# I n the United States Court of Federal Claims

No. 13-130C (Filed: November 6, 2017)

MANUEL ALMANZA, et al., AND

OTHER SIMILARLY SITUATED PERSONS,

Plaintiffs,

v.

THE UNITED STATES OF AMERICA,

Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Keywords: Fair Labor Standards Act; Customs Officer Pay Reform Act; Settlement Approval.

David L. Kern , Kern Law Firm PC, El Paso, TX, for Plaintiffs. Mark Greenwald , Greenwald & Greenwald, PLLC, San Antonio, TX, and Robert Gaudet, Jr. , RJ Gaudet & Associates, El Paso, TX, Of Counsel.

Albert S. Iarossi , Trial Attorney, Commercial Litigation Br anch, Civil Division, U.S. Department of Justice, for Defendant, with whom were Steven J. Gillingham , Assistant Director, Robert E. Kirschman, Jr. , Director, and Chad A. Readler , Acting Assistant At torney General.

OPINION AND ORDER

KAPLAN, Judge.

Currently before the Court are Plaintiffs’ “Motion to Approve FLSA Settlement, Enforce Stipulation, and Enter Judgment and Order,” EC F No. 120, and “Plaintiffs’ Motion for Award of Attorneys’ Fees Expenses and Costs,” ECF N o. 113. The government has filed an opposition to both motions. ECF Nos. 117, 123.

For the reasons set forth below, Plainti ffs’ motion to approve the parties’ FLSA
settlement is GRANTED and the settlement agreement is APPROVED . Plaintiffs’ motion for an award of attorneys’ fees shall be held in abeyance pending the filing of supplemental briefs,
as discussed below.

BACKGROUND

The original plaintiffs in this case were 290 Customs and Border Protection Officers (CBPOs) and Border Patrol Agents (BPAs) w ho are now or were formerly employed by U.S. Customs and Border Protection, Department of Ho meland Security (CBP). They filed this action2 to recover overtime pay for time that they spent studying outside of regular working hours while attending CBP’s Detection Canine Instruct or Course. See Am. Compl., ECF No. 77.

The CBPOs’ claims were based on the Cust oms Officer Pay Reform Act, 19 U.S.C. § 267 (COPRA), or, in the alternative, the Fa ir Labor Standards Act (FLSA), as amended, 29 U.S.C. §§ 201–19. 1 On May 24, 2016, the Court referred thes e claims to alternative dispute resolution at the reques t of the parties. ECF No. 94. Thereaf ter, on February 24, 2017, the parties entered into a settlement agreement as to the cl aims of the CBPOs. Pls.’ Mot. to Approve FLSA Settlement (Pls.’ Mot. to A pprove) Ex. A, ECF No. 120-1.

Under the settlement, Plaintiffs agreed to dismiss their COPRA and FLSA claims with prejudice in exchange for payment by the gove rnment of $1,716,000. See id. ¶ 5; see also id. ¶ 14. 2 The agreement reserved to Plaintiffs their ri ghts to submit an application for an award of attorneys’ fees, costs, or expenses within sixt y days, “pursuant to the Equal Access to Justice Act . . . or any other Act that plaintiffs cl aim may be applicable.” Id. ¶¶ 13–14. The government, in turn, reserved its right to obj ect to any application for fees that Plaintiffs might file. Id. Finally, the parties agreed to stipulate to a dism issal of Plaintiffs’ clai ms with prejudice within twenty-one days of the later of the United Stat es’ satisfaction of its ob ligations to make the payments due under the agreement or a final deci sion on Plaintiffs’ application for attorneys’ fees. Id. ¶ 14.

On April 25, 2017, Plaintiffs filed a motion for an award of attorneys’ fees, expenses, and costs in the amount of $3,011,788.82. See Pls.’ Mot. for Award of Att’y’s Fees Expenses & Costs at 28–29, ECF No. 113. As authority for the aw ard, Plaintiffs cited “ 29 U.S.C. § 216(b) of [the] FLSA as well as the appl icable provisions of the [Back Pay Act, 5 U.S.C. § 5596] and
COPRA.” Id. at 1–2. 3

The government filed an opposition to Pl aintiffs’ motion on June 30, 2017. ECF No. 117. In its opposition, the government argue s that Plaintiffs are not enti tled to any fee award at all. Def.’s Opp’n to Pls.’ Am. Mot. for Att’y Fees at 1. It contends fi rst that COPRA does not

1 The Court granted the government’s motion for summary judgment as to the BPAs’ claims on July 26, 2016. Almanza v. United States, 127 Fed. Cl. 521 (2016).

