Case: 19-2130    Document: 46     Page: 1   Filed: 09/24/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                    JOHN A. SHEA,
                    Plaintiff-Appellant

                             v.

                    UNITED STATES,
                    Defendant-Appellee
                  ______________________

                        2019-2130
                  ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:16-cv-00793-CFL, Senior Judge Charles F. Lettow.
                   ______________________

                Decided: September 24, 2020
                  ______________________

     DANIEL M. ROSENTHAL, James & Hoffman, PC, Wash-
 ington, DC, argued for plaintiff-appellant. Also repre-
 sented by LINDA LIPSETT, Bernstein & Lipsett, P.C.,
 Washington, DC.

     DAVID MICHAEL KERR, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, argued for defendant-appellee. Also repre-
 sented by ETHAN P. DAVIS, CLAUDIA BURKE, ROBERT
 EDWARD KIRSCHMAN, JR.
                   ______________________
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 2                                        SHEA   v. UNITED STATES



     Before PROST, Chief Judge, REYNA and HUGHES, Circuit
                            Judges.
 HUGHES, Circuit Judge.
      John Shea appeals the decision of the United States
 Court of Federal Claims denying him liquidated damages
 following his employer’s erroneous classification of his po-
 sition as exempt from the overtime provisions of the Fair
 Labor Standards Act. Because the Court of Federal Claims
 did not err, we affirm the decision.
                                I
     We begin with an overview of the applicable portions
 of the Fair Labor Standards Act (FLSA) and then review
 the facts of Mr. Shea’s case.
                                A
      The FLSA requires employers to pay employees at a
 rate at least one-and-one-half times the employee’s regular
 rate for any hours worked in excess of 40 hours per week.
 See 29 U.S.C. § 207(a). But the FLSA exempts from these
 overtime requirements several types of employees, includ-
 ing those “employed in a bona fide executive, administra-
 tive, or professional capacity . . . .” 29 U.S.C. § 213(a)(1). If
 an employer violates § 207, it “shall be liable to the em-
 ployee . . . [for the] unpaid overtime compensation . . . and
 [for] an additional equal amount as liquidated damages.”
 29 U.S.C. § 216(b). However, “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 [it] had reasonable
 grounds for believing that [its] act or omission was not a
 violation of the [FLSA], as amended, the court may, in its
 sound discretion, award no liquidated damages.” 29 U.S.C.
 § 260; see also Bull v. United States, 

, 229
 (2005), clarified by 

(2005), aff’d, 

, 1379 (Fed. Cir. 2007).
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 SHEA   v. UNITED STATES                                    3



     The FLSA applies to civilian employees of the federal
 government. See 29 U.S.C. § 203(d), (e)(2). The Office of
 Personnel Management (OPM) implements the require-
 ments of the FLSA for most federal employees. OPM’s reg-
 ulations presume that every employee is covered by the
 FLSA “unless the employing agency correctly determines
 that the employee clearly meets the requirements of one or
 more of the exemptions [to the FLSA].”           5 C.F.R.
 § 551.202(a).
                              B
     This appeal involves whether the Naval Criminal In-
 vestigative Service (NCIS) classified Appellant John Shea’s
 position as exempt from the overtime requirements of the
 FLSA (hereinafter FLSA-exempt), albeit erroneously, in
 good faith and with reasonable belief that its classification
 did not violate the FLSA.
     NCIS “investigates felony federal crimes, prevents ter-
 rorism, and protects secrets for the Navy and Marine
 Corps,” and “defeats threats from across the foreign intel-
 ligence, terrorist, and criminal spectrum.” Shea v. United
 States, 

. 320, 323 (2019) (original alterations
 omitted). In 2007, NCIS classified its GS-12 Investigations
 Specialist position as FLSA-exempt. The Investigations
 Specialist is a member of the Special Surveillance Team,
 which “supports criminal and counterintelligence investi-
 gations by conducting surveillance operations worldwide.”

