purpose. Further, the rational means was to enact amended Section 640.
Accordingly, the Court concludes that Congress, by enacting amended Section 640, had a legitimate purpose which was furthered by a rational means.
D. Taking without Compensation
Plaintiffs also argue that their unpaid FLSA overtime was property that was taken without just compensation in violation of the Fifth Amendment of the Constitution. The Court disagrees.
The test for determining whether a compensable taking has occurred is set forth in Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 224-25, 89 L. Ed. 2d 166, 106 S. Ct. 1018 (1986), in which the Supreme Court identified the following three factors: 1) the economic impact of the regulation on the claimant 2) the extent to which the regulation has interfered with distinct investment-backed expectations, and 3) the character of the governmental action.
Concerning the first factor, the Court does not find that Plaintiffs will suffer a great economic impact. It is true that the total payout for Plaintiffs' claims would run into the millions of dollars and some of the claims go back as far as twelve years. This case, however, is not a class action. The "millions of dollars" figure does not, therefore, inure to the group as a whole. Rather, any impact must be measured against the individual claims. Plaintiffs have failed to show how any one of the Plaintiffs would suffer a greater economic impact than merely losing an entitlement that only in recent years had been discovered. Moreover, insofar as amended Section 640 prevents the Plaintiffs from receiving overtime compensation under FLSA when such compensation was paid under another provision of law, there can be little, if any, economic impact to the Plaintiffs.
Similarly, under the second prong, amended Section 640 does not unduly interfere with a distinct investment-backed expectation. Although the hours worked by the Plaintiffs are tantamount to an investment, there was no legitimate expectation to a six year limitation period. As recounted previously, the proper limitation period for FLSA claims is two or three years as stated by the Portal-to-Portal Act. 29 U.S.C. § 255(a)(1947). While Congress extended the limitation period for some individuals in some instances, it could also limit the application of this extension and did so. Plaintiffs' only legitimate expectation was to a two or three-year limitation period.
The final factor concerns the character of the action. The Court finds that this factor, for the most part, is subsumed by the above discussion concerning due process and the legitimacy of Congress's purpose in passing amended Section 640. As the Supreme Court stated in Connolly : "The purpose of forbidding uncompensated takings of private property for public use is 'to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'" Connolly v. Pension Benefit Guar. Corp., 475 U.S. at 227, quoting Armstrong v. United States, 364 U.S. 40, 49, 4 L. Ed. 2d 1554, 80 S. Ct. 1563 (1960). Congress apparently decided that it was unfair for the public to bear the burden of a mistake made by GAO. The legislative history of amended Section 640 expressly mentions fairness as a reason for the legislation. 141 Cong. Rec. H12371-02, H12376 (Nov. 15, 1995). Accordingly, the Court finds that the nature of the action taken by Congress is not inconsistent with the purpose behind the takings clause.
E. Equal Protection
Plaintiffs also argue that they were denied equal protection of the laws guaranteed by the Fifth Amendment to the Constitution. Essentially, Plaintiffs allege that in the intervening time between the passage of the original Section 640 and the amended Section 640, several claimants had their claims favorably processed ("Kinsley claimants"), while Plaintiffs' claims were not acted upon during that same period.
The equal protection clause is meant to protect persons similarly situated from receiving disparate treatment under applicable laws. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985). Where such disparate treatment does occur, there must be a rational basis. Heller v. Doe, 509 U.S. 312, 318, 125 L. Ed. 2d 257, 113 S. Ct. 2637 (1993). Here, the Court does not reach the rational basis question because the Court concludes that Plaintiffs and the Kinsley claimants were not similarly situated.
