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Devlin v. Berry

United States District Court, D. Columbia.

March 18, 2014

THOMAS B. DEVLIN, Plaintiff,
JOHN BERRY, Director, Office of Personnel Management, et al., Defendants

For Thomas B. Devlin, Plaintiff: Edgar Neville James, LEAD ATTORNEY, JAMES & HOFFMAN, Washington, DC; Jules Bernstein, BERNSTEIN & LIPSETT PC, Washington, DC.

For John Berry, Director, Office of Personnel Management, Office of Personnel Management, United States of America, Defendants: Carl Ezekiel Ross, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

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This case is before the Court on a motion to dismiss by Defendants John Berry, the Office of Personnel Management, and the United States of America (hereinafter " OPM" ). See Defendant's Motion to Dismiss (" Defs' Mot." ), Dkt. #14. Plaintiff Thomas Devlin challenges OPM's denial of an administrative claim he filed in 1995. Devlin's claim alleged unpaid overtime under the Fair Labor Standards Act (FLSA). He brings this suit under the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq. OPM moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Devlin has failed to state a claim for relief because his 1995 administrative filing was time-barred. Defs' Mot. at 2. Devlin filed a cross-motion for summary judgment. See Plaintiff's Cross Motion for Summary Judgment (" Pl's Mot." ), Dkt. #18. Having reviewed the parties' briefs together with all relevant materials, the Court denies both OPM's motion to dismiss and Devlin's summary judgment motion, for the reasons discussed below.


During the period of time relevant to this action, January of 1993 through October 1994, Devlin worked as a criminal investigator for the Federal Bureau of Investigation (FBI). Plaintiff's Statement of Material Facts (" Pl's SUF" ), Dkt. #17, ¶ 1.[1] On January 6, 1995, Devlin's counsel filed an administrative claim with the General Accounting Office (GAO), now the Government Accountability Office, on behalf of Devlin and over 200 other criminal investigators. Id. ¶ 2. The administrative claim alleged violations of the FLSA, specifically that the FBI had improperly classified Devlin and the other criminal investigators as exempt employees. Id. They asserted a right to unpaid overtime. Id.

Also on January 6, Devlin's counsel filed a complaint in the Court of Federal Claims on behalf of Devlin and the other investigators, alleging the same FLSA violations. Id. ¶ 6. However, Devlin did not remain a

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party to that suit. On November 18, 1996, upon a motion by Devlin's counsel, the court dismissed Devlin's claim without prejudice. Id. ¶ 7.

On June 17, 2011, Devlin's counsel wrote OPM to request a meeting. Id. ¶ 11. Counsel enclosed a copy of the 1995 administrative claim filed with the GAO, and explained that the federal court action on behalf of other criminal investigators, which had recently settled, did not include Devlin as a party. Id. Devlin's counsel repeated the request in September. Id. ¶ 12. OPM then responded, asking for documentation, which Devlin's counsel supplied. Id. ¶ ¶ 13-14.

On November 12, 2012, OPM denied Devlin's claims. Id. ¶ 15. In the denial letter, OPM stated:

Because determination of exemption status is necessary to determine FLSA overtime pay entitlement, disputes regarding FLSA exemption status must be resolved prior to making any determinations regarding the amount of FLSA overtime pay due or the applicable statute of limitations. OPM is authorized to make such determinations under the provisions of 29 U.S.C. § 204(f). A review of guidance provided in claims decisions issued by GAO, the agency formerly charged with settling compensation and leave claims under 31 U.S.C. § 3702 and the agency which was responsible for settling such claims at the time the claimant's representative submitted their January 6, 1995 letter to GAO, is instructive. GAO decisions make clear GAO did not view its claims settlement authority as encompassing FLSA exemption status determinations.

Complaint, Ex. 1, p. 4. OPM quoted the following passage from a 1976 GAO decision, Matter of Claims Representatives and Examiners -- Exemption from Fair Labor Standards Act Overtime Coverage :

We consider that the role granted to the Commission [the former Civil Service Commission, now OPM] to administer the FLSA with respect to Federal employees, [sic] necessarily carries with it the authority to make final determinations as to whether employees are covered by the various provisions of the [FLSA]. Accordingly, this Office will not review the Commission's determinations as to an employee's exemption status.

Id. ; see B-51325, 1976 WL 9626 at *2 (Oct. 7, 1976). OPM also cited the FLSA provision authorizing the Director of OPM to " administer the provisions of this chapter with respect to any individual employed by the United States." Compl., Ex. 1, p. 5; see also 29 U.S.C. § 204(f). The denial letter referenced OPM's own administrative claims process, which the agency had established prior to the time that Devlin filed his claim with the GAO. Compl., Ex. 1, p. 5. Therefore, according to OPM, " [Devlin's] filing with the GAO regarding [his] FLSA exemption status did not preserve [his] exemption status claim." Id. Because the 1995 administrative claim was not preserved, OPM ...

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