324. After serving in another role at NCIS, Mr. Shea
 began working as a GS-12 Investigations Specialist for
 NCIS’s Special Surveillance Team in 2010. Since July
 2014, Mr. Shea worked overtime, but because his position
 was classified as FLSA-exempt, he did not receive one-and-
 one-half pay for any hours over 40 per week.
     Believing he was wrongly exempted from the FLSA’s
 overtime provisions, Mr. Shea sued NCIS in July 2016. He
 alleged that NCIS’s erroneous exemption decision
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 4                                      SHEA   v. UNITED STATES



 “deprived him of overtime and premium pay.”

328.
 NCIS and Mr. Shea both filed motions for summary judg-
 ment on several grounds, including whether NCIS had
 willfully misclassified Mr. Shea’s position. A willful mis-
 classification extends the statute of limitations to three
 years, rather than two. 29 U.S.C. § 255(a). The Court of
 Federal Claims (hereinafter the trial court) granted sum-
 mary judgment for NCIS that it had not willfully misclas-
 sified Mr. Shea. Shea v. United States, 

, 113
 (2018). That meant the relevant time period—when the
 cause of action accrued under 29 U.S.C. § 255(a)—began on
 July 1, 2014. Cf. 

, 328 n.12; Ap-
 pellant’s Br. 24 (“That ‘act or omission’ was NCIS’[s] treat-
 ment of [Mr.] Shea as exempt beginning in July 2014, the
 start of the relevant time period for the case.”).
     The trial court then held a two-day trial to hear testi-
 mony “regarding Mr. Shea’s primary duty and the basis for
 NCIS’s classification decision.” 

.
 The testimony focused on the specifics of Mr. Shea’s posi-
 tion—what his job responsibilities were at a granular level
 and how much time he spent on those responsibilities—as
 well as NCIS’s classification practices. See, e.g.

 (discussing testimony about how many missions the Sur-
 veillance Team conducted and how much time was spent in
 the field); J.A. 1378–84 (Shea Pay, Hours, and Overtime
 Calculations).
      NCIS argued that Mr. Shea was FLSA-exempt under
 the administrative exemption, 29 U.S.C. § 213(a)(1). To
 fall under this exemption, an employee’s primary duty, 1 or
 combination of duties, must involve: (1) “performance of of-
 fice or non-manual work”; (2) “directly related to the


     1   A primary duty “typically means the duty that con-
 stitutes the major part (over 50 percent) of an employee’s
 work.” 5 C.F.R. § 551.104.
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 SHEA   v. UNITED STATES                                     5



 management or general business operations, as distin-
 guished from the production functions, of the employer”;
 and (3) “include[] the exercise of discretion and independ-
 ent judgment with respect to matters of significance.”
 5 C.F.R. § 551.206; see also 29 C.F.R. § 541.200. The par-
 ties mainly debated the nature of the “team leader” duty
 included in the GS-12 Investigations Specialist position.
     On a rotational basis, [a] senior level [Investiga-
     tions Specialist] will serve as the team leader dur-
     ing physical surveillance operations in support of
     counterintelligence investigations. The incumbent
     will be responsible for directing all aspects of the
     surveillance operation to include directing team
     members in the analysis, evaluation, and interpre-
     tation of information collected; overseeing the prep-
     aration of reports; coordinating with the SSA; and,
     providing expertise to team members in further de-
     velopment of a case.
 J.A. 1205; see Shea, 

. at 338.
     Accordingly, NCIS argued that Mr. Shea’s primary
 duty was “managing the [Surveillance Team] in its execu-
 tion of surveillance operations,” and that he “serve[d] as [a]
 [t]eam [l]eader during more than a third of the time de-
 voted to surveillance operations.”

330. Mr. Shea ar-
 gued that his primary duty was “performing surveillance”
 and that even when he was serving as team leader, he did
 largely “the same surveillance work as the rest of the
 team.”

testimony).
     The trial court ultimately found that the team leader
 duty was optional and comprised a minority of the Investi-
 gations Specialist position’s duties.

331–32. The
 trial court found that Mr. Shea’s primary duty was not
 management; it was “conducting surveillance in support of
 criminal and counterintelligence investigations, which
 would not qualify for the administrative exemption.”