Although the Kinsley claimants and the Plaintiffs each had claims that were received by GAO during the interim period between passage of the original section 640 and the amended Section 640, they arrived in very different stages of development. The Kinsley claimants had received rulings on their claims by the Office of Personnel Management (OPM) in 1993, which included a fully developed record of factual findings. Kinsley, No. B-235609.2, 1995 WL 9720, 2 (Comp. Gen. Jan. 9, 1995). Plaintiffs, however, had not received administrative rulings on their claims when they first approached GAO following enactment of the original Section 640 and there does not appear to have been a factual record upon which GAO could even have reviewed the claims. While the Plaintiffs, as directed, brought their claims to the employing agencies, the claims for the Kinsley claimants were resolved pursuant to the newly enacted original Section 640 in January 1995. Id. By the time Plaintiffs received decisions from the individual agencies (March 10 through May 12, 1995), however, the Treasury Department was already lobbying Congress to repeal original Section 640. (Bernstein Decl., Exs. 11, 12).
Whether such activity is a proper reason to delay resolution of pending claims is a difficult question, but one the Court does not have to answer. Rather, the Court is satisfied that Plaintiffs did not have a sufficiently developed factual record for their claims and, given the sheer number of Plaintiffs in this case, would not have had one by the time amended Section 640 was enacted in November 1995.
The Court, therefore, concludes that Plaintiffs were not denied equal protection of the laws because they were not similarly situated with those whom Plaintiffs complain were given preferential treatment.
F. Administrative Procedures Act ("APA")
In light of the Court's conclusions thus far, Plaintiffs' remaining claims are moot. Plaintiffs allege that the GAO and the employing agencies violated the APA by following the Ford decision and again when the GAO failed to resolve Plaintiffs' claims in the interim period between passage of original Section 640 and amended Section 640. Plaintiffs request that the Court declare the Ford decision invalid and order the GAO to apply a six-year statute of limitations to all of their claims.
Plaintiffs' claims in this regard depend upon the argued invalidity of amended Section 640. The Court has determined that amended Section 640 passes constitutional muster. Moreover, insofar as Congress impliedly adopted the two or three-year limitation period (and which this Court finds otherwise to be applicable) for all claims that do not fall under amended Section 640, the Ford and the Atkinson decisions are valid. Finally, the Court cannot in this case "compel agency action unlawfully withheld or unreasonably delayed" under the APA, 5 U.S.C. § 706(1), because the delay complained of has been mooted by enactment of amended Section 640.
For the reasons stated above, the Court concludes that Congress did not act unconstitutionally by enacting amended Section 640, nor did the GAO violate equal protection guarantees in processing other claims. Finally, in light of these conclusions, Plaintiffs' remaining claims pursuant to the APA are moot. Judgment, therefore, is entered for the Defendants.
An appropriate Order accompanies this Memorandum.
JUNE L. GREEN
UNITED STATES DISTRICT JUDGE
OCT 12, 1996
Upon review of Plaintiffs' Motion for Summary Judgment; Defendants' Motion for Judgment on the Pleadings or, in the Alternative, Motion for Summary Judgment; the responses and replies thereto; the oral argument on the motions and for the reasons stated in the accompanying Memorandum, it is by the Court this 10th day of October 1996
ORDERED that Plaintiffs' Motion for Summary Judgment is DENIED ; it is further
ORDERED that Defendants' Motion is GRANTED ; and it is further
ORDERED that the Clerk's office shall mail copies of this Order to:
Counsel for Plaintiffs:
Jules Bernstein, Esq.
Linda Lipsett, Esq.
Bernstein & Lipsett
1920 L Street, N.W.
Washington, D.C. 20036
Tel. (202) 955-1396
Edgar James, Esq.
Michael Lewis, Esq.
James & Hoffman
1146 19th Street, N.W.
Washington, D.C. 20036
Tel. (202) 496-0500
Counsel for Defendants:
Susan K. Rudy, Esq.
Kathryn D. Ray, Esq.
U.S. Dept. of Justice
Federal Programs Branch
901 E Street, N.W.
P.O. Box 883
Washington, D.C. 20044
Tel. (202) 514-1359
June L. Green
UNITED STATES DISTRICT JUDGE