Aaron v. United States

51 Fed. Cl. 690, 2002 U.S. Claims LEXIS 31, 2002 WL 253863
CourtUnited States Court of Federal Claims
DecidedFebruary 21, 2002
DocketNo. 00-315C
StatusPublished
Cited by11 cases

This text of 51 Fed. Cl. 690 (Aaron v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aaron v. United States, 51 Fed. Cl. 690, 2002 U.S. Claims LEXIS 31, 2002 WL 253863 (uscfc 2002).

Opinion

OPINION

BRUGGINK, Judge.

This is an action for overtime pay. Plaintiffs are employees or former employees of the Bureau of Prisons (“Bureau”) or Federal Prison Industries, Inc. (“FPI”) (referred to hereafter as “UNICOR”). Pending is defendant’s Motion to Dismiss Al Claims Related to UNICOR. Oral argument was held on January 18, 2002. On January 31, 2002, the court ordered supplemental briefing concerning the consistency of defendant’s position with certain items of legislative history concerning the Bureau and UNICOR. For the reasons set out below, defendant’s motion is granted.

FACTUAL BACKGROUND

Plaintiffs allege that the Bureau, UNI-COR, and the Department of Justice have violated either the Federal Employees Pay Act (“FEPA”), 5 U.S.C. §§ 5542, 5544 (1994), or the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. (1994), by failing to [691]*691pay them overtime for pre-shift and post-shift activities. With respect to the UNICOR plaintiffs implicated by the current motion, however, the parties agreed at oral argument that only FEPA claims are at issue.

UNICOR is a statutorily-created government corporation. 18 U.S.C. § 4121; 28 C.F.R. § 345.11 (2001). Its mission is to provide “work simulation programs and training opportunities for inmates confined in Federal correctional facilities.” 28 C.F.R. § 345.11. Congress established UNICOR as a government corporation pursuant to the Act of June 23, 1934, 48 Stat. 1211, and charged it with the duty of “determining in what manner and to what extent industrial operations shall be carried on in Federal penal and correctional institutions.” A similar but more limited function had been implemented prior to 1934 at two federal prisons. 60 Comp. Gen. 323 (1981). Small appropriations had been made to support work at those facilities by inmates. Id. Those monies had been repaid to the Treasury, and the programs became self-supporting. Id. In addition to transferring these activities to the new corporation, Section 4 of the 1934 act authorized the Secretary of the Treasury to transfer all funds held in the prison industries working capital fund to the “Prison Industries Fund” and directed that all money under UNICOR’s control be deposited in the Treasury of the United States to the credit of that fund. The corporation’s enabling legislation does not contain a “sue and be sued” clause.

DISCUSSION

The United States, as a sovereign, is generally immune from suit unless it otherwise consents. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The Tucker Act, representing a partial waiver of this sovereign immunity, gives this court jurisdiction over claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a). In the case at bar, FEPA is the “Act of Congress” upon which plaintiffs rely. In a typical FEPA claim, therefore, the waiver of sovereign immunity is perfected in the sense that FEPA creates a potential statutory claim for money, and the Tucker Act gives this forum jurisdiction to hear the claim.

This is not, however, the typical claim. Instead, the presence of UNICOR raises an additional jurisdictional hurdle, the “non-appropriated fund” or NAFI exception. This exception is triggered by the fact that final judgments rendered by this court “shall be paid out of any general appropriation.” 28 U.S.C. § 2517. Absent some more specific jurisdictional grant, therefore, we may only hear claims “in which appropriated funds can be obligated.” L’Enfant Plaza Properties, Inc. v. United States, 229 Ct.Cl. 278, 668 F.2d 1211, 1212 (1982). As explained in Furash & Co. v. United States, 46 Fed.Cl. 518, 520 (2000), aff'd, 252 F.3d 1336 (Fed.Cir.2001), the non-appropriated funds exception to the scope of our jurisdiction means that

the court’s Tucker Act jurisdiction may not be invoked with respect to transactions that “involved agencies where the statutory authority for the activities [in suit] specifically limited liability or expenditures to non-appropriated funds.” In other words, the exercise of the court’s jurisdiction under the Tucker Act must be confined to cases in which appropriated funds can be obligated.

Id. at 520 (quoting L’Enfant, 668 F.2d at 1213) (citation omitted). See also Denkler v. United States, 782 F.2d 1003 (Fed.Cir.1986).

What this means is that the fact that Congress has generally waived sovereign immunity with respect to federal employee pay claims through FEPA is not dispositive. Despite this general waiver, jurisdiction will not he when there is a “clear expression by Congress that the agency was to be separated from general federal revenues.” L’Enfant, 668 F.2d at 1212.

Nor, however, is it dispositive that the agency is financially independent, as UNI-COR is. Instead,

Congress must have intended that the activity resulting in the claim was not to receive or be funded from appropriated funds. To sustain jurisdiction ..., the re[692]*692quirement is not that appropriated funds have been used for the activity but that under the agency’s authorizing legislation Congress could appropriate funds if necessary. Jurisdiction under the Tucker Act must be exercised absent a firm indication by Congress that it intended to absolve the appropriated funds' of the United States from liability for acts of the [agency].

L’Enfant, 668 F.2d at 1212 (citations omitted); see also Furash, 46 Fed.Cl. at 521 (“as our cases show, the controlling principle is whether the agency’s enabling legislation indicates that Congress intended the activity in question to operate without the benefit of appropriated funds”).

Thus, the first level of inquiry is whether Congress has made it clear that a NAFI is to operate without appropriated funds. Only if that question is answered in the affirmative is it necessary to determine if Congress has nevertheless indicated a desire to support claims of the specific type asserted against UNICOR out of the Treasury.

It is uncontested that the corporation has never received appropriated funds. Plaintiffs’ contention that UNICOR is not a NAFI is based on other evidence.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Slattery v. United States
635 F.3d 1298 (Federal Circuit, 2011)
O'Quin v. United States
72 Fed. Cl. 20 (Federal Claims, 2006)
Acebal v. United States
60 Fed. Cl. 551 (Federal Claims, 2004)
Core Concepts of Florida, Incorporated v. United States
327 F.3d 1331 (Federal Circuit, 2003)
Aaron v. United States
56 Fed. Cl. 98 (Federal Claims, 2003)
MDB Communications, Inc. v. United States
53 Fed. Cl. 245 (Federal Claims, 2002)
Ains, Inc. v. United States
56 Fed. Cl. 522 (Federal Claims, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
51 Fed. Cl. 690, 2002 U.S. Claims LEXIS 31, 2002 WL 253863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aaron-v-united-states-uscfc-2002.