NALTNER v. United States

• Court: United States Court of Federal Claims
• Decided: October 29, 2024
• Docket: 21-1064
• Status: Published

Opinion

In the United States Court of Federal Claims

RICHARD NALTNER et al.,

Plaintiffs, No. 21-cv-1064 v. Filed: October 29, 2024 THE UNITED STATES,

Defendant.

Nicholas M. Wieczorek of Clark Hill PLLC, Las Vegas, NV argued for Plaintiffs. With him on the briefs was William D. Schuller of Clark Hill PLLC, Las Vegas, NV.

Albert S. Iarossi, United States Department of Justice, Civil Division, Washington, DC argued for Defendant. With him on the briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, Washington, DC; Patricia M. McCarthy, Director, Commercial Litigation, Washington, DC; L. Misha Preheim, Assistant Director, Commercial Litigation, Washington, DC; Jane M. Brittan, Of Counsel, United States Secret Service, Washington, DC.

MEMORANDUM AND ORDER

The United States Secret Service (USSS, Secret Service, or Agency) and its special agents

serve in a vital role, providing protection to high-ranking public officials, including the President

and Vice President of the United States. Serving as a USSS special agent on a Presidential or

Vice-Presidential detail requires long hours and a flexible schedule. Accordingly, Congress has

enacted Federal pay statutes reflecting this unique role and special agents’ atypical work schedule.

Here, Plaintiffs Richard Naltner (Naltner) and David Deetz (Deetz) (collectively Plaintiffs),

current and former USSS special agents, respectively, filed a putative class action suit against

Defendant United States, acting by and through the USSS, contending that Defendant failed to pay

them appropriate overtime wages in violation of 5 U.S.C. § 5542 and 5 U.S.C. § 5596. Amended

Complaint (ECF No. 18) (Compl.) ¶¶ 42, 45. Specifically, Plaintiffs contend they were improperly compensated for overtime hours due to either incorrect calculation or improper time recording as

directed by their supervisors. See id. ¶¶ 12−13, 18, 22, 24, 26, 33; Opposition to Defendant’s

Motion for Summary Judgment (ECF No. 42) (Pl. Resp.) at 19–20.1

This is not the first adjudication over USSS overtime pay. In Horvath v. United States, the

United States Court of Appeals for the Federal Circuit invalidated an Office of Personnel

Management (OPM) regulation requiring minimum consecutive, unscheduled overtime hours,

rather than total unscheduled hours to qualify for a certain type of overtime pay. 896 F.3d 1317,

1322 (Fed. Cir. 2018) (Horvath I). This action presents a narrow, follow-on issue related to that

ruling. Specifically, whether Plaintiffs are due overtime back pay given the invalidation of the

regulation. Defendant now moves for summary judgment, arguing that (i) neither Plaintiff is

entitled to back pay for overtime work performed between March 15, 2015 and September 12,

2018, and (ii) all claims for additional pay that accrued prior to March 15, 2015 are barred by the

statute of limitations. See Defendant’s Motion for Summary Judgment (ECF No. 40) (Mot.) at

29–33; Mot., Ex. 1, Declaration of Steven Scott (ECF No. 40-1) (Scott Decl.) ¶ 10 (noting the date

the Agency changed its policy in line with Horvath I).2

After considering the parties’ arguments as presented in briefing and during Oral

Argument, Defendant’s Motion for Summary Judgment (ECF No. 40) is GRANTED in part and

DENIED in part.

1 Citations throughout this Memorandum and Order correspond to the ECF-assigned page numbers, which do not always correspond to the pagination within the document. 2 On March 1, 2023, Plaintiffs also filed a Motion for Class Certification (ECF No. 41). On consent of the parties, this Court stayed briefing on the Class Certification Motion pending resolution of the present Motion. See Defendant’s Motion to Stay Its Duty to File a Response to Plaintiffs’ Motion for Class Certification (ECF No. 43) at 1; Order, dated Mar. 8, 2023 (ECF No. 46) at 4.

2 BACKGROUND

The Secret Service is a bureau within the Department of Homeland Security charged with

protecting top United States and foreign officials, among other duties.3 In these capacities, special

agents record hours for performing both investigative and protective duties.4 At issue here is

overtime pay for protective duties. See Compl. ¶¶ 18–20, 22, 23 n.5, 30; see also 5 U.S.C.

§ 5542(e) (enabling overtime compensation for certain hours worked on protective details).

I. USSS Pay Structure Given the nature of special agents’ duties, the Secret Service typically schedules agents for

8-, 10-, and 12-hour shifts. Scott Decl. ¶ 6; Mot. at 15. Special agents are generally eligible to

earn the following compensation for performing protective services on a given workday: (i) base

pay; (ii) the Law Enforcement Availability Pay (LEAP) enhancement, 5 U.S.C. § 5545a; (iii)

standard overtime under 5 U.S.C. § 5542(d) (Section 5542(d) overtime); and (iv) overtime for

protective services under 5 U.S.C. § 5542(e) (Section 5542(e) overtime). See Mot., Ex. 2,

Declaration of David Toth (Branch Chief, Payroll Operations Branch) (ECF No. 40-2) (Toth Decl.)

¶ 4.

As explained in more detail below, for a 12-hour shift with no unscheduled overtime,

agents are compensated for hours 1 through 8 with their base salary, for hours 9 and 10 with a

fixed amount of “LEAP” premium pay, and for hours 11 and 12 with hourly pay at overtime rates

under 5 U.S.C. § 5542(d). Generally, all unscheduled overtime is compensated through LEAP.

However, pursuant to 5 U.S.C. § 5542(e), working two hours of unscheduled overtime in a day on

3 See About Us, U.S. Secret Service, https://www.secretservice.gov/about/overview (last visited Oct. 22, 2024). 4 See U.S. Secret Service, Dep’t of Homeland Security, https://www.dhs.gov/employee- resources/us-secret-service-usss (last visited Oct. 22, 2024).

3 protective services triggers hourly overtime pay instead of LEAP pay for that day’s first two hours

of scheduled overtime (i.e., hours 9 and 10). See Horvath v. United States (Horvath II), No 16–

668C, 2020 WL 1487642, at *1 (Fed. Cl. Mar. 25, 2020) (citing Horvath I, 896 F.3d at 1318−19);

infra Background Section I.A–C.

Special agent compensation is subject to bi-weekly5 and annual pay caps, which limit the

amount of compensation a special agent may earn within those periods. See, e.g., 5 U.S.C.

§§ 5307, 5547; see also Toth Decl. ¶ 5. Here, Plaintiffs allege Defendant improperly compensated

them pursuant to LEAP for certain protective service hours when instead Plaintiffs should have

been compensated at the higher Section 5542(e) overtime rate. See Compl. ¶¶ 19, 20, 22–27.6

A. Base Pay

The term “base pay” refers to the special agent’s standard salary, which is calculated based

on an hourly base pay rate the agent earns for working a 40-hour workweek. See 5 U.S.C. §

5545a(b). The first eight scheduled hours that a special agent works in each workday are always

compensated at the agent’s hourly base pay rate. See Horvath I, 896 F.3d at 1320. The hourly

base pay rate is set based on the agent’s position on the GS Schedule. Toth Decl. ¶ 3.

B. Law Enforcement Availability Pay (LEAP)

Special agents can also earn a type of premium pay, known as a LEAP enhancement.7 The

LEAP enhancement is “availability pay” designed to “ensure the availability of criminal

5 Special agents are paid bi-weekly, across approximately 26–27 pay periods per calendar year. Toth Decl. ¶ 3. 6 Plaintiffs cite the Federal Circuit’s decision in Horvath v. United States, 896 F.3d 1317 (Fed. Cir. 2018) (Horvath I), regarding the implementation of Section 5542(e) overtime. See infra Background Section III. 7 Though the LEAP enhancement is often framed as “premium pay,” LEAP is part of a special agent’s basic pay each pay period. See Mot. at 12 (“[S]pecial agents, as criminal investigators, are paid premium pay as part of their basic pay in the form of LEAP under 5 U.S.C. § 5545a.”); Compl. 4 investigators for unscheduled duty in excess of a 40-hour work week based on the needs of the

employing agency.” 5 U.S.C. § 5545a(b); see Horvath I, 896 F.3d at 1318; see also Compl. ¶¶ 8–

10; Mot. at 7–9. Put another way, LEAP compensates special agents for the unscheduled overtime

(i.e., being asked to start a shift early or stay late) that is part and parcel of serving as a special

agent. LEAP is a fixed 25% enhancement added on top of a special agent’s base salary each pay

period, which is paid as long as the agent averages two extra hours of work each day over the

course of the year. See 5 U.S.C. § 5545a(d)(1), (2);8 see also 5 U.S.C. § 5545a(h)(1); Compl. ¶

17. Accordingly, under LEAP, special agents are not compensated directly for each hour of

unscheduled overtime worked. Instead, agents are compensated for those hours through LEAP’s

25% increase to their base pay.

In addition to compensating agents for all unscheduled overtime, as discussed above,

LEAP also compensates agents for the first two hours of scheduled overtime on a regular workday

(i.e., hours 9 and 10) if the agent performs no unscheduled hours that day. See 5 U.S.C.

§ 5542(d)(2), (e); see also Mot. at 8 (“The first two hours of scheduled overtime on regular work

days . . . and all hours of unscheduled overtime . . . are considered to be LEAP time.”). Agents

are otherwise compensated for scheduled overtime under Section 5542.

¶ 17 (“LEAP . . . is therefore part of ‘basic pay’ . . . and is not overtime compensation.”) (citations omitted). 8 A special agent will receive the 25%enhancement each pay period so long as the agent annually certifies that he has averaged, and will continue to average, at least two extra hours of work each day. See 5 U.S.C. 5545a(d) (requiring that total of (1) “the annual average of unscheduled duty hours worked by the investigator in excess of each regular work day;” and (2) “the annual average of unscheduled duty hours such investigator is available to work on each regular work day” are “equal to or greater than 2 hours” per day); id. § 5545a(e)(1) (requiring an annual certification of eligibility for LEAP); see also Mot. at 7.

