Deason v. United States

54 Fed. Cl. 509, 8 Wage & Hour Cas.2d (BNA) 539, 2002 U.S. Claims LEXIS 319, 2002 WL 31662266
CourtUnited States Court of Federal Claims
DecidedNovember 22, 2002
DocketNo. 01-610C
StatusPublished
Cited by1 cases

This text of 54 Fed. Cl. 509 (Deason 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
Deason v. United States, 54 Fed. Cl. 509, 8 Wage & Hour Cas.2d (BNA) 539, 2002 U.S. Claims LEXIS 319, 2002 WL 31662266 (uscfc 2002).

Opinion

ORDER

MILLER, Judge.

This civilian pay case is before the court on defendant’s motion pursuant to RCFC 12(b)(1) to dismiss for lack of subject matter jurisdiction. Plaintiff filed suit seeking pay for overtime based on the Federal Employees Pay Act, 5 U.S.C. §§ 5542-5545 (2002), and various federal regulations, including an overtime policy of the Department of the Army. Defendant would hold plaintiff to the statutory six-year limitations period for the accrual of his claim. Plaintiff sets forth compelling facts that implicate the doctrine of equitable tolling. Argument is deemed unnecessary.

FACTS

The following facts are drawn from plaintiffs complaint. David D. Deason (“plaintiff’) was on active duty in the United States Army (“the Army”) for 24 years. On October 16, 1989, plaintiff became a civilian employee of the Army. Beginning on April 23, 1990, plaintiff served as a Property Book Officer (“PBO”) for the 282nd Base Support Battalion (“BSB”) in Hohenfels, Germany.

As a PBO, plaintiff was authorized to handle all of the incoming and outgoing property for three battalions — the 282nd BSB, the CMTC, and the 1/4 Infantry. Plaintiff was also the only senior logistician and the senior resident for logistics for the post.

Plaintiff alleges that between approximately May 1990 and March 1996, his supervisors ordered him to work overtime, which totaled 2,951.50 hours, for which he has never been compensated. According to plaintiff, each monthly Actual Overtime Report from February 1991 to December 1992 documented his compensatory overtime and was signed [510]*510by his then-current supervisors, who were, in sequence, Major Saesae Tuia, Major William S. Pezdirtz, Captain Michael P. Reese, and Captain Kathy K. Reynolds. From January 1992 until March 1996, plaintiff was instructed by his supervisors, including Capt. Reynolds, Captain William Zeller, Capt. Walters, and Mr. Harold Brooks, to keep an informal log of his overtime hours that exceeded 30 hours per month. Although his time cards were not marked, plaintiff alleges that his supervisors reassured him that he had compensatory time available in case of illness or emergency.

On September 5, 1994, plaintiff submitted a memorandum to Capt. Zeller requesting compensatory time from September 5, 1994, to October 7, 1994, a total of 200 hours. In the memorandum plaintiff included his calculation of 2,839 hours accrued compensatory time prior to this request. Capt. Zeller approved and signed plaintiffs request.

In approximately May or June 1996, plaintiffs new supervisor, Captain Robert Young, informed plaintiff that he was not entitled to compensation for the overtime that he had worked, because plaintiff had not followed the correct procedures in keeping records of his entitlement to it.

Plaintiff wrote to United States Senators Christopher Bond and John Ashcroft on October 16, 1996, seeking assistance in resolving the conflict. Plaintiff sought either monetary payment or compensatory time off for the hours he had worked. In response to inquiry by Senators Bond and Ashcroft, Major Walter H. Pollard informed them that plaintiff needed to submit documentation that the overtime hours had been requested by his supervisors and approved by the 282nd BSB Commander.

On October 31, 1996, Charlotte L. Eady, Personnel Office, Department of the Army, prepared a memorandum for plaintiff addressing plaintiffs “Unofficial Compensatory Time.” The letter, which was submitted through the Commander of the 100th Area Support Group (“ASG”) and the Commander of the 282nd BSB, explained that overtime and compensatory time are subject to prior request and approval, pursuant to 7 Army Tactical Command (“ATC”) overtime policy, f 5c.1 The memorandum detailed the request procedures, but acknowledged that the documentation certified that plaintiff worked the overtime he claimed.

On April 30, 1997, Maj. Pollard again responded to inquiry by Senators Bond and Ashcroft, stating that plaintiff should submit his request in writing through the 282nd BSB and the 100th ASG in order for his request to be forwarded to the appropriate civilian personnel officials for final determination.

Lieutenant Colonel Dane L. Rota, Commander of the 282nd BSB, issued a memorandum on July 31, 1997, to the Chief, Civilian Personnel Advisory Center at Grafenwoehr, Unit 28130, regarding plaintiffs claim. In the memorandum LTC Rota stated:

Documentation and personal interviews with former supervisors of [plaintiff] support [plaintiffs] claim that his overtime was requested, approved and worked. No requirement existed for verification of approval by DOL, 100th ASG, and this approval was not sought nor granted. Although not properly recorded on official time cards, an unofficial agreement was apparently in effect between [plaintiff] and his supervisors. This agreement allowed this improper accumulation of overtime. Legal advisors have concurred with reimbursement of [plaintiff] based upon accumulated evidence, and this command supports such reimbursement of [plaintiff] in whatever manner is appropriate by law.

LTC Rota then requested that plaintiffs file be forwarded to the United States Office of Personnel Management (“OPM”) for immediate consideration and expeditious processing given the lengthy delay in responding to plaintiffs request. Plaintiffs file was forwarded to OPM on September 3,1997.

On September 17, 1997, Donald J. Neuland, Chief, Performance Management and Employee Relations Division at the Civilian Personnel Operations Center returned plaintiffs request for overtime pay for a local [511]*511decision by plaintiffs chain of command. Chief Neuland wrote:

If a determination is made by an authorized official in the employee’s organization that some or all of the overtime hours claimed by the employee were properly ordered and approved, then action can be initiated through the local Time and Attendance channels to credit the overtime hours on the relevant Time and Attendance cards.

Compl. filed Oct. 25,2001, ¶ 20.

Approximately five weeks later, the BSB Commander offered plaintiff $10,000.00 to $15,000.00 plus 200-300 hours of compensatory time. Plaintiff alleges that this amount was less than 25% of what plaintiff was owed, which totaled approximately $71,000.00. Plaintiff rejected the offer and countered that at the least he should receive 50% of what he was owed.

On January 7, 1998, the BSB Commander offered plaintiff $15,000.00 with no compensatory time. Plaintiff again rejected the offer.

Plaintiff wrote OPM on February 12,1998, to seek resolution of his claim. OPM contacted the 282nd BSB on March 16, 1998, requesting an administrative report and other information relevant to plaintiffs case. Paul Britner, Assistant General Counsel for OPM, wrote plaintiff on July 10,1998, notifying him that OPM still had not received any notice from the BSB as of that date. Plaintiff pursued the matter with OPM on August 5, 1998, because he had not received any response. Plaintiff again contacted Mr. Britner almost a year later, on June 10, 1999, because no communication had been forthcoming since the July 1998 letter. Plaintiff received no response.

On July 28, 2000, LTC Earl M. Silver of the 282nd BSB, sent a memorandum to plaintiff regarding formal complaint procedures.

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Bluebook (online)
54 Fed. Cl. 509, 8 Wage & Hour Cas.2d (BNA) 539, 2002 U.S. Claims LEXIS 319, 2002 WL 31662266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deason-v-united-states-uscfc-2002.