. Coleman, Albert E.
Coleman, Austin L. Collins, James W. Collins, Phillip C.
Collins, Raul, Collins, Sammy Jean Conner, Thomas A.
Conner, Timothy B. Corley, Billy E. Corley, Michael,
Correia, N. J. Cortinas, James Henry Cosper, Crafton B.
Costa, Fausto, Crabtree, Keith A. Craig, Darren M. Craig,
Michael, Crawford, Dale Scott Crawford, Lowena S.
Crawford, Patrick J. Crellin, Kerry M. Crenshaw, Gary E.
Crocker, Harold Randal Cromeens, Thomas E. Cross,
Alfonzo L. Crowson, Jr. James Cruise, Victor R. Cuevas,
David, Cuevas, Rickey J. Curry, David W. Curry, Teresa D.
Dahlman, Peter B. Dargin, E~ic, Davis, Charles L. Davis,
Darin D. Davis, Denise A. Davis, James B. Davis, Mark E.
Davis, Matthew L. Davison, Ronald L. Day, Jr. Paul Day,
Edward Alan Deason, Paul A. DeBlanc, Donald Lynn
DeBoissiere, Robert A. DeJesus, Edgar, Delia, Daniel Gerard

iv
DeLuke, Joseph P. Demby, Jr. Willie D’Eugenio, Joseph R.
Devora, David G. Dickens, Durrell, Dillon, Jr. Gerald Dillon,
Tim M. DiMambro, Jr. Robert Dodd, Randy Alan
Dombrowski, Scott P. Douglas, Jr. Clarence Doyle, Gary W.
Drehel, Jr. Nickie Drehel, Sylvia P. Duffy, Steven F. Duillo,
Richard M. Duncan, Andrew B. Dunn, Michael L. Duran,
Jose S. Duran III Ezequiel, Dyer, Scott, Dyess, Carl Doug
Eagan, David J. Eckenrode, Dennis, Edwards, Daryn B.
Eichler, Jr. Albert Elder, Donald, Ellerman, Roger G. Elliott,
Sr. Louis Ellis, Selvyn John Epperson, Howard E. Ermis,
Denis W. Espinoza, Jaime C. Falcon, Jr. Jose Falcon, Rodolfe
Valentino Falls, Clinton D. Farias III] Rudy, Fason, Jr. Johnny
Feddersen, Kenneth J. Fern, Daniel J. Fernandez, Jorge L.
Fernandez, Michael J. Ferrell, Samuel B. Feusse, Russell J.
Fike, Daniel P. Fincher, Tony B. Fisher, Steven, Fite, Jesse,
Fitzgerald, William H. Flores, George A. Foltz, Brent W.
Fondon, Jeff, Fondon, Kimberly D. Fontenot, Jr. Clarence
Fontenot, Jr. Wilrey Forrester, Stephen M. Foster, Charles,
Foster, Mark W. Frank, Cory J. Fu'l, Craig H. Fuller, Leon B.
Gabler, Thomas Q. Gadus, Joseph W. Gage, III Monroe,
Gage III Steve, Gainer, Clay M. Galbiati, Steven A. Gallier,
Kevin B. Galligan, Timothy D. Gambino, Jr. Salvador
Gamble, Troy, Gamez, Sabino, Gann, Christoper Eric Garcia,
Damian P. Garcia, Jose S. Garcia, Michael, Gardner,
Catheryn Y. Gardner, Robert C. Garza, Jr. Homer Garza,
Joel, Garza, Rache!, Garza, Victor S. Gentry, Catherine E.
Gerstle, Theodore E. Gilliard, Sr. Harold Gipson, Ronald
Dean Givens, Warren Lee Goldsby, Brian, Gomez, Jr.
Rodolfo Gonzales, Freddie T. Gonzales, Hector R. Gonzales,
Regina Ann Gonzales, Robert C. Gonzalez, Luis J. Gonzalez,
Miguel A. Goodson, Chris, Gough, Sr. Kevin Gratz, James
M. Gray, Hahn R. Green, Jr. Marion Green, Brenton D.
Green, Charles E. Green, Chris L. Green, Kimmy L. Gregory,
Sr. Marc Grimmett, Kevin L. Grossheim, Todd Stephen
Guidry, Joseph N. Guidry, Marcella, Gurley, Philip E.
Guzman, Antonio R. Guzman, Eloy, Hahn, Richard, Hall,

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James P. Hamill, Dan R. Hanham, Leonard J. Harding, Tolan
W. Hardy, Guy, Harford, Don J.A. Harford, Rhonda Renee
Harris, Jr. Robert Harris, Beverly R. Harris, Brian J. Harris,
Stuart A. Harry, Tim R. Hatcher, Richard T. Hawkins,
Anthony K. Hayden, William L. Hayes, Thomas F. Hebert, R.
M. Hein, Steven K. Heinle, Alan R. Hekimian, Krikor J.
Helms, Geoffrey C. Henderson, Jr. Arlon Henry, Handy
Penny K. i.ensarling, Randall C. Henson, Gregory R.
Hernandez, Helberto, Hernandez, Hilario R. Hernandez,
Israel, Hernandez, Luis E. Hernandez, Norma J. Hernandez,
Roverto, Herrera, Anthony G. Herrera, Horacio J. Hewitt,
Curtis E. Hibert, David J. Hightowe, Michael James Hill,
Forrest D. Hoffard, Russell G. Hoffmaster, Larry W.
Hoffpauir, Thomas A. Holden, Sherry B. Holliday, Gregory
S. Hollier, Troy R. Hollins, Jr. George Holloway, Darrel,
Holubec, Louis Lee Hood, James Brian Hooper, Larry G.
Hopkins, Ronald R. Horton, Jimmy G. Houston, Jarvis K.
Howard, Jr. Carroll Howard, Colin, Howe, Robert A. Howe,
Shannon L. Hromadka, Larry W. Huante, Carlos Roberto
Hudkins, James Patrick Hudson, James David Huff,
Benjamin L. Huff, Keith G. Hughson, James Denis Hunt,
Charles E. Hunt, Raymond M. Huseman, Robert, Huseman,
Ronald W. Huynh, Tony, Ingels, Michael D. Inocencio, Joe,
Jacks, Roy D. Jackson, Lotha M. Jackson, Michael T.
Jackson, Phillip G. Jackson, Robert H. Jaeger, Hans H.
Jammer, Sr. Anthony Jaynes, Kathleen D. Jefferson, II Lewis
Jennings, Robert A. Jensen, Damon L. Johnson, Bruce D.
Johnson, Dan, Johnson, Eric M. Johnson, John Nelson
Johnson, John S. Johnson, Joslyn M. Johnson, Rodney
Eugene Johnson, Rodney J. Johnson, Tonya R. Johnson III,
Bruce Henry Jones, Jr., Lawrence Jones, Christopher W.
Jones, David M. Jones, Erma J. Jones, Jay L. Jones, Nancy
Lee Jost, Jr., Patrick Juarez, Noe, Juenke, Glen A. Juenke,
Spencer, Kay, Daniel S. Keller Linda Kay Kennedy, Jr.,
Samuel Kessler, Richard D. Kessler, Robert S. Kiker, Jerry
Neil King, Robert Q. Kinsey, Gary P. Kinsworthy, D. M.

vi
Klaus, David William Klausner, C. J. Klepac, Donald
Raymond Knapp, David L. Knott, Johnnie R. Kowal, John,
Krause, David Michael Krizan, Lloyd G. Kroesche, Larry K.
Kubiak, Timothy M. Kwiatkowski, Stephen M. Laird, Scott
C. Lakind, Larry, Lakind, Rory S. Lampton, Gienn A.
LaMunyon III, Colonel Robert Landgrebe, Jeffrey N. Lane,
David, Langehennig, Fred R. Larson, Jeff D. Lascano,
Edward R. LaVeque, Richard James Lavespere, Mark Aaron
Law, James Steven Laws III, Alton B. Leatherman, Stephen
K. Leatherwood, Mark R. Ledet, Carey, Lee, James S. Lee,
Michael, Leija, Jr., Ruben Lem, Matthew, Lerma, Frank M.
Lester, Cole J. Levitt, Barry, Lieke, Norman H. Lightener, Jr.,
Donald Lindquist, Laura, Lindsey, Jr., William Lindsey, Paul
R. Lineberry, Jerry W. Linscomb, Steven W. Liu, Whitman
T. Lockman, Jr., Frederick Loessin, Mike, Loofs, John W.
Lopez, Jr., Jesus Lopez, Jr., Pedro Lopez, Francisco J. Lopez,
Humberto, Lopez, Sigifreado, Lucas, Timothy N. Ludwig,
Claude, Lumpkin, Michael, Lundy, Adrian, Lundy, Williams
Wayne Luplow, James B. Lyons, Warren D. Maciel, Jesus C.
Madden, William R. Madrid, Redefo, Maffett, Richard E.
Malek, Christopher J. Malone, Michael B. Malyak, Nicoletta,
Manfre, Julie Diane Mangano, Jr., Collie Manzo, Robert,
Mar, Herman, Marsolais, Mark, Martin, Ronald L. Martinec,
Dennis M. Martinez, Jr., Manuel Martinez, David N.
Martinez, Guadalupe, Martinez, Jose Ramon Martinez, Leon,
Mason, Robert L. Matthews, Stanley, Maurer, Neil E.
Mawhood, Anton M. Maxwell, Griff R. May, Matthew B.
May, Paul M. May, Steven S. Mayer, Hubert L. Mayfield,
Darrell Dwane Maynor, Jacob E. McCammon, Ross A.
McCardell Gary, McClane, Michael E. McClendon, Earnest
L. McClinton, Mark C. McCord, Brenda K. McCard, John C.
McDaniel, Kevin E. McDonald, Charles D. McDonnald,
Barry, McIntyre, Lori L. MclIntyre, Patrick, McKenzie,
Rodney Harold McLaughlin, Joseph Patrick McLemore,
Robert W. McMurtry, Keith L. McQueen, Charles Wayne
Meisel, Hans, Meisel, Janet, Melendez, Jose F. Meraz, Jr.,

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vii
Ray Mercer, Phillip, Miller, Donald R. Miller, George,
Miller, Mark Andrew Miller, Mikki L. Miller, Ronald,
Mireles, Richard J. Mireles, Robert M. Mitchell, Jr., Daniel
Mock, Anthony J. Monte, Mike S. Montemayor, Jr., Jesus
Montgomery, Harvey R. Moore, Jr., Aubrey Moore, Donald
W. Moore, James E. Moore, Mac Anthony Morgan, Kevin A.
Morgan, Kevin J. Morris, Heather, Morris, James J.
Morrison, Kerry S. Moses, Michael D. Moses, Davis
Stephine, Mosley, Ralph D. Muench, Michael L. Mulford,
Philip, Muller, Robert P. Mundy, Robert P. Murdock, Steven,
Murray, Patrick M. Myers, David E. Naquin, Kye, Narvaez,
Abraham, Narvaez, Robert Anthony Naul, Douglas Mac
Neck, David R. Nelius, Dennis R. Nelson, Thomas A.
Nessenthaler, John, Newman, Jr., Wendell Nguyen, Thong
Anh Nguyen, Walker Tran, Nichols, Jr., Howard Nichols,
John S. Nimmo, Jerry L. Nino III, Rafael F. Norwood, Jon D.
Null, Thomas P. O’Brien, Carlos E. O’Connell, Michael,
Ogden, John A. O’Leary, Darrell J. O’Leary, Scott D. Olesen,
Jeffrey Alan Olivares, Ramiro, O’Mara, David S. Ong, Mark,
O’Rourke, Carolyn L. Overby, Kurt M. Oviedo, Louis,
Owens, David J. Page, Don A. Palin, Shawn, Palmer, Brian,
Palmer, Gregory A. Pando, Octavio Tad Park, Connie,
Parker, Jr., Adolph Parker, Jeffrey S. Parker, Robert R.
Parker, Ronnie John Pavey, Mark A. Pavlu, James, Payne,
Maurice D. Payton, Cecil E. Pederson, Karl Mekkel Pena,
Albert R. Pena, Ronald R. Pendleton, Dale D. Pennington,
Patrick D. Perez, Steve Albert Perkins, Judith A. Perkins,
Kenneth, Perry, Raymond Doyle Peterson, Vance Matthew
Phipps, Douglas W. Piel, Bradley A. Pierce, Michael L.
Pierce, Stacy W. Pinkerton, Ronald V. Pitts, George W. Polk,
G. E. Polk, Michael K. Ponton, Parris, Pouncy, Sharon
Denice Powell, Eric C. Powell, William L. Powell II], Glenn
A. Powers, Gary L. Prendergast, Mark R. Present, Blake Alan
Price, Virgil R. Pritchard, Jack T. Provost, Mattie C. Provost,
Michael Edward Pryor, Danny M. Puente, Joe Louis Purser,
Glenn, Pyland, Fred Joe Quintanilla, Martin, Ramirez,