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 6                                        SHEA   v. UNITED STATES



 337. NCIS therefore was liable for incorrectly classifying
 Mr. Shea’s position as FLSA-exempt.

for this misclassification, the trial
 court awarded Mr. Shea compensatory damages and back
 pay.

court denied liquidated damages un-
 der 29 U.S.C. § 216(b) because it found NCIS’s classifica-
 tion decision objectively reasonable and in good faith.

337–40; see 29 U.S.C. § 260.
     The trial court issued its decision on May 31, 2019 and
 a final judgment under Rule 54(b) of the Court of Federal
 Claims Rules on June 6, 2019. We have jurisdiction over
 Mr. Shea’s timely appeal from a final judgment of the
 Court of Federal Claims under 28 U.S.C. § 1295(a)(3).
                                II
     Because the trial court has “broad statutory discretion”
 over the liquidated damages award, we review its ultimate
 decision to award or deny liquidated damages for abuse of
 that discretion. Bull v. United States, 

, 1380
 (Fed. Cir. 2007). But first, the trial court must determine
 that the employer acted in good faith and with reasonable
 belief as § 260 requires. See Martin v. Cooper Elec. Supply
 Co., 

, 908 (3d Cir. 1991) (“Assuming a district
 court has first properly made the required preliminary
 findings of an employer’s subjective good faith and objec-
 tively reasonable grounds for violating the Act, we will re-
 view its exercise of ‘substantial discretion’ to deny or limit
 an award of liquidated damages only for abuse of discre-
 tion.”). We review the fact finding underlying the good
 faith and reasonable belief determinations, and the finding
 of good faith itself, for clear error; and we review de novo
 the trial court’s legal conclusion that an employer had a
 reasonable belief for its classification decision. Cf. id.; 

; Adams v. United States., 

,
 1221 (Fed. Cir. 2003); see Icicle Seafoods, Inc. v. Worthing-
 ton, 

, 714 (1986) (“The question of how the
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 SHEA   v. UNITED STATES                                        7



 respondents spent their working time . . . is a question of
 fact. The question whether their particular activities ex-
 cluded them from the overtime benefits of the FLSA is a
 question of law . . . .”).
     On appeal, Mr. Shea does not argue that the trial court
 abused its discretion under 29 U.S.C. § 260. Instead, he
 argues that the trial court (1) based its decision to deny him
 liquidated damages on an incorrect interpretation of
 29 U.S.C. § 260 and (2) erred in its good faith and reasona-
 ble belief determinations. We disagree on both points.
                                A
      Mr. Shea first argues that the trial court legally erred
 in its interpretation of what § 260 requires. Again, § 260
 grants the trial court discretion to deny liquidated dam-
 ages if the employer shows that its classification decision,
 though erroneous, was in good faith and was made with
 “reasonable grounds for believing that [its] act or omission
 was not a violation of the [FLSA].” 29 U.S.C. § 260. The
 good faith prong requires a subjective showing. E.g., Chao
 v. Barbeque Ventures, LLC, 

, 942 (8th Cir.
 2008) (“The ‘good faith’ requirement is a subjective stand-
 ard . . . .”); 

; Martin v. United States,
 

, 585 (2017). The reasonable grounds
 prong is objective. E.g., Williams v. Tri–County Growers,
 

, 128 (3d Cir.1984) (“The reasonableness re-
 quirement imposes an objective standard by which to judge
 the employer’s conduct.”); Hultgren v. Cty. of Lancaster,
 Neb., 

, 509 (8th Cir. 1990); 

; 

(2017).
     According to Mr. Shea, the employer must provide evi-
 dence for both prongs—subjective good faith and objective
 reasonable belief—that is specific to the erroneous classifi-
 cation at issue and that shows actions the employer took
 before litigation began. Mr. Shea contends that it is not
 enough for the employer to simply show reasonableness or
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 8                                       SHEA   v. UNITED STATES



 good faith in general. See, e.g., Appellant’s Br. 18–19 (cit-
 ing Thomas v. Howard Univ. Hosp., 