5 C. Overtime Pay Pursuant to 5 U.S.C. §§ 5542(d) and (e)

For certain scheduled overtime hours, special agents can earn standard overtime

compensation, paid by the hour at 1.5 times the agent’s hourly base pay rate. See 5 U.S.C.

§ 5542(a)(1), (2); Horvath I, 896 F.3d at 1319; see also Mot. at 11 n.4. There are two types of

standard overtime compensation pertinent here: Section 5542(d) overtime and Section 5542(e)

overtime. Whether an agent is paid under Section 5542(d) or Section 5542(e) depends on the

number of scheduled and unscheduled hours the agent worked that day, and whether the agent was

performing protective services during those hours.

1. Section 5542(d) Overtime

Section 5542(d) provides for “standard overtime.”9 Under Section 5542(d), a criminal

investigator can receive overtime pay for scheduled overtime hours that are “(A) in excess of 10

hours on a day during such investigator’s basic 40 hour workweek; or (B) on a day outside such

investigator’s 40 hour workweek.” 5 U.S.C. § 5542(d)(1).

Thus, for a regular workday on which an agent is scheduled to work 12 hours, with no

unscheduled overtime, the agent will earn the following compensation. First, the agent will earn

base pay for hours 1 through 8. Then, the agent will earn LEAP for hours 9 and 10 because agents

are compensated under LEAP for the first two hours of scheduled overtime when the agent

performs no unscheduled hours. See 5 U.S.C. § 5542(d)(2), (e); Mot. at 8. Lastly, the agent will

earn standard overtime under Section 5542(d) for hours 11 and 12. See Mot. at 10; Pl. Resp. at

10. This scheme describes what is known as the Agency’s “8-2-2 policy.” See Horvath I, 896

F.3d at 1320; Pl. Resp. at 10.

9 “Standard overtime” is available to “any criminal investigator who is paid availability pay under section 5545a [LEAP enhancement].” 5 U.S.C. § 5542(d); see Mot at 9.

6 2. Section 5542(e) Overtime

However, Section 5542(e) creates an exception that allows for the first two hours of

scheduled overtime (i.e., hours 9 and 10) to be compensated at the standard overtime rate (rather

than LEAP) in a specific situation. Under Section 5542(e), an agent earns the standard overtime

rate for the first two scheduled overtime hours, which would otherwise be compensated under

LEAP if (1) those hours are spent on protective services and (2) the agent works at least two hours

of unscheduled overtime on the same day. See 5 U.S.C. § 5542(e). Thus, to receive Section

5542(e) overtime for the first two scheduled overtime hours instead of LEAP, an agent must also

work at least two additional hours of unscheduled overtime. 5 U.S.C. § 5542(e).10

To illustrate, on a regular workday on which an agent is scheduled to work 12 hours but

works an additional two hours of unscheduled work (i.e., a 14-hour day), the agent will earn the

following compensation. First, the agent will earn base pay for hours 1 through 8. Second, the

agent will earn Section 5542(e) overtime, instead of LEAP, for hours 9 and 10 because they are

scheduled overtime hours for protective duty and the agent also worked two hours of unscheduled

overtime. Third, the agent will earn the standard overtime rate under Section 5542(d) for hours 11

and 12 (the remaining hours of the scheduled overtime). Lastly, the agent’s additional two

unscheduled hours—hours 13 and 14—are compensated by LEAP.

As another example, if an agent is scheduled for 10 hours and works at least two hours of

unscheduled overtime, the agent can still receive Section 5542 overtime, but only two hours and

pursuant to Section 5542(e), rather than 5542(d). First, the agent will receive base pay for hours

1 through 8. Next, the agent will receive Section 5542(e) overtime for hours 9 and 10 because

those are scheduled overtime hours involving protective duties and the agent has also worked at

10 By contrast, eligibility for Section 5542(d) overtime requires over 10 scheduled work hours. See supra Background Section C.1. 7 least two unscheduled overtime hours. As the agent has no scheduled overtime in excess of 10

hours, the agent is not entitled to any Section 5542(d) overtime. Finally, any unscheduled hours

(i.e., hours 11 and 12) are compensated by LEAP.

D. Pay Caps

Special agents are subject to federal pay caps that limit the total compensation they may

receive per pay period and calendar year. 5 U.S.C. §§ 5307, 5547. There are two types of pay

caps applicable to special agents as executive branch employees compensated on the GS-pay scale:

bi-weekly and annual caps. See 5 U.S.C. § 5547(a), (b). Employees can receive premium pay

only to the extent that the aggregate of their basic and premium pay for any pay period (Section

5547(a)),11 or calendar year (Section 5547(b)),12 does not exceed the greater of (1) the maximum

11 This section limits the total amount of overtime that can be received during a pay period:

An employee may be paid premium pay under section 5542 . . . and . . . 5545a . . . only to the extent that the payment does not cause the aggregate of basic pay and such premium pay for any pay period for such employee to exceed the greater of . . . (1) the maximum rate of basic pay payable for GS-15 (including any applicable locality-based comparability payment . . .); or (2) the rate payable for level V of the Executive Schedule.

5 U.S.C. § 5547(a) (emphasis added). 12 This provision states that “the head of an agency may determine that [Section 5547(a)] shall not apply to an employee who is paid premium pay to perform work that is critical to the mission of the agency,” meaning such an employee would not be subject to the pay period compensation limitation outlined in Section 5547(a). 5 U.S.C. § 5547(b)(3). However, if such a determination is made by the agency head, those

employees may be paid premium pay under the provisions of law cited in subsection (a) if, or to the extent that, the aggregate of the basic pay and premium pay under those provisions for such employee would not, in any calendar year, exceed the greater of . . . (A) the maximum rate of basic pay payable for GS-15 in effect at the end of such calendar year (including any applicable locality-based comparability payment . . .); or (B) the rate payable for level V of the Executive Schedule in effect at the end of such calendar year.

8 rate of basic pay for an employee at the GS-15 level (including locality pay), or (2) the rate payable

for level V of the Executive Schedule. See 5 U.S.C. § 5547; Toth Decl. ¶ 3; see also Mot. at 11

(“[I]f a special agent has hit one of these pay caps, then the agent may not receive additional

overtime pay even if, in the absence of such a pay cap, the hours worked would be compensated

at an overtime rate.”).

If an agent has reached the bi-weekly or annual pay caps for a given period, he can still be

ordered to perform overtime work, but he will not receive compensation for those hours

immediately. See generally 5 U.S.C. § 5547; see Toth Decl., Attach. A, Excerpt of OPM Bi-

Weekly and Annual Federal Pay Caps 2015–2018 (ECF No. 40-2) at 010 (citing Comptroller

General Opinions: B-178117, May 1, 1973; B-229089, December 29, 1988; and B-240200,

December 20, 1990). However, contingent upon the Secret Service’s budget and the type of

services the agent provided (i.e., protective or non-protective), the agent may receive a “max-out”

or “super-max” payment at the end of the year.

If a special agent exceeds the bi-weekly pay cap for a given pay period, his Earnings &

Leave (E&L) Statement for that pay period will include an “over earn” notation that “shows how

much premium pay an employee could be paid if they were not subject to the bi-weekly or annual

pay caps.” Toth Decl. ¶ 15; see 5 U.S.C. § 5547(a); 5 C.F.R. § 550.105(a); see also Mot. at 12. If

the agent exceeds a bi-weekly pay cap for any period, but not the annual pay cap, the agent will

receive at the end of the year a lump sum payment for an amount up to the annual federal pay cap

to compensate the agent for the unpaid premium pay that was withheld each pay period. 5 C.F.R.

§ 550.106(e); see Toth Decl. ¶¶ 5, 7; Mot. at 12. Defendant states this “max-out” payment is

5 U.S.C. § 5547(b)(3) (emphasis added).

9 contingent on the extent to which Secret Service has funds remaining in its budget. Toth Decl. ¶

5; Mot. at 12.

In 2016, Congress passed the Overtime Pay for Protective Services Act (OPPSA). OPPSA

raised the annual federal pay cap for hours involving protective services and granted special agents

working in protective services additional premium pay over the annual federal pay cap outlined in

Section 5547. See OPPSA, Pub. L. No. 114-311, §§ 1, 2, 130 Stat. 1531, 1531–32 (2016);13 see

also Mot. at 12–13. This raised the maximum pay for an agent performing overtime protective

services.14 Thus, if an agent earned premium pay for protective services that exceeded both the

bi-weekly and annual pay caps, he would be eligible for a secondary lump sum payment, known

as the “super-max” payment. See § 2, 130 Stat. at 1531; see also Toth Decl. ¶ 7; Mot. at 13.

However, the OPPSA super-max payment only covers the excess uncompensated pay associated

with protective services. To be eligible for the super-max payment, agents must have coded

overtime in their Web Time and Attendance (WebTA) timecards as “protective services.” See

Toth Decl. ¶ 7; Mot. at 13; see also § 2, 130 Stat. at 1531. Non-protection premium pay hours are

not covered by OPPSA. They are subject only to the bi-weekly and annual pay caps under 5 U.S.C.

§ 5547. See § 2, 130 Stat. at 1531; see also Toth Decl. ¶ 7; Mot. at 13.

II. The Scheduling Process and Time-Keeping Systems at USSS

At the beginning of each administrative workweek, special agents who work protective

duties receive weekly schedules that list the agent’s assignments for the upcoming week. See Mot.,

Ex. 5, Deposition Transcript of Steven Scott (ECF No. 40-5) (Scott Depo.) at 20:9–13; see also

13 This Act was subsequently amended to extend its application through 2028. See Overtime Pay for Protective Services Act of 2023, Pub. L. No. 118–38, § 1, 2, 138 Stat. 13, 13 (2024). 14 Under OPPSA, an agent can earn to the greater of (1) the maximum rate of basic pay payable at the GS-15 level, or (2) the rate payable for Level II of the Executive Schedule (which is a higher level than Level V). § 2, 130 Stat. at 1531; see Toth Decl. ¶ 6; Mot. at 13. 10 Mot. at 15. Agents are typically scheduled for 8-, 10-, and 12-hour shifts, with all hours beyond

the 8-hour mark deemed “scheduled in advance.” Scott Decl. ¶ 6; Mot. at 15. If operational needs

require modifications to the agent’s schedule after the workweek has begun, the issuing division

can make changes, known as “red-pen” schedules. See Scott Depo. at 22:9–16; 68:15–69:11; see

also Mot. at 15–16. Any additional overtime hours added to the red-pen schedules are considered

“unscheduled overtime.” See Mot. at 16; 5 U.S.C. § 5542(d)(1) (requiring “overtime work which

is scheduled in advance”). Defendant acknowledges that not all unscheduled overtime hours are

reflected in red-pen schedules. See Mot. at 16 n.6 (“Unscheduled overtime may also be worked

when a special agent is unexpectedly required to spend additional time on protective duty because

of operational requirements. Those hours may not necessarily be reflected in red-pen schedules.”).