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Candelario, Ramirez, Salve R. Ramos, Jr., Adalberto Ramos,
A. R. Ready, Dwayne W. Reece, Shy J. Reed, Calvin T.
Reese, Paul R.Reeves, Daryl F. Reeves, Richard G. Reiser,
William E. Rendon, Jr., Arthur Reyna, Jr., Clemente Reyna,
Richard, Richards, Catherine L. Richards, Kerry L. Riendeau,
Thomas J. Riggs, Cory T. Rios, William R. Ritchy, Donald
G. Rivera, John M. Roberts, Jay C. Roberts, Jerry R.
Robinson, Mark S. Robinson, Stephen A. Roderman,
Richard, Roderman, Robert J. Rodriguez, Jr., Ferdinand
Rodriguez, Daniel M. Rodriguez, David, Rodriguez, Gloria
G. Rodriguez, Ismael A. Rodriguez, Oscar, Rodriguez, Rafael
Bulnes Rodriguez, Rogelio, Rogers, David L. Rogers,
Rebecca J. Romano, Louis M. Romano, Robert P. Romportl,
Joseph C. Rooke, Clyde, Rosborough, Karl Edward Ross, F.
J. Ross, Richard J. Rosser, Brett A. Rowe, Janet Christine
Rowe, Walter, Rowley, William D. Rubio, Leopoldo, Ruiz,
Heidi J. Ruiz, Rogelio, Russell, John A. Ryza, David, Ryza,
Paul E. Sable, Perry David Saenz, Roberto D. Salazar, John
C. Sallee, Milton W. Salley, Steven K. Salter, Richard L.
Sampiere, Robert P. Sampson, Karen E. Sampson, Michael L.
Sanchez, Honorio, Sanders, Ivan G. Sanders III, Edwin,
Sandoval, Michelle E. Sandoval, Robert A. Santerre Paul B.
Satterwhite, Chris, Schaudel, George, Scheibe, Gary A.
Scheibe, Michele R. Schindler, Ronald J. Schmidt, Charlie J.
Schon, Mark A. Schoppe, Dennis, Schroeder, Cindy B.
Schultea, James R. Schweiker, Jr., Robert Seals, Wanda,
Segura, Lynette A. Semmelrock, Jr., Arnauld Serpas, Jeffrey,
Serpas, Melinda G. Shaffer, Jeffry Kirk Shaw, George E.
Sheldon, Wesley C. Sheppard, Stanley D. Sherman, Chris,
Sherrouse, Robert W. Shirley, John D. Siens, Gerald L.
Sievert, Steven L. Silvas, John R. Simerly, Don, Simerskey,
Max A. Simper, Kevin J. Singleton, Jr., Douglas Slade, David
W. Slay, Roy L. Smajstrla, Russell, Smalley, Wade L. Smith,
Donald R. Smith, Gray D. Smith, Joseph M. Smith, Keith D.
Smith, Mark E. Smith, Randle W. Smith, Raymond L. Smith,
Scott D. Sobota, James, Sohlin, Douglas C. Sokoloski,

iX

Gregory A. Sokoloski, Steven M. Song, Hyonuk, Speck,
Carnell, Spencer, Richard M. Spezia, Gina T. Spjut, Dan J.
Spjut, John Harlan Spurling, Benita G. St. John, James V.
Stafford, Harry Chav Staggs, Christopher B. Stairhime, Jr..
W. Starr, Daniel W. Staskus, Charles P. Stearns. Troy,
Steffenauer, Paul D. Stepchinski, Nigel J. Stepchinski,
Rhonda P. Stephens, W. I. Stevens, Mark C. Stewart, Mark R.
Still, Richard A. Stinson, Leon W. Stoneham, Sr., Edward
Stowe, Jimmy D. Strange, Kenneth C. Strodtman, Forest E.
Swartz, Jr., Herbert Sweatt, Alan B. Sweatt, John Brent
Swetlick, Robert, Swize, Russell F. Tallent, Ronnie E. Talton,
Thomas Roger Taravella, Andrew, Tatum, Brett A. Taylor,
John Cole Taylor, Michael D. Taylor, Paul, Taylor, Vincent
A. Taylor III, Arthur N. Teamer, Drunzella, Teel, Thomas C.
Terry, Paul S. Thomas, Danny, Thomas, David Allen
Thomas, Michael L. Thompson, Jr., Joseph Thompson,
Michael W. Thorsen, Mark W. Thrailkill, William Jay Tippy,
James E. Tomlinson, William N. Trahan, Steven Gerard
Trautwein, Carol M. Trautwein, Michael D. Treat, Leonard
M. Trepagnier, Lawrence J. Trevino, Guadalupe, Trumps, L.
A. Turman, Gary A. Upton, Randall Lee Urteaga, Paul A.
Vahldiek, Robert H. Van Wagenen, Jeffrey S. Vana, Allen J.
Vasquez, Rodolfo, Vassel, Jr., Clarence Vaughn, Ronald J.
Vela, Luis G. Veliz, Sidney P. Verastigui, Jaime, Verdin, Joe
L. Verot III, Rene, Versluis, Anthony E. Vollert, Johnie, Von
Runnels, Eric, Walker, David W. Walker, Ronald D. Walker,
Stan D. Wall, Chad J. Wallace, William A. Walsh, John,
Waltmon, Michael W. Warfield, Shawn Konnery Warren,
Charles, Waterwall, Philip, Webb, Jr., Jacob Webber, Jimmy,
Weido, Paul Steven Weinschreider, Glen, Welch, Henry G.
Wenzel, Kenneth E. Werner, Jerry D. West, Earnest J.
Wheeler, James D. Wheeler, Susan W. White, Jr., Essie
White, Anthony R. White, Emest G. White, Norman H.
White, Shandra, Whitley, Jr., James Wiggins, Dennis M.
Wilburn, Hugh H. Wilkinson, Robert A. Williams, Jr., Paul
Williams, Brederick; Williams, Darlene C. Williams, Darrell

xX

L. Williams, George D. Williams, Justino, Williams, Richard
Alan Williams, Scott, Willoughby, B. G. Wilson, Nicholas C.
Wilson, R. V. Wilson, Stephanie A. Wiltz, Kenneth D.
Winebrenner, Kent E. Winkler, Floyd Winn, Randall,
Wisnoskie, Michael L. Wood, Jr., Fred Wright, James J.
Wyatt, Shone R. Wyhs, Jr., Charles Yates, Jared, Yates, Jeff
A. Yencha. John M. Ynosencio, Michele, York, Douglas Ray
Young, Andrew E. Young, Curtis, Young, Frederick C.
Young, Gary, Young, Michael T. Zajac, Richard J. Zamora,
Deborah, Zamora, Lyn A. Zavesky, Michael G. Zera,
Jonathan B. Zielenski, Robert C. Zufall, Robert,

DEFENDANT/APPELLEE/RESPONDENT

City of Houston, Texas.

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TABLE OF CONTENTS

PRI ies 8 PEE PRREE F SUEP vvenssnsvnvscensariseseennnanonievsdaseantns i
PARTIES TO THE PROCEEDING BELOW............... ii
SERIE FIA Re itinnGiioninnianmmann xiil
Se ee RIG wiiithcnscccsniidinnictoetacvcanpnsnsibionnaninnn l

2
STATUTES AND REGULATIONS INVOLVED........ 2
EPR Rene PEF BRRS RPA sei cisiicnsivessssssensintivessovnienes 2
REASONS FOR GRANTING THE WRIT.................. 4
a ee TY sd ankininlenveskanenvcinticamribesteoennitinsunetion 15
APPENDIX A

Opinion of the United States Court of Appeals for the
Fifth Circuit Dated and Filed April 29, 2003............. la

APPENDIX B

Judgment of the United States Court of Appeals for
the Fifth Circuit Filed April 29, 2003... 1Sa

APPENDIX C

Memorandum Opinion and Order of the United States
District Court for the Southern District of Texas,
Houston Division, Dated and Filed September 26,

PERT ARR Sages Peed oe Oe I AE CD ARN aD 17a

APPENDIX D

Final Judgment of the United States District Court for
the Southern District of Texas, Houston Division,
Dated September 25, 2001, and Entered September
eG SE biccabcainninleaa hilar cecnedcatekiedinbelisa cinema’ 39a

Xil
TABLE OF CONTENTS—Continued

APPENDIX E

Fair Labor Standards Act of 1938, § 7(0)-(q), 29
U.S.C.A. § 207(0)-(Q) ..scesccessessseseeersereeesesersseesensennees

APPENDIX F
Regulations Involved ..........:cssesssseseeeseseeseeetseneesesess
APPENDIX G

Meet & Confer Agreement Between HPOU & City of
HOUSON ..00ccceesesveseveonvvververssvovesenensssevensesseovsnesensnasenees

APPENDIX H

Michael L. Kimpel, et al. v. Willie Williams, et al., No.
CV-93-3441-GHK (RNBx) (CD Cal. 1999) ...........+.

APPENDIX I

John J. Canney, et al. v. Town of Brookline and
Brookline Police Department, 2000 U.S. Dist.
16279 (D. Mass. October 9, 2000).........:sseeeereereeeees

APPENDIX J

Long Beach Police Officers’ Association, et al. v.
Robert M. Luman, et al., CV 99-13090 FMC
(JWJx) (CD Cal. May 10, 2001) «0.0... sseesessereeeeteesees

APPENDIX K

Meyer, et al. v. The City of Raleigh, 5:99-CV-324-
BO(3) (ED NC, August 10, 2001) ...... css snenes

APPENDIX L

Alexandria Coalition of Police, Local 5, 1.U.P.A.,
AFL-CIO, et al. v. City of Alexandria, Virginia, et
al., C.A. No. 01-1617-A (ED Va. March 22,
2002)

Page

40a

46a

62a

64a

73a

76a

88a

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TABLE OF AUTHORITIES

CASES Page

Aiken v. City of Memphis, 190 F.3d 753 (6th Cir.
TE i, 4, 6

| Alexandria Coalition of Police, Local 5, 1.U.P.A.

AFL-CIO et al. v. City of Alexandria, CA 01-
1617-A (E.D. Va. March 22, 2002)................... 13

Beck v. City of Cleveland, Case No. 02-3669 (6th
Nees csscscsasssensesnnceesceees i, 6

Canney v. Town of Brookline, 2000 U.S. Dist.
16279 (D. Mass. October 9, 2000)................000. 11

D ‘Camera v. District of Columbia, 693 F. Supp.
i cscinteessksnnsseoscceseseses: 13

D’Camera v. District of Columbia, 722 F. Supp.
EE SED 13

DeBraska v. City of Milwaukee, 131 F. Supp. 2d
PE Ie Ps BI ec scssscsrscccessccesncccesecses 9,10

Hoff v. Park, CV 98-10245 GHK (RNBx) (C.D.
ES TT 13

Houston Police Officers’ Union, et al. v. City of
Houston, Texas, 330 F.3d 298 (Sth Cir. 2003)... 1, 4

Kimpel v. Williams, CV 93-3341-GHK (RNBx)
i dacsccssecksssesesecsecnscesseee 13

Long Beach Police Officers Assn. v. Luman, CV
99-13090 FMC (JWJx) (C.D. Cal. May 10,

ELE LSE 1]
Meyer v. City of Raleigh, 5:99 CV 324BO(3)
re WU I, PED nnn cssscrcescscccsecers 12, 13
STATUTES AND REGULATIONS :
SN si dcnccscnscenseccscsscessescecseessese 2
RE Moss cs ssensevencsvensccccceees i
ia iactesccnccnsensrveesescecssseees i, 2
ee passim

De Oe Pe Bb, BOLT CIGBT) ..........00ccscceessceeesee 12

aii

XIV
TABLE OF AUTHORITIES—Continued |
Page
52 Fed. Reg. 2032 (1987) ....cccseseseeesseeseeeeereeeeeees 8
52 Fed. Reg. 2648 (1987) ......sesescssesseeetseeeeeeeneens 8
MISCELLANEOUS
House Report No. 99-331 .....ceseeeeseeesseeeereeteeeeetees 8

IN THE

Supreme Court of the Anited States
No. 03-___
HANS MARTICIUC, et al.,

Petitioners,

¥.

CITY OF HOUSTON, TEXAS,
Respondents.

On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Hans Marticiuc and 896 other Houston Police officers,
Plaintiffs in the District Court and Appellants in the Court of
Appeals, hereby petition for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Fifth
Circuit in Houston Police Officers’ Union et al. v. City of
Houston, Texas, Fifth Circuit No. 01-21117 (April 29, 2003).

OPINIONS BELOW

The Court of Appeals’ opinion is reported at 330 F.3d 298
(Sth Cir. 2003) and is reproduced as Appendix A to this
certiorari petition. The Judgment of the Court of Appeals,
entered on April 29, 2003, is reproduced as Appendix B.
Mandate issued on May 21, 2003.

2

The District Court’s opinion and order on Summary Judg-
ment was issued on September 26, 2001 but was not reported.
It is reproduced as Appendix C. The Final Judgment of
the District Court, dated September 25, 2001 and entered
September 26, 2001, is reproduced as Appendix D.

JURISDICTIONAL St TEMENT

The Court of Appeals’ Opinion and judgment were entered
on April 29, 2003. The jurisdiction of this Court is invoked
pursuant to 28 U.S.C. § 1254(1). No petition for rehearing or
hearing en banc was filed.

STATUTES AND REGULATIONS INVOLVED

This case involves the construction of the 1985 Amend-
ments to the Fair Labor Standards Act of 1938, 29 U.S.C.
§ 201 et seg. (“FLSA”), codified in 29 U.S.C. § 207(0), and
the relevant implementing regulations thereto, codified in 29
C.F.R. §§ 553.20-553.28.

