Lynwоod MOREAU; Kenneth O. Adams; David W. Addison, Jose A. Alvarado; Robert Amboree; Bobby G. Andrews; Randy Anderwald; Gary R. Ashford, Craig L. Bailey; Richard Bailey; Richardo E. Balderaz; Herbert V. Barnard; Gerald Barnett; Paulette M. Barnett; Brad T. Bennett; Bridgett Blackmon; Flynt E. Blackwell; Gary F. Blahuta; Scott P. Blankenburg; Deborah Bliese; Bruce H. Breckenridge; J.W. Brooks; Brian Buchanan; Patricia M. Bui; Don. E. Bynum; Clarence A. Callis; William M. Campbell; Heather Carr; Thomas J. Carr; Paul E. Carpenter; Robert Casey; Mark E. Cepiel; Eladio C. Chavez; Edward A. Christensen; Roy Clark; Denny D. Coker; Alford A. Cook; Gregory P. Cox; Donald D. Crayton; Richard D. Crook, David A. Davis; Gary W. Davis; Christopher E. Dempsey; Russell Dukes; Larry A. Eikhoff; Frank Fairley; David W. Finely; James P. Fitzgerald; Erine R. Fowler; Michael A. Garcia; Thomas M. Gentry; John Godejohann; Robert M. Goerlitz; David Gonzales; Raul V. Gonzales; Miguel A. Gonzalez; Billy Gray; William L. Gray; Lawrence P. Gray; Lawrence P. Gries; Thomas P. Gurney; Preston R. Halfin; Sammy Head; Neil Hines; Lаrry D. Howell; Marshall P. Isom; James A. Johnson; Derry L. Jones; David E. Kaup; William C. Kenisell; Howard J. Kimble; Steve Kirk; Edgar D. Knighten; Freddy G. Lafuente; Michael G. Lagrone; Al Lanford; Vernon S. Lemons; Shemei B. Levi; Jeanne Long; Timothy Loyd; Joe S. Magallon; David B. Martin; Pedro Martinez; Russell L. Mayfield; Terry McGregor; Robert C. Meaux; Stephen Melinder; Marty M. Mingo; D.D. Montgomery; Jose L. Morin; Richard O. Newby; Arthur W. Nolley; William R. Norwood; Richard C. Nunnery; Karen D. O‘Bannion; Raymond E. O‘Bannion; Guadalupe Palafox; Wayne Parinello; Deborah Petruska; James A. Phillips; Simon C. Ramirez; Michael B. Rankin; James C. Reynolds; Willard G. Rogers; Gerald M. Robinson; Joe Ruffino; Lance J. Scott; Rob R. Self; Donald Shaver; James K. Shipley; James Smedick; Gina K. Spriggs; (Grahmann); Jeffrey M. Stauber; Larry L. Strickland; Billy J. Taylor; Kerry Townsend; Richard S. Trenski; Gordon Trott; Ed Trotti; Richard D. Valdez; Dalton E. Van Slyke; Frank L. Vernagallo; Ruben Villarreal; Johnny F. Walling; Gerald R. Warren; James M. Watson; Thomas G. Welch; John H. Wheeler; Joseph L. Williams; Rwanda Wiltz, Plaintiffs-Appellees, v. HARRIS COUNTY; Tommy B. Thomas; Johnny Klevenagen, Sheriff, Defendants, Harris County; Tommy B. Thomas, Defendants-Appellants.
No. 97-20796.
United States Court of Appeals, Fifth Circuit.
Oct. 19, 1998.
158 F.3d 241
The law, of course, requires not only that the defendant commit affirmative acts that tend to create an appearance of incompetency, but that he do so with the specific intent of obstructing justice. In this case, we have only circumstantial evidence of Greer‘s intent. We do not believe, however, that the Government must produce proof as direct and incontrovertible as, say, a tape recording of the defendant confessing his plan to feign incompetency in order to delay or avoid trial and punishment. On the other hand, we recognize that a determination by the district court, after a competency hearing, that a defendant is competent to stand trial often will entail a conclusion that the defendant‘s alleged mental illness is at least partially feigned, and we do not suggest that every instance of feigned mental illness justifies an enhancement for obstruction of justice. The district court may find from circumstantial evidence that the defendant engaged in a conscious and deliberate attempt to obstruct or impede the administration of justice. In this case, there was evidence that Greer еngaged in a sustained pattern of appearing considerably more impaired than he was, and when he was told that certain actions would not convince the experts that he was in fact insane, he modified his behavior. The district court did not clearly err in finding that Greer willfully feigned mental illness in a conscious and deliberate effort to delay, and perhaps avoid altogether, his day of reckoning on the grave offenses with which he was charged.