The USSS uses two software systems for timekeeping, the Monthly Activity Reporting

System (MARS) and WebTA. See Scott Decl. ¶¶ 4–5, 7–9; see generally Mot. at 15–21. Each of

the systems serves a distinct purpose and neither of the systems are synchronized with the other,

meaning they run independently and have no integrative capabilities. Scott Decl. ¶ 8; see Mot. at

18.

A. Monthly Activity Reporting System (MARS)

The USSS uses MARS to track the number of regular, LEAP, and scheduled overtime

hours a special agent has worked each month. Scott Decl. ¶ 5; see Mot. at 16–17. Though the

system tracks LEAP hours, it does not differentiate between scheduled and unscheduled overtime

hours. Scott Decl. ¶ 5; see Mot. at 17. Within MARS, the special agent must record the specific

time at which the agent worked any hours and the type of activity performed during those hours

(i.e., protective versus investigative assignments). Scott Decl. ¶ 5; see Mot. at 16–17. Because

MARS requires agents to report the precise time of day at which the agents worked their hours,

11 the system can identify all days on which an agent’s LEAP hours were non-consecutive, including

if they were “split” between the beginning and end of an agent’s scheduled shift—i.e., “split-

LEAP.” Scott Decl. ¶ 5; see Mot. at 16–17. At the end of the month, an agent must certify that

the hours reported in MARS accurately reflect the time and nature of the hours the agent worked

for each day that month. Scott Decl. ¶ 5; Mot. at 16.15

B. Web Time and Attendance System (WebTA)

The USSS uses WebTA to track an employee’s hours for payment purposes. See Scott

Decl. ¶ 7; Mot. at 17. Special agents must “validate and affirm” that their time is entered correctly.

Scott Decl. ¶ 7; see Mot at 17 (“[S]pecial agents input, validate, and affirm the number and nature

of the hours that they actually worked. That is, they record the number of regular base pay hours

worked, the number of overtime hours worked, the number of LEAP hours worked, and the number

of leave hours taken.”). Agents then receive payment based on what is recorded within the WebTA

system. See Scott Decl. ¶ 7; Mot. at 17. WebTA, like MARS, does not distinguish whether LEAP

hours were scheduled or unscheduled. See Scott Decl. ¶ 7; Mot. at 18. Unlike MARS, however,

WebTA does not track the specific time of day during which the agent works each hour. See Scott

Decl. ¶ 7; Mot. at 17; see also Mot., Ex. 4 Deposition Transcript of Richard Naltner at 47:19–48:3.

III. Horvath Decisions

The present action is a follow-on case to that of another USSS special agent who had filed

a separate action in 2016 for alleged improper compensation under the same statutes and

regulations at issue here. See Horvath I, 896 F.3d at 1318–20. Specifically, the Plaintiffs in

Horvath challenged an OPM regulation that required special agents to work at least two hours of

15 Plaintiffs do not challenge Defendant’s description of the system. They do, however, assert the system is obsolete. Resp. at 25. They also challenge the accuracy of recorded hours and validity of Defendant’s review because of alleged supervisory guidance provided to agents, which was based on the now-invalidated regulation—5 C.F.R. § 550.182(b)(2). See id. at 25–28. 12 consecutive, unscheduled overtime for Section 5542(e) to apply. Id. at 1318 (citing 5 C.F.R. §

550.182(b)(2)). The now-invalidated regulation provided that a “split-LEAP,” where an agent had

worked an unscheduled shift of less than two hours on each end of an Agent’s scheduled shift (i.e.,

one hour in the morning and one in the afternoon, as opposed to two consecutively worked hours

in the afternoon), was not compensable as Section 5542(e) overtime. See Horvath II, 2020 WL

1487642, at *2; see also Mot. at 16–17; Scott Decl. ¶ 5. The Federal Circuit invalidated the

regulation as contrary to the statute, and the USSS updated its pay policies accordingly in

compliance with the Circuit’s decision. See Horvath I, 896 F.3d at 1321–22; Scott Decl. ¶ 10.

On remand, the assigned judge denied the government’s motion for summary judgment.16

Horvath II, 2020 WL 1487642, at *3–4. The court noted that although the government had

demonstrated that the OPM regulations may be “less consequential” to Horvath’s claims for

backpay than Horvath had believed, “the [government] fail[ed] to demonstrate that Mr. Horvath

will necessarily lack the evidence to prove entitlement to additional § 5542(e) pay at trial.” Id. at

*3. Specifically, the court concluded that Horvath’s identification of days where he met the

conditions for compensation under Section 5542(e) but was instructed to report two fewer overtime

hours constituted a material issue of fact sufficient to withstand summary judgment. Id. at *4. The

court also held that “Mr. Horvath’s claim can fairly be read to encompass[] any of the [defendant’s]

pay policies that misapply § 5542(e).” Id.

IV. Present Action

Naltner is a current USSS special agent who has been employed by the Agency since

October 2007. Compl. ¶¶ 3, 8; Pl. Resp., Ex. A, Declaration of Richard Naltner (ECF No. 42-1)

16 After denying the Government’s motion for summary judgment, the court ultimately denied plaintiff’s motion for class certification. See Horvath v. United States, 149 Fed. Cl. 735, 751 (2020).

13 (Naltner Decl.) ¶ 2. Deetz is a former special agent employed by USSS from January 4, 1998 until

September 29, 2018. Compl. ¶¶ 4, 9; Pl. Resp., Ex. B, Declaration of David Deetz (ECF No. 42-

2) (Deetz Decl.) ¶ 2. It is undisputed that both Plaintiffs qualify as criminal investigators17 for the

purposes of the Federal Employee Pay Act. See Compl. ¶ 11; Mot. at 6–7; see also Scott Decl. ¶¶

10–12 (performing a review of Plaintiffs’ overtime eligibility with that understanding). The parties

also agree that Plaintiffs performed protective services, as described in 18 U.S.C. § 3056,

throughout their tenure as special agents. See Compl. ¶ 18; Mot. at 5.

Plaintiffs claim that the USSS failed to pay them standard overtime pay, instead of LEAP

pay, for select protective detail hours worked between 2014 and 2018. See Compl. ¶¶ 1, 7, 19–21.

Specifically, Naltner contends that he is due additional pay for hours worked between 2014 and

2018 and Deetz makes the same claim for hours worked between 2016 and 2018.18 Id. at ¶¶ 19–

20. Plaintiffs clarify that their claims are not limited to improper compensation caused by the now-

invalidated regulation—i.e., in split-LEAP instances (dates on which Plaintiffs had worked at least

two unscheduled protective duty hours, but not consecutively). See id. ¶¶ 7, 33(a)–(b), 42.

Defendant moves for summary judgment, asserting that its review of split-LEAP instances

demonstrates that Plaintiffs are not entitled to further pay and that Plaintiffs’ claims that accrued

17 “Criminal investigator” is defined, in the statute governing availability pay for criminal investigators, as “a law enforcement officer as defined under section 5541(3),” who meets a series of additional attributes such as “possessing[ing] a knowledge of investigative techniques, laws of evidence, rules of criminal procedure, and precedent court decisions concerning admissibility of evidence, constitutional rights, search and seizure, and related issues” and “demonstrat[ing] skills in applying surveillance techniques, undercover work, and advising and assisting the United States Attorney in and out of court.” 5 U.S.C. § 5545a(a)(2)(A), (C) ; see also 5 C.F.R. § 550.103. 18 Both Naltner and Deetz state in the Complaint that the hours for which they seek compensation may change based on further investigation and analysis. Compl. ¶¶ 19–20. While it initially appeared that Deetz sought compensation for at least some dates in 2015, at Oral Argument his counsel subsequently acknowledged that Deetz had hit the pay cap for 2015. See Deetz Decl. ¶¶ 3, 11, 18–21; Oral Arg. Tr. at 78:24–79:1; Scott Decl. ¶¶ 24–25; infra Discussion Section II.B. 14 prior to March 15, 2015 are barred by the statute of limitations. Mot. at 5, 29, 32–33. Defendant

bases this contention on its own review of Plaintiffs’ schedule and pay records. See id. at 19–28.

In conducting its review, Defendant only searched in Plaintiffs’ MARS records for instances of

split-LEAP protective duty, separated by 10 or more hours. Scott Decl. ¶¶ 10, 11(a). The weekly

schedule for any such instance was reviewed to determine if the hours were scheduled or

unscheduled. Id. ¶ 11(b). If unscheduled, Defendant reviewed WebTA to verify whether Plaintiffs

were properly compensated. Id. ¶ 11(c). Finally, Defendant analyzed whether Plaintiffs had

reached applicable pay caps. Id. ¶ 11(d).

According to Defendant, its review determined that Naltner never recorded split-LEAP

hours. Id. ¶ 13. Defendant also determined Deetz had five split-LEAP instances between

September 2015 and November 2016, id. ¶ 14, but that Deetz was actually properly compensated

for all such instances, id. ¶¶ 15–23. Defendant also asserts Deetz was ineligible for additional pay

for 2015 and 2016 because he had hit applicable pay caps, id. ¶¶ 24–25, a contention with which

Plaintiffs agreed at oral argument, see Oral Argument Transcript, dated May 17, 2023 (ECF No.

49) (Oral Arg. Tr.) at 78:24–79:1.