The 1985 Amendment to Section 7 of the FLSA is repro-
duced as Appendix E. The implementing regulations to the
FLSA promulgated by the Secretary of Labor are reproduced
as Appendix F.

STATEMENT OF THE CASE

This case presents the question of whether an employer
may deny a request to use accrued compensatory time under
the 1985 Amendments to the Fair Labor Standards Act, 29
U.S.C. § 207(0), pursuant to a system under which the em-
ployer grants time off after the time off requested by the
employee but within a reasonable period (employer desig-
nation) or whether the employer rather must grant the specific
time off requested by the employee unless doing so would
cause undue disruption (employee choice).

3

From 1998 until adoption of a Meet and Confer agreement
on July 1, 2001, the City of Houston operated under an
employer designation system for use of accrued compen-
satory time, also known as a red-book system. This was the
system reviewed by the Fifth Circuit. Since signing the
July 1, 2001 Meet and Confer agreement, the City has
operated under an employee choice system for use of accrued
compensatory time. The Meet and Confer agreement is re-
produced as Appendix G. At issue in this case is entitlement
to back pay damages from June 15, 1997 to July 1, 2001,
attorneys fees, and the future rule for use of accrued com-
pensatory time in Texas, Mississippi and Louisiana.

Under the employer designation system in place until
July 1, 2001, each unit of the police department maintained a
“red book” in which officers scheduled to be off on regular
days off, vacation, sick time, injury leave, training or comp
time were listed for each day. The City applied a pre-set limit
on the number of officers who were permitted to be off on a
given day. The limit was not based on a review or analysis of
the needs of the particular day and the possibility of
disruption of services on that day, but rather on each unit shift
commander’s estimate of the unit’s long-term manpower
needs. An officer wanting to use accrued compensatory time
was required to sign the red book for the requested day; if the
red book’s time-off log had not reached the pre-set limit, the
officer would receive his requested time off.

If the pre-set limit had been reached, the time off was
denied. The procedure involved no efforts at operational
alternatives to denial, such as calling in replacements from
regularly scheduled days off, vacation or training, and did not
allow the payment of replacements at overtime rates. Nor did
it provide that, if the requesting officer were able to find a
willing and qualified substitute who required overtime pay to
work, the Department would grant the requested time off and
have the qualified substitute meet the staffing need. Under

4

this system, no effort was made to assess whether any aspect
of the police department’s operations would be disrupted by
granting the requested day off.

Dr. Richard Jeanneret, a consultant to the City and an
expert witness, testified based on data collected under his
supervision that “for the most part, an employee who is elig-
ible for compensatory time off is able to obtain approval for a
specific time period requested without difficulty” and that
“requests to use comp time off’ were “not frequently denied.”

The Fifth Circuit upheld the City’s system as described by
Jeanneret, endorsing the employer designation system over
the employee choice system. It held that Section 207(0)
“does not require a public employer to authorize comp-time
use as specifically requested by an employee (subject to the
undue disruption clause), but instead requires that the comp
time be permitted within a reasonable period after the
employee requests its use.” 330 F.3d 298 (App. A at 9a).

REASONS FOR GRANTING THE WRIT

The United States Court of Appeals for the Fifth Circuit
has entered a decision that directly conflicts with the
approach taken by the U.S. Department of Labor and by other
federal courts. In Aiken v. City of Memphis, 190 F.3d 753
(6th Cir. 1999), a divided Sixth Circuit Court of Appeals
ruled that the “timely request” requirement and its deference
to agreements between the parties subsumed the “undue dis-
ruption rule” and that a minimum staffing level system could
be used. In Aiken, a strong dissent by Judge Ryan pointed out
that the Court acted without the benefit of a Department of
Labor interpretation of the rule in question and that the
“timely notice” and “undue disruption” rules were separate:

The district court failed to come to grips with this
argument, stating only that “the City could have allowed
the officer the time off by paying another officer

a ee eee Sa eee

7

overtime compensation to work in the requesting
officer’s place [, but] as general policy, the Division
declined to call in officers on an overtime basis in order
to permit another officer off for compensatory time.”
Aiken v. City of Memphis, 985 F. Supp. 740, 745 (W.D.
Tenn. 1997). The district court then observed that a
denial of compensatory time off for that reason “only
occurred occasionally and was not routine.” /d. The
plaintiffs claim it occurs all the time.

Instead of resolving this difficult, mixed question of fact
and law, the district court merely held as the majority

| Opinion in this court does, that the entire issue is gov-
erned by the collective bargaining agreement between
the parties, and the collective bargaining agreement has
a provision as to the reasonable period within which
time off may be requested. The district court’s rea-
soning, although to me rather abstruse, apparently is that
if an officer doesn’t make a request for comp time early
enough to assure that his replacement need not be paid
time-and-a-half, then the officer will not have requested
his time off within a reasonable period. The problem, of
course, with that sort of reasoning is that it conflates the
concept of the reasonable period within which the day
off must be requested, and whether it is an undue
disruption of the police department’s operations to per-
mit the time off to be taken. Thus, the plaintiffs’ claim
that the logbook is being declared full for a forbidden
reason is never directly engaged.

The majority opinion likewise dodges the problem
simply by declaring that the whole issue is governed by
the collective bargaining agreement, and the majority is
“loath to interfere with [the] agreement.”

To me, that answer, like the district court’s answer, is no
answer at all. The district court made a factual finding
that “as a general policy, the Division declined to call in
officers on an overtime basis in order to permit another
officer off for compensatory time.” Aiken, 985 F.Supp.

6

at 745. In my opinion, this policy is precisely the
practice the Department of Labor contemplated, and
sought to forbid, when it declared that it would not be an ~
undue disruption for an employer to ask one employee
to work overtime in order to grant another employee
time off.

I would reverse the judgment of the district court with
respect to this issue only. As to the remaining issues in
the case I concur in the majority opinion.

190 F.3d at 764-65.

Moreover, the same question addressed by the Fifth Circuit
and by Aiken is currently before the Sixth Circuit, awaiting
oral argument in Beck et al. v. City of Cleveland, Case No.
02-3669. The conflict between the Fifth Circuit decision
below and Aiken itself appears to create a conflict between
the Circuits. However, Petitioners believe that the upcoming
Sixth Circuit decision will intensify the conflict between the
Circuits. The primary purpose of this petition therefore is to
preserve the issue pending the Sixth Circuit’s issuance of
its decision.

Even before the Sixth Circuit has issued its upcoming
decision, however, the result of the Fifth Circuit’s decision is
that Americans are subject to different rules governing the
use of compensatory time under the FLSA based solely upon
the jurisdiction in which they happen to reside. Americans
who, as residents of Texas, Louisiana or Mississippi, are
within the Fifth Circuit’s jurisdiction, are now denied the use
of their accrued compensatory time pursuant to a rule com-
pletely different from the rule applied in other jurisdictions.

An American residing within the Fifth Circuit’s juris-
diction will have her request to use comp time dec*ded under
the employer designation rule, an approach that permits the
request to be denied if the employer allows her to take time
off within a reasonable period after the specific time off she
requested, even if granting the specific time off requested

rere ae

4

7

would not cause any undue disruption. Americans in other
jurisdictions, however, will be granted the specific time off
they request unless granting the specific time would cause
“undue disruption” to the employer’s activities because, while
the details of the approaches taken by the courts in these other
jurisdictions differ slightly, a// of these other jurisdictions
reject the employer designation approach endorsed by the
Fifth Circuit and adopt instead the employee choice system.

Furthermore, the U.S. Department of Labor supports the
employee choice rule. Under the Department of Labor’s
approach, an employer need only grant timely requests, and
the regulations make clear that generally forty-eight hours
would be timely. However, the parties may agree as a part of
the comp time agreement to some other period. DOL’s
regulations provide that whether a request has been granted
within a reasonable period of time is determined by the
custom and practice in the work place.' Such practices
include, but are not limited to, (A) The normal schedule of
work; (B) Anticipated peak workloads based on past experi-
ence; (C) Emergency requirements for staff and services; and
(D) The availability of qualified substitutes.”

Second, and independently, the system must provide that
compensatory time requests may be denied on the basis that
granting a specific request for time off will “undiily dis-
rupt” the employer’s operation or delivery of services.’ The
regulation provides:

When an employer receives a request to use com-
pensatory time off, it shall be honored unless to do so
would be “unduly disruptive” to the agency’s operations.
Mere inconvenience to the employer is an insufficient
basis for a denial of compensatory time off. For an

'29 C.F.R. § 553.25 (b-c).
> 29 C.F.R. § 553.25(c)(1)(d).
*29 C.F.R. § 553.25(d).

re ee ee

8

agency to turn down a request from an employee for
compensatory time off requires that it should reasonably
and in good faith anticipate that it would impose an
unreasonable burden on the agency’s ability to provide
services of acceptable quality and quantity for the public
during the time requested without the use of the
employee’s services.

House Report No. 99-331 states:

Where public employers find that they cannot make
requested time off available even outside of the period of
increased demand that all public service operations
experience in the course of their business, they should
consider allowing employees to cash out requested but
unavailable comp time. For those employees where the
problem of disruption is persistent, comp time should
not be the preferred method of compensation for
overtime work.

A need to find a substitute worker and to pay that worker at
premium rates does not justify a finding of “undue disrup-
tion.” The preamble to the Department of Labor's regulation
on comp time states: “The Department recognizes that
situations arise in which overtime may be required of one
employee to permit another employee to use compensatory
time off. However, such a situation, in and of itself, would
not be sufficient for an employer to claim it is unduly
disruptive.” '

* Id. (citation omitted).

> Application of the Fair Labor Standards Act to Employees of State
and Local Governments, 52 Fed. Reg. 2032 (Jan. 16, 1987); 52 Fed. Reg.
2648-03 (Jan. 23, 1987).

° Id.

sa a ace

9

Further, in a brief filed in DeBraska v. City of Milwaukee,
131 F. Supp. 2d 1032 (E.D. Wisc. 2000), the Secretary of
Labor explained:

The City also asserts that a change in its comp. time
policy would cause an “undue disruption.” The Secretary
has defined “undue disruption” of the operations of a
public agency to mean “an unreasonable burden on the
agency’s ability to provide services of acceptable quality
and quantity.” 29 C.F.R. § 553.25(d). The City claims
undue disruption of its operations by granting the use of
accrued comp. time without having tried various oper-
ational alternatives, such as calling replacement officers
from other shifts or from other divisions. This could be
done without overtime hours being worked. In some
cases, however, there may be no alternative to requiring
an officer to work overtime hours so that another officer
may utilize accrued comp. time, but the Secretary has
determined, consistent with legislative intent, that having
to work overtime does not, by itself, amount to such a
disruption. Indeed, this is particularly true where the
City could pay the replacement officers in comp. time
and not cash overtime wages. Congress recognized that
only operational disruption, not payroll expense to the
employer, could be a basis for denying an employee the
use of accrued comp. time. Compare 29 U.S.C.
§ 207(0)(5) (“unduly disrupt the operations of the public
agency”) with 42 U.S.C. § 12111(10) (Americans with
Disabilities Act) (“undue hardship means an action
requiring significant difficulty or expense”).

In DeBraska v. Milwaukee, Senior Judge Myron Gordon,
faced with the situation in which the Milwaukee Police

’ Brief of the Secretary of Labor as Amicus Curiae at 19-20, DeBraska
v. City of Milwaukee, 131 F.Supp.2d 1032 (E.D. Wisc. 2000) (No. 96-
C-402).

10

Department granted or denied requests to use accrued comp
time on the basis of preset minimum staffing levels, wrote:

The regulation suggests that a request for a specific time
period off must be granted in absence of undue
disruption: For an employer to turn down a comp time
request, it must in good faith believe that granting it
would impose an unreasonable burden “during the time
of the request.” The city does not follow this approach. It
denies a request automatically, without considering the
issue of undue disruption, if it would require another
officer to work overtime or a replacement from another
shift or precinct. The city’s contention that it does not
deny such requests but rather grants them by offering an
alternative date is also inconsistent with the regulation’s
use of the phrase “during the requested time.”

I believe the Secretary’s interpretation of the FLSA
comp time provision is more consistent with its regu-
lation. Since that regulation is itself an interpretation of
the FLSA’s ambiguous comp time provision, the regu-
lation is entitled to deference under Chevron.

The regulation discussed above could still be clearer,
however, and the Secretary’s preamble to the regu-
lations, opinion letter and amicus brief eliminated any
remaining ambiguity.®
Judge Gordon, therefore, held that the City’s administration
of its comp time system does not comply with § 207(0)(5).
The court then distinguished the Sixth Circuit’s plurality
opinion for the reasons stated in the Aiken dissent by Judge
Ryan.

On September 6, 2002, District Judge Charles Clevert
entered a final order in DeBraska.’ The final order incor-

* 131 F.Supp.2d at 1035-36 (citing, 52 Fed. Reg. 2012, 2017 (1987)).

” DeBraska v. Milwaukee, Order Approving Final Settlement Agree-
ment for Judgment and Dismissal and Final Judgment, Case No. 96-C402
(E.D. Wisc. 2002).