2 The agreement provided, among other things, that the government would supply counsel for Plaintiffs with checks for each individual plaint iff that represented an agreed-upon amount of back pay, and that it would pay counsel a lump sum for the remaining amount, which represented the total award to all of the plaintiffs for liqui dated damages and incentive fees. Pls.’ Mot. to Approve Ex. A ¶¶ 7–8. The lump sum would be de posited into counsel’s trust account and was “subject to possible reductions by plaintiffs’ counsel for attorneys’ fees and cost reimbursements,” pursuant to counsel’s ag reement with Plaintiffs. Id. ¶¶ 5, 8.

3 Later that same day, Plaintiffs filed an amende d motion for attorneys’ fe es, expenses, and costs “for the purpose of complying with CFC Rule 5.4(2)(A)-(G) as we ll as to make minor
amendments and clarifications to the text of the motion.” Pls.’ Am. Mot. for Award of Att’y’s Fees, Expenses & Costs (Pls.’ Am. Mot. for Att’y Fees) at 4, ECF No. 114.3 authorize an award of attorneys’ fees. Id. at6. In addition, the govern ment argues that under Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 604 (2001) and its progeny, Plaintiffs are not “prevailing parties” as required to secure attorneys’ fees under the Back Pay Act. Id. at 7–9. Specifically, the government argues that “[t]o qua lify as a prevailing party, a fe e applicant must identify a judicially-sanctioned action that caused a ‘mater ial alteration of the legal relationship of the parties,’” and that this requirement is not met where a litigant “achieves a favorable outcome through the voluntary conduct of th e defendant.” Id. at 7 (quo ting Buckhannon, 532 U.S. at 604). Finally, the government argues that Pl aintiffs are not entitled to anaward of attorneys’ fees under
the FLSA because the Court did no t issue a judgment under the FLSA. 4 See id. at 5, 8–9.

On July 11, 2017, Plaintiffs filed a “Moti on to Approve FLSA Settlement, Enforce Stipulation, and Enter Judgment and Order.” ECF No. 120. In their motion, Plaintiffs argue that at an earlier stage in this cas e, the parties “stipulated” that the Court would issue an order approving any settlement and recogn izing its binding effect, and that this “stipulation” represents “the law of the case.” See Pls.’ Mot. to Approve at 7. Further, Plaintiffs contend that the Court should approve the settlement agreement and issue an order to that effect because such approval is required as a matter of law to make Plaintiffs’ agreement to waive their FLSA claims valid and
enforceable. Id. at 4.

The government opposes this motion as well. ECF No. 123. According to the government, Plaintiffs’ counsel previously ar gued that it was unnecessary for the Court to approve the settlement agreement. Id. at 2. The government contends further that “Plaintiffs’ efforts were successful [in that regard], because th e Court explicitly rejected such involvement in an October 2013 order.” Id. at 1. The government al so notes that the settlement agreement itself does not mention “let alone require, approva l or involvement by the Court.” Id. “More fundamentally,” the government contends, “there is no reason for the Court to approve the parties’ Settlement Agreement” because “[t] he governing statute and clear Federal Circuit precedent mandate[] that plaintiffs’ backpay clai ms be reimbursed under [COPRA]” for which approval of a settlement agreemen t is not required. Id. And in a ny event, the government notes in passing, the Federal Circuit has never held “that FLSA settlement agreements entered into by the Department of Justice on behalf of the Un ited States are subject to the same approval requirements that similar settlement agreements between private parties may be.” Id. at 9 n.6.

