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Armstrong v. Archuleta

United States District Court, D. Columbia.

December 30, 2014

GEORGE R. ARMSTRONG, et al., Plaintiffs,
v.
KATHERINE ARCHULETA, Director, Office of Personnel Management, et al., Defendants

Page 10

For GEORGE R. ARMSTRONG, BARRY A. BALDWIN, MARK D. DILLOW, MICHAEL H. GELLICK, GUNDAR J. GRUNDBERG, PATRICK A. JOHNSON, Plaintiffs: Edgar N. James, LEAD ATTORNEY, JAMES & HOFFMAN, P.C., Washington, DC; Jules Bernstein, BERNSTEIN & LIPSETT PC, Washington, DC.

For ALL PLAINTIFFS, Plaintiff: Edgar N. James, LEAD ATTORNEY, JAMES & HOFFMAN, P.C., Washington, DC; Edgar Fabrice Ngatcha Ndjatou, MCCREE NDJATOU, PLLC, Washington, DC; Jules Bernstein, BERNSTEIN & LIPSETT PC, Washington, DC.

For OFFICE OF PERSONNEL MANAGEMENT, UNITED STATES OF AMERICA, KATHERINE ARCHULETA, Director, Office of Personnel Management, Defendants: Wynne Patrick Kelly, LEAD ATTORNEY, U.S. Attorney's Office, Civil Division, Washington, DC.

OPINION

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ROSEMARY M. COLLYER, United States District Judge.

Six former federal criminal investigators and Gulf War veterans sue the Office of Personnel Management and Katherine Archuleta,[1] OPM's Director, (collectively OPM) under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), alleging that OPM wrongfully applied a two-year statute of limitations and denied their administrative claims for unpaid overtime pay. Plaintiffs allege that their overtime claims were timely filed with Government Accountability Office (GAO),[2] because, as war veterans, they are entitled to a five-year statute of limitations under the Barring Act, 31 U.S.C. § 3702(b)(2). OPM asserts that the investigators did not timely present their claims to the Civil Service Commission, OPM's predecessor agency, and that the investigators' contemporaneous dual filing of a winning law suit in the U.S. Court of Federal Claims (Claims Court),[3] and administrative claims for payment with GAO were insufficient because GAO could not " adjudicate" the claims. While the latter point may be accurate, there is no doubt that the Claims Court could--and did--adjudicate the investigators' claims and decided that all of them were owed backpay. OPM also rests on later amendments to the Barring Act, which allegedly bar the current suit. This argument also fails; the investigators' suit and GAO claims were filed before September 1994, and the amendments do not affect their entitlement to payment. Judgment will be entered for the investigators.

I. FACTS

Plaintiffs are six former federal investigators and Gulf War veterans[4] who assert

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that they timely filed claims between 1990 and 1994 for overtime pay under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § § 201-214, with GAO and the Claims Court. They also allege that, as war veterans, they are entitled to a five-year statute of limitations under the Barring Act. OPM insists that the five-year statute of limitations in Section 3702(b)(2) for federal FLSA claims was first amended by Section 640 of the Treasury, Postal Service and General Government Appropriations Act of 1995 (Treasury-Postal Act for FY95), Pub. L. 103-329, 108 Stat. 2382 (1994), and later amended by the Treasury, Postal Service and General Government Appropriations Act for 1996 (Treasury-Postal Act for FY96), Pub. L. No. 104-52, 109 Stat. 468, 468-69 (1995), and that these amendments limit all FLSA claims by federal employees to a two-year statute of limitations--whether the employees are members of the armed services or not. For ease of analysis, the Court sets out the proceedings in the Claims Court and GAO separately.

A. Claims Court

Between April 17, 1990 and June 23, 1994, each Plaintiff filed suit in the Claims Court under the Tucker Act, 28 U.S.C. § 1491, to contest his job classification as exempt from the overtime provisions of FLSA. The individual lawsuits were consolidated and captioned Adams v. United States, Civil Action No. 90-162C and Consolidated Cases (U.S.Ct. Fed. Claims). Adams was covered by the Portal-to-Portal Pay Act of 1947, 29 U.S.C. § 255 (Portal Act) (an amendment to the FLSA), which provides a two-year statute of limitations or, for willful violations, a three-year limitations period for unpaid overtime required by the FLSA. See 29 U.S.C. § 255(a). Thus, lawsuits filed in the Claims Court from 1990 through 1994 could challenge the non-receipt of overtime pay from 1988 through 1992 or, for willful violations, 1987 through 1991.

On October 30, 1992 and December 11, 1992, the Claims Court decided that GS-9 and GS-11 criminal investigators at BATF, DEA, IRS, ICE, and the U.S. Secret Service, as well as GS-12 criminal investigators at ICE, were non-exempt, covered by the FLSA, and therefore entitled to backpay. Pls. Facts ¶ 9. Plaintiffs Baldwin, Dillow, Gellick, and Johnson were among those plaintiffs covered by the Claims Court's decisions.[5] Id.