1]

porated and adopted as fair and reasonable an agreement of
the parties to revise the City’s system with regard to access to
compensatory time. The new system requires that replace-
ment officers, even those requiring overtime pay, be used
prior to any determination of “undue disruption” and does not
allow a refusal of a request to take compensatory time off on
the basis of pre-set minimum staffing levels. The Court states
in the final order:

[T]he Administrator of Department of Labor’s Wage and
Hour Division informed the Court on August 12, 2002,
that “the steps that the City has committed to take in the
settlement agreement to enable officers to use requested
compensatory time off comply with the requirements of
section 207(0) of the FLSA and the implementing
regulations at 29 C.F.R. § 553.25.”!°

Again, in Canney v. Town oj Brookline, 2000 U.S. Dist.
16279 (D. Mass. October 9, 2000) (App. I), the question
before the court was whether the police department could
utilize a system under which the department denied an offi-
cer’s request to take a particular day off as accrued com-
pensatory time when granting the requested day off would
require the employer to pay another officer at an overtime
rate to work in the requesting officer’s stead. This court, too,
endorsed the employee choice rule. It held that the em-
ployer’s system violated the FLSA because Section 207(0)
requires the employer to grant the employee’s requested day
off unless the grant of that particular day off would result in
undue disruption, and the payment of overtime does not
constitute an undue disruption.

As in DeBraska and Canney, the court in Long Beach
Police Officers Assn. v. Luman, CV 99-13090 FMC (JWJx)
(C.D. Cal. May 10, 2001) (App. J), reviewed—and rejected—
a system pursuant to which the employer denied employee

10 I.

12

requests for specific compensatory time off without attempt-
ing alternatives that would allow the employer to grant the
requested time off and still meet the agency’s operational
needs. The Long Beach police department did not try to find
substitutes to cover for a requesting officer and it did not
permit the requesting officer to find a substitute to work on
the day for which he had requested use of compensatory
leave. The court concluded that this employer designation
system violated Section 207(0).

In Meyer v. City of Raleigh, 5:99 CV 324BO(3) (E.D.N.C.
August 10, 2001) (App. K), Chief United States District
Judge Terrence W. Boyle, ruled similarly:

This Court agrees that maintaining minimum employ-
ment levels is crucial to ensuring safety and order in the
City of Raleigh. However, to comply with the “undue
disruption” standard, the City must turn down comp time
requests, only when granting them would impose the
unreasonable burden “during the time requested.” See 29
C.F.R. §553.25(d). Although the applicable regulation is
ambiguous as to what constitutes an unreasonable or
undue disruption, the Secretary’s preamble to the inter-
preting regulation clarifies its meaning. The preamble
states that:

situations may arise in which overtime may be
required of one employee to permit another employee
to use compensatory time off. However, such a
situation, in and off itself, would not be sufficient for
an employer to claim that it is unduly disruptive. 52
Fed. Reg. 2012, 2017 (1987)...

This Court finds the Secretary’s interpretations persua-
sive and holds that, because Defendant is unwilling to
substitute officers who may need to be paid overtime to
grant an officer’s comp time request, it thereby denies
requests when doing so would not impose undue
hardship. It is therefore possible for the City to grant
comp time requests, even when the log book is full,

13

without causing staffing levels to fall below the critical
level. To do this the City need find replacement officers
for the requesting officers and may, in some cases, be
required to pay overtime to such replacement officers.
However, to so accommodate its officers would not
impose “undue hardship” on the City." —_—

Similarly, under Alexandria. Coalition of Police, Local 5,
1.U.P.A. et al. v. City of Alexandria, CA 01-1617-A (E.D.Va.
March 22, 2002) (App. L), an employee’s choice to take
specific time off in compensatory leave must be granted even
if that requires paying another employee overtime to work in
the requesting employee’s place. Only if granting the spe-
cific request would cause undue disruptions to the agency’s
operations may an employer refuse to grant an employee’s
choice of compensatory time off.

See also D’Camera v. District of Columbia, 693 F. Supp.
1208 (D.D.C. 1988) (“D’Camera I’); D’Camera v. District of
Columbia, 722 F. Supp. 799 (D.D.C. 1989) (“D’Camera IT’);
Kimpel v. Williams, CV. 93-3341-GHK (RNBx) (C.D. Cal.
1999) (Appendix H); Hoff v. Park, CV 98-10245 GHK
(RNBx) (C.D. Cal. 1998).

For Americans residing in all of the jurisdictions discussed
above, requests for compensatory time off must be decided
under an employee choice rule, pursuant to which the specific
time off requested by the employee must be granted absent
undue disruption to the employer. Furthermore, the U.S.
Department of Labor applies the employee choice rule in all
jurisdictions other than those within the Fifth Circuit. Only
Americans residing within the Fifth Circuit have their comp
time requests decided under an employer designation rule that
allows their requests to be denied as long as the employer
allows them to take time off sometime “within a reasonable
period” of the specific date requested.

'' 5:99 CV 324B0(3) at 20-21 (App. K at 107a-108a).

14

When, as is likely, the Sixth Circuit issues a new decision
on this issue that endorses the employee choice rule, the split
will be intensified. At that point, certiorari should be granted
to resolve that split.

However, even absent a new conflicting Sixth Circuit
decision, certiorari should be granted to resolve the critical
question of which rule governs the use of accrued com-
pensatory time off. The manner in which an American is able
to exercise his or her rights under a federal statute such as the
FLSA should not be determined by something as arbitrary
as where the individual happens to reside. Every public
employee’s use of accrued compensatory time is governed by
a single federal statute; the rule controlling whether the
employee’s request to use accrued time will be denied should
also be the same across the country. Grant of certiorari in this
case will ensure that Americans who serve as_ public
employees will be subject to the same rules controlling their
use of accrued compensatory time off regardless of where
they may reside.

15
CONCLUSION

For the foregoing reasons, the Petition for Certiorari should
be granted.

Respectfully submitted,

MICHAEL T. LEIBIG *

MARGO PAVE

ZWERDLING, PAUL, LEIBIG, KAHN
& WOLLY, P.C.

1025 Connecticut Avenue, N.W.

Suite 712

Washington, D.C. 20036-5420

(202) 857-5000

ROBERT A. ARMBRUSTER

HOUSTON POLICE OFFICERS’ UNION
Office of Legal Counsel

1600 State Street

Suite 200

Houston, Texas 77007

(832) 200-3420

ROBERT J. THOMAS

ROBERT J. THOMAS, P.C.
1302 Waugh, No. 826
Houston, Texas 77019-4944
(281) 924-3019

* Counsel of Record Counsel for Petitioners

APPENDICES

la
APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

[Filed April 29, 2003]
No. 01-21117

HOUSTON POLICE OFFICERS’ UNION; HANS MARTICIUC;
ANDREA BURKE; STEVEN CAIN; RICHARD HAHN; MICHAEL
LUMPKIN; SHAWN PALIN; CLYDE ROOKE; STEVEN
MURDOCK; EIGHT HUNDRED EIGHTY-NINE ADDITIONAL
CONSENTERS,

Plaintiffs-Appellants,

versus

CITY OF HOUSTON, TEXAS,
Defendant-Appellee.

Appeal trom the United States District Court
For the Southern District of Texas

Before JONES, SMITH, and SILER,” Circuit Judges.
EDITH H. JONES, Circuit Judge:

The principal question raised in this appeal is whether
section 207(0)(5) of the Fair Labor Standards Act (“FLSA”)
requires a public agency to allow its employees the use
of accrued compensatory time on those days specifically
requested by the employees, unless to do so would “unduly
disrupt” the agency’s function. In support of this proposition,
appellant Houston Police Officers’ Union and others
(collectively, the “Union” argue that this court must defer to

* Circuit Judge of the Sixth Circuit, sitting by designation.

2a

various statements and regulations of the Department of
Labor construing section 207(0)(5). Because the statutory
language is clear, however, deference is inappropriate. The
summary judgment of the district court in favor of the City of
Houston (“City”) is accordingly affirmed.

BACKGROUND

The FLSA requires all employers, including states and
their political subdivisions, to provide overtime compensation
for employees who work more than 40, hours per week. 29
U.S.C. § 207 (2003). In the private sector, compensation for
excess hours is to be paid at a rate of not less than one-and-a-
half times the employee’s hourly wage. /d. at § 207(a)(1). To
ease the burden on public employers, Congress allows these
entities to provide overtime compensation in the form of
compensatory time (“comp time”) at a rate of one-and-a-half
hours for every excess hour worked. /d. at § 207 (o0)(1). An
employer that would utilize this provision must have a
collective bargaining agreement with its employees or
agreements with individual employees permitting such a
practice. /d. at § 207(0)(2).

During the period covered by this litigation, the Houston
Police Department (“HPD”) administered comp-time usage
by way of a log known as the “Red Book,” one of which was
kept in each of the HPD’s units. A unit’s Red Book listed all
of the officers in the unit who were scheduled, for whatever
reason, to be off-duty on any given day. Each unit had a
predetermined limit on the number of officers who could be
off on a particular day. This limit was based on the shift
commander’s estimate of the unit’s manpower needs. The
primary considerations in formulating this estimate were the

' The parties have stipulated that they have been in agreement since
July 2001 regarding the manner in which accrued comp time is to be used.
Because the Union’s suit is for past damages, the parties’ current agree-
ment does not moot the statutory interpretation question this case presents.

3a

unit’s anticipated workload (based on historical trends), the
unit’s efficiency, and the unit’s ability to tolerate disruption in
its operations. In general, the Shift Commanders (with
approval from Division Commanders) limited the spaces in
the Red Book to ten percent of the unit’s staff. An officer
wishing to use his accrued comp time had to sign his name in
his unit’s Red Book for the day(s) he wished to take off. If the
Red Book’s limit for the requested day had not been reached,
the officer received his requested comp time.

The Union was displeased with this system, as it could
frustrate an officer’s attempt to choose the dates on which he
would use comp time. instead of allowing an individualized
assessment of the inconvenience that an officer’s absence on
a particular day might place on his unit, the Red Book system
imposed an inflexible ten-percent limit on all days. Forced by
the department to work overtime at the HPD’s conve-
nience, members of the Union would have preferred to use
comp time for their convenience.

The Union accordingly sued the City in federal court,
alleging, inter alia, that the HPD’s Red Book system violated
the FLSA by failing to provide individualized assessments of
the disruption that comp-time requests over and above the
ten-percent limit might cause to the operations of the HPD.

Upon receiving cross-motions for summary judgment, the
district court entered summary judgment for the City, hold-
ing that the FLSA does not grant the employees of public
agencies the right to use their accrued comp time on days of
their own choosing. The Union appealed.

STANDARD OF REVIEW

This Court reviews the grant of summary judgment de
novo, applying the same standards as the district court.
Sherrod v. American Airlines, Inc., 132 F.3d 1i!2. 1119 (Sth
Cir. 1998); McInnis v. Alamo Cmty. Coll. Dist. 207 F.3d 276,
279 (Sth Cir. 1998). Summary judgment under Rute 56 of the

4a

Federal Rules of Civil Procedure is appropriate only “if. . .
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.”
FeD. R. Civ. P. 56(c).

A fact is material if it could affect the outcome of the
lawsuit, and a dispute about a material fact is genuine if the
evidence is such that a reasonable jury could return verdict
for the non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Reviewing courts must look at the
evidence and draw all inferences therefrom in a light most
favorable to the non-moving party. Hibernia Nat'l Bank v.
Carner, 997 F.2d 94, 97 (Sth Cir. 1993).

DISCUSSION

Two issues are raised on appeal: what is the proper
interpretation of section 207 (0) (5), and whether the HPD
correctly applied the provision to its operations. We discuss
each issue¢ in turn.

I. Section 207(0) (5)
The FLSA provides, in pertinent part, that:

[aJjn employee of a public agency which is a State,
political subdivision of a State, or an interstate gov-
ernmental agency—

(A) who has accrued compensatory time off... .
and

(B) who has requested the use of such com-
pensatory time,

shall be permitted by the employee’s employer to use
such time within a reasonable period after making the

Sa

request if the use of the compensatory time does not
unduly disrupt the operations of the public agency.

29 U.S.C. § 207(0)(5}. The litigants offer two conflicting
interpretations of this provision. The City contends that the
phrase “within a reasonable period after making the request”
obliges an employing public agency to authorize an em-
ployee’s use of accrued comp time within a certain temporal
range (a “reasonable period”) following the date on which the
request is made. Comp time may be delayed, nonetheless, in
the event that the employee’s desired usage would “unduly
disrupt” the agency’s operation.

Without gainsaying the plausil ility of the City’s interpre-
tation, the Union advances another reading of this require-
ment: The employing agency must allow the employee’s use
of comp time on the day specifically requested, unless it
would “unduly disrupt” the agency’s operation. The Union
fortifies its interpretation by arguing that it is advocated by
the Department of Labor in at least three separate and legally
relevant venues: (1) the statute’s implementing regulations,
Application of the Fair Labor Standards Act to Employees of
State and Local Governments, 29 C.F.R. § 553 et seq. (esp.
§ 553.25), which the Department of Labor enacted in 1987,
pursuant to formal notice-and-comment rulemaking (“Regu-
lations”); (2) an opinion letter produced by the DOL’s Wage
and Hour Division in 1994, 1994 WL 1004861 (“Opinion

* See 29 C.F.R. § 553.25(d): “When an employer receives a request for
compensatory time off, it shall be honored unless to do so would be
‘unduly disruptive’ to the agency’s operations. Mere inconvenience to the
employer is an insufficient basis for denial of a request for compensatory
time off. (See H. Rep. 99-331, p. 23.) For an agency to turn down a
request from an employee for compensatory time off requires that it
should reasonably and in good faith anticipate that it would impose an
unreasonable burden on the agency’s ability to provide services of
acceptable quality and quantity for the public during the time requested
without the use of the employee’s services.”

