Leggitte v. United States

104 Fed. Cl. 315, 2012 U.S. Claims LEXIS 356, 2012 WL 1194727
CourtUnited States Court of Federal Claims
DecidedApril 11, 2012
DocketNo. 11-291 C
StatusPublished
Cited by22 cases

This text of 104 Fed. Cl. 315 (Leggitte 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
Leggitte v. United States, 104 Fed. Cl. 315, 2012 U.S. Claims LEXIS 356, 2012 WL 1194727 (uscfc 2012).

Opinion

OPINION and ORDER

BLOCK, Judge.

Plaintiff, Ricky B. Leggitte, proceeding pro se, was employed as a social worker at the Department of Veteran Affairs’s (“VA”) Central Alabama Veterans Health Care System (“CAVHCS”) from 1990 until 2005. While employed at CAVHCS, plaintiff was frequently on-call twenty-four hours per day, working what he describes as “odd tours of duty.” Compl. at ¶ 2. After failing to obtain additional compensation directly from the VA, plaintiff filed this lawsuit on May 9, 2011. Along with his complaint, Leggitte has filed an application to proceed informa pauperis.1

In his complaint, which is quite unclear, plaintiff raises only two claims that satisfy the requisite level of plausibility under Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). First, that defendant violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-19, by failing to compensate him with the same compensation received by other social workers, Compl. at ¶ 5; and second, that defendant violated the statutes and regulations governing the disbursement of premium pay, which in his view, requires defendant to pay plaintiff “on-call” and “AUO” pay for plaintiffs extraordinary services.

By way of explanation, “on-call” pay, and “Administratively Uncontrollable Overtime” (“AUO”) are forms of “premium pay.” Id. at ¶ 8. “On-call” earned its name because it is designed to compensate employees who are “officially scheduled to be on call outside such employee’s regular hours or on a holiday designated by Federal Statute or Executive order.” 38 U.S.C. § 7457(b)(3). “Administratively Uncontrollable Overtime,” on the other hand, provides for compensation to employees whose positions require substantial amounts of irregular overtime work and whose hours cannot be controlled administratively. 5 U.S.C. § 5545(e)(2); 5 C.F.R. § 550.151. Typically, AUO is appropriate for positions such as criminal investigators, who are responsible for recognizing, without supervision, circumstances that require them to remain on duty. 5 C.F.R. § 550.153(a). Employees entitled to AUO are paid between 10 and 25 percent of their rate of basic pay as a premium, regardless of the number of hours worked in a pay period. Id. Plaintiff asserts that he should have received on call or AUO pay while employed at CAVHCS because his work there required him to be on call working administratively uncontrollable shifts. See Compl. at ¶¶ 2-5.

Before the court are defendant’s motion to dismiss for lack of subject-matter jurisdiction and its motion for summary judgment. In its motion to dismiss, defendant contends that plaintiffs FLSA claims are barred by the FLSA’s two- or three-year statute of limitations, 29 U.S.C. § 255(a). Def.’s Mot. at 5-7. In its motion for summary judgment, defendant contends that nothing in the statutes and regulations governing premium pay’s disbursement requires the agency to compensate plaintiff with “on-call” or “AUO” pay. Id. at 10-13. Rather, defendant explains, it is entirely within the VA’s discretion whether social workers like plaintiff shall be compensated with premium pay for being on-call.

Consequently, defendant argues, neither has the VA nor plaintiffs employing facility, CAVHCS, authorized the disbursement of premium pay to social workers. Id. Defendant has supported its interpretation of the statutes and regulations governing premium [317]*317pay’s disbursement with the sworn declarations of human resource specialists at the VA and CAVHCS. Def.’s App. Tab A (“Davis Decl.”); Def.’s App. Tab B (“Hunter Decl.”). It has also provided the court with a copy of VA Handbook 5007, which was promulgated by the VA to explain their “procedures regarding pay administration.” VA Handbook 5007 at Part I, Section 1, available at http:// wwwl.va.gov/vapubs/; see Hunter Decl. at ¶ 5 (noting that VA Handbook 5007 is “[t]he primary agency policy manual dealing with pay administration.”).

Plaintiff has filed a response and a sur-reply, which he fashioned as an amended response. Plaintiff has not provided the court with specific facts showing that he was authorized to receive premium pay.

I. Defendant’s Motion To Dismiss for Lack of Subject-Matter Jurisdiction

When ruling on a motion to dismiss for lack of subject-matter jurisdiction, the “court must accept as true the factual allegations in the complaint.” Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1355 (Fed.Cir.2011) (citing Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)). And although it is true that a pro se plaintiffs complaint is generally held to “less stringent standards than formal pleadings drafted by lawyers,” Johnson v. United States, 411 Fed.Appx. 303, 305 (Fed.Cir.2010) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)), a pro se plaintiff must nevertheless “plead sufficient facts that, if taken as true, are enough ‘to raise a right to relief above the speculative level’ ” Am. Contractors Indem. Co. v. United States, 570 F.3d 1373, 1376 (Fed.Cir.2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Plaintiff has the burden to establish the court’s jurisdiction by a preponderance of the evidence. Ins. Co. of the W. v. United States, 100 Fed.Cl. 58, 62-63 (2011) (citations omitted); see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).

The FLSA’s statute of limitations bars plaintiff from asserting an FLSA claim more than two- or three-years after his claim accrued. 29 U.S.C. § 255(a). Here, plaintiff was employed by the VA from May 1990 until August 2005, and filed his complaint on May 9, 2011. Under the FLSA’s two- or three-year statute of limitations, only claims that accrued after May 9, 2008 are timely. Since plaintiffs most recent claim accrued in August 2005, plaintiffs FLSA claims are barred.

II. Defendant’s Motion for Summary Judgment

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Cite This Page — Counsel Stack

Bluebook (online)
104 Fed. Cl. 315, 2012 U.S. Claims LEXIS 356, 2012 WL 1194727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leggitte-v-united-states-uscfc-2012.