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In This Section

Pay & Leave Claim Decisions

Washington D.C

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

Terry R. Moore
Criminal Investigator
GS-1811-7/9
U.S. Customs Service
Position should be nonexempt, thus due FLSA overtime pay
Failure to state a claim on which relief may be granted
F-1811-09-06

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

05/01/2017


Date

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).  The agency should identify all similarly situated current and, to the extent possible, former employees, ensure that they are treated in a manner consistent with this decision, and inform them in writing of their right to file an FLSA claim with the agency or OPM.  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.

Introduction

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 April 17, 1990, and subsequently with OPM on or about September 9, 1999, challenging his exemption status under the FLSA when he was employed as a Criminal Investigator, GS-1811, at the GS-7 and GS-9 levels with the U.S. Customs Service (USCS), now integrated into the Department of Homeland Security (DHS).  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 from July 11, 1988, to the pay period ending April 21, 1990; for the pay period ending May 5, 1990, to the pay period ending July 13, 1991; and for the pay period ending July 27, 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 Army Reserve “from approximately February 18, 1991 to October 17, 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 June 30, 1986 to July 2, 1988,[1] less Mr. Moore’s active duty military service time, for which he does not seek recovery.”

Background

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, the 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.

Analysis

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 September 29, 2015, in response to the aforementioned court decision, OPM requested an agency administrative report (AAR) from DHS regarding this FLSA claim.  By letter dated October 28, 2016, DHS advised OPM that during the claim period, GS-1811 criminal investigators (“special agents”) were designated FLSA nonexempt at the GS-5 and GS-7 grade levels, and FLSA exempt at the GS-9 and above levels.  DHS described the major duties and responsibilities of special agents at the GS-9, 11, and 12 grade levels as including initiating, planning, and conducting criminal and civil investigations; preparing detailed written investigative reports concerning case development and disposition; and planning, conducting, and coordinating in-depth criminal and civil investigations.  However, the agency advised OPM based on their fact-finding that:

…DHS believes that the GS-9, GS-11, and GS-12 criminal investigators should be considered non-exempt.  At these grade levels, an investigator does not serve as an “advisor, assistant, or representative of management, or a specialist in a management or general business function or supporting service.”  5 C.F.R. § 551.205(a) (1984).  Nor do they “[s]ignificantly affect [] the formulation or execution of management policies or programs.”  Id. at § 551.205(a)(1).  Further, the degree of supervision exercised over the Agents – at least at the GS-9 level – suggests that an Agent was not expected to “exercise discretion and independent judgment, under only general supervision.”  5 C.F.R. § 551.205(c).

Based on careful review of the record, we concur with the agency’s determination.  The claimant is requesting compensation for work performed from July 5, 1987, to July 2, 1988, when he was employed by USCS, less his active duty military service time.[2]  Therefore, USCS would have been 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 (July 5, 1987, to July 2, 1988) is covered.

However, the SF-50s documenting the claimant’s employment with USCS show he was designated nonexempt from the FLSA as a Criminal Investigator, GS-1811-7, from July 5, 1987, to July 17, 1988, when he was promoted to GS-9 and his status changed to exempt.[3]  Absent an assertion by the claimant that he was not paid at the FLSA overtime rate during the period he was designated as nonexempt, we must conclude he was properly compensated under the FLSA during the entire period covered by this FLSA decision.

Decision

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


[1] The claimant’s Standard Form (SF) 50s documenting his employment show he was employed with USCS from July 5, 1987, to July 2, 1988.

[2] The claimant’s Certificate of Release or Discharge from Active Duty, DD Form 214, included with his claim shows he was in an active duty status from February 18, 1991, to October 17, 1991.

[3] We note the claimant’s July 17, 1988, promotion to the GS-9 position occurred after the end of the claim period requested, i.e., July 2, 1988.  Although the claim request states he was promoted to the GS-9 position on May 31, 1988, the SF-50 promotion action on record shows an effective date of July 17, 1988.

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