6a

Letter”);” and (3) the amicus brief filed by the Secretary of
Labor in an action resembling the instant case, DeBraska v.
City of Milwaukee, 131 F. Supp.2d 1032 (E.D. Wisc. 2000)
(“Amicus Brief’)."

When construing a federal statute that has been interpreted
by an administrative agency, courts look first to the language
of the statute. If Congress has “directly spoken to the precise
question at issue,” i.e. “[i]f the intent of Congress is clear,
that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed
intent of Congress.” Chevron U.S.A. Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778 (1984). If
the statute is ambiguous, however,

the court does not simply impose its own construction on

the statute, as would be necessary in the absence of q
administrative interpretation. Rather, . . . the question for .
the court is whether the agency’s answer is based on a 4
permissible construction of the statute.

Id. at 843. The Chevron doctrine thus requires a litigant, such
as the Union, who would have a court defer to an agency’s

> The Opinion Letter states, “It is our position, notwithstanding [an
agreement between the Police Officers Association and the City] that an
agency may not turn down a request from an employee for compensatory
time off unless it would impose an unreasonable burden on the agency’s
ability to provide services of acceptable quality and quantity for the public
during the time requested without the use of the employee's services. The
fact that overtime may be required of one employee to permit another
employee to use compensatory time off would not be a sufficient reason
for an employer to claim that the compensatory time off request is unduly
disruptive” (emphasis added).

| * Amicus Brief at 7 (“In providing that an employee shall be permitted

to use comp. time ‘within a reasonable period after making the request,’
Congress obviously intended to prescribe a minimum notice requirement,
not a maximum time after the date of the leave request that comp. time
may be used.”).

Ta

regulations, to jump two hurdles. He must show that the
statute is in fact ambiguous regarding the question at bar, and
he must demonstrate that the regulation’s statutory inter-
pretation, whether or not preferable, is permissible. Before
considering the various statements from the Department of
Labor, then, the statute must be carefully reviewed.

The text of § 207(0)(5) plainly defines the period between
the date the employee submits his request and the date the
employer allows the employee to use the comp time: the
employee “shall be permitted . . . to use such [comp] time
within a reasonable period after making the request.” 29
U.S.C. § 207(0)(5). As the City suggests, mandating a
“reasonable period” for use of comp time is different from
mandating the employee’s chosen dates. The language offers
a span of time to the employer, the beginning of which is the
date of the employee’s request.

The Union responds in two ways to this grammatically
appealing interpretation. First, the Union asserts that “such
time” means “the specific time requested by the employee.”
This is untenable, however, because within § 207(0)(5)
“time” consistently refers to the number of compensatory
hours to which an employee is entitled, not, as the Union
would have it, to the date or dates on which an employee asks
to be let off work. Words are ordinarily interpreted to have a
uniform meaning in a given statutory context.

The Union also argues that “[t]he interplay between the
reasonable period’ and ‘unduly disrupt’ clauses generates
ambiguity within the language of the statute.” While the
Union concedes that it is possible that the “reasonable period”
clause refers only to the time between request and comp-time
consumption, the presence of the “unduly disrupt” clause
raises the possibility that the “reasonable period” clause
refers, rather, to the time between intended and actual date of
comp-time consumption. We understand the interaction
between these two clauses quite differently. Instead of

8a

obscuring the proper object of the “reasonable period” clause,
the “unduly disrupt” clause serves to clarify its obvious
meaning. The “reasonable period” clause imposes upon the
employer the obligation to facilitate the employee’s timely
usage of his accrued compensatory time. The “unduly
disrupt” clause suggests conditions, however, that would
release the public employer from the previously imposed
condition. The statute, thus construed, reflects a balance
between obligation and exemption.”

Finally, according to the Union, the City’s interpretation
expands the impact of the “reasonable period” clause while
leaving the “unduly disrupt” clause without meaning. Thus,
the Union contends, when an employee makes a reasonably
timely request for a specific period of comp-time leave, the
employer must grant it unless doing so would unduly disrupt
the agency’s operation for each such request. We have just
explained how a straightforward reading of the provision
balances obligation and exemption. But even more to the
point, the Union’s explanation requires linguistic contortion
where it is obvious that Congress could have chosen much
simpler language to express the Union’s desired policy. Had
Congress intended to do as the Union suggests, alternative
Statutory language is not hard to envision. Congress might
have worded subparagraph (B) to refer to an employee “who
has requested with reasonable advance notice the use of
such compensatory time,” while eliminating the “reasonable
period” language from the latter part of the sentence. Con-

* Though there is no need to rest our argument on the cushions of
armchair legislative history—the logic found in the statute’s plain text is
sufficient for the question at hand—the events compelling Congress to
enact this statute strongly suggest the prudence of construing these two
phrases as a compromise between the interests of public agencies and
their employees. For an exposition of such, see Justice Thomas’s
discussion in Christensen v. Harris County, 529 U.S. 576, 578-580, 120
S.Ct. 1655 (2000). See also Moreau v. Klevenhagen, 508 U.S. 22, 25-28,
113 S.Ct. 1905 (1993).

9a

gress might alternatively have substituted “as requested” for
“within a reasonable period” after making the request. That
Congress did not forthrightly choose such obvious means
to describe employee rights undermines the Union’s
interpretation.

For all these reasons, we conclude that the statute does not
require a public employer to authorize comp-time use as
specifically requested by an employee (subject to the undue
disruption clause), but instead requires that the comp time be
permitted within a reasonable period after the employee
requests its use. Although this conclusion ends the analysis
for Chevron purposes, it is useful to address the errors in the
Union’s reliance on DOL interpretations referenced above.

First, the regulation implementing section 207(0) (5), supra
n.2, simply does not address whether the statute mandates an
employee’s specifically requested dates for comp time. The
regulation highlights that actual disruption, rather than “mere
inconvenience,” be caused to the agency as a justification for
denying comp-time use, but it neither addresses case-specific
determinations nor prohibits an agency from determining, as
HPD has done, that an absentee rate exceeding ten percent of
a unit’s staff actually jeopardizes the department’s ability to
protect the citizens of Houston.° While the regulation would
be entitled to Chevron deference if it spoke to the issue at
hand, and if the statute were ambigious, that case is not
before us. See Christensen, 529 U.S. at 587-88, 120 S.Ct.
at 1663.

The Union’s additional, administrative crutches include the
DOL’s 1994 Opinion Letter, supra n.3, and its Amicus Brief
filed in federal district court litigation, supra n.4. Contrary to
the Union’s view, we are not obliged to defer to these
interpretations of section 207(0) (5) under Auer v. Robbins,

° We emphasize, moreover, that the Red Book limits were in practice
ameliorated by an appeals process. See infra n. 9.

10a

519 U.S. 452, 117 S.Ct. 905 (1997), as that case concerns
judicial deference to administrative interpretations of the
agency’s own ambiguous regulations. Auer, 519 at 461, 117
S.Ct. 911; see also Christensen, 529 U.S. at 588, 120 S.Ct. at
1662 (referring to “Auer deference”); Moore v. Hannon Food
Service, Inc., 317 F.3d 489 (5th Cir. 2003).’ Nor is it clear,
after United States v. Mead Corp., 533 U.S. 218, 121 S.Ct.
2164 (2001), whether these pronouncements are sufficiently
authoritative to merit Chevron deference. That knotty issue
may be pretermitted, however, because neither the Opinion
Letter nor the Amicus Brief persuades us that our construc-
tion of section 207(0)(5) is wrong or that the provision is
ambiguous, as would be required for Chevron deference.

The Union also relies on court opinions that have perceived
ambiguity in section 207(0)(5), most notably a district court
in DeBraska v. City of Milwaukee, 131 F. Supp.2d 1032 (E.D.
Wisc. 2000), but also Judge Ryan’s dissent from a Sixth
Circuit opinion in Aiken v. City of Memphis, 190 F.3d 753
(6th Cir. 1999). These cases fail to advance the Union’s
argument, not only because they are not legally binding, but
also because they do not address the threshold issue of
statutory ambiguity.®

’ The City’s reliance on Christensen wholly to forestall our deferring to
these authorities is equally misplaced. See Barnhart v. Walton, 535 U.S.
212, 220-22, 122 S.Ct. 1265, 1271-72 (emphasizing that agency
interpretations reached through less formal means than notice and
comment rulemaking are not “automatically deprive[d]” of Chevron
deference, and “[if this Court’s opinion in Christensen, suggested an
absolute rule to the contrary, our later opinion in [Mead] denied the
suggestion” (citations omitted)).

* In DeBraska, the most the court provides in defense of its conclusory
assertion that “[t]he language of the statute is somewhat ambiguous’’ is its
ex post facto judgment that “the statute could have been better written to
reflect either one of the competing interpretations.” 131 F. Supp.2d at
1034. Nor does Judge Ryan’s dissent, despite a thoughtful discussion of
the application of the DOL Regulations to the case before that court, give

lla
II. Application of Section 207(0) (5)

The Union also attempted to adduce sufficient summary
judgement evidence to suggest that, under the HPD’s “Red
Book” System, complainant police officers were unable to
use their accrued comp time within a “reasonable period after
making the request.” After a careful review of the record, this
court concludes, as did the district court, that the Union has
failed to create a geuine issue of material fact on the HPD’s
alleged misapplication of section 207(0)(5).

The principal evidence to which the Union points consists
of the following: (1) the deposition of Joe L. Breshears (HPD
Executive Assistant Chief); (2) HPD General Order 300-07,
September 18, 1995; (3) the data and testimony of Dr. P.R.
Jeanneret (HPD expert witness); and (4) the memorandum of
G.S. Stewart (Assistant Chief, South Patrol Unit, HPD).
These documents do not, either individually or collectively,
present any evidence whatsoever that the HPD’s Red Book
System prevented the city’s police officers from using
accrued comp time within a “reasonable period after making
the request.” The most that can be found here is some slight
evidence of the fact that certain forms of police work,
particularly patrol duty, are ill-suited to the removal and
substitution of non-fungible officers.

To review the evidence briefly: In the deposition testimony
of Chief Breshears can be found a detailed description of the
manner in which the Red Book policy was formulated and
administered; in General Order 300-07 there is a formal

the slightest consideration to the question of the statute’s ambiguity.
Finally, the Union cites three other cases in which federal district courts
found the statute to be ambiguous. Meyer v. Raleigh, 5:99 CV 324 BO(3)
(E.D.N.C. Aug. 10, 2001); Long Beach Police Ass'n v. Luman, CV 99-
13090 FMC (JMJX) (C.D. Cal. May 10, 2001); Canney v. Brookline,
2000 U.S. Dist. 16279 D. Mass. October 19, 2000). The Union did not
provide copies of these difficult-to-access decisions, and they are district
court cases, from other circuits, that do not bind us.

12a

policy statement of the same; and in Chief Stewart’s
memorandum are the results of a poll, saying, once again, that
comp time could be taken on a first-come, first-served basis.
The sharpest version of all, of course, is the information
provided by Dr. Jeanneret, as his data and testimony were
prepared by the HPD in response to this suit. In none of
these reports is there the slightest hint that the Red Book
system, either in theory or practice, violated the FLSA as
interpreted above.”

Nonetheless, one of the Union’s points calls for a more
substantial response. This is that officers on patrol duty had
experienced rather more substantial delays in their ability to
consume their accrued comp time.

The report prepared by Dr. P.R. Jeanneret concluded with
the following statement: “For the most part, an employee who
is eligible for compensatory time off is able to obtain
approval for a specific time period requested without
difficulty.” Dr. Jeanneret goes on, however, to note an
exception to this general rule:

The exception to this conclusion occurs in Patrol and
especially those divisions that have a high volume of
calls for service. The divisions with high volumes of
service calls where operations have been using below
minimum staffing levels presented circumstances when
not everyone might be able to obtain the specific com-
pensatory time off they had requested. These relatively
limited circumstances arise when the red book slots are
filled and when making exceptions would present the

” Even more surprising, the summary judgment evidence in this case
also fails to sustain the Union’s own interpretation of the FLSA. In Chief
Breshears’ testimony and Dr. Jeanneret’s report there is a strong
suggestion that the HPD did a more-than-adequate job of responding, via
an informal appeals system, to officers’ individual requests to override the
Red Book’s theoretically mandatory ten percent absentee quota.

13a

division with safety concerns and unacceptable increases
in response time to calls for service.

While the Union does not appear to dispute Dr. Jeanneret’s
basic conclusion, it argues that his qualification of the general
rule is significantly understated. What he fails to mention, the
Union argues, is that of the over 5000 police officers in the
HPD, approximately 40% work in patrol. The exception thus
swallows the rule.

The Union’s clarification does not suffice to create a fact
issue concerning HPD’ s violation of section 207(0)(5). First,
the proposition to which this factum constitutes an exception
is not an exception to the assertion that Houston police
officers were unable to take compensatory time “within a
reasonable period after making the request.” It is apposite,
rather, to the proposition that officers are “able to obtain
approval for a specific time period requested without
difficulty.” As has been discussed, the FLSA does not grant
such a right. The HPD’s denial of such an option to patrol
officers cannot, therefore, be actionable.