D. Courtroom Behavior
Greer also contends that the district court erred by using the obstruction of justice enhancement to increase his sentence rather than by simply citing him for contempt for his trial misbehavior. Our review of the record reveals, however, that the district court in fact viewed Greer‘s courtroom outbursts as a continuation of his attempt to feign incompetency. Moreovеr, Greer‘s willful attempt to feign incompetency prior to trial is sufficient to sustain the enhancement. We therefore need not decide whether
IV. CONCLUSION
For the foregoing reasons, we AFFIRM Greer‘s sentence.
Bruce S. Powers, Houston, TX, for Defendants-Appellants.
See also, 945 F.Supp. 1067.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Harris County appeals a grant of summary judgment in favor of a certified class of employees, finding that the County‘s policy requiring the use of accrued compensatory time by its employees contravened
I.
The members of the class arе employees of the Sheriff‘s Department of Harris County. The class asserted claims for wrongful refusal of compensatory time off, retaliation and involuntary use of compensatory time.
The parties have stipulated to the essential facts. By County policy the accrued comp time for non-exempt employees must be kept below a predetermined level, set by each bureau commander. This level is based on the personnel requirements of each bureau.
An employee reaching the maximum allowable hours of comp time authorized by the FLSA is requested to take steps to reduce the number of accrued hours. A supervisor is authorized to order the employee to reduce accumulated comp time at a time suitable to the bureau. An employee dissatisfied with his supervisor‘s order may informally complain to higher levels of supervisory authority within the department.
Based upon the stipulation of facts, the district court ordered the parties to move for summary judgment and to address whether the County policy requiring the involuntary use of comp time by its employees contravened
On November 26, 1996, the district court issued an “Opinion on Summary Judgment” and an Interlocutory Declaratory Judgment that “Harris County may not force employees to use their accumulated comp time without violating the FLSA” and asked for briefing from both parties on attorneys’ fees. Then, on July 28, 1997, the district court
Final Judgment
1. Harris County may not force employees to use their accumulated compensatory time without violating the Fair Labor Standards Act.
2. The parties plaintiff are awarded attorneys’ fees of $21,360 from Harris County.
Plaintiffs did not ask the district court to rule on their claims for wrongful refusal of the use of comp time and for retaliation and it did not do so. This appeal followed.
II.
A.
First, there is our jurisdiction. The record on appeal indicates that the claims for wrongful refusal of the use of comp time and for retaliation have not been ruled on by the district court. Responding to our question, Harris County agreed with the class that we have jurisdiction since the district court intended its order to be a final judgment.1
We have jurisdiction only over final decisions of the district court, with limited exceptions that are not relevant here.
Here, the district court in entering final judgment appeared to decide all claims, although it did not explicitly address plaintiffs’ wrongful refusal and retaliation claims. Nevertheless, plaintiffs did not pursue any error by the district court and acknowledged at oral argument that we have this jurisdiction over this appeal. We conclude that the district court dеcided all claims before it that were not abandoned. The order is a final judgment for purposes of this appeal.
B.
This dispute centers around Harris County‘s policy of not permitting accrued comp time for non-exempt employees to rise above a predetermined level by directing employees to reduce the number of hours of accrued comp time. The district court held that accumulated comp time and salary must be treated the same way and that employees have a right to use comp time when they choose. Granting summary judgment for the class, the district concluded that Harris County‘s policy of controlling the amount of accrued comp time violated the FLSA. More precisely put, we must decide whether Harris County violates
The relevant FLSA statute states:
(5) An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency—
(A) who has accrued compensatory time off authorized to be provided under paragraph (1), and
(B) who has requested the use of such compensatory 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 compensatory
time does not unduly disrupt the operations of the public agency.
Harris County contends that the 1985 Amendments to the Fair Labor Act of 1938, reflected above, were enacted to alleviate the economic burden upon state and local governments imposed by the Act‘s cash overtime requirements, see Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) (holding, in a 5-4 decision, that the FLSA could constitutionally apply to states and their political subdivisions), as were the implementing Department of Labor regulations. The County urges that Congress must have intended for public employers to control the accrual of comp time because Congress contemplated a circumstance in which a public employer may elect to reduce or eliminate accrued comp time by making a cash payment. They point to
The class contends that Congress vested the employee, rather than the employer, with the right to determine the use of accrued comp time off. They urge that
The economic incentives at stake are clear. In an era of tight public budgets, state employers like Hаrris County wish to control the accrual of comp time in order to avoid paying cash overtime wages when the amount of accrued comp time for any employee reaches the statutory maximum of 240 or 480 hours. The state employees, on the other hand, want to accumulate accrued comp time up to the statutory maximum in order to receive cash payments at an overtime rate of time and one-half or at least retain the ability to “bank” comp time for later use at their behest.