In 1994, the U.S. Department of Justice (DOJ), acting on behalf of the five agencies, entered into settlement agreements with the investigators who had been found eligible for FLSA overtime pay, including Plaintiffs Baldwin, Dillow, and Gellick. The settlement agreements provided that each eligible plaintiff would receive retroactive pay for " each pay period during which he or she was employed, for a period of no more than two years preceding the date a complaint was filed on his/her behalf until the date that the [agency] begins

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providing FLSA overtime pay to such plaintiff." Defs. Ex. 1 (DOJ Settlements) [Dkt. 14-1] at 5.[6] The agreements further provided that the settlements would not affect any plaintiff's right to continue to pursue a claim for FLSA overtime compensation before GAO. Id. at 10-11.

Because Plaintiff Johnson was a GS-12 criminal investigator at ICE, it appears that certain of his claims were settled under the August 29, 2003 Partial Settlement Agreement Covering Plaintiffs at the GS-12 Grade Level in Occupational Code 1811 at BATF, IRS-CID, DEA, ICE and USSS. See DOJ Settlements at 24-33. The agreement provides that " the parties have entered into this Agreement, without waiving their rights with respect to any and all remaining issues regarding which plaintiffs are seeking additional recovery." Id. at 32.

On December 1, 2004, the Claims Court extended its FLSA non-exempt determination to GS-13 criminal investigators at all five federal agencies, including Plaintiff Armstrong. Nearly two years later, on November 22, 2006, DOJ and those investigators reached settlement agreements, each of which again provided that it would not affect " any right any plaintiff may have to continue to pursue a claim for backpay, liquidated damages, and/or interest for FLSA overtime . . . against the United States not covered by this agreement." DOJ Settlements at 40. All of the cases consolidated in Adams v. United States had settled by August 28, 2013.

Plaintiff Grundberg, a GS-12 criminal investigator at OIG-Ag, was determined to be non-exempt, covered by the FLSA, and therefore entitled to backpay pursuant to a September 21, 2007 Claims Court decision. Joint Response [Dkt. 37] at 2-3. As noted by the parties, Plaintiff Grundberg's FLSA claim covering the pay period ending May 2, 1992 to the pay period ending October 29, 1994 was settled under a settlement agreement reached with Defendant United States on June 1, 2011. Id. at 3.

B. Government Accountability Office

On the same dates between 1990 and 1994 that each Plaintiff filed suit, he also filed an administrative claim for backpay with GAO under the Barring Act. At that time, such administrative claims were not subject to a two- or three-year statute of limitations under the Portal Act. Instead, the Barring Act, which prescribes limitations periods for claims against the United States, provided:[7]

(a) Except as provided in this chapter or another law, the Comptroller General[8] shall settle all claims of or against

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the United States Government. A claim that was not administratively examined before submission to the Comptroller General shall be examined by 2 officers or employees of [GAO] independently of each other.
(b)(1) A claim against the Government presented under this section must contain the signature and address of the claimant or an authorized representative. The claim must be received by the Comptroller General within 6 years after the claim accrues except
(A) as provided in this chapter or another law; or . . .
(2) When the claim of a member of the armed forces accrues during war or within 5 years before war begins, the claim must be presented to the Comptroller General within 5 years after peace is established or within the period provided in clause (1) of this subsection, whichever is later.
(3) The Comptroller General shall return a claim not received in the time required under this subsection with a copy of this subsection and no further communication is required.

31 U.S.C. § 3702. Until May 23, 1994, the Barring Act's general 6-year statute of limitations was applied by GAO to FLSA administrative claims. ( In Matter of Transportation Systems Center, 57 Comp. Gen. 441 (1978); Matter of Harry G. Tomkowiak, 67 Comp. Gen. 247 (1988); Matter of Federal Firefighters, 68 Comp. Gen. 681 (1989).

The Comptroller General typically stayed administrative claims that were pending in court. As a result, GAO took no action on Plaintiffs' claims while they were pending in the Claims Court. On April 12, 1994, Plaintiffs' counsel wrote to GAO, alerting it to the decisions of the Claims Court that certain GS-9 through GS-12 criminal investigators were not exempt from FLSA and were entitled to overtime. Pls. Facts ¶ 11. The letter also reported that DOJ had settled the claims of all GS-9 through GS-12 criminal investigators who worked at the DEA, BATF and ICE. Id. Due to the different statutes of limitations (2 years under the Portal-to-Portal Act and 6 years under the Barring Act), Plaintiffs were seeking an additional four years' backpay for unpaid overtime.

On May 23, 1994, one month later, the Comptroller General issued his decision in In re Joseph M. Ford, 73 Comp. Gen. 157 (1994). Ford adopted the logic of the Claims Court in Armitage v. United States, 23 Cl.Ct. 483 (1991), aff'd, 991 F.2d 746 (Fed. Cir. 1993), that the precise two- to three-year statute of limitations in the Portal-to-Portal Act governs claims to overtime pay from federal employees, and not the general six-year statute of limitations under 31 U.S.C. § 3702(b)(1) that applied to most claims against the United States. See In re Ford, 73 Comp. Gen. at 160 (" For the reasons stated below, we agree with OPM and the other executive agencies that 29 U.S.C. 255(a) [the Portal Act] constitutes an exception to the 6-year statute of limitations period in 31 U.S.C. 3702(b)." ).

Shortly thereafter, on September 30, 1994, Congress rejected Ford when it enacted the Treasury-Postal Act for FY95.[9] Section 640 of that Act provided:

In the administration of Section 3702 of title 31, United States Code, the Comptroller General of the United States

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shall apply a 6-year statute of limitations to any claim of a Federal employee under the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.) ...

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