Acton v. United States

21 Cl. Ct. 214, 30 Wage & Hour Cas. (BNA) 185, 1990 U.S. Claims LEXIS 308, 1990 WL 109620
CourtUnited States Court of Claims
DecidedAugust 1, 1990
DocketNo. 269-89C
StatusPublished
Cited by6 cases

This text of 21 Cl. Ct. 214 (Acton v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acton v. United States, 21 Cl. Ct. 214, 30 Wage & Hour Cas. (BNA) 185, 1990 U.S. Claims LEXIS 308, 1990 WL 109620 (cc 1990).

Opinion

OPINION

LYDON, Senior Judge:

This civilian pay case is before the court on the parties’ motions for summary judg[215]*215ment, pursuant to RUSCC 56(c).1 The parties’ dispute centers on the proper statute of limitations to be applied when plaintiffs seek overtime pay relative to leave taken under the “leave with pay” provisions of Title 5 of the United States Code (U.S.C.). Plaintiffs, 685 in number, allege that a six-year statute of limitations should apply (28 U.S.C. § 2501), and defendant maintains that a two-year statute of limitations (29 U.S.C. § 255(a)) should apply.2

Overtime claims covered by the FLSA are subject to the two-year FLSA statute of limitations. (29 U.S.C. § 255(a)). See Beebe v. United States, 226 Ct.Cl. 308, 323-24, 640 F.2d 1283, 1285 (1981); Harris v. United States, 13 Cl.Ct. 363, 366 (1987). While the six-year statute of limitations is generally applicable to claims brought in this court (28 U.S.C. § 2501), FLSA overtime claims filed in this court are subject to the two-year FLSA statute of limitations and not the six-year limitations period set out in 28 U.S.C. § 2501. Beebe, supra, 226 Ct.Cl. at 324, 640 F.2d at 1285; Harris, supra, 13 Cl.Ct. at 366. Title 5 overtime claims are subject to the court’s six-year limitations period. See Ater v. United States, 6 Cl.Ct. 344, 348-49 (1984); McConnell v. United States, 5 Cl.Ct. 785, 788-89 (1984); Bevelheimer v. United States, 4 Cl.Ct. 558, 561 (1984). The dispute between the parties centers on whether the overtime claims presented by plaintiffs arise under Title 5 or Title 29 (FLSA). After careful consideration of the materials before the court, and the oral arguments of counsel on July 26, 1990, the court grants defendant’s motion for summary judgment.

FACTS

Plaintiffs are present or former border patrol agents employed by the Immigration and Naturalization Service (INS), a division of the Department of Justice. As border patrol agents, plaintiffs’ duties require substantial amounts of overtime, including irregular, unscheduled overtime work for which they receive compensation under 5 U.S.C. § 5545(c)(2). Section 5545, a provision of the Federal Employees Pay Act (FEPA or Title 5), provides for premium pay for irregular, unscheduled overtime, also known as “administratively uncontrollable” overtime. There is also another provision in Title 5, section 5542, which provides for the payment of overtime compensation for work performed in excess of forty hours per workweek. Plaintiffs are also entitled to have their overtime pay computed under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219 (1982), unless they are otherwise exempt under 29 U.S.C. § 213.3 Section 207(k) of the FLSA [216]*216provides overtime compensation to federal employees who are firefighters or engaged in law enforcement activities, including border patrol agents, and who work in excess of eighty-five and one-half hours in a two-week period. 29 U.S.C. § 207(k).

As is evident, federal employees have available two separate statutes for purposes of overtime compensation, the so-called FEPA or Title 5 overtime and FLSA overtime. The interrelationship between these two acts entitling federal employees to overtime compensation, the Federal Employees Pay Act (FEPA or Title 5) and the FLSA, must be kept in mind when considering plaintiffs’ arguments in this case. “Under this dual coverage, where there is an inconsistency between the statutes, employees are entitled to the greater benefit.” Agner v. United States, 8 Cl.Ct. 635, 636 (1985), aff'd, 795 F.2d 1017 (Fed.Cir.1986). See also Lanehart v. Horner, 818 F.2d 1574, 1576, 1577 n. 12 (Fed.Cir.1987) (recognizing that OPM would compute overtime pay under whichever statute, Title 5 or the FLSA, would provide the greater employee benefit); 54 Comp.Gen. 317 (1971). In other words, an employee is entitled to have his or her overtime determined under the provisions of the overtime statute which provides the greatest economic benefit.

In the case at bar, it appears that plaintiffs under Title 5 had, at all times material herein, paid leave time considered as hours worked for Title 5 overtime entitlement purposes since such a computation under Title 5 generally would generally produce a greater economic benefit than would an FLSA overtime computation where such computation treated paid leave as nonwork hours. However, if such FLSA overtime computation considered paid leave as hours worked then the FLSA overtime computation, because of other considerations present in the FLSA, generally would provide greater economic benefits. Accordingly, in this situation, it would be to plaintiffs’ best economic interest to seek overtime under the FLSA rather than under Title 5 provisions. This serves to explain why plaintiffs seek to have the economic benefits of the FLSA apply in this case. However, because of the FLSA two-year statute of limitations, plaintiffs argue that their right to overtime compensation originates in the leave with pay provisions of Title 5 and not in the overtime provisions of Title 5 or the overtime provisions of the FLSA. In taking this position, plaintiffs hope to obtain the benefits of the FLSA overtime provisions but avoid the FLSA statute of limitations.

Plaintiffs admit they are currently being paid their overtime compensation under Title 5. Plaintiffs seek to have their entitlement to overtime pay recalculated pursuant to FLSA overtime provisions, since plaintiffs would likely receive a greater economic benefit under FLSA rather than Title 5 overtime provisions. Plaintiffs want to avoid the two-year statute of limitations applicable to FLSA claims, however, by characterizing their overtime pay claims as claims arising under the Title 5 leave with pay provisions.

Under the “leave with pay” provisions of Title 5, plaintiffs are entitled to receive regular pay for leave taken to fulfill jury or military duty, as well as for annual, sick or holiday leave. Hours of leave taken pursuant to the Title 5 leave with pay provisions have consistently been counted as hours of work for the purpose of computing plaintiffs’ entitlement to Title 5 overtime pay. See 5 C.F.R. § 550.112(c). For example, an employee who worked only a forty hour work week would not be entitled to overtime.

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Bluebook (online)
21 Cl. Ct. 214, 30 Wage & Hour Cas. (BNA) 185, 1990 U.S. Claims LEXIS 308, 1990 WL 109620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acton-v-united-states-cc-1990.