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BROOKS v. WEINBERGER

December 20, 1989

JOHN W. BROOKS, et al., Plaintiffs
v.
CASPAR W. WEINBERGER, et al., Defendants


Thomas A. Flannery, United States District Judge.


The opinion of the court was delivered by: FLANNERY

THOMAS A. FLANNERY, UNITED STATES DISTRICT JUDGE

 The court must decide the correct way to figure overtime pay for certain security guards who work for the federal government's General Services Administration (GSA). The issue arises on cross motions for summary judgment on stipulated facts. For the reasons stated below, the court grants defendants' motion.

 I.

 These cross motions for summary judgment are really a sideshow to an action to collect overtime pay under the Fair Labor Standards Act (FLSA) and Title 5 of the U.S.Code. *fn1" In the main ring, the parties are contesting whether defendant GSA owes plaintiff security guards overtime pay for hours when the guards were scheduled to work overtime but instead served on a jury, performed military service, took sick time, or used annual leave. *fn2"

 As part of settlement talks, GSA reviewed past overtime payments to plaintiffs. By March 1989, GSA "discovered" it had been paying plaintiffs based upon a formula to figure overtime that differs from the one set out in 5 C.F.R. § 551.512. *fn3" The "old" formula resulted in more money being paid for overtime than would be due under the § 551.512 method of figuring overtime pay. Arguing that § 551.512 states the law for figuring plaintiffs' overtime pay entitlement, defendants counterclaimed for the difference between the overtime paid under the "old" formula and an amount that would have been paid under § 551.512. Plaintiffs contend that they are entitled to overtime payments in the amount based on the "old" formula, because that "old" formula is mandated by FLSA. To the extent that § 551.512 would yield less overtime pay than the "old" FLSA formula, plaintiffs argue that FLSA takes precedence over Title 5 regulations.

 The court must rule on this subsidiary issue to get the parties back in the center ring.

 II.

 On July 6, 1989, the parties filed a stipulation stating how GSA has calculated plaintiffs' overtime in the past under the "old" formula. The parties also stipulated to the mechanics of the method spelled out in 5 C.F.R § 551.512. The stipulation is based upon the pay for Federal Protective Officer (FPO) Vernal Gabriel for the two-week pay period ending March 29, 1989. The relevant part of the stipulation is set out in the margin. *fn4"

19891220

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