We also note, moreover, that this exception would be void
of legal significance even if the Union’s reading of the FLSA
were correct. This is so because requiring comp-time usage-
on-demand would, as Dr. Jeanneret’s uncontroverted analysis
concludes, “unduly disrupt” the operations of the HPD. As
he said:

Such understaffing would severely impact the opera-
tional efficiency and effectiveness of HPD and under-
mine the Department’s continued efforts to provide the
required levels of service within the budget allocations
provided in the City of Houston.

In other words, local neighborhoods could be seriously
adversely affected when too many regular duty officers are
off work. The FLSA requires, generally, that officers be
allowed to take comp time within reasonable periods after

14a

making their requests. The burden that this statute places
upon public employers is waived, however, in those
circumstances where compliance would “unduly disrupt the
operations of the public agency.” This balance represents the
statutory compromise between the interests of public agencies
and their employees. Without adequate evidence placing Dr.
Jeanneret’s conclusion of undue disruption into dispute, this
court must conclude, as did the district court, that the Union
has no claim cognizable under section 207(0) (5).

CONCLUSION

The clearly articulated details of § 207 of the FLSA strike a
balance between the employee’s right to use comp time
promptly and the public agency’s need to avoid disruption, a
balance expressed with sufficient clarity to resolve the
interpretive dispute before us. Moreover, the Union’s sum-
mary judgment evidence is insufficient to create a fact issue
over HPD’s alleged misapplication of section 207(0)(5). This
court accordingly affirms the district court’s grant of
summary judgment to the City.

Judgment AFFIRMED.

lSa
APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

[Filed Apr. 29, 2003]

No. 01-2!117
D.C. Docket No. H-00-CV-2184

HOUSTON POLICE OFFICERS’ UNION; HANS MARTICIUC;
ANFREA BURKE; STEVEN CAIN; RICHARD HAHN; MICHAEL
LUMPKIN; SHAWN PALIN; CLYDE ROOKE; STEVEN
MURDOCK; EIGHT HUNDRED EIGHTY-NINE ADDITIONAL
CONSENTERS,

Plaintiffs-Appellants,
We

CITY OF HOUSTON, TEXAS,
Defendant-Appellee.

Appeal from the United States District Court for the
Southern District of Texas, Houston

Before JONES, SMITH, and SILER", Circuit Judge.

JUDGMENT

This cause was considered on the record on appeal and was
argued by counsel.

It is ordered and adjudged that the judgment of the District
Court is affirmed.

* Circuit Judge of the Sixth Circuit, sitting by designation.

l6a

IT IS FURTHER ORDERED that plaintiffs-appellants pay
to defendant-appellee the costs on appeal to be taxed by the
Clerk of this Court.

ISSUED AS MANDATE: MAY 21, 2003

A True copy
Test:

Clerk, U.S. Court of Appeals, Fifth Circuit

By: /s/ [ILLEGIBLE]
Deputy
New Orleans, Louisiana May 21, 2003

17a
APPENDIX C

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

[Filed Sept. 26, 2001]
Civil Action No. H-00-2184

HOUSTON POLICE OFFICERS’ UNION, et al,
Plaintiffs,
VS.
CITY OF HOUSTON POLICE
DEPARTMENT and CITy OF HOUSTON,
Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court in the above-referenced action
are Plaintiffs Motion for Partial Summary Judgment (Inst.
No. 33) and Defendant City of Houston’s Cross-Motion for
Summary Judgment (Inst. No. 38). After reviewing the record
and the applicable law, the Court concludes that Plaintiffs
partial summary judgment motion should be DENIED, and
that Defendant’s cross-motion for summary judgment should
be GRANTED.

I. BACKGROUND

In this action for declaratory judgment, brought under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et segq.,
Plaintiffs Houston Police Officers’ Union er al. (collectively
referred to as “HPOU”) sues Defendant City of Houston
(“City”) for alleged unlawful calculation of overtime com-
pensation, use of improper overtime rates, and an overall
intentional failure to pay members of HPOU all proper
compensation due.

18a

Plaintiffs in this case include current and former police
officers employed in the Houston Police Department
(“HPD”) by the City. HPOU is the certified bargaining
representative for the original eight named Plaintiffs and the
other similarly-situated 889 officers in this case, pursuant to
Chapter 143, Subchapter J, § 143.351 of the Texas Local
Government Code. HPD is an official department and agency
of the City, established and authorized by the City to provide
law enforcement services for the City. Defendant City of
Houston is the official government authority responsible for
the provision, organization, management, and operation of
law enforcement within its jurisdiction.

In 1998, officers in the HPOU and the City entered into a
“Meet and Confer Agreement” (“MCA”), which outlines the
terms of the officers’ employment. The MCA reflects the
parties’ effort to develop fair and equitable standards for
wages, hours, and other terms and conditions. In this case, the
terms of the MCA give rise to at one least aspect of HPOU’s
lawsuit against the City; specifically, HPOU complains (a)
that the City’s calculation of pay should include the
equipment allowance that is provided for under the MCA, and
(b) that the City’s scheduling of compensatory time violated
the FLSA. The Court addresses both claims below.

ll. STANDARD OF REVIEW

Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is appropriate when the pleadings and
record evidence show that no genuine issue of material facts
exists and that, as a matter of law, the movant is entitled to
judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (Sth
Cir. 1994). “[T]he substantive law will identify which facts
are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Only disputes about material facts will preclude
the granting of summary judgment. Id. In a motion for
summary judgment, the burden is on the movant. Latimer v.
Smithkline & French Lab., 919 F.2d 301, 303 (Sth Cir. 1990).

19a

If the non-movant bears the burden of proof at trial, however,
the movant for summary judgment need not support the
motion with evidence negating the opponent’s case. Instead,
the movant may satisfy its burden by showing that there is an
absence of evidence to support the non-movant’s case. /d.;
Little, 37 F.3d at 1075.

Once the movant makes this showing, the burden shifts to
the non-movant to show that summary judgment is not
appropriate. Little, 37 F.3d at 1075 (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986)). “This burden is not
satisfied with ‘some metaphysical doubt as to the material
facts,’ . . . by ‘conclusory allegations,’ . . . by ‘unsubstan-
tiated assertions,’ or by only a ‘scintilla’ of evidence.” /d.
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 US. 574, 586 (1986); Lujan v. National Wildlife Fed’n,
497 U.S. 871, 871-73 (1990); Hopper v. Frank, 16 F.3d 92,
97 (Sth Cir. 1994); Davis v. Chevron U.S.A., Inc., 14 F.3d
1082, 1086 (Sth Cir. 1994)). Rather, the non-moving party
must “come forward with ‘specific facts showing that there is
a genuine issue for trial.’” Matsushita, 475 U.S. at 587
(quoting FED. R. Civ. P. 56(e)). In determining whether a
genuine issue for trial exists, the court must view all of the
evidence in the light most favorable to the non-movant.
Richter v. Merchants Fast Moior Lines, Inc., 83 F.3d 96, 98
(Sth Cir. i996) (per curiam); Gremillion v. Gulf Coast
Catering Co., 904 F.2d 290, 292 (Sth Cir. 1990).

Ill. DISCUSSION

As a general matter, the FLSA requires employers,
including states and their political subdivisions, to pay
overtime compensation to employees who work more than
forty hours per reguiar work week. 29 U.S.C. § 207 (1993).
As employers, municipalities such as the City of Houston are
required to compensate their employees for excess hours at a
rate not less than 1% times their hourly wage. 29 U.S.C.
§ 207(a)(1). See Christensen v. Harris County, 529 U.S. 576,

20a

579 (2000) (detailing how Congressional amendments to the
FLSA eventually resulted in the 1’ overtime pay standard
being applied to state employers). Pursuant to various
Congressional amendments to the FLSA, however, public
employers also have the option of paying employees for
overtime by granting them compensatory time, instead of
compensatory pay, at a rate of 1% hours for every hour
worked. 29 U.S.C. § 207(0)(1). See Christensen, 529 USS. at
579 (discussing Congressional amendments that mitigate the
effects of FLSA on states and their political subdivisions).

A. Equipment allowance.

When an employer provides compensatory pay, the FLSA
mandates that such overtime pay be at least 1/2 times the
“regular rate” of the employee. 29 U.S.C. § 207. As the
Supreme Court has recognized, the regular rate is the hourly
rate that the employer pays the employee “for the normal,
non-overtime workweek.” Walling v. Youngerman-Reynolds
Hardwood Co., 325 U.S. 419, 425 (1945); see Lee v. Vance
Executive Protection, Inc., No. 00-1330, 2001 WL 108760, at
*2 (4th Cir. Feb. 8, 2001). Section 207(e) of the FLSA
provides that the “regular rate” comprises “all remuneration
... paid to... . the employee,” except for eight specific types
of payments that are excluded from the regular rate. See
generally 29 U.S.C. § 207(e)(1)-(8).

In this case, one of the terms in the MCA between HPOU
and the City involves an equipment allowance. Specifically,
the fifth paragraph of Article 16 of the MCA states that the
City shall provide each police officer an equipment allowance
that is “payable biweekly”; the purpose of the equipment
allowance is to compensate officers for money spent on
necessary equipment, such as guns, ammunition, pepper
spray, uniform shoes, and the like. Under the equipment
allowance provision, the City pays each police officer either
$46.15 or $70.19 on a biweekly basis; this amount equates to
either $1200.00 or $1825.00 on an annualized basis.

2la

The equipment allowance for each two-week period does
not necessarily reflect the exact expenses made by police
officers in the course of the two weeks, however. Indeed,
police officers are not required to submit receipts to the HPD
or the City showing how much money they actually spend on
equipment in a given period. HPOU further states that no
provision explicitly requires officers to spend their equipment
allowance on items related to their official work as police
officers.

Of controversy in this case is the fact that the City does not
include the equipment allowance in the “regular rate” of its
officers’ pay for the purposes of calculating the officers’
overtime pay. The economic incentives at stake in this case
are clear: the larger the amount categorized as “regular rate,”
the larger the officers’ overtime pay, given that overtime pay
is calculated at 150% the regular rate. As a result, Plaintiff
HPOU now moves for partial summary judgment and argues
that the City’s equipment allowance should be counted as part
of each officer’s regular rate because it does not fall into any
of § 207(e)’s exceptions.

HPOU in particular argues that the equipment allowance is
not a gift; it is not vacation or sick leave or other leave pay; it
is not discretionary, for it is provided for in the MCA; it is not
contributed to, or paid from, a trust or employee benefit plan;
and it is not a premium rate. (Pl.’s Mem. In Support of Part.
Summ. J. at 5.) Moreover, HPOU points out that the
equipment allowance is not calculated as a dollar-for-dollar
reimbursement of any expense an officer incurs within a
given pay period. Rather, according to HPOU, the amount of
the equipment allowance is essentially arbitrary and struc-
tured biweekly simply for the convenience of the payroll
system. The result is that an officer’s particular expenditures
in a given two-week period have no impact whatsoever on the
amount of equipment allowance he receives for that period.
HPOU also points out that the City does not require, and the

22a

officers do not provide, any receipts for the purpose of
calculating an officer’s equipment allowance for a given pay
period. Additionally, HPOU states that the equipment
allowance is taxable income that is not excluded from federal
income tax as a business expense.

In sum, HPOU takes the position that, because the equip-
ment allowance is not specifically included among the
FLSA’s eight exceptions, and because the equipment
allowance operates independently of an officer's expenses
made, the allowance should be included as part of each
officers’ regular rate. Under the City’s current practice of not
including the equipment allowance in the regular rate, HPOU
argues, the officers’ overtime compensation (which, as dis-
cussed above, is based on the regular rate) is incorrectly
calculated. HPOU states that, were the equipment allowance
included, “each officer’s overtime rate would be increased
by 2.2%,” which “would have represented an additional
$1,146,000 in increased overtime [pay] for fiscal year 1999.”
(Pl.’s Statement of Uncontroverted Facts at 4.)

In determining whether the City’s exclusion of the
equipment allowance from the officers’ regular rate violates
the FLSA, or whether the equipment allowance correctly falls
into one of the eight exclusions of § 207(e), the Court at the
outset notes that the FLSA presumes that all remuneration is
to be included in the regular pay rate. See Madison v.
Resources for Human Development, Inc., 233 F.3d 175, 187
(3rd Cir. 2000) (‘“[T]here is a statutory presumption here that
remuneration in any form is included in the regular rate
calculation.”). As discussed above, the FLSA expressly
provides the regular rate of pay “shall be deemed to include
all remuneration for employment paid to, or on behalf of, the
employee” unless it falls under one of the eight specific
exemptions. See 29 U.S.C. § 207(e). Courts have recognized
that exemptions to the FLSA are to be “narrowly construed,
giving due regard to the plain meaning of statutory language

23a

and the intent of Congress.” Gieg v. Howarth, 244 F.3d 775,
776 (9th Cir. 2001); see Lee, 2001 WL 108760, at *3 (holding
that FLSA “exemptions must be narrowly construed”’);
Minizzu v. Stone Container Corp. Corrugated Container Div.
East Plant, 842 F.2d 1456, 1459 (3rd Cir. 1988) (holding
same).