Plaintiffs challenge the accuracy of Defendant’s review and further assert they lack access

to materials in Defendant’s possession necessary to fully demonstrate improper compensation:

[A proper analysis] would need to look at original schedules issued prior to the workweek showing scheduled overtime, “red-penned” schedules which show changes in scheduling after the original schedules were issued, emails to and from [Plaintiffs’] supervisors regarding overtime hours as well as related internal emails regarding [Plaintiffs’] own emails.

Pl. Resp. at 17–18 (alterations in original); Naltner Decl. ¶ 5; Deetz Decl. ¶ 5. Plaintiffs provided

two documents they claim demonstrate a genuine issue of material fact: (1) a list of Naltner’s

overtime hours with notations regarding missing schedules for comparison, see Pl. Resp., Ex. G

(ECF No. 42-7) (Naltner Timesheet); and (2) a compilation of emails from supervisors that purport

15 to reinforce the need for consecutive unscheduled hours to be eligible for Section 5542 overtime,

see id., Ex. H (ECF No. 42-8) (Emails). Plaintiffs further request an adverse inference as to

allegedly missing red-pen schedules, which they contend Defendant failed to produce, and which

they further contend would reflect Plaintiffs’ unscheduled overtime hours. Pl. Resp. at 31−33.

On January 31, 2024, this Court found that original and red-pen schedules are relevant to

Plaintiffs’ ability to prove their claims, and that Defendant’s explanation for the missing schedules

was insufficient for the Court to adjudicate Plaintiffs’ spoliation claim. Order Directing

Supplemental Briefing on Defendant’s Motion for Summary Judgment (ECF No. 50)

(Supplemental Briefing Order or Suppl. Br. Order) at 9–10. The Court therefore ordered

Defendant to provide:

[A] detailed explanation, accompanied by a supportive declaration, describing (1) its search for original schedules, red-pen schedules, and relevant supervisory emails for each Plaintiff, and (2) the Agency’s document retention policy, an explanation of whether relevant documents were subject to a litigation hold pursuant to Horvath, and how Defendant identified such documents to be destroyed, attaching a copy of any such policy to the declaration.

Id. at 11–12. The Court further directed that, if Defendant determined a further search was

necessary, it should provide a detailed explanation of that search (by declaration) and submit any

relevant discovered documents not initially disclosed to Plaintiffs. Id. at 12.

On March 29, 2024, Defendant filed its Supplemental Brief, which describes both its 2022

records search and a 2024 records search undertaken in response to the Supplemental Order. See

Defendant’s Supplemental Brief in Support of Summary Judgment (ECF No. 51) (Supplemental

Brief or Def. Suppl. Br.) at 5–9. It further explains how the Agency’s 2024 search resulted in the

discovery and production of schedules and emails not originally produced. See id. Defendant also

acknowledged its prior record-keeping vulnerabilities, described the three-year USSS General

Records Schedule regarding document retention, and acknowledged that an active litigation hold

16 on relevant records was in place. See id. at 3–5. In producing its document retention policy,

Defendant noted that the USSS generally maintains time and attendance records for three years.

Id. at 4 (citing id., Ex. 8, Declaration of Jane Brittan (ECF No. 51) (Brittan Decl.), Attach. A,

General Records Schedule 2.4).

Contrary to its prior assertion to this Court, however, Defendant now acknowledges that

the USSS Office of Chief Counsel (OCC) instituted a litigation hold in July 2016 to investigative

field offices and protective divisions regarding scheduling documents after initiation of Horvath

(June 10, 2016), and that the hold has remained continuously in place since that time. Compare

id. at 4–5 (citing Brittan Decl. ¶¶ 6, 10) (“[O]n June 10, 2016, the OCC issued a litigation

hold . . . .”)), with Defendant’s Reply in Support of its Motion for Summary Judgment (ECF No.

47) (Def. Reply) at 24 (“That means that no litigation hold was in effect until [March 2021] at the

earliest . . . .”); Oral Arg. Tr. at 52:24–53:2, 53:5–7 (“The Court: “[W]as there a duty for the

agency to keep these schedules? Do you know if there was some sort of duty to keep these or if it

was division by division or there was no duty?” Defendant Counsel: “I think that the records were

maintained in the ordinary course and destroyed in the ordinary course.”). Defendant goes on to

state, however, that it is not aware of any schedules “created or destroyed in the course of this

litigation,” and that the OCC never directed or gave permission to dispose of any schedules. Def.

Suppl. Br. at 10 (citing Brittan Decl. ¶¶ 26–27).

Defendant’s 2024 search, conducted in response to this Court’s Supplemental Briefing

Order, netted the following: (i) two emails that “reflect[ed] the hours that Mr. Deetz and other

post-standers had worked for September 19, 2015, and November 11, 2016,” id. at 8 (citing Brittan

Decl., Attach. C, Government Supplemental Production, at GOV001812–1825); and (ii) red-pen

schedules for the remaining nine dates claimed by Naltner, id. at 9 (citing Brittan Decl. ¶¶ 24–25

17 (citing id., Attach. C, at GOV 001792–1811)).

Despite its production of newly discovered documents, Defendant asserts that its previous,

split-LEAP analysis remains unchanged, and that the evidence does not support an adverse

inference. See id. at 9–12. Accordingly, Defendant reiterates its request that the Court deny

Plaintiffs’ request for an adverse inference and grant Defendant’s Motion for Summary Judgment.

Id. at 12.

On April 12, 2024, Plaintiffs filed their Response to Defendant’s Supplemental Brief,

requesting that the Court deny Defendant’s Motion for Summary Judgment, find that the Agency

engaged in conduct intended to conceal and destroy evidence, and lift the stay on Plaintiffs’ Motion

for Class Certification. See Response to Defendant’s Supplemental Brief in Support of Summary

Judgment (ECF No. 52) (Pl. Suppl. Resp.) at 4, 11. Plaintiffs make five arguments in support of

their spoliation claim. First, Plaintiffs assert that Defendant inappropriately used a different

designee witness during discovery despite Ms. Brittan’s availability. Id. at 6–7 (citing Scott Depo.

at 2:17–21). Second, Plaintiffs assert that Defendant withheld documents during discovery in the

present case, noting the additional documents produced following the Court’s Supplemental

Briefing Order. Id. at 7. Third, Plaintiffs assert a proper search would have revealed all of

Plaintiffs’ work schedules, specifically because the USSS protective division purportedly had a

duty to email reports of their agents’ scheduled overtime to the Assistant Director’s office. See id.

at 8–9 (citing id., Ex. F, Supplemental Declaration of David Deetz (Deetz Suppl. Decl.) (ECF No.

52-6) at ¶¶ 3–5). Fourth, Plaintiffs assert that the Court should disregard Defendant’s legal

argument regarding Plaintiffs’ failure to demonstrate instances of improper compensation or the

requirements for an adverse inference because “[t]he Court did not invite the Agency to include

legal arguments in its supplement,” and Defendant “defie[d] the order by arguing against a

18 potential adverse inference.” See id. at 9–10 (emphasis in original). Finally, Plaintiffs claim that

their review of the additional documents produced by Defendant revealed instances of unpaid

overtime worked during the relevant timeframe. Id. at 10.

On April 23, 2024, Defendant filed its Reply, asserting that it had already proved that

Plaintiffs “are not entitled to overtime pursuant to 5 U.S.C. § 5542(e) for working split-LEAP

hours.” Defendant’s Reply to Plaintiffs’ Supplemental Response Brief (ECF No. 54)

(Supplemental Reply or Def. Suppl. Reply) at 1.19 Defendant points to three examples, based on

the newly provided records, that it claims demonstrate that Naltner’s assertions regarding unpaid

overtime are all “simply wrong.” Id. at 2.20 Defendant claims it could make similar showings for

each date Naltner lists in Plaintiffs’ Supplemental Response, and it reasserts the conclusion that

Naltner was “paid for all overtime he was entitled to under § 5542.” Id. at 4.

APPLICABLE LEGAL STANDARDS

Pursuant to Rule 56(a) of the Rules of the United States Court of Federal Claims, “[t]he

court shall grant summary judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a).21 The moving

party seeking summary judgment “has the initial burden of establishing that there is no genuine

dispute as to any material fact.” 8x8, Inc. v. United States, 854 F.3d 1376, 1380 (Fed. Cir. 2017)

19 This document was initially attached to Defendant’s Motion for Leave to File Reply (ECF No. 53) and was filed by leave of this Court on April 23, 2024. See Minute Order, dated Apr. 23, 2024. 20 Defendant claims that on March 22, 2016, May 6, 2016, and August 7, 2016, Naltner was not entitled to any additional overtime under Section 5542(e) because he allegedly did not work any unscheduled hours of overtime. See Def. Suppl. Reply at 2–4. 21 “The Court of Federal Claims applies the same summary judgment standard as that of federal district courts . . . .” Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234, 1243 (Fed. Cir. 2007); see Fed. R. Civ. P. 56(a).

19 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). In applying Rule 56, “the evidence of

the non-movant is to be believed, and all justifiable inferences are to be drawn in the non-movant’s

favor.” Almanza v. United States, 935 F.3d 1332, 1336–37 (Fed. Cir. 2019) (citing Cross Med.

Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1302 (Fed. Cir. 2005)).

Once the movant has satisfied its initial burden, “the opposing party must establish a

genuine issue of material fact and cannot rest on mere allegations, but must present actual

evidence.” Long Island Sav. Bank, FSB, 503 F.3d at 1244 (citing Anderson v. Liberty Lobby, 477

U.S. 242, 248 (1986)); see also K–Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1004 (Fed.

Cir. 2015); Crown Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 1367, 1375 (Fed. Cir. 2002);

Brown v. United States, 29 F. App’x 588, 591 (Fed. Cir. 2002). The non-moving party can

establish a genuine dispute of material fact only if it offers sufficient evidence “such that a

reasonable [factfinder] could return a verdict for the nonmoving party.” Aspects Furniture Int’l,

Inc. v. United States, 42 F.4th 1366, 1369 (Fed. Cir. 2022) (citing Anderson, 477 U.S. at 248–49);

see also TNS Media Rsch., LLC v. TIVO Rsch. & Analytics, Inc., 629 F. App’x 916, 940 (Fed. Cir.

