Chao v. Harold Levinson Associates, Inc.
Opinion of the Court
SUMMARY ORDER
Defendant-appellants Harold Levinson Associates and Edward Bello appeal from a December 31, 2003 judgment entered in the United States District Court for the Eastern District of New York (Charles R. Wolle, J., sitting by designation). We assume the parties’ familiarity with the facts and procedural history of this case. On this appeal, defendant-appellants Harold Levinson Associates and Edward Bello raise two issues previously decided by the district court and this Court. See Harold Levinson Assocs., Inc. v. Chao, 37 Fed.Appx. 19 (2d Cir. 2002); Herman v. Harold Levinson Assocs., Inc., No. CV-95-1721, 2001 WL 34088698 (E.D.N.Y. Apr.20, 2001). They argue (1) that they are entitled to a credit of $529,000 against their liability under Section 7(h) of the Fair Labor Standards Act, 29 U.S.C. § 207(h), and (2) that the formula for computation of damages specified by this Court on remand does not yield a just and reasonable approximation of overtime hours worked because it fails to take into account the growth of defendants’ business over time. We note that the district court was correct that these issues were decided against defendants in this Court’s prior order and were outside the scope of our order on remand. We do not reach plaintiffs argument that the doctrine of the law of the case bars reconsideration of these issues, however. The district court in its discretion received new evidence and argument, and we agree with its determination that defendants’ arguments are wholly without merit. See Furlong v. Shalala, 238 F.3d 227, 235 n. 4 (2d Cir. 2001) (noting that doctrine of law of the case is purely discretionary); DiLaura v. Power Auth., 982 F.2d 73, 76 (2d Cir. 1992) (noting that the doctrine is not a limit on a court’s power to reconsider its decisions).
Defendants fail to establish that the $529,000 in question was paid for any of the purposes specified at 29 U.S.C. § 207(h)(2), and thus their claim that this Court’s prior denial of a § 207(h) credit was error is baseless.
For these reasons, we affirm the judgment of the district court in all respects.
. Compare 29 U.S.C. § 207(h)(2) (providing, via cross-reference to 29 U.S.C. § 207(e)(5), that credit is available for, inter alia, "compensation provided by a premium rate for certain hours worked by the employee” in excess of the maximum applicable workweek) with Defs.’ Br. at 18 (arguing that pretrial stipulations bind this Court to find that the funds in question were premium "pay for which no overtime was worked”). Defendants fail to point to any evidence suggesting that § 207(e)(5), (6) or (7), as incorporated in § 207(h)(2), are applicable.
Reference
- Full Case Name
- Elaine L. CHAO v. HAROLD LEVINSON ASSOCIATES, INC., A Corporation, and Edward Berro, Individually and as President
- Status
- Published