DISCUSSION

I. The Parties’ Prior Positions and the Court’s Earlier Rulings

As noted above, Plaintiffs contend that this Court should issue an or der that approves the terms of the settlement on the ground s that earlier in this litigation the parties stipulated that the
Court would take such action in the event a se ttlement agreement was reached. The government, for its part, contends that Plai ntiffs’ motion seeking the Court’ s approval of the terms of the

4 The government also argues in the alternative that even if Plaintiffs are entitled to some award of fees, the hourly rate Plaintiffs requested fo r legal services is excessive and unreasonable. Def.’s Opp’n to Pls.’ Am. Mot. for Att’y Fees at 9.4 settlement agreement is inconsiste nt with legal arguments that c ounsel referenced during a status
conference held in October of 2013. The government further argue s that, in any event, Judge Allegra (to whom this case was originally assigned) 5 expressly rejected any proposal that the court be involved in approving a settlement agre ement in this action when he struck from the parties’ proposed notice to the class (ECF No. 26 -1) a sentence stating th at “[a]ny settlement in the case is subject to the approva l of the Court through the issuan ce of an order recognizing the settlement.” See ECF No. 28 (observing that the sentence was “inaccurate” and striking it from the proposed notice).

The Court finds that the proposed and fina l notices to the class and the colloquies between the parties and Judge A llegra do not control this Court’ s disposition of Plaintiffs’ motion. Thus, it rejects Plaintiffs’ contention that the parties stipulated that they would submit any settlement agreement to the Court for approval. It also find s unpersuasive and irrelevant the government’s argument that counsel for Plaintiffs conceded that such approval would not be required or appropriate if a settlement was reached.

The record reveals that afte r an initial status conference held on August 1, 2013, Judge Allegra directed the parties to file a joint status report setting forth a planfor providing notice of the action to prospective class members and to submit a proposed not ice. ECF No. 15. On September 3, 2013, consistent with Judge Allegra’s order, the parties file d a joint status report along with a proposed “Notice of Legal Rights to Make a Claim for Unpaid Wages.” See Joint Status Report Ex. A, ECF No. 18-1.

Shortly thereafter, Judge Allegr a issued an order scheduling another status conference for September 19, 2013. See ECF Nos. 19–20. In that order, Judge Allegra directed the parties to “be prepared to discuss the statements in paragra ph seven [of the proposed notice] relating to the effect of the settlement and the court’s appr oval of any settlement.” Order, ECF No. 19. The statement to which Judge Allegr a referred, the last sentence of the proposed paragraph seven, read as follows: “[a]ny settlement or judgment inthe case is subject to the ultimate approval of
the Court.” See Joint St atus Report Ex. A.

At the beginning of the September 19th stat us conference, Judge Allegra advised the parties that he wanted to make the case “as simple as possible” and was seeking the parties’ input on the extent to which the procedures for class ac tions set forth in Rule 23 of the Rules of the Court of Federal Claims, particul arly the requirement of a fair ness hearing, should apply to a
collective action under th e FLSA. Tr. of Telephonic Status Conference at 4 (Sept. 19, 2013), ECF No. 125. He noted that the pa rties had indicated in their propos ed notice that “t he effect of joining this lawsuit [is] that a ny settlement or judgment in the case is subject to the ultimate approval of the Court.” Id. at 5. He then expressed his view that “[o]rdinar ily . . . a settlement in a case, unless we’re talking about a class acti on with a fairness heari ng, wouldn’t have that approval. I mean you all could sett le whatever you settled.” Id.

In response, counsel for Plaint iffs advised Judge Allegra th at FLSA collective actions do not require the same kind of approval process as Rule 23 class actions; specifically, counsel for

