Aletta v. United States

70 Fed. Cl. 600, 2006 U.S. Claims LEXIS 85, 2006 WL 950214
CourtUnited States Court of Federal Claims
DecidedMarch 30, 2006
DocketNo. 99-758C
StatusPublished
Cited by4 cases

This text of 70 Fed. Cl. 600 (Aletta 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
Aletta v. United States, 70 Fed. Cl. 600, 2006 U.S. Claims LEXIS 85, 2006 WL 950214 (uscfc 2006).

Opinion

OPINION AND ORDER

WHEELER, Judge.1

This case is before the Court on the parties’ cross-motions for summary judgment on the issue of liability. Plaintiffs are a certified class of approximately 1,100 Internal Revenue Service (“IRS”) lawyers who work in the agency’s field offices throughout the United States. Plaintiffs are seeking payment for overtime hours worked without written approval from an authorized agency representative under the Federal Employees Pay Act, 5 U.S.C. §§ 5541-5550b (“FEPA”). Plaintiffs specifically are claiming payment for overtime hours when worked: (a) in connection with travel that was beyond the administrative control of the IRS; or (b) by class members who are under flexible schedules. Plaintiffs acknowledge that their overtime hours were not officially approved by authorized representatives, but assert that they nevertheless are entitled to recovery based upon their interpretation of the statutes and regulations applicable to flexible schedules, and because they were induced, encouraged, and expected to work overtime in meeting the demands of their jobs.

In a very similar ease involving lawyers of another agency, the Federal Circuit held that Department of Justice lawyers generally have no claim for overtime pay unless the statutes and regulations requiring approval are followed. Doe v. United States, 372 F.3d 1347 (Fed.Cir.2004), cert. denied 544 U.S. 904, 125 S.Ct. 1591, 161 L.Ed.2d 277 (2005). For the reasons stated below, the Court concludes that the IRS lawyers also are governed by the decision in Doe, as well as the applicable statutes and regulations requiring authorized approval. The Court does not see a legal basis for a different outcome as to lawyers who work flexible schedules, or for unavoidable travel. Accordingly, Plaintiffs motion for partial summary judgment2 is DENIED, and Defendant’s cross-motion for summary judgment is GRANTED.

Factual Background

The material facts in this case are not in dispute.3 Plaintiffs are IRS field office lawyers who work on tax litigation, criminal tax, and general litigation matters. Among their tasks, they prepare for trials, appear in court, provide legal advice, and perform investigative work on behalf of the IRS. They represent the United States in cases before the U.S. Tax Court and in tax eases before federal bankruptcy courts. Although the U.S. Tax Court is based in Washington, D.C., it hears eases in many designated cities nationwide. The IRS lawyers travel as needed for court appearances or trials where their cases are pending. As is typical of many litigation lawyers, they work more than eight hours per day or 40 hours per week when necessitated by workload demands, or by Court schedules and deadlines. The overtime hours at issue were not officially approved by an authorized agency representative.

Plaintiffs are employed in positions that are subject to the premium pay provisions of FEPA, 5 U.S.C. §§ 5541-5550b. FEPA provides that hours in excess of 40 hours per week or eight hours per day must be “officially ordered or approved.” 5 U.S.C. § 5542(a). The implementing regulations of the Office of Personnel Management (“OPM”) provide that overtime hours “may be ordered or approved only in writing by an officer or employee to whom this authority has been specifically delegated.” 5 C.F.R. § 550.111(c) (2005). Travel time can be counted as “hours of employment” if it results from “an event which could not be scheduled or controlled administratively.” 5 [602]*602U.S.C § 5542(b)(2)(B)(iv); 5 C.F.R. § 550.112(g)(2)(iv)(2005).

Many of the plaintiff lawyers work “flexible schedules” under the Federal Employees Flexible and Compressed Work Schedules Act, 5 U.S.C. §§ 6120-6133 (“WSA”). Congress enacted the WSA in 1978 to afford federal employees greater flexibility in setting their work schedules. The WSA allows employees to work “flexible” or “compressed” work schedules. Under a “flexible” schedule, an employee can earn “credit hours” by working more than eight hours per day. These “credit hours” may be used to shorten a subsequent work day to less than eight hours. See 5 U.S.C. §§ 6121(4), 6122. A “compressed” schedule is one in which an employee works 80 hours during each two-week pay period, but does so in less than 10 days. See 5 U.S.C. §§ 6121(5), 6127. For purposes of flexible schedule programs, “overtime hours” means hours in excess of eight hours per day or 40 hours per week “which are officially ordered in advance, but does not include credit hours.” 5 U.S.C § 6121(6). If requested by an employee, the head of an agency may grant an employee compensatory time off for overtime hours, in lieu of payment. 5 U.S.C. § 6123(a)(1).

The time period of Plaintiffs’ claim is from September 1993 until the date of the Court’s decision.4 During this period, the parties agree that members of the plaintiff class have worked, including time spent traveling, more than eight hours in a day, or more than 40 hours in an administrative work week. In some circumstances, Plaintiffs have received overtime compensation, but in other cases, they have not. For the entire period of Plaintiffs’ claim, the agency has had in place a procedure for employees to request, and for authorized officials to approve, overtime hours and compensation. Chief Counsel Directives Manual (“CCDM”) 80.6.1.4.3; CCDM Exhibit 30.6.1-15, Form 2787, “Authorization and Report of Overtime Worked.” Plaintiffs did not use this procedure for any of the hours for which they now claim additional compensation.

Contentions of the Parties

Plaintiffs assert that time spent traveling for out-of-town court appearances must be considered “hours of employment” because the travel results from events that cannot be “scheduled or controlled administratively.” 5 U.S.C. § 5542(b)(2)(B)(iv). Plaintiffs claim an unqualified right to compensation for these hours, but state that they have not been compensated when the travel hours constitute overtime. They contend that approval by an authorized agency representative is not required for their overtime travel, or alternatively, that a supervisor’s approval of a lawyer’s travel vouchers constitutes approval of the hours of work spent traveling.

Plaintiffs contend that IRS lawyers who work “flexible schedules” under the WSA are entitled to recovery for any overtime hours that were induced, encouraged, or expected.

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Cite This Page — Counsel Stack

Bluebook (online)
70 Fed. Cl. 600, 2006 U.S. Claims LEXIS 85, 2006 WL 950214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aletta-v-united-states-uscfc-2006.