FLSA Liquidated Damages in Retaliation Cases should be mandatory as expressed in the Act

Below is our Firm’s Brief submitted in support of Mandatory Liquidated Damages in FLSA Retaliation cases

(Employment Law Category)

STATEMENT OF THE ISSUES ASSERTED
TO MERIT EN BANC CONSIDERATION

1. The panel’s decision to interpret 29 U.S.C. § 216 using the method prescribed in Brasswell, and Blanton, instead of Snapp, Fields, and Kasten, warrants a rehearing.


STATEMENT OF THE PROCEEDINGS
AND DISPOSITION OF THE CASE

On February 5, 2009, Appellees / Plaintiffs, Moore, Lungrin, and Evers filed suit against Appellant / Defendant, Pak, in the United States District Court, Middle District of Florida. (Complaint). Plaintiffs sued Defendant for retaliation under the Fair Labor Standards Act (“FLSA”).
The District Court has previously entered summary judgment against the Plaintiffs in this case. The District Court’s summary judgment was overturned by this Court.
The case went to trial and the Jury found in favor of the Plaintiffs, Moore, Lungrin, and Evers. (Verdict). Specifically the Jury found that Pak retaliated against the Plaintiffs in violation of the FLSA, and each Plaintiff suffered economic damages of $30,000.00. (Id.).
The Plaintiffs Moore, Lungrin, and Evers filed a Motion to Alter Judgment for the Addition of Liquidated Damages. The District Court denied Plaintiff’s Motion. (D.C. Order pg. 7-8). Plaintiff’s cross appealed the District Court’s denial arguing that the District Court does not have discretionary authority to deny liquidated damages outside a showing of good faith. (Initial and Reply Brief). The Circuit Court of Appeals found that District Court had the authority to deny liquidated damages and affirmed the District Court’s Order. (Attached Opinion).

ARGUMENT
1. The panel’s decision to interpret 29 U.S.C. §§ 216(b), 260 using the method prescribed in Brasswell, and Blanton, instead of Snapp, Fields, Silva-Hernandez and Kasten, warrants a rehearing.
The Panel’s Opinion directly conflicts with this Court’s decision in Snapp, 29 U.S.C. § 260, and the United States Supreme Court’s decision in Kasten, and Fields. As in Snapp, the panel was tasked with interpreting the meaning of the phrase “as may be appropriate” as it appears in 29 U.S.C. § 216(b). The panel incorrectly applied a method of statutory interpretation used in Brasswell, and Blanton, to determine that a District Court has wide discretion to deny a Plaintiff’s Motion for Liquidated Damages for any reason.
The Panel ignored this Court’s previous ruling in Snapp, as well as the clear statutory text, and Congressional intent that mandates a showing of good faith in order to avoid liquidated damages. These misapplications warrant a rehearing en banc.
A. The panel’s interpretation of 29 U.S.C. § 260 conflicts with the plain meaning of the statutory text.
The Panel incorrectly found that “[t]he preexisting section 260 has no applicability to the later-added second sentence of section 216(b),” the retaliation section. (Attached Opinion pg. 17). The Panel surmised that:
Section 260 was already in existence at the time Congress added the second sentence. Before that addition, section 216(b) contained no reference to retaliation, and section 260 provided the reasonable good faith exception only to then-available actions “to recover unpaid minimum wages, unpaid overtime compensation, or liquidated damages.” Thus, as the district court noted, at the time Congress drafted the second sentence with its “as may be appropriate” language, it was aware of its existing mandatory liquidated damages requirement for minimum wage and overtime claims and the application of a reasonable good faith exception to that, and did not choose to do the same in regard to retaliation claims.
(Attached Opinion pg. 16 – 17).
The Panel correctly stated in its own opinion that when searching for the meaning of a statute we begin with the plain language of the statute. (Attached Opinion pg. 15) (citing See Silva-Hernandez v. U.S. Bureau of Citizenship & Immigration Servs., 701 F.3d 356, 361 (11th Cir. 2012)). The Panel did not look at the plain wording of the statute when interpreting 29 U.S.C. § 260. Instead the panel focused on the order of legislative enactments. supra. This conflicts with Silva-Hernandez, and lays the groundwork for numerous other conflicts in the opinion.
The text of 29 U.S.C. § 260 states that:
In any action commenced prior to or on or after May 14, 1947 to recover unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended [29 U.S.C. 201 et seq.], if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title. (emphasis added).
The legislature deliberately chose to use the language “29 U.S.C. 201 et seq ” and “any action” in its enactment of 29 U.S.C. § 260. Additionally section 260 expressly refers to section 216 in its entirety. The United States Supreme Court when interpreting the meaning of phrases contained in the FLSA has found that use of the word “any” suggests a broad interpretation. Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1322 (2011). Additionally use of the phrase “29 U.S.C. 201 et seq” clearly shows that 29 U.S.C. § 260 encompasses the Fair Labor Standards act in its entirety.
The mandated method of interpretation of 29 U.S.C. § 260 is derived by the plain meaning of the statutory text, Silva-Hernandez, 701 F.3d at 361, and is in direct conflict with the Panel’s method of interpretation by order of enactments. supra. The plain broad language states that section 260 applies to any action contained in the Fair Labor Standards Act where liquidated damages are being sought.
If we are operating on the proposition that section 260 applies to any action contained in the Fair Labor Standards Act where liquidated damages are being sought then it is clear that retaliation cases are encompassed. The order of enactments for purposes of deriving the meaning of section 260 is irrelevant in the face of plain wording of the statute. Additionally Congress would not go back and amend 29 U.S.C. § 260 after adding retaliation to the Fair Labor Standards Act when section 260 itself plainly states it applies broadly to any action contained in the Fair Labor Standards Act.
It is evident by reading the plain meaning of 29 U.S.C. § 260 that retaliation is a cause of action under the Fair Labor Standards Act where liquidated damages can be sought therefore it is the intent of Congress that it applies to retaliation cases.
B. The panel’s application of Braswell, and Blanton, to this case contradicts this Court’s previous holding in Snapp.
The panel’s analysis of the phrase “as may be appropriate” in this case conflicts with previously established law of this Circuit. The panel cited Braswell v. City of El Dorado, Ark., 187 F.3d 954, 958 (8th Cir. 1999) and Blanton v. City of Murfreesboro, 856 F.2d 731 (6th Cir. 1988) and held that separate relief is discretionary, requiring a finding that any such relief, even relief not mentioned in the non-exclusive examples is appropriate to effectuate the purposes of the retaliation section of the law. (Attached Opinion pg. 17).
The conflict arising between the panel and this Court’s previous ruling in Snapp, is a separation of powers question this court has already answered. 208 F.3d at 935. Specifically who has the final say in appropriate remedies for Fair Labor Standards Act retaliation cases; the legislature or the judiciary?
The words “as may be appropriate” as it pertains to legal remedies contained in 29 U.S.C. 216(b) has been settled since 2000; this Court has previously ruled that Congress has the final say on appropriate legal remedies for retaliation cases and it is not left up to the Judiciary to decide what is appropriate when Congress has legislated a scheme to address the issue. Snapp, 208 F.3d at 935 (parenthetical omitted).
Specifically this Court has found that the legal remedy of punitive damages were not necessary because the Congress addressed willful violations of the FLSA in 29 U.S.C. § 216(a). This Court when disallowing punitive damages in FLSA retaliation cases has already “disagreed with the proposition that Congress has left the issue of appropriate remedies in retaliation cases to the courts.” Snapp, 208 F.3d at 935.
The holding in Snapp, is legislative action contained in the Fair Labor Standards Act preempts judicial discretion regarding legal remedies if the judicial discretion and legislation occupy an identical zone of interest. See 208 F.3d at 935. 29 U.S.C. § 260 is a rule developed by the legislature to decide when the legal remedy of liquidated damages can be reduced. As it was previously stated in section 1.A of the petition it applies to liquidated damages in any action under the Fair Labor Standards Act including retaliation cases.
It is evident that Congress has legislated in the area of liquidated damages; specifically when they are appropriate and inappropriate. Because this Court has found in Snapp, that when the legislatures speak that Judges lose their discretion the conflict becomes clear that the Panel is allowing Judges wide discretion in an area already covered by the legislature.