5 The case was transferred to the undersigned in June 2015. ECF No. 70.5 Plaintiffs asserted that there was no requirement for a fairness hearing because FLSA collective actions are opt-in, not opt-out. I d. at 5–7. He further advised Judge Allegra that in his experience
“FLSA collective action settleme nts are pretty routinely appr oved by courts.” Id. at 6–7. Nonetheless, he noted that there was “a trend developing” which permitted exceptions to what he characterized as “the rule[] that you need court approval or DOL approval of an FLSA
settlement” in order for the settlement to be valid and enforceable. Id. at7 (referencing Martin v. Spring Break ’83 Prods., L.L.C., 688 F.3d 247 (5th Cir. 2012)). 6 Counsel then stated that in light of this “trend,” he would be “comfortable” deleti ng the last sentence of pa ragraph seven, but that
if the court wished to be involve d in the approval of a settlement, then in his experience that would not be a problem either because such a pproval was “very routinely granted, at least in FLSA collective actions.” Id. at 8–9. Judge Allegr a responded that while he did not doubt that approval of settlements occurred routinely in FLSA cases, “the procedures for doing a fairness hearing involve more than . . . simply looking at the settlement.” Id. at 9. Counsel for Plaintiffs
then reiterated his observation that fairness hear ings are not required in FLSA collective actions.
Id.

Counsel for the government then presented his views, noting that he was unaware of any Justice Department policy that would require a fairness hearing for FLSA claims but that he would be “happy to go back and r un that up the flag pole and vet it and be sure.” Id. at 11. Judge Allegra agreed that it would be useful to get the government’s firm views on the issue. Id. He further directed that after government counsel confirmed the government’s position, he should
confer with counsel for Plaintiffs to determine how to structure the notice so that it would not “promise a fairness hearing that’s not going to happen.” Id. at 12. In that regard, Judge Allegra observed that “it may be that the only thing you need to change is that one sentence at the end of paragraph 7, but it would be probably good if you took a look and made sure that that was the case.” Id. He then directed the parties to submit a revised proposed notice by October 2, 2013.
See id. at 12–13.

Following a brief extension of that dead line, see ECF Nos. 24–25, on October 17, 2013, the parties filed a Noti ce of Compliance along with a revise d proposed “Notice of Legal Rights to Make a Claim for Unpaid Wages,” ECF No. 2 6. In their Notice of Compliance, the parties
stated as follows:

In response to the Court’s inquiry at the joint status conference on September 19, 2013, the parties agr ee that the collective action process under the Fair Labor St andards Act, 29 U.S.C. §§ 201–219, is distinct from that provided for class actions pursuant to Rule 23
of the Rules of the Court of Federa l Claims, and that, in the event of a settlement of this action, the Court need not conduct a Rule 23 fairness hearing. However, the partie s anticipate that any settlement, should one occur, would proceed bystipulation of judgment, and

6 The night before the conference, counsel appare ntly had emailed Judge Allegra an excerpt from a paper he had written on the topic of this new “trend.” Tr. of Telephonic St atus Conference at 5, 7. Judge Allegra indicated during th e conference that he had not re ceived the email. See id. at 5. The email is not part of the record in this case.6 that the Court would issue an or der recognizing the settlement and its binding effect upon all memb ers of the collective action.

Notice of Compliance at 1.

Further, the parties revised slightly the wordi ng of the last sentence of paragraph seven of the proposed notice, so that instead of stating th at “[a]ny settlement or judgment in the case is subject to the ultimate approval of the Court,” it stated that “[a]ny settlement in the case is subject to the approval of the C ourt through the issuance of an or der recognizing the settlement.” Notice of Compliance Ex. 1 ¶ 7, ECF No. 26-1.

Judge Allegra, however, was not satisfied w ith the parties’ proposed rewording of the sentence, which would have ha d him “recognize,” as opposed to “approve,” any settlement agreement. He noted that “[i]n the court’s view , the last sentence of paragraph seven of the proposed notice is inaccur ate.” Order, ECF No. 28. Judge Allegr a therefore directed the parties
to strike the sentence entirel y, and authorized the parties to then disseminate the notice to potential plaintiffs. Id.

As is readily apparent, neither the Notice of Compliance nor the last sentence in paragraph seven of the notice th e parties proposed constituted an enforceable “stipulation” between the parties regarding the procedure that would be followed in the event of a settlement. The parties proposed the language in an attempt to meet Judge Allegra’ s concern that potential plaintiffs not be promised a fairness hearing and to address his relu ctance to agree to approve any settlement that was reached. It ap pears that the parties also wish ed to keep open the possibility that Judge Allegra would “recognize” any set tlement that might be reached “and its binding effect” (hence the language in the Notice of Compliance regarding what the parties “anticipate[d]” regarding the court’ s role in the settlement proce ss). But Judge Allegra struck the proposed language stating that any settlement w ould be approved by the court from the notice to the class. Thus, even if the pa rties intended to stipulate to th e requirement of court approval, Judge Allegra rejected that stipulation.