, 373
 (D.C. Cir. 1994)).
     This argument attempts to recast as legal error a disa-
 greement with the trial court’s factual findings and its dis-
 cretion     regarding    liquidated    damages—discretion
 explicitly granted by statute. We agree that the trial court
 would likely abuse its discretion by making findings of good
 faith and reasonable belief under § 260 solely resting on
 non-specific evidence or only on the employer’s actions af-
 ter an employee files suit. But that is not what occurred
 here.
      First, the trial court considered evidence specific to the
 GS-12 Investigations Specialist position in finding that
 NCIS classified Mr. Shea’s position as FLSA-exempt in
 good faith and with reasonable belief in the propriety of the
 decision. The trial court analyzed the position description
 and the parties’ testimony specific to the position in finding
 that the position description could reasonably have been
 classified as exempt. See, e.g., Shea, 

. at 333–
 37 (comparing Mr. Shea’s specific duties, including specific
 time percentages spent on each during the time period in
 question, to the criteria for the administrative exemption);

(describing how the “team leader” duty could rea-
 sonably be interpreted as implicating the administrative
 exception);

(“find[ing] nothing inherently unrea-
 sonable about relying” on the position description and an
 annual process where supervisors certify if a position de-
 scription no longer matches duties).
     Likewise, the trial court based its decision on pre-liti-
 gation evidence. The trial court analyzed the GS-12 Inves-
 tigations Specialist position description as it existed since
 at least 2009. See

And though NCIS did not
 provide testimony on the original classification, the trial
 court relied on testimony from the chief of NCIS’s Staffing,
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 SHEA   v. UNITED STATES                                      9



 Classification, and Compensation division, Stacy Cruz,
 about the agency’s practices to “classify positions and re-
 view decisions” since she started her position in May
 2015—a year before Mr. Shea filed suit.

338; J.A.
 935–38.
      Finally, we note that § 260 does not require, as a mat-
 ter of law, documentation of the original classification de-
 cision. Even though the statute is phrased in the past
 tense, it refers only to “the act or omission giving rise to
 such action” generally—not the original classification deci-
 sion. 29 U.S.C. § 260. And in light of the statute of limita-
 tions for unpaid overtime wages and liquidated damages
 under 29 U.S.C. § 255(a), to hold that § 260 may only be
 satisfied by documentation of the original classification—
 regardless of the employer’s other actions in what may be
 many years between the classification and the litigation—
 would effectively require employers to classify positions
 every two to three years. For many employers, including
 NCIS, requiring such frequent classification would be un-
 tenable. Given no evidence that § 260 makes such a re-
 quirement, we will not impose one ourselves.
     The trial court did not err in its interpretation or appli-
 cation of § 260.
                               B
     We next consider Mr. Shea’s contention that the trial
 court erred in its good faith and reasonable belief determi-
 nations.
                               1
     To meet the objective reasonableness prong of § 260, an
 employer must show that it “had reasonable grounds for
 believing that [its] act or omission was not a violation of
 the [FLSA].” 29 U.S.C. § 260; 

.
 Though the Federal Circuit has not directly addressed the
 meaning of this text, the D.C. Circuit has held that § 260
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 10                                     SHEA   v. UNITED STATES



 requires an employer to show that it “relied on a reasona-
 ble, albeit erroneous, interpretation of the [FLSA] or of the
 regulations issued thereunder.” 

.
 Whether the employer had objectively reasonable grounds
 for its classification decision is a question of law we review
 de novo; however, we review the trial court’s factual find-
 ings underlying its reasonable belief conclusion for clear
 error. See supra Section II. Mr. Shea has not shown that
 the trial court clearly erred in the factual findings under-
 pinning its reasonable belief analysis. And we agree with
 the trial court’s ultimate conclusion that NCIS’s classifica-
 tion decision was objectively reasonable.
     We first address whether the trial court clearly erred
 in any factual findings underpinning its reasonable belief
 analysis. At trial, NCIS argued that the GS-12 Investiga-
 tions Specialist position qualified for the administrative ex-
 emption      primarily     because    of    the   “autonomy,
 responsibility, and leadership” involved in the position, as
 evidenced by the position description itself. Shea, 