2015) (citing Anderson, 477 U.S. at 249–50) (“In response to a well-supported summary judgment

motion, however, to create a triable issue of fact the nonmoving party must proffer evidence

sufficient for a jury to find for that party.”). If the non-moving party’s evidence is “merely

colorable,” or is “not significantly probative,” then the court may grant summary judgment.

Anderson, 477 U.S. at 249–50.

Where the burden has shifted to the non-movant to provide actual evidence, that party must

“set forth specific facts showing that there is a genuine issue for trial.” Shum v. Intel Corp., 633

F.3d 1067, 1076 (Fed. Cir. 2010) (citing T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,

809 F.2d 626, 630 (9th Cir. 1987)); Anaheim Gardens v. United States, 109 Fed. Cl. 33, 37 (2013)

20 (citing Cable Elec. Prods., Inc. v. Genmark, Inc., 770 F.2d 1015, 1022 (Fed. Cir. 1985), overruled

on other grounds by Mw. Indus., Inc. v. Karavan Trailers, Inc., 175 F.3d 1356, 1358–59 (Fed. Cir.

1999) (en banc)).

DISCUSSION

Plaintiffs’ opposition to summary judgment initially relied on its request for an adverse

inference attributable to Defendant’s alleged spoliation of evidence and failure to provide

requested relevant records during discovery. See generally Pl. Resp. Having received additional

records and information upon supplemental briefing, Plaintiffs maintain their request for an

adverse inference and assert that demonstrated instances of improper compensation exist sufficient

to create a genuine issue of material fact. See Pl. Suppl. Resp. at 3–4, 10.

First, this Court addresses whether an adverse inference is warranted. For the reasons

stated below, the Court holds that Plaintiffs are not entitled to an adverse inference because the

record does not support a finding that Defendant acted with a culpable state of mind, despite that

Defendant did not initially produce all records during discovery and misinformed this Court about

the existence of a litigation hold. Accordingly, under Federal Circuit jurisprudence, Plaintiff has

not met the requirements for the imposition of an adverse inference against Defendant.

Next, this Court turns to the merits of the dispute and addresses whether a genuine issue of

material fact exists. The parties agree that Deetz is not entitled to additional pay in 2015 and 2016.

See Oral Arg. Tr. at 78:24–79:1; Scott Decl. ¶¶ 24–25. Accordingly, Defendant’s Motion is

granted with regard to Deetz’s claims for additional pay in 2015 and 2016. However, for the

remaining claims (i.e., Deetz’s additional claims and Naltner’s claims), Plaintiffs have

demonstrated that a genuine issue of material fact exists concerning whether they are due

additional compensation. Plaintiffs have met their burden through reference to schedule and pay

21 records, as well as to emails allegedly including instructions limiting the amount of overtime

special agents could claim. Accordingly, Defendant is not entitled to summary judgment on these

claims.

Lastly, this Court turns to the statute of limitations argument asserted by Defendant.

Because Plaintiffs are barred from bringing claims that had not accrued before the March 15, 2015

statute of limitations deadline and the statute of limitations period is not tolled, Defendant’s Motion

is granted with respect to any remaining claims that had accrued prior to March 15, 2015.

I. Plaintiffs Are Not Entitled to an Adverse Inference.

The circumstances surrounding Plaintiffs’ request for an adverse inference have changed

subsequent to Defendant’s response to this Court’s Supplemental Briefing Order. Specifically, in

response to this Court’s January 31, 2024 Supplemental Briefing Order, Defendant (i) provided

some relevant records not previously produced, and (ii) acknowledged the existence of a current

litigation hold on such documents that it previously had denied. See Def. Suppl. Br. at 4–5, 8–9;

see also Suppl. Br. Order; Def. Reply at 24 (stating there was no litigation hold); Oral Arg. Tr. at

52:24–53:2, 53:5–7 (stating records were destroyed in the normal course in response to the Court’s

question regarding whether a duty to maintain records existed). Nevertheless, the record does not

support that the Agency acted with a culpable state of mind sufficient to meet the requirements for

the imposition of an adverse inference.

In their Response to Defendant’s Motion for Summary Judgment, Plaintiffs contended they

lacked access to the full complement of records necessary to properly identify instances of

improper payment, and accordingly requested an adverse inference based on alleged spoliation of

evidence. Pl. Resp. at 31 (citing Lab. Corp. of Am. v. United States, 108 Fed. Cl. 549, 557 (2012)).

Plaintiffs claimed Defendant failed to maintain red-pen schedules, which Plaintiffs alleged should

22 have been subject to a litigation hold due to the Horvath litigation. Id. at 32. Specifically, Plaintiffs

claimed that Defendant did not produce red-pen schedules for nineteen dates22 identified by

Naltner and did not produce any red-pen schedules reflecting Deetz’s protection activities. Pl.

Resp. at 32–33; Naltner Timesheet (Naltner’s identification of the days of missing red-pen

schedules).

In its original Reply in Support of its Motion for Summary Judgment, Defendant asserted

that an adverse inference is unwarranted because Plaintiffs could not demonstrate that Defendant

acted in bad faith. Def. Reply at 23 (citing Columbia First Bank, FSB v. United States, 58 Fed.

Cl. 54, 56 (2003)). Defendant further contended there was no evidence that red-pen schedules

exist for each claimed instance because (i) not every week has a red-pen schedule, and (ii) any

records that did exist were maintained for three years and disposed of in the normal course. Id. at

24; Scott Depo. at 65:12–16. Finally, Defendant countered that red-pen schedules were not subject

to a litigation hold following the July 20, 2018 Horvath I decision invalidating consecutive hours

regulation. Def. Reply at 24. Accordingly, it argued any failure to maintain schedules two-and-

a-half years after it changed that pay policy post-Horvath, on September 12, 2018, did not

constitute bad faith. Id.; see Scott Decl. ¶ 10.

Subsequently, this Court entered its Supplemental Order seeking, inter alia, (i) an

explanation of the Agency’s search for schedules and relevant emails, (ii) an explanation of

whether relevant documents were subject to a litigation hold pursuant to Horvath, and (iii) if

Defendant determined a further search was necessary, details of that search as well as any relevant

documents found. Suppl. Br. Order at 11–12. In response to the Supplemental Order, Defendant

22 Plaintiffs initially alleged that red-pen schedules were not produced for nineteen dates. However, Defendant points out that Naltner is incorrect and that red-pen schedules were not initially produced for nine of the cited dates, not nineteen. See Def. Suppl. Br. at 9. 23 undertook an additional search in 2024. Def. Suppl. Br. at 8. This Court learned three relevant

facts from Defendant’s 2024 search. First, this Court now knows that Defendant did not initially

produce all of Naltner’s red-pen schedules to Plaintiffs. See Def. Suppl. Br. at 9. This contradicts

Defendant’s previous statement made in response to Plaintiff’s request for an adverse inference.

Def. Reply at 24 (“[T]here is no evidence that red pen schedules existed for every date that

plaintiffs claim . . . .”). However, as Defendant notes, and Plaintiffs do not dispute, Defendant has

now produced all the red-pen schedules that Naltner initially claimed were not produced. See Def.

Suppl. Br. at 8–9; see generally Pl. Suppl. Resp. And none of these newly produced red-pen

schedules reflected any changes from Naltner’s original schedules for those dates, which again

Plaintiffs do not dispute. See Def. Suppl. Br. at 9; Brittan Decl. ¶ 24; see generally Pl. Suppl.

Resp.

Second, this Court now knows that a litigation hold was in fact issued on June 10, 2016

regarding:

[S]pecial agent protection schedules created in advance of the administrative workweek, red pen protection schedules, special agent time and attendance records, policies and internal operating procedures, calendars, emails regarding special agent schedules (both draft or final), and communications regarding special agent protective schedules.

Def. Suppl. Br. at 4–5. That litigation hold was in place when the present action commenced and

has not since been lifted. Id. at 5. This fact also contradicts several statements made by Defendant

throughout this action. See Def. Reply at 24 (“That means that no litigation hold was in effect

until [March 2021] at the earliest (2.5 years after the agency changed its pay policy).”); Oral Arg.

Tr. at 52:24–53:2, 53:5–8 (The Court: “[W]as there a duty for the agency to keep these schedules?

Do you know if there was some sort of duty to keep these or if it was division by division or there

was no duty?” Defendant Counsel: “I think that the records were maintained in the ordinary course

and destroyed in the ordinary course.”).

24 Third, despite the existence of the litigation hold, some records regarding Deetz’s

schedules may have been disposed of by the Secret Service. See Def. Suppl. Br. at 10. While

Deetz worked in investigative divisions during the relevant time period—not in a protective

division—he was sometimes scheduled to perform protective work. Id. at 6. Indeed, Deetz

occasionally worked as a post-stander for protective assignments for in-town movements for the

Presidential Protection Division (PPD). Id. at 7. Defendant has explained that the PPD does not

generally create work schedules for non-PPD special agents who provide post-stander support in

such situations. Id. Further, Defendant represents that the Washington Field Office (WFO), the

other location where Deetz’ schedules may have been kept, also does “not generally create a work

schedule or red pen schedule for presidential visits in the Washington D.C. area.” Id. Defendant

claims that its updated, 2024 search did not reveal any new original or red-pen schedules for Deetz,

which “comported with [the Office of Protective Operations’ (OPO)] and WFO’s explanation that

schedules were typically not created for post-standers for in-town protective assignments involving

movements for the President.” Id. at 8. However, in its 2024 search Defendant discovered two

new emails that reflect hours that Mr. Deetz had worked on protective assignments for two relevant

days. Id. While Defendant states that Agency’s Office of Chief Counsel “never directed or gave

permission for anyone in the Secret Service to remove Mr. Deetz’s schedules from the litigation

hold” nor “g[a]ve permission for anyone in the agency to dispose of any original or red pen

schedules for Mr. Deetz,” Defendant is unable to confirm that both offices maintained all of

Deetz’s original and red-pen schedules, as well as emails reflecting his schedule, despite the

litigation hold. Id. at 10.

