Aaron v. United States

62 Fed. Cl. 50, 10 Wage & Hour Cas.2d (BNA) 42, 2004 U.S. Claims LEXIS 234
CourtUnited States Court of Federal Claims
DecidedSeptember 7, 2004
DocketNo. 00-315C, 00-454C, 00-617C, 01-47C, 01-313C, 01-314C, 01-480C, 02-35C, 03-446C, 03-2363C, 04-1134C
StatusPublished
Cited by1 cases

This text of 62 Fed. Cl. 50 (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, 62 Fed. Cl. 50, 10 Wage & Hour Cas.2d (BNA) 42, 2004 U.S. Claims LEXIS 234 (uscfc 2004).

Opinion

OPINION

BRUGGINK, Judge.

This group of related cases involves actions for overtime pay brought by several hundred employees of the Bureau of Prisons (“BOP”) under the overtime provisions of the Federal Equal Pay Act, 5 U.S.C. §§ 5542, 5544, 5546 (2000), and the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201-216 (2000). Pending is plaintiffs’ July 8, 2004 Motion to Sanction Defendant for Requiring Plaintiffs it Deposes to Use Annual Leave to Attend Defendant’s Depositions. Plaintiffs move that sanctions be imposed on defendant pursuant to RCFC 30(d)(3) for requiring plaintiffs to take annual leave or use compensatory time to attend depositions noticed by defendant. Plaintiffs argue that one provision of the Civil Service Reform Act of 1978, 5 U.S.C. § 6322(a) (2004) (hereafter “Section 6322”), requires the government to provide court leave to employees under these circumstances. Plaintiffs seek a preliminary injunction preventing defendant from requiring plaintiffs in future depositions to use annual leave while testifying and ordering defendant to restore the annual leave or compensatory time already used. For reasons set out below we accept the substantive premise behind the motion, but deny relief.

[52]*52BACKGROUND

Defendant has initiated depositions of plaintiffs employed at various Bureau of Prisons (“BOP”) institutions. Plaintiffs allege that defendant noticed all its depositions without verifying with plaintiffs’ counsel the convenience of the specific dates and times as well as the availability of plaintiff-employees. All of defendant’s depositions have been scheduled during normal working hours, between 8:00 a.m. and 5:30 p.m. Plaintiffs allege that defendant has not attempted to accommodate plaintiff-employees by scheduling depositions around their work schedules. This is a concern for plaintiffs because the BOP contemporaneously notified plaintiffs via memorandum dated January 12, 2004 that they are on “non-duty status” while they are participating in defendant’s depositions and, therefore, are instructed to take annual leave, compensatory time, or leave without pay in order to attend.

On February 25, 2004, plaintiffs notified defendant in writing of their objections to this leave policy. In response, defendant, by letter to plaintiffs’ counsel dated March 3, 2004, reiterated the BOP position that plaintiffs are not entitled to paid leave when they are being deposed by the government. On March 10, 2004, and, again on May 14, 2004, defendant notified plaintiff-employees at two other facilities of the policy. On July 8, 2004, plaintiffs filed this motion for sanctions pursuant to RCFC 30(d)(3). Plaintiffs have not previously sought to quash notices of depositions. Defendant takes the position that both the subject matter of the pending motion — the agency’s internal leave practice— and the request for injunctive relief are beyond the reach of the court.

DISCUSSION

Before the court are two issues. The first is whether the BOP may order plaintiffs to use their annual leave, compensatory time, or leave without pay in order to appear at depositions noticed by defendant. The second issue is whether sanctions or injunctive relief are available as remedies if the court finds the government is not acting in compliance with the statute.

In arguing that the BOP practice is improper, plaintiffs rely on the provisions of Section 6322(a):

(a) An employee ... is entitled to leave, without loss of, or reduction in pay, leave to which he is otherwise entitled, credit for time or service, or performance of efficiency rating, during a period of absence with respect to which he is summoned, in connection with a judicial proceeding, to serve—
(2) ... as a witness on behalf of any party in connection with any judicial proceeding to which the United States ... is a party____

Plainly the depositions are connected to a judicial proceeding to which the United States is a party. The question posed is whether plaintiff-employees have been “summoned ... as ... witnesses]” within the meaning of the statute when they are merely deposed.

Plaintiffs look for guidance to the Office of Personnel Management (“OPM”), the agency authorized to prescribe regulations for administration of the statute. Although OPM has not issued any regulations under the statute, on August 4, 1980, it issued Federal Personnel Bulletin No. 630-38 (“F.B.630-38”)1 in response to inquiries from several agencies. F.B. 630-38 has since been revoked. The policy stated that “[a]n employee is entitled to paid time off without charge to leave for service as a juror or witness.” Court Leave, available at http:// www.opm.gov/oca/leave/HTML/courtlv.HTM. It went on to state that:

[Wjhen an employee-plaintiff has been deposed ... although he or she may not have received an actual summons ... in a case in which a party to the proceedings is the United States ... the employee-plaintiff is a “witness” within the meaning of the statute and is entitled to court leave for the [53]*53time involved in giving a deposition or witnessing.

F.B. 630-38. The Bulletin distinguished time spent in depositions or serving as a witness in a trial from other activities not qualifying for leave with pay, such as “time the employee-plaintiff spends in preparation for the trial, ... answering the government’s interrogatories ... [or] observing the conduct of the trial.” F.B. 630-38.

Plaintiffs also rely on Coles v. Martin, 1978 WL 13969, 1978 U.S. Dist LEXIS 14087, *18-19 (D.D.C.1978), in which the district court was asked to apply Section 6322. That case involved an action under Title VII of the CM Rights Act of 1964, 42 U.S.C. §§ 2000 et seq. The precise question at issue here was not addressed in that case, but the Coles court acknowledged the position of OPM’s predecessor, the Civil Service Commission, that an employee-plaintiff who is deposed by the government or summoned to testify is a “witness” within the meaning of the statute. Id. The court distinguished an adverse deposition from the situation in which an employee-plaintiff is not summoned but is testifying on his own behalf. Only in the latter situation is the plaintiff required to use annual leave or leave without pay. Id.

In addition, plaintiffs cite Davis v. Bolger, 496 F.Supp. 559, 565-66 (D.D.C.1980), also an action brought under Title VII against the United States, in which the court held that employee-plaintiffs and their witnesses were not required to take annual leave or leave without pay in order to appear as witnesses on behalf of a private party. 496 F.Supp. at 565-66. The Davis court interpreted Section 6322 as entitling all government employees summoned in a Title VII proceeding to be on paid status whether they are testifying for the government or the government’s opponent. Id. The court noted, however, that failure to require the government to pay plaintiffs’ witnesses in a Title VII proceeding would raise “constitutional problems, ...

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Bluebook (online)
62 Fed. Cl. 50, 10 Wage & Hour Cas.2d (BNA) 42, 2004 U.S. Claims LEXIS 234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aaron-v-united-states-uscfc-2004.