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Pay & Leave Claim Decisions

Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

G. Bruce Pharis
Detective GS-083-06
Department of the Navy
Position should be nonexempt, thus due FLSA overtime pay
Failure to state a claim for which relief may be granted

Linda Kazinetz
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance



As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which the Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA).  There is no further right of administrative appeal.  This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708 (address provided in section 551.710).  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with this decision.


On May 9, 2012, the U.S. Office of Personnel Management (OPM) received a letter dated May 9, 2012, from the Law Offices of Bernstein & Lipsett, P.C. (B & L), the claimant’s duly appointed representative, concerning a Fair Labor Standards Act (FLSA) claim they had initially filed on the claimant's behalf with the General Accounting Office (GAO), now the U.S. Government Accountability Office, on March 10, 1992, and subsequently with OPM on or about September 9, 1999, challenging his exemption status under the FLSA when he was employed as a Detective, GS-083-6, with the Department of the Navy.  The claimant was a plaintiff in a lawsuit filed in the U.S. Court of Federal Claims at approximately the same time the administrative claim was filed with GAO.  Based on information provided by B & L, the claimant was awarded back pay under a settlement agreement for the pay period ending March 24, 1990, to the pay period ending April 21, 1990; for the pay period ending May 5, 1990, to the pay period ending May 4, 1991; and for the pay period ending May 18, 1991, to the pay period ending October 29, 1994, subject to the two-year statute of limitations for FLSA claims under 29 United States Code (U.S.C.) 255(a).

B & L has requested OPM adjudicate the administrative claim filed with OPM and asserts that, because the claimant served in the military during the Gulf War, the statute of limitations applicable to this claim is the five-year statute of limitations under 31 U.S.C. 3702(b)(2) rather than the two-year statute of limitations (three years for willful violations) applicable to FLSA administrative claims filed under the Barring Act.  See 73 Comp. Gen 157 (May 23, 1994); 31 U.S.C. 3702(b); 29 U.S.C. 255(a).  B & L states the claimant was called to active duty with the United States Coast Guard Reserve “from approximately February 3, 1991 to February 15, 1991” in connection with Operation Desert Shield/Storm and, citing the provisions of 31 U.S.C. 3702(b)(2), asserts:  “[H]e is entitled to retroactive back pay and interest… for the period he was employed prior to the commencement of the Gulf War on August 2, 1990, up to the date he recovered under previous FLSA settlements.  This period includes May 19, 1986 to February 24, 1990, less Mr. Pharis’s active duty military service time, for which he does not seek recovery.”[1]


We previously accepted and decided six similar claims under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, U.S.C., which we denied as time barred.  Subsequently, claimant’s representative brought suit under the Administrative Procedure Act (5 U.S.C. 551 et seq., and 701 et seq.) in the United States District Court for the District of Columbia, alleging that OPM wrongfully applied a two-year statute of limitations in denying their administrative claims for unpaid FLSA overtime pay.  Armstrong v. Archuleta, 77 F.Supp.3d 9 (December 30, 2014).  In relevant part, the court stated in its opinion: 

All Plaintiffs are deemed to have timely filed their claims as of the date of their filings with the Claims Court. As a result, Plaintiffs . . . can recover for the entire claim period under the five-year statute of limitations—that is, for all claims that accrued within five years before the Gulf War commenced on August 2, 1990—minus monies paid under their DOJ Settlements.


[T]he case is remanded to OPM to adjudicate and process damages in accordance with FLSA and other applicable laws, and Plaintiffs’ respective employing agencies are directed to compensate them in accordance with OPM’s determinations.

Consistent with the holding in the Armstrong case, we will apply the five-year statute of limitations and corrective methodology (subtracting monies already received under prior settlements or judgments) to the claims of similarly-situated claimants we find to be FLSA non-exempt and potentially due FLSA overtime pay. 


Under the provisions of 5 CFR 551.706, OPM determines the facts necessary to adjudicate a claim.  Applying the court’s mandate to determine whether the claimant is owed overtime pay under the FLSA, we must first determine whether the work performed during the claim period is exempt or nonexempt from the overtime pay provisions of the FLSA.  On November 19, 2015, in response to the aforementioned court decision, OPM requested an agency administrative report from the Naval Criminal Investigative Service (NCIS) regarding this FLSA claim.  By letter dated May 6, 2016, NCIS advised OPM based on their fact-finding that:

It appears that Mr. Pharis during the 1986-87 timeframe was a junior line detective, performing basic production work.  He does not appear to be a manager, so the executive exemption would not apply. It does not appear that he was an “advisor, assistant or representative of management, or a specialist in a management or general business function or supporting service.” It does not appear that his primary duties consisted of work that “significantly affects the formulation or execution of management policies or programs.” Thus, the administrative exemption set forth in 29 C.F.R. § 551.205 appears inapplicable. Federal Personnel Manual Letter No. 551-1, Attachment 2 does not define the 0083 job series as a professional occupation.  Thus, the professional exemption does not apply.  The foreign exemption does not apply as Mr. Pharis’s duty station was always at Kings Bay, GA during the applicable time period.

Based on the foregoing, it appears that Mr. Pharis was properly treated as nonexempt during the applicable time period.  However, many records are missing and, as previously stated, Mr. Pharis does not appear to be an NCIS employee as NCIS was not employing detectives during the time period in question.[2]

Based on careful review of the record, we concur with the agency’s determination.  The claimant is requesting compensation for work performed from May 19, 1986, to May 9, 1987, when he was employed by Navy.  Therefore, Navy would have been potentially required to compensate the claimant under the overtime pay provisions of Subpart E of Part 551 of 5 CFR for work performed within the claim period; i.e., within five years before the commencement of the Gulf War on August 2, 1990, and subject to deduction for any monies paid under the claimant’s DOJ settlement agreements.  In this case, the entire claim period (May 19, 1986, to May 9, 1987) is covered.

The claimant’s SF-50s documenting his employment with Navy indicate he was a nonexempt employee during the claim period (i.e., May 19, 1986, to May 9, 1987).  Absent an assertion by the claimant that he was not paid at the FLSA overtime rate during the period of time he was employed by Navy and designated as nonexempt, we must conclude that he was properly compensated under the FLSA during this period, i.e., May 19, 1986, to May 9, 1987. 


The claim is denied for failure to state a claim for which relief may be granted. 

[1] The claimant was employed by Navy from May 19, 1986, to May 9, 1987.

[2] The claimant’s Standard Form (SF) 50s documenting his employment with Navy show he was an employee of the Naval Submarine Base in Kings Bay, Georgia.

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