Spoliation is “the destruction or material alteration of evidence or [] the failure to preserve

25 property” when a party has a duty to preserve such evidence. Micron Tech., Inc. v. Rambus Inc.,

645 F.3d 1311, 1320 (Fed. Cir. 2011) (quoting Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590

(4th Cir. 2001)). The duty to preserve evidence attaches when “litigation is ‘pending or reasonably

foreseeable.’” Id. (quoting Silvestri, 271 F.3d at 590); see also West v. Goodyear Tire & Rubber

Co., 167 F.3d 776, 779 (2d Cir. 1999). In imposing evidentiary and spoliation sanctions, a court

must “select the least onerous sanction corresponding to the willfulness of the destructive act and

the prejudice suffered by the victim.” Micron Tech., 645 F.3d at 1329 (quoting Schmid v.

Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994)). Specifically, “the district court must

take into account ‘(1) the degree of fault of the party who altered or destroyed the evidence; (2)

the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction

that will avoid substantial unfairness to the opposing party and, where the offending party is

seriously at fault, will serve to deter such conduct by others in the future.’” Id. (quoting Schmid,

13 F.3d at 79) (emphasis in original).

The Federal Circuit has acknowledged that “general rules of evidence law create an adverse

inference when evidence has been destroyed and ‘(1) . . . the party having control over the evidence

had an obligation to preserve it at the time it was destroyed; (2) . . . the records were destroyed

with a culpable state of mind; and (3) . . . the destroyed evidence was relevant to the party’s claim

or defense such that a reasonable trier of fact could find that it would support that claim or

defense.’” Jandreau v. Nicholson, 492 F.3d 1372, 1375 (Fed. Cir. 2007) (quoting Residential

Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)). The party seeking to

use the allegedly destroyed or missing evidence bears the burden to prove each of these factors.

Id. (citing Residential Funding Corp., 306 F.3d at 107).

A split exists among courts of appeals regarding whether negligent conduct can give rise

26 to an adverse inference, or whether an adverse inference is appropriate only to address willful or

bad faith conduct. See, e.g., Jandreau, 492 F.3d at 1376 n.3 (noting that the Second and Sixth

Circuits require only negligent conduct, while the First, Third, Fifth, Tenth, and Eleventh Circuits

require willful or bad faith conduct); Kirkendall v. Dep’t of Army, 573 F.3d 1318, 1326–27 n.6

(Fed. Cir. 2009) (acknowledging the split among the circuits); Grosdidier v. Broad. Bd. of

Governors, Chairman, 709 F.3d 19, 27–28 (D.C. Cir. 2013) (same).

The Federal Circuit has not expressly endorsed a view on this issue. See, e.g., Jandreau,

492 F.3d at 1375–76 (declining to decide whether negligence may support an adverse inference is

the correct rule under Federal Circuit law); Micron Tech., 645 F.3d at 1326–27 (suggesting a

showing of bad faith is “normally a prerequisite to the imposition of dispositive sanctions for

spoliation,” such as dismissal, but not opining on the requirements for less severe sanctions). The

Federal Circuit has, however, signaled that an adverse inference requires more than negligent

conduct. See, e.g., Jandreau, 492 F.3d at 1375 (noting that an adverse inference requires a finding

that “the records were destroyed with a culpable state of mind”); Micron Tech., 645 F.3d at 1326

(quoting Gumbs v. Int’l Harvester, Inc., 718 F.2d 88, 96 (3d Cir. 1983)) (noting that an adverse

inference from destruction of documents is permitted only when the destruction was “intentional,

and indicates fraud and a desire to suppress the truth”).

After supplemental briefing, the undisputed record demonstrates that Defendant had an

obligation to preserve records relevant to this action, and that it potentially disposed of some

records that could have been relevant to Plaintiffs’ claims. See Jandreau, 492 F.3d at 1375; see

also Def. Suppl. Br. at 4–5, 10; Suppl. Br. Order at 9–10. However, even if this Court were to

infer that Defendant destroyed select records despite the litigation hold, in order to grant an adverse

inference against Defendant this Court would still need to find that the Secret Service

27 inappropriately disposed of records with a culpable state of mind—i.e., more than negligently—

given the Federal Circuit’s reasoning in Jandreau and Microntech. See Jandreau, 492 F.3d at

1375; Micron Tech., 645 F.3d at 1326.

Here, there is no evidence that Defendant disposed of records with a culpable state of mind.

Instead, Plaintiffs’ argument for an adverse inference primarily rests on two assertions: (1) there

was, or should have been, a litigation hold on requested records that were in Defendant’s

possession; and (2) schedules and emails were either destroyed or not produced. See Pl. Resp. at

32–33; Pl. Suppl. Resp. at 7–9. As noted further below, taken as true, these bare facts are, on their

own, insufficient to demonstrate a culpable state of mind here, and Plaintiff makes no further

attempt to demonstrate a culpable state of mind. See Pl. Resp. at 32–33; Pl. Suppl. Resp. at 7–9.

In examining alleged bad faith in document destruction matters, the Federal Circuit

presumes that government officials “have discharged their duties in good faith—a presumption

that can be overcome only by clear and convincing evidence to the contrary.” Rd. & Highway

Builders, LLC v. United States, 702 F.3d 1365, 1369 (Fed. Cir. 2012); see also Am–Pro Protective

Agency, Inc. v. United States, 281 F.3d 1234, 1240 (Fed. Cir. 2002) (“Showing a government

official acted in bad faith is intended to be very difficult.”). Other judges of the Court of Federal

Claims have applied this presumption of good faith, including in rejecting a plaintiff’s claim

regarding the existence of unproduced evidence. See Confidential Informant 59–05071 v. United

States, No. 11–153C, 2016 WL 3960442, at *3 (Fed. Cl. June 21, 2016) (“Because Plaintiff bears

the burden of proof on these matters, and in light of the presumption of good faith on the part of

government officials, the Court cannot conclude—based on the record before it—that spoliation

has occurred.”); Hardwick Bros. Co., II v. United States, 36 Fed. Cl. 347, 418 (1996) (quoting

Sanders v. U.S. Postal Serv., 801 F.2d 1328, 1331 (Fed. Cir. 1986)) (“Many Claims Court cases

28 have held that ‘irrefragable proof’ of governmental wrongdoing is required to overcome this

presumption. The court is convinced that the level of proof was not reached by plaintiff in this

case.”).

Additionally, though not binding, the Court notes that other judges of this court have also

recognized that damage or destruction of documents in and of itself is insufficient to demonstrate

a culpable state of mind. See Reaves v. United States, No. 16–141 C, 2023 WL 5926818, at *4–5

(Fed. Cl. Sept. 12, 2023). In Reaves, Plaintiff cited a destroyed file cover and the alleged

destruction of unproduced records in support of its request for an adverse inference. Id. at *4. The

court found this insufficient to present a “plausible, concrete suggestion[] as to what [the

destroyed] evidence might have been.” Id. (quoting Micron Tech., Inc., 645 F.3d at 1328) (finding

that plaintiff failed to demonstrate a culpable state of mind simply by arguing that the file cover

was found, and defendant did not have the authority to destroy the associated records).

More permissively, other judges of this court have found spoliation where a party was

“blameworthy” for the actions of an individual who discarded relevant documents. See K–Con

Bldg. Sys., Inc. v. United States, 106 Fed. Cl. 652, 664–65 (2012) (citing Foltice v. Guardsman

Prods., Inc., 98 F.3d 933, 940 (6th Cir. 1996)) (“To be culpable merely means to be blameworthy

or responsible for the conduct at issue.”). In K-Con, however, the court found that the parties’

conduct rose above mere negligence given the actions leading to the destruction of evidence. See

id. at 667 (“It strains credulity to attribute the government’s actions to mere negligence.”); id. at

668 (“At a minimum, [the individual’s] disposal of the documents constitutes grossly negligent

conduct.”). The facts of K-Con illustrate, in this Court’s view, the level of culpability required

under Federal Circuit precedent. In K-Con, an individual discovered and took home relevant

evidence after such evidence had been accepted and stored under another employee’s desk for

29 years without review. Id. at 657, 667. Then, in the middle of trial, on the day in which the

individual was to testify, he delivered a CD with a small percentage of the previously missing,

relevant documents. Id. at 655, 667. And then, just two days later, after being informed that he

may be recalled to testify, the witness destroyed 75% of the relevant materials in his possession.

Id. at 656, 667–68. This behavior reflects substantially more evidence of bad faith than is evident

in the present case.

Indeed, though the present record may support a finding that the Agency mismanaged the

maintenance and production of agent time and work schedules, this alone is insufficient to sustain

the imposition of an adverse inference. See Def. Suppl. Br. at 3–4 (acknowledging significant

vulnerabilities in its record-keeping due to the decentralized nature of creation and maintenance);

id. at 10 (acknowledging that schedules, which would seem to have been covered by the litigation

hold, may have been disposed of, even if affirmative permission was not given to do so). Indeed,

as explained above, Federal Circuit jurisprudence requires that this Court recognize a presumption

of good faith on the part of the Government, and Plaintiffs have not sufficiently rebutted that

presumption; at most here, the evidence reflects mismanagement and miscommunication among

several components of the Agency. See Rd. & Highway Builders, 702 F.3d at 1369. In the face

of the Federal Circuit’s reasoning in Jandreau and Micron Technologies, more than

mismanagement is necessary for the imposition of an adverse inference here. That some records

may have been discarded in the face of a duty to preserve is alone insufficient, without a

demonstration of “clear and convincing evidence” that the Agency intended to destroy records

during litigation. See id. There is simply no evidence in the record, much less clear and convincing

evidence, of any malintent by Defendant to destroy records related to this case or any other bad

faith action by Defendant. Indeed, Defendant intensified its search for records after this Court’s

30 January 31, 2024 Order and produced all the red-pen schedules for Naltner that Plaintiff had

requested following its 2024 search, further evidencing that Defendant was not actively disposing

of or hiding relevant records. Instead, as noted, the record reflects mismanagement and a lack of

communication among different divisions of the USSS and with the Department of Justice. Brittan

Decl. ¶ 2. Plaintiffs have therefore failed to demonstrate that Defendant has acted in bad faith in

withholding or destroying relevant documents. Accordingly, pursuant to Federal Circuit

jurisprudence, Plaintiffs are not entitled to an adverse inference in litigating this summary

judgment motion.

