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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

Estate of Eugene T. McCarthy
Criminal Investigator
Drug Enforcement Administration
Position should be nonexempt, thus due FLSA overtime pay
Nonexempt; potentially due FLSA overtime pay

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).  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.

The agency is to review whether the claimant has worked overtime in accordance with instructions in the “Decision” section of this decision, and if the claimant is determined to be entitled to back pay, the agency must pay the claimant the amount owed him plus interest as provided in 5 CFR 550.806.  If the claimant believes the agency has incorrectly computed the amount owed him, he may file a new FLSA claim with this office.


On December 4, 2012, the U.S. Office of Personnel Management (OPM) received a letter dated December 4, 2012, from the Law Offices of Bernstein & Lipsett, P.C. (B & L), the duly appointed representative of the claimant’s estate, concerning a Fair Labor Standards  Act (FLSA) claim they had initially filed on the estate’s behalf with the General Accounting Office (GAO), now the U.S. Government Accountability Office, on May 13, 1994, challenging the claimant’s exemption status under the FLSA when he was employed as a Criminal Investigator, GS-1811, at the GS-9 and GS-11 levels with the Drug Enforcement Administration (DEA).  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.  

B & L has requested OPM adjudicate the administrative claim filed with GAO 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 Marine Corps “from approximately December 28, 1990 until his death on February 2, 1991”[1] in connection with Operation Desert Shield/Storm and, citing the provisions of 31 U.S.C. § 3702(b)(2), asserts: “The Estate of Mr. McCarthy is entitled to retroactive back pay and interest…for the period he was employed by DEA prior to the commencement of the Gulf War on August 2, 1990, up until the date he began his active duty service.  This period includes August 14, 1988 to December 27, 1990.”


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, United States Code (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 September 29, 2015, in response to the aforementioned court decision, OPM requested an agency administrative report (AAR) from DEA regarding this FLSA claim.  By letter submitted on May 27, 2016, DEA  advised OPM based on their fact-finding that the claimant:

…was classified as non-exempt[2] from the Fair Labor Standards Act (FLSA) during the period of his claim from August 14, 1988 through December 27, 1990. Upon his entry on duty with the Drug Enforcement Administration, he was assigned to the Los Angeles Field Division, Office of the SAC.   The classification at the time was based on 5CFR 551.207 for the Professional Exemption….


At grades GS 9-11, investigators typically “work under the general administrative and technical supervision of the Group Supervisor who makes initial assignments or gives authorization for assignments initiated by the agent; renders instructions on case development and expects the agent to use initiative and resourcefulness in developing and following leads without periodic supervisory guidance.

During the period of SA [Special Agent] McCarthy’s claim, the Special Agent position was classified as exempt from FLSA at GS-09 and above. 

Based on the 5 CFR 551.206 and 5 CFR 551.207, the Administrative and Professional exemption criteria do not apply to the traditional non-supervisory criminal investigator whose primary duties do not consist of the performance of office, or non-manual work directly related to the management or general business operations of the organization.  General criminal investigator work follows “well-established techniques and procedures which may have been catalogued and described in manuals or other sources.”  The criminal investigators rely on techniques and skills acquired through specialized training or experience.  Even though they may exercise some independent judgment in the performance of their duties, this judgment is exercised within closely prescribed limits.

Based on our review, we conclude that the administrative or professional exemption criteria should not have been applied to criminal investigators at the GS-7 through GS-13 grade levels and should have been treated as FLSA non-exempt.      

Based on careful review of the record, we concur with the agency’s determination.  The claimant’s estate is requesting compensation for work he performed from August 14, 1988, to December 27, 1990.  Therefore, DEA 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.  In this case, the entire claim period (August 14, 1988, to December 27, 1990) is covered. 


The claimant’s work is FLSA nonexempt (i.e., covered by FLSA overtime provisions), and he is entitled to compensation for all overtime hours worked at the FLSA overtime rate for the period of the claim; i.e., from August 14, 1988, to December 27, 1990.  The agency must follow the compliance requirements on page ii of this decision.

The claimant’s estate must submit evidence showing the amount and extent of overtime that was performed as provided for in 5 CFR 551.706(a) as informed by the agency payroll records submitted to OPM and the claimant’s estate on September 16, 2016.  The agency will have the opportunity to review this evidence using any other sources of information available, including witnesses, before a determination is made as to whether the claimant is entitled to any back pay under the FLSA and any interest as required under 5 CFR part 550, subpart H.[3]  Any petition for attorney’s fees and expenses must be submitted to the agency out of which this claim arose.  Should the claimant be determined to be entitled to back pay which the claimant’s estate believes to be incorrectly computed, his estate may file a new FLSA claim with this office.

[1] The claimant’s military service is documented by DD Form 1300, Report of Casualty, reporting his February 2, 1991, death while on active duty.

[2] The agency elsewhere states the claimant was designated exempt during the claim period, as supported by the Standard Form (SF) 50s documenting his employment with DEA.   

[3] The agency’s overtime and interest calculations must account for the claimant’s prior receipt of administratively uncontrollable overtime by the claimant, documented as 25 percent “premium pay” on his SF-50s covering the claim period, using the principles contained within 29 U.S.C. 207(k), 5 C.F.R. 551.501(a)(1) and (5), and 5 C.F.R. 551.541(a).  OPM’s Fact Sheet on the topic can be found here:

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