The Court similarly rejects the government’s contention that counsel for Plaintiffs has argued or conceded that judicial approval of a settlement agreement is not required in FLSA cases. Counsel’s exposition of the trending case law at the status conference was informal and intended to educate Judge Allegra about how courts have dealt with settlement agreements in FLSA cases. The issue of the enforceability of FLSA settlements that have not been subject to judicial approval was not briefed and no decision was made as to whether and what extent court approval would be necessary for any FLSA settleme nt agreement to be valid. Indeed, even after the status conference, both parties submitted the Notice of Compliance and the proposed notice to class members which anticipated that the court would review and approve any settlement
agreement.

In any event, for the reasons set forth below, the Court is of the view that the Court’s review and approval of the settlement agreement is a prerequisite to its enforceability as to Plaintiffs’ FLSA claims. In fact, the Court canno t approve the voluntary di smissal of Plaintiffs’ claims with prejudice that is contemplated by the agreement unless it reviews and approves the7 settlement. It is therefore irrelevant what positi on Plaintiffs’ counsel might have taken at a status conference held in the early stages of this case.

II. FLSA Claims and the Requirement of Court Approval of Settlement Terms

As noted, Plaintiffs argue that agreemen ts between individual plaintiffs and the government which settle FLSA claims are not va lid and enforceable unless they are approved by a court. Therefore, Plaintiffs contend, this Court should review the proposed settlement agreement between the parties and, if it determines that the Agr eement is fair and reasonable, approve the same. The Court agrees.

The purpose of the FLSA is to protect wo rkers from substandard wages and oppressive working hours. Barrentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981). Given the inequality in bargaining power between employe rs and employees, the provisions of the FLSA are not subject to negotiation or bargaini ng. See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 706–07 (1945). As the Supreme Court has held, “FLS A rights cannot be abridged by contract or otherwise waived because this would ‘nullifythe purposes’ of the st atute and thwart the legislative policies it was designed to effectua te.” Barrentine, 450 U.S. at 740 (quoting Brooklyn Sav. Bank, 324 U.S. at 707).

In light of these principles, in Lynn’s F ood Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982), the court of app eals held that “[t]here are onlytwo ways in which back wage claims arising under the FLSA canbe settled or compromised by employees.” Id. at 1352. “First, under section 216(c), the Secretary of Labor is authorized to supe rvise payment to employees of unpaid wages owed to them. An employee who accepts such a payment supervised by the Secretary thereby waives his ri ght to bring suit for both the unpaid wages and for liquidated damages, provided the employer pays in full the back wages.” Id. at 1353. The second “route for compromise of FLSA claims,” the court of appe als held, “is provided inthe context of suits brought directly by employees against their em ployer under section 216(b) to recover back wages for FLSA violations.” Id. (footnote omitt ed). “When employees bring a private action for back wages under the FLSA, and present to the district court a proposed se ttlement, the district court may enter a stipulated judgment after sc rutinizing the settlement for fairness.” Id.

Other courts of appeals have followed the re asoning in Lynn’s Food Stores, Inc., and held that absent either approval by the Secretary of Labor or a court, employees cannot waive their rights under the FLSA. See Copeland v. ABB, Inc., 521 F.3d 1010, 1014 (8th Cir. 2008); Taylor v. Progress Energy, Inc., 493 F.3d 454, 460 (4th Ci r. 2007); McConnell v. Applied Performance Techs., Inc., 98 F. App’x 397, 398 (6th Cir. 2004); Walton v. United Consumers Club, Inc