II. The Record Demonstrates Genuine Issues of Material Fact.

Even without an adverse inference, the record reveals genuine issues of material fact, and

this Court must deny summary judgment in part. Plaintiffs claim that a review of Defendant’s

Supplemental Brief enabled them to confirm they were not properly compensated for some

overtime worked. Pl. Suppl. Resp. at 10 (citing id., Deetz Suppl. Decl.); id., Ex. G, Declaration of

Richard Naltner (ECF No. 52-7) (Naltner Suppl. Decl.)). Defendant maintains its position that the

record does not demonstrate any instance of underpayment for either Plaintiff. See Def. Suppl. Br.

at 9–10; Def. Reply at 9–15; Mot. at 29–32; see also Def. Suppl. Reply at 2–4 (addressing three

instances Naltner claimed in Plaintiffs’ Supplemental Response).

Defendant bases its contention partially on its assertion that the Complaint only

encompasses claims for instances of split-LEAP that would be affected by the now-invalidated

regulation. Def. Reply at 8–9 & n.1 (claiming Plaintiff never articulated any theory for further

compensation other than that created by instances of split-LEAP); id. at 8 (citing Compl. ¶¶ 1, 42)

(“[T]he only hint of some other, undefined overtime claim stems from plaintiffs’ boilerplate

language that they are seeking back pay for performing protective services ‘including, but not

31 limited to’ working two hours of overtime not scheduled in advance of the administrative

workweek.”). In its supplemental briefing, Defendant maintains that its prior split-LEAP analysis

remained unchanged, and that Naltner could not demonstrate a date on which he recorded a split-

LEAP. See Def. Suppl. Br. at 9–10 (“Those schedules reveal that he never recorded any 1-1 split

LEAP. . . .”); Def. Suppl. Reply at 1 (“In our motion for summary judgment and reply in support

thereof, we proved . . . why the plaintiffs are not entitled to overtime pursuant to 5 U.S.C. § 5542(e)

for working split-LEAP hours.”).

Plaintiffs contend their claims are not limited to instances of split-LEAP. See Compl. ¶ 1

(“[W]ages that the USSS should have paid to [Plaintiffs] . . . while performing certain duties,

including protective services authorized by Section 3056(a) of Title 18, and including, but not

limited to, performing at least two hours of overtime work not scheduled in advance of the

administrative workweek.”); id. ¶ 7 (alleging their case “primarily, but not exclusively, involves

payment of wages for hours spent on protective details”); id. ¶ 22 (suggesting improper payment

due to the invalidated OPM regulation is just “[o]ne improper pay practice” that resulted in

underpayment for overtime); id. ¶ 33.b. (“Whether Special Agents have otherwise been paid

correctly for the time that they have worked.”); Pl. Resp. at 18 (asserting their claims are “broader

as discussed further, infra”).

In denying summary judgment in Horvath II, the court noted that plaintiff’s claims did not

need to implicate the invalidated OPM regulations specifically, but rather plaintiff could withstand

summary judgment by more generally demonstrating that he was entitled “to more § 5542(e) pay

than he originally received under the [Agency’s] pay policies.” Horvath II, 2020 WL 1487642, at

*3, *4. There, plaintiff was able to show this entitlement by pointing to days on which he would

have been due Section 5542(e) pay but had been instructed to report two fewer hours of overtime

32 than he in fact worked. Id. Here, Plaintiffs have made similar claims. See Pl. Resp. at 22

(“[Agents] were instructed to report working 8 hours, 2 hours, and 2 hours because the agent would

only be compensated with LEAP pay regardless.”); id. at 23 (“The Government enforced its ‘8-2-

2’ policy and discouraged Special Agents from reporting hours that did not fit within the policy.”);

id. at 27 (citing Emails). As in Horvath II, the record here indicates that there may be instances of

improper pay to Plaintiffs beyond split-LEAP scenarios. Indeed, as noted below, the record

demonstrates possibilities of improper compensation for overtime hours worked that were

compensable under Section 5542(e) but were not split-LEAP instances. The question of whether

Plaintiffs should be further compensated for such hours worked largely turns on discrepancies in

the factual record and on witness credibility. Accordingly, as explained further below, summary

judgment is inappropriate.

A. Naltner

In response to Defendant’s Supplemental Brief and newly disclosed schedule records,

Naltner identifies 14 dates on which he claims Defendant paid him less overtime than he had

earned. See Naltner Suppl. Decl. at 3. In contrast, Defendant asserts that “[f]or every single one

of the dates listed . . . , [Naltner] was paid exactly what he was entitled to.” Def. Suppl. Reply at

2. Defendant provides its own analysis of the first three identified dates to assert that Section

5542(d) remained in effect because Plaintiff did not work unscheduled overtime, and consequently

that Naltner was not entitled to additional overtime under Section 5542(e). See id. at 2–4. After a

full review of the record, however, the Court notes that two of Defendant’s explanations of the

hours and pay are inconsistent with its own records. Further, Naltner’s records demonstrate

possible improper compensation for several of the other dates listed.

33 In the first example, Naltner claims he was improperly paid LEAP instead of standard

overtime for two hours on March 22, 2016. Naltner Suppl. Decl. at 3. In response, Defendant

states:

Mr. Naltner’s original schedule (attached hereto at Exhibit 2 at GOV00000912) shows that he was scheduled to work from 8am-6:30pm. His red pen schedule shows that his schedule was unchanged, and thus he actually worked from 8am- 6:30pm. See ECF No. 52-7 at ECF page 23 (GOV00001792). His WebTA shows that he was paid for 8 hours of regular time (8am-4pm), 2 hours of LEAP (4pm- 6pm), and 30 minutes of scheduled overtime with night differential (6pm-6:30pm). See (ECF No. 52-7 at ECF page 6). Under 5 U.S.C. § 5542, the first two hours of scheduled overtime (4pm-6pm for this date) are paid via LEAP. See ECF No. 40 at 5-6. Scheduled hours in excess of ten (from 6-6:30pm for this date) are paid out at overtime. Id. Therefore, Mr. Naltner was, in fact, paid all the overtime to which he was entitled under § 5542 because he did not work any unscheduled hours of overtime on this date.

Def. Suppl. Reply at 2–3 (emphasis in original). Defendant’s explanation would be correct if the

hours recounted matched the hours in the records. If Naltner had worked 10.5 scheduled hours,

he should have received base pay for the first eight hours, LEAP for hours nine and ten, and

standard overtime for the remaining half-hour. This is because Naltner would have only been

entitled to standard overtime pay for the half-hour in excess of 10 hours under Section 5542(d),

and he would not have been entitled to any standard overtime under Section 5542(e) because he

did not work “at least 2 hours of [unscheduled] overtime.” 5 U.S.C. §§ 5542(d), (e).

However, Naltner’s WebTA records, cited by Defendant in its explanation, demonstrate

that the Agency approved and paid him for 12.5 hours. See Naltner Suppl. Decl. at 6 (attaching

GOV000173). As opposed to the two hours for which Defendant claims Naltner was properly

paid LEAP, the record reflects four hours compensated by LEAP. Id. The MARS records

Defendant provided further demonstrate that Naltner recorded two LEAP hours for a vice

presidential “protective detail assignment” that day. Scott Decl. at 49 (attaching GOV000034). If

Defendant acknowledges (i) that Naltner was scheduled for 10.5 hours, (ii) that Naltner worked

34 protective duty, and (iii) that Defendant approved that Naltner worked 12.5 hours, such an instance

may implicate Section 5542(e). Naltner arguably worked 2.5 hours of scheduled overtime hours

on protective duty, as well as two hours of unscheduled overtime. See Naltner Suppl. Decl. at 23

(citing GOV - 001792) (showing Naltner was only scheduled to work 10.5 hours).

Therefore, the record evidence appears to show that Naltner should have been paid standard

overtime for 2.5 hours of scheduled overtime but was only paid for .5 hours and Defendant has not

provided a reason as to why Naltner was only paid for .5 hours. See 5 U.S.C. § 5542(e). Defendant

may argue that hours were improperly recorded or paid, but at this stage in the proceedings,

discrepancies in the record regarding scheduled hours, recorded and paid hours, taken together

with Defendant’s lack of explanation, demonstrate a triable issue of fact.

As another example, Naltner claims he was similarly denied two hours of standard

overtime on August 7, 2016. Naltner Suppl. Decl. at 3. Defendant states:

Mr. Naltner’s original schedule shows that he was scheduled work [sic] from 8am- 7:15pm. See Ex. 2 hereto [sic] at GOV00000937. His red pen schedule shows that his schedule was unchanged and that he in fact worked from 8am-7:15pm. See ECF No. 52-7 at ECF page 25 (GOV00001796). His WebTA shows that he was paid for 8 hours of Sunday pay (8am-4pm), 2 hours of LEAP (4-pm-6pm), and 1 hour and 15 minutes of scheduled overtime with night differential (6pm-7:15pm). See ECF No. 52-7 at ECF page 10. Mr. Naltner was, again, in fact, paid all the overtime to which he was entitled under § 5542 because he did not work any unscheduled hours of overtime on this date.

Def. Suppl. Reply at 3. Defendant’s explanation is correct based on 11.25 scheduled hours—i.e.,

base pay for the first eight hours, LEAP for hours nine and ten, and standard overtime for the

remaining 1.25 hours (hours in excess of 10, pursuant to Section 5542(d)). Again, however, the

record demonstrates a different number of hours than described.

Indeed, Naltner’s WebTA records, cited by Defendant in its explanation, demonstrate that

the Agency approved and paid him for 13.25 hours. See Naltner Suppl. Decl. at 10. Whereas

Defendant claims Naltner was properly paid LEAP for two hours, the record displays four hours

35 paid pursuant to LEAP. Id. Defendant’s MARS records similarly demonstrate that Naltner

recorded two LEAP hours for a vice presidential “protective detail assignment” that day. Scott

Decl. at 63. Naltner arguably worked 3.25 hours of scheduled overtime on protective duty, as well

as two hours of unscheduled overtime, possibly implicating Section 5542(e). See Naltner Suppl.

Decl. at 25 (citing GOV - 001796) (showing Naltner was only scheduled to work 11.25 hours).