. at 338 (quoting NCIS’s brief). The trial court heard and
 cited testimony about the nature of the GS-12 Investiga-
 tion Specialist’s duties, including as team leader. J.A. 988–
 1005 (describing the extensive duties of the team leader,
 including choosing an assistant team leader and proposing
 equipment to be used on the mission); J.A. 984–85 (Mr.
 Shea’s supervisor, Dennis Freeman, testifying that he
 chose team leads based on their skills for the particular
 mission and that he frequently chose Mr. Shea as team
 leader because of his experience, demeanor, and camarade-
 rie with others.). And again, as discussed previously in
 Section I, this testimony was specific to Mr. Shea’s position
 and addressed duties Mr. Shea performed that preceded
 the litigation. The trial court did not clearly err.
     We also agree with the trial court, that, on its face, the
 position description contains duties that could reasonably
 be interpreted as qualifying for the administrative
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 SHEA   v. UNITED STATES                                     11



 exemption—namely duties involving “office or non-manual
 work” related to “management or general business opera-
 tions” and that require “the exercise of discretion and inde-
 pendent judgment with respect to matters of significance.”
 5 C.F.R. 551.206; 29 C.F.R. § 541.200; Shea, 

. at
 338–39.
      It is also instructive that the trial court required two
 days of testimony from Mr. Shea, his supervisor, and
 NCIS’s classification witness to determine that NCIS’s
 classification was erroneous. See Shea, 

. at 330
 (analyzing Mr. Shea’s primary duty based on extensive
 trial testimony);

(detailing testimony on the per-
 centage of time Mr. Shea spent on management or general
 business operations as part of the administrative exemp-
 tion analysis). This strongly suggests that it was far from
 clear whether NCIS’s classification decision was even in-
 correct, as a legal matter. See 

 (“[I]t is relevant to the reasonable grounds inquiry under
 Section 260 that the question is uncertain, ambiguous, or
 complex.”) (internal quotation marks and citation omitted).
 For example, the trial court explained that it appeared
 from the GS-12 Investigations Specialist position descrip-
 tion that the team leader duty was mandatory; it took tes-
 timony from Mr. Freeman to make clear that it was
 optional, and that Mr. Shea did not spend enough time as
 a team leader for it to qualify as a primary duty. See Shea,
 

. at 326, 337.
     Here, to require more evidence than the trial court con-
 sidered, as Mr. Shea urges, see Appellant’s Reply Br. 7–14,
 would risk collapsing the objective and subjective prongs
 into a solitary subjective one. But it is a “cardinal principle
 of statutory construction that courts must give effect, if
 possible, to every clause and word of a statute,” Williams
 v. Taylor, 

, 364, (2000), and § 260 requires
 both good faith and reasonable belief, Laffey v. Nw. Air-
 lines, Inc., 

, 464 (D.C. Cir. 1976), abrogated on
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 12                                      SHEA   v. UNITED STATES



 other grounds by McLaughlin v. Richland Shoe Co., 

(1988) (“The statutory call for reasonable grounds
 for a belief in compliance with the Act imposes a require-
 ment additional to good faith, and one that involves an ob-
 jective standard.”).
     Between the position description and the testimony of
 Mr. Shea, his supervisor, and NCIS’s classification wit-
 ness, the evidence supports the trial court’s holding that
 NCIS reasonably believed that Mr. Shea’s position had
 substantial managerial duties qualifying it for the admin-
 istrative exemption to the FLSA, even if it was ultimately
 incorrect about the import and scope of those duties. We
 are not persuaded that the trial court erred in holding that
 NCIS had reasonable belief in its decision that the Investi-
 gation Specialist position was FLSA-exempt.
                               2
     “To establish the requisite subjective ‘good faith,’ an
 employer must show that it took active steps to ascertain
 the dictates of the FLSA and then act[ed] to comply with
 them.” Barfield v. New York City Health & Hosps. Corp.,
 

, 150 (2d Cir. 2008) (internal quotation marks
 and citation omitted). See also Addison v. Huron Stevedor-
 ing Corp., 