Moreover, courts have also recognized that “the general
rule is that the application of exemption under the [FLSA] is
a matter of affirmative defense on which the employer has the
burden of proof.” Clark v J.M. Benson Co., Inc., 789 F.2d
282, 286 (4th Cir. 1986) (citations omitted) (emphasis added);
see McLaughlin v. McGee Bros Co., Inc., 681 F. Supp. 1117,
1133 (W.D.Y.C. 1988) (citing Clark and holding same); see
also Idaho Sheet Metal Workers, Inc. v. Wirtz, 383 US. 190,
209 (1966) (holding that the employer bears the burden of
establishing an exemption under the FLSA); Gieg, 244 F.3d
at 776 (“[A]n employer who claims an exemption from the
FLSA has the burden of showing that the exemption
applies.”) (citations omitted); Johnson v. City of Columbia,
949 F.2d 127, 130 (4th Cir. 1991) (holding that the burden is
on the employer “to show that it is entitled to the benefits of
th[e] exceptions”).

In its Response and Cross-Motion for Summary Judgment,
the City of Houston argues that the equipment allowance does
fall into one of the eight exemptions of § 207. Specifically,
the City points to the second exemption, which covers “rea-
sonable payments for traveling expenses, or other expenses,
incurred by an employee in furtherance of his employer’s
interests and properly reimbursable by the employer; and
other similar payments to an employee which are not made as
compensation for his hours of employment. . . .” 29 U.S.C.
§ 207(e)(2) (emphasis added). The City moreover directs the
Court’s attention to the Department of Labor’s regulation

24a

that elaborates on the exclusion. As the Department of
Labor explains,

Payments made by the employer to cover such expenses
are not included in the employee’s regular rate (if the
amount reasonably approximates the expense incurred).
Such payment is not compensation for services rendered
by the employee during any hours worked in the
workweek.

If the amount paid as “reimbursement” is dispro-
portionately large, the excess amount will be included in
the regular rate.

29 C.F.R. § 778.217(a), (c) (emphases added). From this
language, the City characterizes the FLSA exemption at issue
as being governed by a de minimis standard: if the allowance
is not disproportionately large compared to the While the parties have no controversy with regard to the Department
of Labor regulations cited by either side in this case, the Court notes that
opinion letter relied on by HPOU is not entitled to judicial deference as
contemplated by the Supreme Court in Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). As the Supreme
Court recently held in Christensen, “an interpretation contained in an
opinion letter{-] . . . like those contained in policy statements, agency
manuals, and enforcement guidelines, all of which lack the force of law-
do not warrant Chevron-style deference.” Christensen, 529 U.S. at 586.
Instead, “interpretations contained in formats such as opinion letters are

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language in the statute that indicates Congress intended to
impose on public employers the duty to grant its employees
the use of comp time, essentially, on demand. Therefore, to
the extent that HPOU’s partial summary judgment mo-
tion focuses entirely on the “undue disruption” prong of
§ 207(0)(5), the Court finds that such argument lacks merit
because it first presumes that police officers are not receiving
comp time within a reasonable period of making the request.
Because HPOU has presented no competent evidence
showing that the City has failed to grant comp time within a
reasonable period, and because the record rather demonstrates
that the City has satisfied the reasonable-period requirement,
the issue of “undue disruption” is largely irrelevant. The
Court accordingly grants summary judgment for the City.

IV. CONCLUSION

In this case, HPOU claims that the City violates the FLSA
in two different ways. First, it argues that the City’s failure to
include the equipment allowance into each officer’s “regular
rate” of pay violates the FLSA because the allowance does
not fall into any of the eight enumerated exemptions to the
regular rate. The City, however, has satisfied its burden in
showing that the equipment allowance in fact satisfies the
second exemption to the statute because the equipment
allowance reasonably approximates the average expenditures
and costs incurred by the officers for equipment on the job.
HPOU’s second argument regarding the use of specific comp
time also fails because HPOU focuses on the “undue dis-
ruption” prong of the statute to the disregard of the lati-
tude afforded to municipalities by way of the “reasonable
period” language.

‘entitled to respect’ . . . but only to the extent that those interpretations
have the ‘power to persuade.”” /d. at 587. Here in the instant case, the
Court finds unpersuasive the Department of Labor’s opinion letter for the
reasons assigned above.

38a

Accordingly, the Court

ORDERS that Plaintiffs’ motion for partial summary
judgment is DENIED; and

ORDERS that Defendant’s cross-motion for summary
judgment is GRANTED.

SIGNED at Houston, Texas, this 25th day of September,
2001.

/s/ Melinda Harmon
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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39a
APPENDIX D

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

[Filed Sept. 26, 2001]

Civil Action No. H-00-2184

HOUSTON POLICE OFFICERS’ UNION, et ai.,
Plaintiffs,
VS.

CITY OF HOUSTON POLICE DEPARTMENT and
CiTY OF HOUSTON,
Defendants.

FINAL JUDGMENT

In accordance with the Memorandum Opinion and Order of
this same date, the Court

ORDERS that Defendant City of Houston, Texas is granted
summary judgment on all claims brought against it in the
above-referenced action by Plaintiff Houston Police Officers’
Union et al.; and further

ORDERS that Plaintiffs pay all costs of court.
THIS IS A FINAL JUDGMENT.

SIGNED at Houston, Texas, this 25th day of September,
2001.

/s/ Melinda Harmon
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

40a
APPENDIX E

APPENDIX E FAIR LABOR STANDARDS ACT
OF 1938, § 7(0)-(q), 29 U.S.C.A. § 207(0)-(q)

§ 207 Maximum Hours

* * *

(o) Compensatory time.

(1) Employees of a public agency which is a State, a
political subdivision of a State, or an_ interstate
governmental agency may receive, in accordance with
this subsection and in lieu of overtime compensation,
compensatory time off at a rate not less than one and
one-half hours for each hour of employment for which
overtime compensation is required by this section.

(2) A public agency may provide compensatory time
under paragraph (1) only—

(A) pursuant to—

(i) applicable provisions of a collective bargain-
ing agreement, memorandum of understanding, or
any other agreement between the public agency and
representatives of such employees; or

(ii) in the case of employees not covered by sub-
clause (i), an agreement or understanding arrived at
between the employer and employee before the
performance of the work; and

(B) if the employee has not accrued compensatory
time in excess of the limit applicable to the employee
prescribed by paragraph (3). In the case of employees
described in clause (A)ii) hired prior to April | the
regular practice in effect on April 15, 1986, with
respect to compensatory time off for such employees
in lieu of the receipt of overtime compensation, shall
constitute an agreement or understanding under such

4la

clause (A)(ii). Except as provided in the previous
sentence, the provision of compensatory time off to
such employees for hours worked after April 14,
1986, shall be in accordance with this subsection.

(3)(A) If the work of an employee for which
compensatory time may be provided included work in a
public safety activity, an emergency response activity, or
a seasonal activity, the employee engaged in such work
may accrue not more than 480 hours of compensatory
time for hours worked after April 15, 1986. If such work
was any other work, the employee engaged in such work
may accrue not more than 240 hours of compensatory
time for hours worked after April 15, 1986. Any such
employee who, after April 15, 1986, has accrued 480 or
240 hours, as the case may be, of compensatory time off
shall, for additional overtime hours of work, be paid
overtime compensation.

(B) If compensation is paid to an employee for ac-
crued compensatory time off, such compensation shall
be paid at the regular rate earned by the employee at
the time the employee receives such payment.

(4) An employee who has accrued compensatory time
off authorized to be provided under paragraph (1) shall,
upon termination of employment, be paid for the unused
compensatory time at a rate of compensation not less
than—

(A) the average regular rate received by such
employee during the last 3 years of the employee’s
employment, or

(B) the final regular rate received by such em-
ployee, whichever is higher [. |

(S) An employee of a public agency which is a State,
political subdivision of a State, or an interstate gov-
ernmental agency—

42a

(A) who has accrued compensatory time off author-
ized to be provided under paragraph (1), and

(B) who has requested the use of such compens-
atory time, shall be permitted by the employee’s
employer to use such time within a reasonable period
after making the request if the use of the com-
pensatory time does not unduly disrupt the operations
of the public agency.

(6) The hours an employee of a public agency per-

forms court reporting transcript preparation duties shall
not be considered as hours worked for the purposes of
subsection (a) if—

(A) such employee is paid at a per-page rate which
is not less than—

(i) the maximum rate established by State law or
local ordinance for the jurisdiction of such public
agency,

(ii) the maximum rate otherwise established by a
judicial or administrative officer and in effect on
July 1, 1995, or

(iii) the rate freely negotiated between the em-
ployee and the party requesting the transcript, other
than the judge who presided over the proceedings
being transcribed, and

(B) the hours spent performing such duties are
outside of the hours such employee performs other
work (including hours for which the agency requires
the employee’s attendance) pursuant to the employ-
ment relationship with such public agency.

For purposes of this section, the amount paid such
employee in accordance with subparagraph (A) for the
performance of court reporting transcript preparation
duties, shall not be considered in the calculation of the
regular rate at which such employee is employed.

————— 2x

43a
(7) For purposes of this subsection—

(A) the term “overtime compensation” means the
compensation required by subseetion (a), and

(B) the terms “compensatory time” and “compens-
atory time off’ mean hours during which an employee
is not working, which are not counted as hours
worked during the applicable workweek or other work
period for purposes of overtime compensation, and for
which the employee is compensated at the employee’s
regular rate.

(p) Special detail work for fire protection and law en-
forcement employees; occasional or sporadic employment;
substitution.

(1) If an individual who is employed by a State,
political subdivision of a State, or an interstate govern-
mental agency in fire protection or law enforcement
activities (including activities of security personnel in
correctional institutions) and who, solely at such
individual’s option, agrees to be employed on a special
detail by a separate or independent employer in fire
protection, law enforcement, or related activities, the
hours such individual was employed by such separate
and independent employer shall be excluded by the
public agency employing such individual in the
calculation of the hours for which the employee is
entitled to overtime compensation under this section if
the public agency—

(A) requires that its employees engaged in fire
protection, law enforcement, or security activities be
hired by a separate and independent employer to
perform the special detail,

(B) facilitates the employment of such employees
by a separate and independent employer,

44a

(C) otherwise affects the condition of employment
of such employees by a separate and independent
employer.

(2) If an employee of a public agency which is a
State, political subdivision of a State, or an interstate
governmental agency undertakes, on an occasional or
sporadic basis and solely at the employee’s option, part-
time employment for the public agency which is in a
different capacity from any capacity in which the
employee is regularly employed with the public agency,
the hours such employee was employed in performing
the different employment shall be excluded by the public
agency in the calculation of the hours for which the
employee is entitled to overtime compensation under
this section.

(3) If an individual who is employed in any capacity
by a public agency which is a State, political subdivision
of a State, or an interstate governmental agency, agrees,
with the approval of the public agency and solely at the
option of such individual, to substitute during scheduled
work hours for another individual who is employed by
such agency in the same capacity, the hours such
employee worked as a substitute shall be excluded by k
the public agency in the calculation of the hours for
which the employee is entitled to overtime compensation
under this section.

(q) Maximum hour exemption for employees receiving reme-
dial education.

Any employer may employ any employee for a period
or periods of not more than 10 hours in the aggregate in
any workweek in excess of the maximum workweek
specified in subsection (a) without paying the
compensation for overtime employment prescribed in
such subsection, if during such period or periods the
employee is receiving remedial education that is—

45a
(1) provided to employees who lack a high school

diploma or educational attainment at the eighth grade
level;

(2) designed to provide reading and other basic skills
at an eighth grade level or below; and

(3) does not include job specific training.
* * *

46a
APPENDIX F

APPENDIX F—REGULATIONS INVOLVED
29 C.F.R. § 553.20

SECTION 7(0}—COMPENSATORY TIME AND
COMPENSATORY TIME OFF

§ 553.20 Introduction.

Section 7 of the FLSA requires that covered,
nonexempt employees receive not less than one and one-
half times their regular rates of pay for hours worked in
excess of the applicable maximum hours standards.
However, section 7(0) of the Act provides an element of
flexibility to State and local government employers and
an element of choice to their employees or the
representatives of their employees regarding compen-
sation for statutory overtime hours. The exemption
provided by this subsection authorizes a public agency
which is a State, a political subdivision of a State, or an
interstate governmental agency, to provide compensa-
tory time off (with certain limitations, as provided in
§ 553.21) in lieu of monetary overtime compensation
that would otherwise be required under section : J
Compensatory time received by an employee in lieu of
cash must be at the rate of not less than one and one-half
hours of compensatory time for each hour of overtime
work, iust as the monetary rate for overtime is calculated
at the rate of not less than one and one-half times the
regular rate of pay.

* * *
29 C.F.R. § 553.21
§ 553.21 Statutory provisions.

Section 7(0) provides as follows:

(01) Employees of a public agency which is a State,
a political subdivision of a State, or an interstate

47a

governmental-agency may receive, in accordance with
this subsection and in lieu of overtime compensation,
compensatory time off at a rate not less than one and
one-half hours for each hour of employment for which
overtime compensation is required by this section.

(2) A public agency may provide compensatory time
under paragraph (1) only—

(A) Pursuant to—

(i) Applicable provisions of a collective bar-
gaining agreement, memorandum of understanding,
or any other such employees; or

(ii) In the case of employees not covered by sub-
clause (i), an agreement or understanding arrived at
between the employer and employee before the
performance of the work; and

(B) If the employee has not accrued compensatory
time in excess of the limit applicable to the employee
prescribed by paragraph (3).

