NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 14 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KWAN MAN, No. 17-16319

Plaintiff-Appellant, D.C. No. 1:14-cv-00028

and

MEMORANDUM*

HONG KONG ENTERTAINMENT

(OVERSEAS) INVESTMENT, LTD.,

Plaintiff,

v.

R. ALEXANDER ACOSTA, Secretary of

the United States Department of Labor; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of the Northern Mariana Islands Ramona V. Manglona, Chief Judge, Presiding

Submitted November 9, 2018** Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: McKEOWN and FRIEDLAND, Circuit Judges, and COLLINS,*** District Judge.

Kwan Man appeals the district court’s order granting the Secretary of

Labor’s motion for summary judgment. We have jurisdiction under 28 U.S.C.

§ 1291 and affirm.

Kwan brought this action pursuant to the Administrative Procedure Act

(“APA”), 5 U.S.C. § 704, seeking judicial review of the Administrative Review

Board’s (“ARB”) Final Decision and Order. Kwan challenges the assessment and

amount of a civil monetary penalty (“CMP”) assessed by the Department of

Labor’s Wage and Hour Division (“DOL”) for violations of the Fair Labor

Standards Act’s (“FLSA”), 29 U.S.C. §§ 201 et seq., overtime provisions. The

violations, which occurred in 2007, led Kwan’s employer, Hong Kong

Entertainment (Overseas) Investments, Ltd. (“HKE”), to enter an agreement with

the DOL promising to pay the unpaid overtime (“the Agreement”).

Kwan argues the Agreement precluded assessment of CMPs based on the

2007 violations, because Paragraph 11 of the Agreement reserves the DOL’s right

to impose CMPs for future FLSA violations. However, neither Paragraph 11 nor

the rest of the Agreement makes any reference to CMPs for past FLSA violations

*** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation.

2 generally or the 2007 violations specifically. Because the Agreement is silent on

this question, the normal rule that CMPs can be assessed for repeat or willful

FLSA violations applies. See 29 U.S.C. § 216(e)(2).

This conclusion is clear even without considering the cover letter that

accompanied the Agreement, which specifically preserved the possibility of CMPs

for the 2007 violations. We therefore do not need to decide whether, as Kwan

argues, the parol evidence rule precludes consideration of the cover letter.

However, the cover letter is relevant to the extent Kwan argues that the Agreement

should be interpreted in light of the DOL’s earlier oral promise not to impose

CMPs if HKE signed the Agreement. If an earlier oral representation can be used

to interpret the Agreement, the cover letter can as well. As the district court found,

Kwan and HKE could not reasonably have relied on the earlier promise after

reading the cover letter.

Kwan argues the amount of the CMP must be set aside because it was

arbitrary, capricious, and an abuse of discretion. See 5 U.S.C. § 706(2)(A). When

determining the amount of a CMP, the DOL is required to consider certain

mandatory factors and may also consider seven discretionary factors, including

“[t]he interval between violations.” See 29 U.S.C. § 216(e)(3); 29 C.F.R. § 578.4.

Kwan contends the DOL misapplied this factor by improperly considering FLSA

3 violations that occurred after the CMP was assessed to find that the interval

between violations was not a mitigating factor.

However, the DOL did not consider any alleged later violations when it first

determined the amount of the CMP for the 2007 violations, because the violations

had not happened yet. The Administrative Law Judge (“ALJ”) explicitly declined

to rely on any such violations to uphold the CMP amount. The ALJ also found that

the DOL did consider “[t]he interval between violations” to be a mitigating factor

that supported reducing the amount of the CMP from the statutory maximum of

$1,100 per violation to half that amount. The ARB also did not rely on the

purported post-2007 violations to uphold the amount of the CMP. Every DOL

decision regarding the amount of the CMP considered both the mandatory factors

and all seven discretionary factors, based on reference to undisputed evidence.

The amount of the CMP was not arbitrary, capricious, or an abuse of discretion.

AFFIRMED.

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