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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

David N. Gettler
Paralegal Specialist
Office of the Solicitor General
Justice Management Division
U.S. Department of Justice
Washington, D.C.
Exemption Status
Denied; Lack of jurisdiction

Robert D. Hendler
Classification and Pay 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 U.S. Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA).  There is no right of further 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 the decision. 


The claimant is a current employee of the Office of the Solicitor General, Justice Management Division, U.S. Department of Justice, in Washington, D.C.  The claimant is “challenging the classification by Human Resources at the Department of Justice of [his] position as a paralegal specialist as FLSA-exempt.”  We received the claim on September 1, 2016. 

We have accepted and decided this claim under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).


OPM settles Federal civilian employee FLSA claims under the provisions of section 204(f) of title 29 U.S.C., and 5 CFR part 551, subpart G.  Section 7121(a)(1) of 5 U.S.C. directs that except as provided elsewhere in the statute, the grievance procedures in a negotiated collective bargaining agreement (CBA) shall be the exclusive administrative remedy for resolving matters that fall within the coverage of the CBA.  The Court of Appeals for the Federal Circuit has found the plain language of 5 U.S.C. 7121(a)(1) to be clear, and as such, limits the administrative resolution of a Federal employee’s grievance to the negotiated procedures set forth in the CBA.  Mudge v. United States, 308 F.3d 1220, 1228 (Fed. Cir. 2002).  Further, the Federal Circuit also found that all matters not specifically excluded from the grievance process by the CBA fall within the coverage of the CBA.  Id. at 1231.  As such, OPM cannot assert jurisdiction over the FLSA claims of Federal employees who are or were subject to a negotiated grievance procedure (NGP) under a CBA between the employee’s agency and labor union for any time during the claim period, unless the matter is or was specifically excluded from the CBA’s NGP.  See 5 CFR 551.703(a).

Documentation obtained by OPM shows the claimant occupies a bargaining unit position (SF-50 block 37).  The agreement between the Legal Divisions/Office of the Solicitor General, Department of Justice, and the American Federation of State, County and Municipal Employees, Local 3719, AFL-CIO, covering the claimant during the period of the claim, does not specifically exclude FLSA issues from the NGP (Article 27).  Therefore, this claim must be construed as covered by the NGP the claimant was subject to during the claim period, and OPM has no jurisdiction to adjudicate this claim.  


The claim is denied based on lack of jurisdiction.

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