Before Plager, Circuit Judge, Friedman, Senior Circuit Judge, and Rader, Circuit Judge.
The opinion of the court was delivered by: Friedman, Senior Circuit Judge
Appealed from: United States Court of Federal Claims Judge Robert J. Yock
Opinion for the court filed by Senior Circuit Judge FRIEDMAN, in which Judge RADER joins. Dissenting opinion filed by Judge PLAGER.
The sole question in this appeal is whether the Court of Federal Claims correctly dismissed, for want of subject matter jurisdiction, the appellant El-Sheikh's claim under the Fair Labor Standards Act for overtime that he alleges he did not receive during his employment at the Bolling Air Force Base Officers' Club (Bolling Officers' Club) in Washington, D.C. We hold that the Court of Federal Claims has jurisdiction over El-Sheikh's claim, and therefore reverse and remand.
Non-appropriated fund instrumentalities (NAFIs) are federal government entities whose "monies do not come from congressional appropriation but rather primarily from [their] own activities, services, and product sales." Cosme Nieves v. Deshler, 786 F.2d 445, 446 (1st Cir. 1986).
El-Sheikh's complaint alleges that he was employed for six years at the Bolling Officers' Club (a NAFI) in the food department in positions of increasing responsibility; and that between June 1993 and December 1995 he performed 2,106 hours of overtime for which he did not receive the overtime compensation to which he was entitled under the Fair Labor Standards Act.
El-Sheikh originally filed suit in the United States District Court for the District of Columbia, naming as the defendant "U.S. DEPARTMENT OF THE AIR FORCE, d/b/a Bolling Officers' Club." The government moved to dismiss the case for lack of subject matter jurisdiction or, alternatively, to transfer it to the Court of Federal Claims. The government stated that because El-Sheikh sought damages of more than $10,000, "only the United States Court of [Federal] Claims has jurisdiction." (The Court of Federal Claims is the successor to the trial division of the Court of Claims and we use the two names interchangeably).
The district court transferred the case to the Court of Federal Claims. The court's order stated that "the parties agree to transfer this case to the . . . Court of [Federal] Claims" and that "jurisdiction in this matter properly lies in the . . . Court of [Federal] Claims because the claim in this matter is in excess of $10,000," and "ordered that the parties request is hereby granted and that this case shall be transferred to the . . . Court of [Federal] Claims."
In the Court of Federal Claims El-Sheikh filed a new complaint naming as the defendant "THE UNITED STATES dba Bolling Officers' Club." The complaint asserted jurisdiction under the Fair Labor Standards Act, repeated the factual allegations of the earlier complaint, and sought both actual damages of $40,000 and liquidated damages in the same amount.
On the government's motion to dismiss for lack of subject matter jurisdiction, the court held that it lacked jurisdiction and dismissed. The court held that the non-appropriated funds doctrine, discussed below, barred it from entertaining the suit.
A. The issue is whether the Court of Federal Claims had jurisdiction over El-Sheikh's suit. That court's jurisdiction is defined by the Tucker Act, which gives it the power to hear "any claim against the United States founded . . . upon . . . any Act of Congress." 28 U.S.C. § 1491(a)(1). Because El-Sheikh's "claim against the United States" is "founded . . . upon" the Fair Labor Standards Act, an "Act of Congress," the first question is whether the United States waived its sovereign immunity to such suit. See Saraco v. United States, 61 F.3d 863, 864 (Fed. Cir. 1995). In this case, the waiver is found in the 1974 amendments to the Fair Labor Standards Act.
In 1974, Congress extended the Act to cover most government employees. See H.R. Rep. No. 93-913, at 26, reprinted in 1974 U.S.C.C.A.N. 2811, 2837. It did so by expanding the definition of "employee" - the touchstone of coverage under the Act - to provide that "[i]n the case of an individual employed by a public agency," "the term `employee' means"
"(A) any individual employed by the Government of the United States-
(i) as a civilian in the military departments (as defined in section 102 of title 5),
(ii) in any executive agency (as defined in section 105 of such title),
(iii) in any unit of the legislative or judicial branch of the Government which has positions in the competitive service,
(iv) in a nonappropriated fund instrumentality under the jurisdiction of ...