Section 207(o)(5) does not address the Harris County policy. This statute is triggered only when the employee first requests the use of her accrued compensatory time and does not address whether a public employer may control an employee‘s accrual of comp time. See Heaton v. Moore, 43 F.3d 1176, 1181 (8th Cir.1994). On its faсe then the statute is inapplicable to the present dispute. The class counters that the statute evidences Congress’ belief that the use of accrued comp time must reside only with the employees’ and not the employer. The statute recognizing public employers’ ability to pay down accrued comp time,
Congress amended the FLSA in 1985 to ease the cost to state and local governments of complying with the FLSA, particularly its overtime payment provisions. During the debates, Congress considered proposals for an amendment exempting governmental agencies from the FLSA. Rather than completely excluding agencies from the reach of the FLSA, Congress balanced the burden of complying with the FLSA‘s overtime provisions with protection for the worker. See Todd D. Steenson, Note, The Public Sector Compensatory Time Exception to the Fair Labor Standards Act: Trying to Compensate for Congress’ Lack of Clarity, 75 Minn. L.Rev. 1807, 1812, 1828 (1991). The 1985
C.
Relying on the Eighth Circuit‘s opinion in Heaton, the class urges that since “banked compensatory time is the property of the employee,” they have the right to “bank” comp time in “what amounts to an employee-owned savings account of compensatory time.” See Heaton, 43 F.3d at 1180. We have recently held that the 1985 Amendments to the FLSA, and section 207(o) in particular, do not reflect Congressional intent to create a property right in accrued comp time for employees. See Alford v. Louisiana, 145 F.3d 1334 (5th Cir.1998). Alford, however, sought to distinguish Heaton. In Alford, the employees merely sought tо require employees to use comp time before dipping into annual leave, while in Heaton, the employer sought to require use of comp time before the use of annual leave. This case squarely presents the Heaton issue, and we must thus decide whether to extend Alford or to follow Heaton.
We choose to extend Alford. The reasoning in Heaton is flawed. The Heaton court rested on the principle of construction that “[w]hen a statute limits a thing to be done in a particular mode, it includes a negative of any other mode.” Id. at 1180 (internal quotation marks omitted). Because employees may choose to use their compensatory time within certain limits, the argument continues, employers cannot make the employees use the compensatory time sooner than the employees prefer.
This seems to be a misapplication of the relevant rule of construction. The question here is whether the statute “limits” the “thing to be done,” and thus application of the rule begs the question. Compare, for example, the Supreme Court case Heaton cites as originally invoking this rule of construction, Raleigh & Gaston Ry. v. Reid, 80 U.S. (13 Wall.) 269, 270 (1871). In that case, a railroad company‘s charter provided that it should not be taxed for 15 years, and the Court held that by implication it could be taxed thereafter. That seems straightforward enough, but the same principle cannot mean that because an employee with comp time available can choose to use this comp time, an employer can never require an employee to reduce accumulated comp time. One simply does not relate to the other.
It is perhaps understandable that Heaton‘s reasoning should be strained, because this is a situation in which Congress has not spoken clearly in the text of the statute itself or in the legislative history. Of course, we could still follow Heaton on prudential grounds, or simply to avoid an intеrcircuit conflict. This, however, would be a mistake, for it would leave the jurisprudence in this circuit unnecessarily confused. There seems no reason to allow our rule to turn on the issue of whether an employer conditions its requirement that an employee use comp time on the employee‘s attempt to take annual leave. We are bound by Alford, and if we were to follow Heaton, employers and employees through the Circuit would need to brace themselves for expensive litigation over what conditions an employer could place on an employee‘s annual leave.
The lack of uniformity occasioned by our decision to deviate from the Eighth Circuit is not a substantial concern in this context. Even in the absence of further congressional or regulatory action, neither Heaton, nor Alford, nor our extension of it today represеnts the final word in any workplace. In the absence of a mandatory rule governing the situation, the parties remain free to reach a contractual solution to the problem. Provi-
While Alford did not make explicit that its rule is only a default, it is worth noting that the default it selected was almost certainly the correct one. In fashioning a default rule, we are mindful of the academic consensus that the court‘s task is not simply to construct the rule that the parties would have bargained for if they had been fully informed and bargaining had been costless. See generally Symposium on Default Rules and Contractual Consent, 3 S.Cal.Interdisciplinary L.J. 1 (1993). Moreover, we recognize that a default rule should not always be tailored to achieve the most efficient or most just result for the parties to the lawsuit. In many situations, an “untailored default,” a “single, off-the-rack standard” that provides a satisfactory contractual solution in the run of cases may be preferable. Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L.J. 87, 91 (1989).