(footnote) [a]lthough both provisions in section 216(b) employ the words ‘shall’ and ‘and’ in listing appropriate remedies (including liquidated damages), the additional language in the retaliation provision modifies the mandatory language and creates a separate standard for retaliation claims.
(Attached Opinion pg. 14).

This Court previously interpreted section 216(b) differently by reading each statutory provision with reference to the whole Act not by simply comparing wage and retaliation parts of section 216(b). Snapp, 208 F.3d at 934-35.
[I]n expounding a statute, we [are] not ... guided by a single sentence or member of a sentence, but look to the provisions of the whole law." Further, we should avoid reading statutory language to address an issue not specifically covered in the text when Congress has addressed the issue in more specific language elsewhere.
Id. (citations omitted).

The panel’s decision that “as may be appropriate” leaves section 216(b)’s legal remedies up to the Judges creates direct conflict over whether appropriate legal remedies for FLSA retaliation are settled by Congress or left up to the Judiciary.
B. The panel’s decision not to require a showing of good faith conflicts with the text of 29 U.S.C. § 260 and Snapp.

The panel’s holding

The Panel was correct to point out that Snapp, empowered lower Court’s to be creative, (Attached Opinion pg. 19), however this part of the opinion was dicta and strictly in the context of equitable remedies, not legal remedies. Snapp, 208 F.3d at 937.


CONCLUSION
Wherefore the reasons state above the Plaintiffs request that the Appellate Court overturn the District Court’s Order Denying the Plaintiffs Motion for Liquidated Damages and enter an award of Liquidated Damages of $30,000 for each Plaintiff.

Further the Plaintiffs request that the Appellate Court affirm the District Court’s Orders denying the Defendant Pak’s Motion for Judgment as a Matter of Law, Renewed Motion for Judgment as a Matter of Law, and Motion for Remitter or New Trial.


APPELLEES’ CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT

Appellees / Plaintiff’s Leonard Moore, Christopher Lungrin, and Jason Evers through the undersigned counsel and in compliance with Fed. R. App. P. 26.1 and 11th Cir. R. 26.1-1, hereby states that Counsel for Appellees certifies the following persons and entities have an interest in the outcome of this action:
Albritton, Honorable W. Harold., United States District Court Judge, sitting Circuit Judge;
Anderson, Honorable R. Lanier., United States Circuit Judge;
Appliance Direct, Inc.;
Arcadier, Maurice, Esquire;
Arcadier and Associates, P.A.;
Biggie, Stephen, Esquire;
Coleman, Christopher; Esquire;
Evers, Jason;
Goldfarb, Joel, Esquire;
Jordan, Honorable Adalberto, United States Circuit Judge;
Kelly, Honorable Gregory J., United States Magistrate Judge;
Lungrin, Christopher;
Moore, Leonard;
Pak, Sei; and
Schillinger and Coleman, P.A.

Attorney: Stephen Biggie and Maurice Arcadier
Status: Open
Date Filed: March 1, 2013