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April 15, 1992



The opinion of the court was delivered by: LOUIS F. OBERDORFER

This matter is before the Court on Cross-Motions for Summary Judgment. Plaintiff, Wallace Roney is a GS-1811, Criminal Investigatory (Deputy U.S. Marshal), Grade 11, Step 7, employed by the United States Marshals Service ("U.S. Marshals") and assigned to the U.S. Marshal for the District of Columbia, U.S. District Court. Roney is contesting his exemption from coverage under Section 7 of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207, alleging that he is entitled to overtime compensation for "excess" hours worked as calculated by FLSA and to recover the compensation denied him. Roney does not currently receive premium FLSA time and one-half overtime compensation because he has been classified as an administrative employee under section 13(a) of the FLSA. 29 U.S.C. § 213. Defendant Moves to Dismiss or in the Alternative for Summary Judgment; Plaintiff Moves for a Partial Summary Judgment. The Motions are ripe and may now be decided.


 Plaintiff is employed as a GS-11 Deputy U.S. Marshal ("Marshal") in the U.S. Marshal's office for the District of Columbia and is assigned to the Court support Section of the D.C. office. At times, the plaintiff is assigned to work twelve hour days for seven to eight days in a row. See Plaintiff's Facts P19. Plaintiff does not receive compensation at the premium FLSA rate of time and one-half overtime compensation but rather receives payment for work over forty hours per week at the hourly rate of a GS-10 employee. Defendant's Facts P7. Plaintiff is also subject to a maximum earnings limitation. Id. P5.

 The Office of Personnel Management's ("OPM") job description for the position of Criminal Investigator, GS-1811-11 states that the candidate is "to apply investigative knowledges, skills, and abilities to conduct investigations of substantial difficulty concerning violations of laws, rules, and regulations enforced by the U.S. Marshals Service. " See Job Description Criminal Investigator, GS-1811-11 ("Job Description") at 1. Secondarily, the employee performs "complex law enforcement activities" normally associated with GS-082, Grades 7 and 9. See Job Description at 3; see also Wilfred Tapping Aff. P8. Among the "Factors" listed in the Job Description as necessary to successfully performing in the position are "Supervisory Controls," noting that the "investigator receives guidance from the supervisor on the scope and intensity of effort based on the needs and objectives of the U.S. Marshals Service, the limitations imposed by statute and precedent, the resources available, the constraints imposed by time, geographic areas to be covered and category of investigation." Job Description at 5. Additionally, the Factors include "Physical Demands" requiring "physical strength and stamina to perform such activities as long periods of surveillance, pursuing and restraining suspects, carrying heavy equipment . . . considerable physical exertion, such as running, stooping, bending, climbing, lifting and carrying heavy objects" id. at 7. They described "Work Environment" as "indoors and outdoors in a variety of environments, including a wide variety of potentially dangerous and stressful situations. Incumbent may be subject to physical attack, including the use of lethal weapons." Id.

 Plaintiff argues that he is a law enforcement employee rather than an administrative employee and acts in a "front line" capacity "protecting jurors, judges, and witnesses." Plaintiff's Motion for Summary Judgment at 3. As such, he contends that he should be eligible under Section 7 of the FLSA for one and one-half times his regular rate of pay for each overtime hour worked. 29 U.S.C. § 207. Defendant states that normally, "the GS-082 Deputy U.S. Marshal performs the more routine duties and the GS-1811 Criminal Investigator performs the more difficult and complex assignments requiring more independence and sophisticated planning and investigative skills." See Defendants Motion to Dismiss at 4. Therefore, defendant contends, Roney is exempt from the FLSA as an administrative employee under Section 13(a) of the Act, and not eligible for time and a half overtime.


 As an initial matter, plaintiff argues that defendant has failed to plead the administrative exemption as an affirmative defense and urges that on this basis alone the Court rule in plaintiff's favor on the issue of liability. See Plaintiff's Motion for Partial Summary Judgment at 4. As the defendant points out, Defendant's Fourth Defense stated "Plaintiff is not entitled to receive overtime compensation under the Fair Labor Standards Act, 29 U.S.C. § 213." Answer at 1. The cited provision provides the various exemptions allowed from FLSA coverage. Additionally, the Court in Walling v. General Industries Co., 330 U.S. 545, 547-48, 91 L. Ed. 1088, 67 S. Ct. 883 (1947) held that a denial of the charge combined with a citation to the section containing the exemptions is adequate as an affirmative defense. See 330 U.S. at 546. For these reasons, the defendant will be deemed to have raised the exemptions as an affirmative defense.


 In 1974 Congress amended the FLSA to extend the overtime provisions to federal employees. See Pub. L. No. 93-259, 88 Stat. 55, 29 U.S.C. §§ 203(e)(2)(A). At present, almost all federal employees are entitled to overtime compensation under the FLSA. 5 U.S.C. § 5542 (Title 5 Overtime). Further, if an employee is entitled to overtime compensation under both FLSA and Title 5, the employee is entitled to receive the greater benefit. 5 C.F.R. § 551.553.

 The Department of Labor ("DOL") and the OPM have both promulgated regulations pertaining to the administrative exemption. The DOL's regulations are set forth in 29 C.F.R. § 541.2 stating in pertinent part:

 (a) Whose primary duty consists of . . .

 (1) The performance of office or non-manual work directly related to management policies or general business operations of his employer or ...

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