Agee v. United States

77 Fed. Cl. 84, 2007 U.S. Claims LEXIS 160, 2007 WL 1529462
CourtUnited States Court of Federal Claims
DecidedMay 23, 2007
DocketNo. 04-1575C
StatusPublished
Cited by9 cases

This text of 77 Fed. Cl. 84 (Agee 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
Agee v. United States, 77 Fed. Cl. 84, 2007 U.S. Claims LEXIS 160, 2007 WL 1529462 (uscfc 2007).

Opinion

OPINION AND ORDER

WHEELER, Judge.

This case involves the claims of firefighters employed by the U.S. Department of the Navy (“the Navy”) on San Clemente Island near the coast of southern California. Plaintiffs allege that they are entitled to additional compensation and benefits effective March 15, 1998 when they converted from a 144-hour to a 168-hour biweekly tour of duty. The Navy paid Plaintiffs for the additional 24 hours of work each pay period, but did not properly accrue annual leave, sick leave, remote worksite allowances, thrift savings contributions, and other retirement benefits for this extra day of work. Inexplicably, through bureaucratic neglect, the Navy allowed these payment errors to persist for more than 5-1/2 years, until December 31, 2003. While most of the errors could have been corrected through simple recalculation, the parties elected to litigate their disputes in this Court rather than resolving them voluntarily.

The Court conducted a one-day trial on December 18, 2006 in Washington, D.C. Thereafter, the parties filed post-trial briefs on February 2, 2002, and reply briefs on February 16 and 20, 2002.

For the reasons explained below, the Court concludes that Plaintiffs are entitled to some, but not all, of the relief they have requested. Plaintiffs may recover the unpaid remote worksite allowance for days that they actually worked at San Clemente Island. However, Plaintiffs may not include the remote worksite allowance in calculating their overtime pay. In the circumstances when the firefighters were sent home from San Clemente Island on the seventh day of their tour, the Court finds that Plaintiffs were on unpaid leave. Plaintiffs are not entitled to recover for this unworked day, nor are they to be charged any annual leave. Any other outcome could result in some firefighters owing annual leave to the Government. Plaintiffs are entitled to recalculation of their annual and sick leave at an accelerated rate [86]*86based on a 168-hour tour of duty. The Court has made findings concerning Thrift Savings Plan contributions owed to Plaintiffs, but Plaintiffs must apply to the Office of Personnel Management (“OPM”) to recover such amounts. Interest is allowable under the Back Pay Act, and Plaintiffs are entitled to liquidated damages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., where Defendant knew and showed reckless disregard for its failure to adequately compensate Plaintiffs.

Findings of Fact 1

Plaintiffs are 24 current or former firefighters employed by the Navy. (Tr. 13; Stip. 1).2 Plaintiffs work on San Clemente Island, located near the coast of southern California, 55 nautical miles south of Long Beach and 68 nautical miles west of San Diego. (Stip. 10). The Government has designated San Clemente Island as a “Remote Worksite” under 5 U.S.C. § 5942(a) because it is distant from established communities or suitable places of residence. (Stip. 11). The firefighters are transported to and from San Clemente Island by air from North Island Naval Air Station in San Diego. (Tr. 42; Stip. 11). The flights are chartered by the Navy, and travel each day except weekends and holidays. (Tr. 42). The firefighters are transported on these flights free of charge. Id.

San Clemente Island is a military test facility where Navy SEALS and other Navy personnel are present. (Tr. 42). There are no towns or communities on the island. (Tr. 43). Plaintiffs perform typical fire fighting duties, responding to emergency fire and medical calls, and putting out wildfires. (Tr. 41). Plaintiffs are assigned to a fire station where they reside while on call. Id.

Prior to March 15, 1998, the firefighters worked nine days of each three-week period, known as a “6/8 and 3/4” work schedule. Under this schedule, the firefighters would work six days on, then have eight days off, followed by three days on and four days off. The cycle would then repeat. (Tr. 44; Stip. 5). The parties regarded this schedule as a 144-hour tour of duty per biweekly pay period, under which the firefighters were compensated for 24 hours each day they were on duty. Id.

Beginning March 15, 1998, the Navy changed the work schedule to seven days on and seven days off, known as a “7/7” schedule. Under this schedule, the firefighters worked a 168-hour tour of duty per biweekly pay period, again being paid for 24 hours each day they were on duty. (Tr. 43; Stip. 4, 6, 7). The Navy sometimes informed a firefighter on the morning of the seventh day that his services would not be needed that day. When that occurred, the firefighter’s seven-day shift was cut to the six days he had already worked, and he left the island. (Tr. 49-50).

Like other federal employees, the firefighters receive benefits, such as paid sick and vacation leave, thrift savings contributions, and retirement benefits. The firefighters also receive a daily $10.00 remote worksite allowance to cover incidental costs while working on San Clemente Island. (Tr. 43). When the firefighters converted to the new “7/7” schedule on March 15, 1998, the Navy paid the firefighters for the extra 24 hours in each tour of duty, but continued to calculate benefits on the old 144-hour schedule, rather than the new 168-hour schedule. The firefighters also received the remote worksite allowance only for six days, even though they worked seven days. (Tr. 44).

The record is replete with correspondence documenting the firefighters’ efforts to correct the improper calculation of benefits. On [87]*87March 2, 1998, the Fire Chief of the Federal Fire Department, San Diego, informed the International Association of Firefighters that the San Clemente Island work schedule would change from a 6/8 and 3/4 shift to a 7/7 shift, effective March 15, 1998. (PX 1; Tr. 53-54). This memorandum stated that “[tjhis work schedule change will abolish 5 Firefighter positions,” and that “[t]he manning of the Island will be 3 supervisory positions and 22 Lead/Driver/Firefighter positions.” (PX 1). Shortly after the shift change went into effect, the firefighters began experiencing difficulties with their pay and benefits.

On August 24, 2000, more than two years after the work schedule change went into effect, the Commander, Navy Region Southwest, sent a memorandum to the Director, Office of the Deputy Assistant Secretary of the Navy, requesting that a new 168-hour work schedule be added to the Firefighters Pay Reform Act, 5 U.S.C. § 5545b (2000). (PX 5; Tr. 61-62). The memorandum stated that “[ujpon discussion with DFAS3, Denver, if the work schedule is not identified in the Firefighters Pay Reform Act, they will not recognize it.” (PX 5). This memorandum contained a list of all the San Clemente Island firefighters, along with their pay grade and step levels. Id. On September 26, 2000, the Commander in Chief of the U.S. Pacific Fleet, recommended approval of the new work schedule. (PX 6). Another memorandum followed on May 23, 2001 where the Commander, Navy Region Southwest, requested the Department of Defense Civilian Personnel Management Service, Arlington, Virginia, “to add a new 168-hour work schedule for firefighter payroll services.” (PX 7).

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Bluebook (online)
77 Fed. Cl. 84, 2007 U.S. Claims LEXIS 160, 2007 WL 1529462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/agee-v-united-states-uscfc-2007.