. , 786 F.2d 303, 306 (7th Cir. 1986); see also Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015) (holding that “R ule 41(a)(1)(A)(ii) stipulated di smissals settling FLSA claims with prejudice require the approval of the district court or the DOL to take effect”). The rationale of Lynn’s has also been cited in numerous districtcourt decisions and in decisions of the Court of Federal Claims. See, e.g., Hohnke v. Unite d States, 69 Fed. Cl. 170, 179–80 (2005) (citing, among other cases, Lynn’s and declining to r ecognize a settlement agreement between the Department of Veterans Affairs and one of its employees that had not been approved by a court in which the employee purported to waive her entitlement to overtim e compensation under the FLSA).8 Notwithstanding this authority, th e government observes that “[ n]either this Court nor the
Federal Circuit has ever held that FLSA settlement agreements entered into by the Department of Justice on behalf of the United States are subject to the same approval requirements that similar settlement agreements between private parties may be.” Def.’s Opp’n to Pl s.’ Mot. to Approve at 9 n.6. But the government has not presented th e Court with a persuasive reason why the principles underlying Lynn’s and related cases , which are based on unequal bargaining power and the public policies underlying the FLSA, are any less applicable to settlement agreements negotiated on behalf of an agency employer by the Justice Department than to settlement agreements negotiated by counsel for private se ctor employers. In either instance the same disparity in bargaining power exists, as do th e same public policies unde rlying the enforcement
of the FLSA. 7

In that regard, the government’s apparent re liance upon the Federal Circuit’s decision in O’Connor v. United States, 308 F.3d 1233 (Fed. Cir. 2002) is unavailing. In that case, the court of appeals held that an FLSA settlement agreement between an agency and the plaintiffs’ union
served as an accord and satisfaction as to the FLSA claims the plaintiffs later sought to pursue in
court as individuals. Id. at 1241, 1244. Thus, the Federal Circu it “recognized a third avenue by
which a settlement of overtime claims under th e FLSA may be enforced -when it is negotiated by a union pursuant to a collective bargaining ag reement under the Civil Service Reform Act (‘CSRA’) grievance procedures.” Hohnke, 69 Fed. Cl. at 179. It reasoned that “the policy concerns driving the court’s decision in Lynn’s Food Stores are not present in the context of a settlement agreement negotiated pursuant to the CSRA and a [collective bargaining agreement].” O’Connor, 308 F.3d at 1244. Specifically, the court of appeals observed that “the CSRA encourages federal employees to participate in la bor unions in order to avoid exactly the sort of

7 At the oral argument on Plaintiffs’ motion, the government suggested that the Justice Department’s involvement in FLSA settlement agr eements in the federal sector obviates the need for court approval in the same way that the Secret ary of Labor’s oversight of the settlement of a private sector employee’s FLSA claims acts to ensure the fairness of such an agreement. The Court finds this comparison inapt. The Justice Department acts as counsel for the employer in federal sector FLSA litigation and in negotiating settlements of FLSA claims. The Secretary of Labor, on the other hand, is responsible for en forcing the FLSA and promoting its underlying public purposes. 29 U.S.C. § 216(c) (stating that “[t]he Secretary may bring an action in any court of competent jurisdiction to recover th e amount of unpaid minimum wages or overtime compensation and an equal amount as liquidate d damages”); Lorillard v. Pons, 434 U.S. 575, 581 (1978) (observing that “in c onstruing the enforcement sections of the FLSA, the courts ha[ve] consistently declared thatinjunctive relief [i]s not available in suits by private individuals but only in suits by the Secretary” (citations omitted)). Further, the Secretary has statutory authority “to supervise the payment of the unpaid minimum wages or the unpaid overtime compensation owing to any employee or employ ees.” 29 U.S.C. § 216(c) (also providing that “the agreement of any employ ee to accept such [a Department-of-Labor supervised] payment shall upon payment in full constitute a waiver by such employee” of the employee’s right under § 216(b) to bring suit for “such unpaid minimum wages or unpaid overtime compensation and an additional equal amount as liquidated damages”). The Court therefore rejects the government’s suggestion that its review of the settlement ag reement is unnecessary because of the involvement of the Justice Department.9 unjust arrangements experienced by Lynn’s Food’ s employees by attaining an equal bargaining position vis-à-vis their employers.” Id.

As is readily apparent, the exception to the requirement of court approval for cases in which the settlement agreement was negotiate d by an employee’s collective bargaining representative pursuant to the CSRA does not apply in this case. In stead, this case is governed by the general rule requirin g approval articulated in both Lynn’s and Hohnke.