This is such a case. A holding that employees by default may bank their comp time would be as clear as the holding that we reach today. But a default rule should be selected at a higher level of abstraction, to ensure clear answers in other FLSA scenarios where neithеr Congress nor the parties in an agreement have resolved a particular issue. See, e.g., Ayres & Gertner, supra, at 96 (noting the importance of minimizing future litigation costs in establishing a default rule). In general, allowing an employer to establish uniform employment policies with respect to questions not previously negotiated seems preferable to allowing each employee to establish his or her own policy, and it is certainly preferable to a regime in which the courts determine which default rule is best to apply one policy at a time.
Our holding here and in Alford is thus merely an application of the general principle that the employer can set workplace rules in the absence of a negotiated agreement to the contrary.3 While this default may not achieve the optimal solution in every case, it promotes justice writ large. In establishing this approach, we expect to promote the interests of employers and employees alike by minimizing the need for future litigation concerning policies not addressed by Congress or employer-employee agreements. And, of course, this general interpretive approach is itself a default, and the parties may select a different rule governing the construal of their agreements if they choose.
III.
We REVERSE the district court‘s grant of summary judgment in favor of the class and enter judgment for Harris County and all other defendants.
REVERSED.
DENNIS, Circuit Judge, concurring in part and dissenting in part.
In my opinion neither the plaintiffs nor the defendants have demonstrated that they are entitled to judgment as a matter of law on the present record. Accordingly, I agree that the district court‘s judgment must be reversеd. I disagree, however, with the majority‘s decision to grant summary judgment for the county at the appellate level. The majority incorrectly applies its own common law type “default rule” rather than following the Secretary‘s authoritative interpretation of the FLSA. Consequently, the majority erroneously fails to remand the case to the
The FLSA does not directly address the precise question at issue in this case, viz., whether a public agency may, absent an employee‘s request or agreement, unilaterally compel the employee to use accrued compensatory time off rather than receiving cash compensation for the accrued compensatory time off in accordance with
The deference owed by this court to administrative regulations issued to interpret and implement a federal statute depends on whether the regulation is “legislative” or “interpretative.” Fort Hood Barbers Assn., 137 F.3d at 307; Snap-Drape, Inc. v. Comm‘r, 98 F.3d 194, 197 (5th Cir.1996); Dresser Industries, Inc. v. Comm‘r, 911 F.2d 1128 (5th Cir.1990). If legislative, that is “issued under a specific grant of authority to prescribe a method of executing a statutory provision,” the regulation is controlling unlеss it is “arbitrary, capricious, or manifestly contrary to the statute.” Snap-Drape, Inc., 98 F.3d at 197-98; see also Chevron, 467 U.S. at 843. An “interpretative” regulation is one promulgated pursuant to a “general grant of authority to prescribe regulations.” Interpretative regulations are accorded less deference, but are valid if they are “reasonable and ‘harmonize[] with the plain language of the statute, its origin, and purpose.‘” Fort Hood Barbers Assn., 137 F.3d at 307 (quoting Snap-Drape, Inc., 98 F.3d at 197).
The FLSA is administered and enforced by the Secretary of Labor.
The regulations reiterate that in compensating employees for overtime work, a public agency may not substitute compensatory time off for overtime cash pay unless there was an agreement or understanding to do so between the employer and the employee (or the employee‘s representative) prior to the performance of the work.
The agreement may include provisions restricting сompensatory time off to certain hours of work only.
The employer may discharge its obligation to honor accrued compensatory time earned after April 14, 1986, at any time by paying for it the regular rate earned by the employee at the time the employee receives payment.
Compensatory time cannot be used to avoid statutory overtime compensation.
If an employee has accrued compensatory time and requests use of this compensatory time, the employer must permit the use of such time off within a “reasonable period” after the employee‘s request as long as such use will not “unduly disrupt” the operations of the agency.
The Secretary‘s approach rejects the wooden proposition that the FLSA grants control over the use of accrued compensatory time either exclusively to the employee or to the employer independently for its own unilateral purposes. Rather, it requires an agreement and understanding between the employer and the employee prior to the performance of the work to initiate compensation with, and accrual of, compensatory time off. As part of this agreement, the Secretary‘s construction also permits the employer and the employee to include other provisions governing the preservation, use, or cashing out of compensatory time so long as they are consistent with section 7(o) of the FLSA. These regulations indiсate that the Secretary did not interpret the FLSA to allow an employer to require an employee involuntarily to use accrued compensatory time off in the absence of a lawful agreement providing such authorization.