, 93 (2d Cir. 1953) (“The ‘good faith’
 of the statute requires, we think, only an honest intention
 to ascertain what the [FLSA] requires and to act in accord-
 ance with it.”); Beebe v. United States, 

, 1295
 (Ct. Cl. 1981). We review the trial court’s finding of good
 faith for clear error. See supra Section II. See also 

.
     Here, the trial court found that “NCIS demonstrated
 an intent to comply with the [FLSA] by having a formal
 process to classify positions and review decisions, executed
 by a dedicated staff.” Shea, 

. at 338. NCIS’s
 classification witness, Ms. Cruz, testified that as part of the
 annual performance evaluation process, supervisors must
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 SHEA   v. UNITED STATES                                    13



 certify that the position description has not changed in the
 past year. See id.; J.A. 910–11, 956−57. Indicating that
 the position description has changed triggers a review and
 potential reclassification of the position. Shea, 

.
 at 338. No such change was flagged for Mr. Shea’s position.
 J.A. 1043 (Mr. Shea’s supervisor answering “Yes” when
 asked if he “recall[ed] confirming that the position descrip-
 tion was accurate”). While NCIS did not formally classify
 Mr. Shea’s position during the relevant time period, as we
 outlined in Section II 

, that is not required by
 § 260.
      Mr. Shea compares the facts here to those in certain
 decisions of our sister courts addressing liquidated dam-
 ages decisions. This comparison is misplaced. In those
 cases, the employers had no systems in place to comply
 with the FLSA—in fact some had not even heard of it. See,
 e.g., McFeeley v. Jackson St. Entm’t, LLC, 

,
 245 (4th Cir. 2016) (affirming the district court’s good faith
 finding because the employer took over the business and
 assumed the employees were independent contractors
 without any “effort to look into the law or seek legal advice
 until he faced a lawsuit”); Elwell v. Univ. Hosps. Home
 Care Servs., 

, 841 (6th Cir. 2002) (reversing
 the district court’s good faith finding because the employer
 offered no evidence of classification or compensation proce-
 dures “at the time its compensation plan was instituted or
 at any time [the employee in question] worked for the [em-
 ployer]”); Spires v. Ben Hill Cty., 

, 690
 (11th Cir. 1993) (“Although the County knew that the [em-
 ployees] might be subject to the FLSA as early as 1986, it
 took no action whatsoever to investigate its compliance
 with this statute until it was contacted by the plaintiffs’
 counsel in September, 1987.”); Martin v. Cooper Elec. Sup-
 ply 

(overturning the district court’s
 good faith finding because the employer merely followed
 the industry practice for compensation and admittedly “did
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 14                                      SHEA   v. UNITED STATES



 not do any analysis or conduct any inquiry to determine
 whether the subject employees qualified for an exemption”
 (emphasis omitted)). Given the testimony on NCIS’s for-
 mal classification practices during the time Mr. Shea
 worked there, including the year before he filed suit, these
 cases are unpersuasive.
     Again, as with its reasonable basis determination, the
 trial court based its good faith finding on pre-litigation ev-
 idence specific to the erroneous classification of Mr. Shea’s
 position as exempt. Ms. Cruz testified about NCIS’s prac-
 tices starting in May 2015, which was over a year before
 Mr. Shea filed suit. And the testimony showed that NCIS
 had a process for annually verifying that position descrip-
 tions accurately reflected job duties and for reviewing the
 position’s FLSA classification if the duties had changed.
 J.A. 910−11. “In short, the findings of the Court of Federal
 Claims on the government’s good faith have not been
 shown to be clear error, nor has any error of law been
 shown.” 

.
                               III
     We have considered Mr. Shea’s remaining arguments
 and find them unpersuasive. Though NCIS erroneously
 classified his position as FLSA-exempt, the Court of Fed-
 eral Claims applied the correct legal standard to, and did
 not clearly err in its factual findings for, the good faith and
 reasonable belief inquiry under § 260. We therefore affirm.
                         AFFIRMED
      No Costs.