Finally, there is no merit to the government’s argument that “there is no reason for the Court to approve the parties’ Settlement Agreem ent” because “[t]he governing statute and clear Federal Circuit precedent mandates that plai ntiffs’ backpay claims be reimbursed under [COPRA]” and not the FLSA. Def.’s Opp’n to Pls. ’ Mot. to Approve at 1. Because this case was not decided on the merits, there is no way of knowing whether—if Plaint iffs prevailed—their entitlement to overtime pay would have been grounded in COPRA or in the FLSA. The key point is that Plainti ffs brought their claims under both COPRA and the FLSA as alternative
theories of entitlement to overt ime “for hours they allegedly work ed after their regular tour of duty hours while attending the DCIC.” Pls.’ Mot. to Approve Ex. A. ¶ 3. 8 Further, in the settlement agreement, Plaintiffs “release[d], waive[d], and abandon[ed] all claims relating to COPRA or FLSA back-pay claims.” Id. ¶ 12 (em phasis supplied). And the settlement agreement itself characterizes a portion of the settlement m onies as “liquidated damages,” a form of relief
that is available unde r the FLSA, but not CO PRA. See id. ¶ 5.

In short, the settlement agreement in this case purports to resolve Plaintiffs’ claimed entitlement to back pay and liquidated damage s under the FLSA. The Co urt thus concludes, consistent with the weight of authority, that abse nt this Court’s review and approval there can be
no valid waiver or release of Plaintiffs’ FLSA cl aims. Further, even if there was nothing in the FLSA itself that required a court to review and approve a settleme nt of claims arising under the statute, “[v]arious cases [including Hohnke, Brooklyn Saving s Bank, and Lynn’s Food Stores] suggest the wisdom” of conducting such review, Order Directing Entry of J., Christofferson v. United States, No. 01-495 (Fed. Cl. Sept. 17, 201 0), ECF No. 359, and the government does not deny that the Court has th e discretion to do so.

For these reasons, the Court concludes that it is proper for the Court to review the settlement agreement, and, if appropriate, approve it.

III. The Reasonableness of the Settlement Agreement

The purpose of a court’s review of an FLSA settlement is to ensure that the agreement reasonably and fairly resolves a bona fide disput e over the hours an employee has worked or the pay he is due, and is not simply a waiver of the employee’s rights under the FLSA. Hohnke, 69 Fed. Cl. at 175. In this case, the adversarial context in whic h the settlement agreement was

8 Because overtime entitlement is provided onl y for officially assigned work under COPRA, plaintiffs who are Customs Officer s typically plead COPRA and the FLSA as alternative theories of entitlement in overtime cases. See, e.g., Bu ll v. United States, 479 F.3d 1365, 1378 (Fed. Cir. 2007).10 reached establishes the existence of a bona fide dispute as to whethe r Plaintiffs received pay they were due under the FLSA. Further, the agreem ent was the product of ar ms’ length negotiation between the parties, each represented by counsel, and with th e assistance of the court through its ADR program. Finally, the Court ha s reviewed the terms of the se ttlement and finds that it represents a just and reasonabl e resolution of Plaintiffs’ claims for back pay under COPRA and the FLSA. Accordingly, the Court concludes that the settlement agreement warrants approval.

CONCLUSION

On the basis of the foregoing, Plaintiffs’ Motion to Approve the FLSA Settlement (ECF No. 120) is GRANTED and the Court hereby APPROVES the parties’ settlement agreement. The government is directed to file a supplemental brief, no later than November 20, 2017

, addressing the effect, if any, of the Court’s order approving the settl ement agreement on the government’s arguments: 1) that Plaintiffs are not prevailing parties; and 2) that Plaintiffs have not been awarded any judgment as is required to recover attorneys’ fees under the FLSA, 29 U.S.C. § 216(b). Plaintiffs sha ll file a response to the government’s supplemental brief no later
than December 4, 2017 . The briefs shall be limited to the issues specified above and shall not exceed fifteen pages in length.

IT IS SO ORDERED.

s/ Elaine D. Kaplan

ELAINE D. KAPLAN Judge