In deciding whether the Secretary‘s approach qualifies as a permissible construction of the FLSA, it is not necessary to decide whether the Secretary‘s regulations issued pursuant to authority granted by the 1985 amendments are legislative or interpretative. Even if the regulations are properly classified as interpretative, they clearly are reasonable and in harmony with the language of the statute, its origin, and purpose. In enacting the 1985 amendments to the FLSA, Congress clearly sought to balance the needs and interests of both public employees and employеrs subject to the FLSA. The Secretary‘s approach accomplishes this Congressional directive by requiring employers desiring authorization to order employees to use accrued compensatory time whenever the employer deems such consumption appropriate to include applicable provisions, consis-
With respect to employee requests for use of accrued compensatory time, the regulations specifically authorize the employer and employee in their agreement or understanding to state terms and conditions governing the meaning of “reasonable period.” In addition, the Secretary sets forth a non-exclusive list of underlying considerations for use in determining the “reasonable period” within which a compensatory time off request must be granted and whether doing so would be “unduly disruptive” in a particular case. These regulations lead naturally and logically to the inference that the factors for evaluating the reasonableness and legality of any consensual limitations upon the employee‘s right to use and preserve compensatory time earned should be similar to those suggested for determining or defining a “reasonable period” within which an employer must grant a compensatory time off request, a use of compensatory time off that is “unduly disruptive” to the employer‘s operations, and a “realistic” and “good faith” utilization of compensatory time off in lieu of overtime cash pay by an employer.
Applying the provisions of the statute and the regulations to the present case, it is apparent that neither the plaintiffs nor the defendants have demonstrated that they are entitled to judgment as a matter of law under the FLSA as interpreted by the Secretary. Moreover, we should take notice that agreements between the County and each individual employee incorporating the County‘s regulations providing for compensatory time in lieu of monetary overtime compensation apparently exist. See Moreau v. Klevenhagen, 508 U.S. 22, 29 (1993). The record before us, however, is not sufficiently complete to afford an adequate basis for determining whether provisions governing the preservation, use, or cashing out of compensatory time are included within these agreements, by incorporation or otherwise; or if so, whether these other provisions are consistent with or in violation of sеction 7(o) of the Act. If no controlling agreement exists, the district court should consider retaining jurisdiction while permitting the parties to enter such agreements. A court of appeal may vacate, set aside, or reverse a district court‘s judgment and may remand the cause and require such further proceedings to be had as may be just under the circumstances.
Harris County argues that the FLSA authorizes public agencies to unilaterally force employees to reduce periodically their accrued compensatory time by taking off regular work days to prevent employees from demanding monetary compensation for any overtime hours worked after the statutory maximums are reached or cashing in large amounts of compensatory time upon their retirement or termination. The FLSA does not expressly give public agencies this right. The County, however, contends that because it has the right under
The statute recognizing public employers’ ability to pay down accrued comp time,
29 U.S.C. § 207(o)(3)(B) , equally reflects Congressional intent to permit employers to control the accrual of comp time.
Maj.Op. p. 245 (footnote omitted).
In addition to not being persuasive, this approach fails to give proper deference to the
Recognizing the unique fiscal burden that compliance with the FLSA would present to public agencies, the 1985 amendments to the FLSA permit only public agencies to compensate employees for overtime with compensatory time instead of cash payments. Congress did not intend, however, to allow public agencies to indefinitely replace monetary overtime compensation with compensatory time, undoubtedly an inferior substitute for cash. The statute clearly requires that any employee who has accrued 480 or 240 hours, as the case may be according to the category of employment, of compensatory time be paid overtime compensation in cash for additional overtime hours of work.
Moreover, the FLSA expressly provides that an employee of a public agency who has accrued compensatory time off and has requested the use of such compensatory time shall be permitted by the agency to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the agency.
Construing the statute in accordance with the Secretary‘s regulations does not deprive employers of all control of employee compensatory time balances. Employers may enter into an agreement with employees (or their representatives) concerning the preservation, use, and cashing out of compensatory time provided that these such agreements are consistent with section 7(o) of the FLSA. In addition, the regulations specifically allow employers to reduce these balances by paying cash for the accrued compensatory hours. Finally, as the Eighth Circuit noted in Heaton, 43 F.3d at 1181, employers can always schedule less overtime or hire additional workers to decrease the rate of accrual of compensatory time.
No. 97-30835.
United States Court of Appeals, Fifth Circuit.
Oct. 19, 1998.