In the case of employees described in clause (A)(i1}
hired prior to April 15, 1986, the regular practice in
effect on April 15, 1986, with respect to compensatory
time off for such employees in lieu of the receipt of
overtime compensation, shall constitute an agreement
or understanding under such clause (A)(i1). Except as

provided in the previous sentence, the provision of

compensatory time off to such employees for hours

worked after April 14, 1986, shall be in accordance
with this subsection.

(3)(A) If the work of an employee for which
compensatory time may be provided included work in
a public safety activity, an emergency response activ-
ity, or a seasonal activity, the employee engaged in
such work may accrue not more than 480 hours of

48a

compensatory time for hours worked after April 15,
1986. If such work was any other work, the employee
engaged in such work may accrue not more than 240
hours of compensatory time for hours worked after
April 1 Any such employee who, after April 15, 1986,
has accrued 480 or 240 hours, as the case may be, of
compensatory time off shall, for additional overtime
hours of work, be paid overtime compensation.

(B) If compensation is paid to an employee for
accrued compensatory time off, such compensation
shall be paid at the regular rate earned by the
employee at the time the employee receives such
payment.

(4) An employee who has accrued compensatory time
off authorized to be provided under paragraph (1) shall,
upon termination of employment, be paid for the unused
compensatory time at a rate of compensation not less
than—

(A) The average regular rate received by such em-
ployee during the last 3 years of the employee's
employment, or

(B) The final regular rate received by such em-
ployee, whichever is higher.

(5) An employee of a public agency which is a State,
political subdivision of a State, or an interstate gov-
ernmental agency—

(A) Who has accrued compensatory time off
authorized to be provided under paragraph (1), and

(B) Who has requested the use of such compens-
atory time, shall be permitted by the employee's
employer to use such time within a reasonable period
after making the request if the use of the com-
pensatory time does not unduly disrupt the operations
of the public agency.

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(6) For purposes of this subsection—

(A) The term overtime compensation means the
compensation required by subsection (a), and

(B) The terms compensatory time and compens-
atory time off means hours during which an employee
is not working, which are not counted as hours
worked during the applicable workweek or other work
period for purposes of overtime compensation, and for
which the employee is compensated at the employee's
regular rate.

* * *

29 C.F.R. § 553.22

§ 553.22 “FLSA compensatory time” and “FLSA compensa-
tory time off”.

(a) Compensatory time and compensatory time off are
interchangeable terms under the FLSA. Compensatory
time off is paid time off the job which is earned and
accrued by an employee in lieu of immediate cash
payment for employment in excess of the statutory hours
for which overtime compensation is required by section
7 of the FLSA.

(b) The Act requires that compensatory time under
section 7(0) be earned at a rate not less than one and
one-half hours for each hour of employment for which
overtime compensation is required by section 7 of the
FLSA. Thus, the 480-hour limit on accrued compensa-
tory time represents not more than 320 hours of actual
overtime worked, and the 240-hour limit represents not
more than 160 hours of actual overtime worked.

(c) The 480- and 240-hour limits on accrued com-
pensatory time only apply to overtime hours worked
after April 15, 1986. Compensatory time which an
employee has accrued prior to April 15, 1986, is not

50a

subject to the overtime requirements of the FLSA and
need not be aggregated with compensatory time accrued
after that date.

* * *

29 C.F.R. 553.23

§ 553.23 Agreement or understanding prior to performance
of work.

(a) General. (1) As a condition for use of compens-
atory time in lieu of overtime payment in cash, section
7(0)(2)(A) of the Act requires an agreement or under-
standing reached prior to the performance of work. This
can be accomplished pursuant to a collective bargaining
agreement, a memorandum of understanding or any
other agreement between the public agency and
representatives of the employees. If the employees do
not have a representative, compensatory time may be
used in lieu of cash overtime compensation only if such
an agreement or understanding has been arrived at
between the public agency and the individual employee
before the performance of work. No agreement or
understanding is required with respect to employees
hired prior to April 15, 1986, who do not have a
representative, if the employer had a regular practice in
effect on April 15, 1986, of granting compensatory time
off in lieu of overtime pay.

(2) Agreements or understandings may provide that
compensatory time off in lieu of overtime payment in
cash may be restricted to certain hours of work only. In
addition, agreements or understandings may provide for
any combination of compensatory time off and overtime
payment in cash (e.g., one hour compensatory time
credit plus one-half the employee's regular hourly rate of
pay in cash for each hour of overtime worked) so long as
the premium pay principle of at least “time and one-

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half’ is maintained. The agreement or understanding
may include other provisions governing the preservation,
use, or cashing out of compensatory time so long as
these provisions are consistent with section 7(0) of the
Act. To the extent that any provision of an agreement or
understanding is in violation of section 7(0) of the Act,
the provision is superseded by the requirements of
section 7(0).

(b) Agreement or understanding between the public
agency and a representative of the employees. (1) Where
employees have a representative, the agreement or
understanding concerning the use of compensatory time
must be between the representative and the public
agency either through a collective bargaining agreement
or through a memorandum of understanding or other
type of oral or written agreement. In the absence of a
collective bargaining agreement applicable to the
employees, the representative need not be a formal or
recognized bargaining agent as long as the representative
is designated by the employees. Any agreement must be
consistent with the provisions of section 7(0) of the Act.

(2) Section 2(b) of the 1985 Amendments provides
that a collective bargaining agreement in effect on April
15, 1986, which permits compensatory time off in lieu of
overtime compensation, will remain in effect until the
expiration date of the collective bargaining agreement
unless otherwise modified. However, the terms and
conditions of such agreement under which compensatory
time off is provided after April 14, 1986, must not
violate the requirements of section 7(0) of the Act and
these regulations.

(c) Agreement or understanding between the public
agency and individual employees. (1) Where employees
of a public agency do not have a recognized or other-
wise designated representative, the agreement or under-

52a

standing concerning compensatory time off must be
between the public agency and the individual employee
and must be reached prior to the performance of work.
This agreement or understanding with individual
employees need not be in writing, but a record of its
existence must be kept. (See § 553.50.) An employer
need not adopt the same agreement or understanding
with different employees and need not provide com-
pensatory time to all employees. The agreement or
understanding to provide compensatory time off in lieu
of cash overtime compensation may take the form of an
express condition of employment, provided (i) the
employee knowingly and voluntarily agrees to it as a
condition of employment and (ii) the employee is
informed that the compensatory time received may be
preserved, used or cashed out consistent with the
provisions of section 7(0) of the Act. An agreement or
understanding may be evidenced by a notice to the
employee that compensatory time off will be given in
lieu of overtime pay. In such a case, an agreement or
understanding would be presumed to exist for purposes
of section 7(0) with respect to any employee who fails to
express to the employer an unwillingness to accept
compensatory time off in lieu of overtime pay. However,
the employee's decision to accept compensatory time off
in lieu of cash overtime payments must be made freely
and without coercion or pressure.

(2) Section 2(a) of the 1985 Amendments provides
that in the case of employees who have no representative
and were employed prior to April 15, 1986, a public
agency that has had a regular practice of awarding
compensatory time off in lieu of overtime pay is deemed
to have reached an agreement or understanding with
these employees as of April 15, 1986. A public agency
need not secure an agreement or understanding with
each employee employed prior to that date. If, however,

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such a regular practice does not conform to the
provisions of section 7(0) of the Act, it must be modified
to do so with regard to practices after April 14, 1986.
With respect to employees hired after April 14, 1986, the
public employer who elects to use compensatory time
must follow the guidelines on agreements discussed in
paragraph (c)(1) of this section.

* * *

29 C.F.R. § 553.24

§ 553.24 “Public safety”, “emergency response’, and “sea-
sonal” activities.

(a) Section 7(0)(3)(A) of the FLSA provides that an
employee of a public agency which is a State, a political
subdivision of a State, or an interstate governmental
agency, may accumulate not more than 480 hours of
compensatory time for FLSA overtime hours which are
worked after April 15, 1986, if the employee is engaged
in “public safety”, “emergency response”, or “seasonal”
activity. Employees whose work includes “seasonal”,
“emergency response”, or “public safety” activities, as
well as other work, will not be subject to both limits of
accrual for compensatory time. If the employee’s work
regularly involves the activities included in the 480-hour
limit, the employee will be covered by that limit. A
public agency cannot utilize the higher cap by simple
classification or designation of an employee. The work
performed is controlling. Assignment of occasional
duties within the scope of the higher cap will not entitle
the employer to use the higher cap. Employees whose
work does not regularly involve “seasonal”, “emergency
response”, or “public safety” activities are subject to a
240-hour compensatory time accrual limit for FLSA
overtime hours which are worked after April 15, 1986.

54a

(b) Employees engaged in “public safety”, “emer-
gency response”, or “seasonal” activities, who transfer to
positions subject to the 240-hour limit, may carry over to
the new position any accrued compensatory time. The
employer will not be required to cash out the accrued
compensatory time which is in excess of the lower limit.
However, the employee must be compensated in cash
wages for any subsequent overtime hours worked until
the number of accrued hours of coinpensatory time falls
below the 240-hour limit.

(c) “Public safety activities”: The term “public safety
activities” as used in section 7(0)(3)(A) of the Act
includes law enforcement, fire fighting or related activ-
ities as described in §§ 553.210 (a) and (b) and 553.211
(a)-(c), and (f). An employee whose work regularly
involves such activities will qualify for the 480-hour
accrual limit. However, the 480-hour accrual limit will
not apply to office personnel or other civilian employees
who may perform public safety activities only in
emergency situations, even if they spend substantially all
of their time in a particular week in such activities. For
example, a maintenance worker employed by a public
agency who is called upon to perform fire fighting
activities during an emergency would remain subject to
the 240-hour limit, even if such employee spent an entire
week or several weeks in a year performing public safety
activities. Certain employees who work in “public
safety” activities for purposes of section 7(0)(3)(A) may
qualify for the partial overtime exemption in section 7(k)
of the Act. (See § 553.201)

(d) “Emergency response activity”: The term “emer-
gency response activity” as used in section 7(0)(3)(A) of
the Act includes dispatching of emergency vehicles and
personnel, rescue work and ambulance services. As is
the case with “public safety” and “seasonal” activities,

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5Sa

an employee must regularly engage in “emergency
response” activities to be covered under the 480-hour
limit. A city office worker who may be called upon to
perform rescue work in the event of a flood or
snowstorm would not be covered under the higher limit,
since such emergency response activities are not a
regular part of the employee’s job. Certain employ-
ees who work in “emergency response” activities for
purposes of section 7(0)(3)(A) may qualify for the
partial overtime exemption in section 7(k) of the Act.
(See § 553.215.)

(e)(1) “Seasonal activity”: The term “seasonal activ-
ity” includes work during periods of significantly in-
creased demand, which are of a regular and recurring
nature. In determining whether employees are con-
sidered engaged in a seasonal activity, the first
consideration is whether the activity in which they are
engaged is a regular and recurring aspect of the
employee’s work. The second consideration is whether
the projected overtime hours during the period of
significantly increased demand are likely to result in the
accumulation during such period of more than 240
compensatory time hours (the number available under
the lower cap). Such projections will normally be
based on the employer’s past experience with similar
employment situations.

(2) Seasonal activity is not limited strictly to those
operations that are very susceptible to changes in the
weather. As an example, employees processing tax re-
turns over an extended period of significantly increased
demand whose overtime hours could be expected to
result in the accumulation during such period of more
than 240 compensatory time hours will typically qualify
as engaged in a seasonal activity.

56a

(3) While parks and recreation activity is primarily
seasonal because peak demand is generally experienced
in fair weather, mere periods of short but intense activity
do not make an employee’s job seasonal. For example,
clerical employees working increased hours for several
weeks on a special project or assigned to an afternoon of
shoveling snow off the courthouse steps would not be
considered engaged in seasonal activities, since the
increased activity would not result in the accumulation
during such period of more than 240 compensatory time
hours. Further, persons employed in municipal
auditoriums, theaters, and sports facilities that are open
for specific, limited seasons would be considered
engaged in seasonal activities, while those employed in
facilities that operate year round generally would not.

(4) Road crews, while not necessarily seasonal work-
ers, may have significant periods of peak demand, for
instance during the snow plowing season or road
construction season. The snow plow operator/road crew
employee may be able to accrue compensatory time to
the higher cap, while other employees of the same
department who do not have lengthy periods of peak
seasonal demand would remain under the lower cap.

*x* * *
29 C.F.R. § 553.25

§ 553.25 Conditions for use of compensatory time (“reason-
able period”, “unduly disrupt”).

Soyehap ois

(a) Section 7(0)(5) of the FLSA provides that any
employee of a public agency who has accrued com-
pensatory time and requested use of this compensatory
time, shall be permitted to use such time off within a
“reasonable period” after making the request, if such use
does not “unduly disrupt” the operations of the agency.
This provision, however, does not apply to “other

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57a

compensatory time” (as defined below in § 553.28),
including compensatory time accrued for overtime
worked prior to April 15, 1986.

(b) Compensatory time cannot be used as a means to
avoid statutory overtime compensation. An employee
has the right to use compensatory time earned and must
not be coerced to accept more compensatory time than
an employer can realistically and in good faith expect to
be able to grant within a reasonable period of his or her
making a request for use of such time.

(c) Reasonable Period. (1) Whether a request to use
compensatory time has been granted within a “reason-
able period” will be determined by considering the
customary

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1880%3A1. Public record. Not legal advice.