Again, any alleged discrepancy in hours worked and whether the hours listed in WebTA

demonstrate adequate unscheduled overtime hours is a matter to be resolved at trial.

While even one example is sufficient to support a triable issue of fact, the Court further

notes that seven other provided instances demonstrate at least two possible unscheduled overtime

hours worked in conjunction with scheduled overtime occurred, where Naltner’s MARS report

confirms he worked protective duty.23 See, e.g., Naltner Suppl. Decl. at 3 (August 11, 2016); id.

at 25 (showing Naltner was scheduled to work 11 hours); id. at 10 (showing Naltner was approved

and paid for 13 hours, and that he was paid LEAP for four hours and standard overtime for one

hour); Scott Decl. at 63 (showing Naltner recorded two LEAP hours on a vice presidential

protective detail). Drawing all justifiable inferences in favor of the Plaintiff, as the non-movant,

Naltner has demonstrated specific facts to create a genuine issue of material fact regarding whether

he was properly compensated under Section 5542. See Almanza, 935 F.3d at 1336–37; Shum, 633

F.3d at 1076.

B. Deetz

Defendant asserts that upon its 2024 search, it found “two dates for which Mr. Deetz was

scheduled for a protective assignment, had recorded 1-1 split LEAP in MARS, and for which OPO

23 The dates include August 11, 2016, December 31, 2016, January 3, 2017, January 7, 2017, January 17, 2017, January 19, 2017, and October 6, 2017.

36 did not have a schedule: September 19, 2015 and November 11, 2016.” Def. Suppl. Br. at 6–7.24

Defendant provided two emails reflecting Deetz’s hours worked for those days. Id. at 8 (citing

Brittan Decl., Attach. C at GOV001812–25). Defendant found no further red-pen schedules or

emails. See id.. Plaintiff argues that there would have been emails any time Deetz worked for

another office to note his scheduled and unscheduled overtime. See Pl. Suppl. Resp. at 8–9.

Plaintiffs claim that “Deetz routinely worked LEAP before and after scheduled hours for

over 20 years,” but that Defendant relies on a few select dates from its search to claim he has no

further compensable overtime. Pl. Resp. at 28. In addition to refuting the five specific dates it

found, Defendant claims Deetz was ineligible for further pay because he had reached applicable

pay caps in 2015 and 2016. See Mot. at 25–28. Significantly, Plaintiffs do not contest that Deetz’s

pay was capped for those two years. See Oral Arg. Tr. at 78:24–79:1 (The Court: “But you would

agree he hit the caps in 2015 and ’16.” Plaintiff’s Counsel: “I agree.”). It is also uncontested,

however, that Deetz did not reach the statutory pay cap in 2017 and 2018. See id. at 15:13–14

(Defendant’s Counsel: “So he did not reach the statutory cap in the subsequent years.”).

While Defendant asserts that the Court should grant summary judgment due to a lack of

documentary evidence in support of Deetz’s claims, Deetz has presented declarations and emails

that have raised material credibility issues and genuine issues of material fact. A triable issue of

fact remains for Deetz’s 2017 and 2018 pay based on Deetz’s testimony and circumstantial

evidence in the record that Plaintiffs were instructed or persuaded to input their hours in a manner

that did not capture their full overtime entitlement—i.e., that they worked sufficient unscheduled

overtime, though non-consecutively, to earn standard overtime pay under Section 5542(e) but were

24 Both of these dates were discovered by Defendant in its original search, and Defendant assessed that Deetz had been correctly paid for all scheduled overtime. See Mot. at 23–25.

37 not paid for it. See, e.g., Emails at 2 (assuming “any 12 hour shift is 8-2-2” without an email

justification for “2 consecutive hours of leap”); id. at 7 (providing two examples of application of

the 8-2-2 rule, including the requirement for “2 consecutive hours of LEAP”); id. at 16 (instructing

agents to send an email with justification to get Section 5542(e) pay but telling the agents that no

action is necessary if they did not work at least two hours prior to their shift); see also Deetz Decl.

¶¶ 3–4 (“Between 2015 and 2018, I spent considerable time working on protective details. During

that time, I performed two hours of non-consecutive, unscheduled overtime work not scheduled in

advance of the administrative workweek, which was attributed to LEAP rather than to overtime

compensation.”); Pl. Resp. at 27 (citing Emails) (alleging instructions from superiors regarding the

ability to claim standard overtime); Compl. ¶ 20 (“[Deetz] worked the following days without

overtime compensation as a result of the improper pay practices referenced above: 2016: 35 days

and 2017: 14 days.”).

Although Defendant concludes that no schedules or emails exist that demonstrate Deetz is

due additional overtime pay, the Court notes such records may be unavailable due to the

environment surrounding the reporting of non-consecutive unscheduled overtime or due to the

Agency’s imperfect record-keeping procedures. See Def. Suppl. Br. at 6–8 (describing requests to

multiple different offices, which do not create the work schedules); Brittan Decl. ¶ 2; supra

Discussion Section I; see also Emails at 2, 7, 16. This indicates that witness testimony will be

necessary to elaborate on whether Deetz actually worked the hours he claims and that the Court

will need to assess the credibility of such witnesses.

Plaintiffs’ claims for certain overtime present genuine issues of material fact because:

(1) Plaintiffs’ asserted overtime includes years in which Deetz did not reach his pay cap; (2) there

is a general lack of clarity as to who creates and maintains schedules; and (3) email records

38 demonstrate instructions potentially causing special agents to record their time in a manner that

precluded qualification for standard overtime because of non-consecutive unscheduled overtime

hours worked. Therefore, resolution of Deetz’s claims will necessarily turn on testimony from

witnesses at trial and this Court’s credibility determinations. Thus, summary judgment is not the

appropriate vehicle to dispose of a claim where, as here, the determination will largely turn on a

determination of witness credibility. See TypeRight Keyboard Corp. v. Microsoft Corp., 374 F.3d

1151, 1158 (Fed. Cir. 2004) (“[S]ummary judgment is not appropriate where the opposing party

offers specific facts that call into question the credibility of the movant[’]s witnesses.”); see also

AT&T Advert., L.P. v. United States, 147 Fed. Cl. 478, 484 (2020). Drawing all justifiable

inferences in favor of the non-movant Plaintiff, Deetz has sufficiently demonstrated a genuine

issue of material fact exists regarding whether he was properly compensated in 2017 and 2018

under Section 5542. See Almanza, 935 F.3d at 1336–37; Shum, 633 F.3d at 1076.

III. Claims Accruing Before March 15, 2015 are Barred by the Statute of Limitations.

Defendant argues that Plaintiffs’ claims that accrued prior to March 15, 2015 are barred by

the statute of limitations. Mot. at 32–33. Plaintiffs contend that they are not barred from bringing

such claims because the statute of limitations was tolled during the pendency of the Horvath case.25

Pl. Resp. at 30–31. Defendant is correct.

25 It is unclear if Plaintiffs are attempting to argue that both Naltner and Deetz are entitled to compensation prior to 2015. In their Complaint, Plaintiffs allege that Naltner worked hours in 2014 for which he seeks compensation. Compl. ¶ 19. Plaintiffs do not make a similar allegation for Deetz, but state that the hours for which he seeks compensation “may change based upon further investigation.” Id. at ¶ 20. In their summary judgment briefing, Plaintiffs did not cite any dates prior to 2015 for Deetz and, in his declaration, Deetz only alleges protective detail work from 2015 to 2018. See Deetz Decl. ¶ 3; see generally Pl. Resp.; Pl. Suppl. Resp. Despite this, for the sake of clarity the Court notes that its statute of limitation holding applies to both Naltner and Deetz. 39 The Tucker Act’s statute of limitations limits the jurisdiction of the Court of Federal Claims

to claims filed within six years of the date the claims first accrue. 28 U.S.C. § 2501 (“Every claim

of which the United States Court of Federal Claims has jurisdiction shall be barred unless the

petition thereon is filed within six years after such claim first accrues.”). This statute of limitations

is jurisdictional. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133–34 (2008).

Here, Plaintiffs seek pay under Title 5—specifically 5 USC §§ 5542(e) and 5596. See

Compl. ¶ 5, 21–22, 45. It is well-established that claims brought in the Court of Federal Claims

pursuant to Title 5 are subject to Section 2501. See Acton v. United States, 932 F.2d 1464, 1465

(Fed. Cir. 1991) (“The statute of limitations for [] Tucker Act claims under Title 5 is six years.”)

(citing 28 U.S.C. § 2501). Accordingly, absent tolling, the statute of limitations bars any of

Plaintiffs’ claims that had not accrued before March 15, 2015, six years before the filing of their

Complaint.26

Plaintiffs briefly state, without reference to any case, that the Section 2501 limitations

period was tolled while the Horvath putative class action was pending. See Pl. Resp. at 30–31.

26 In pay cases, such as this one, claims first accrue when the compensation at issue should have been received by the employee, i.e., the employee’s payday for the relevant period. See Bowman v. United States, 7 Cl. Ct. 302, 303 n.1 (1985) (noting that certain claims for overtime pay by plaintiffs under 5 U.S.C. § 5544 were foreclosed because “[i]n pay cases, a cause of action first accrues when the compensation in issue should have been received by the employee”) (citing Bebee v. United States, 640 F.2d 1283, 1289 (Ct. Cl. 1981)); Bowden v. United States, No. 18- 1838, 2019 WL 1504378 at *3 (Fed. Cl. Apr. 5, 2019), aff’d, 786 F. App’x 255 (Fed. Cir. 2019) (finding that “the statute of limitations starts its run from the most recent non-payment of earned wages” in a case for, inter alia, pay under 5 U.S.C. § 5596); Jones v. United States, 113 Fed. Cl. 39, 41 (2013) (holding that claims for pay based on 5 U.S.C. §§ 5544 and 5546 accrued “each time payment was due”); see also Burich v. United States, 366 F.2d 984, 986–987 (Ct. Cl. 1966) (finding a failure by the Government to make overtime payments after overtime work was performed accrued at that point in time); Brown Park Ests.-Fairfield Dev. Co. v. United States, 127 F.3d 1449, 1457 (Fed. Cir. 1997) (endorsing Burich, 366 F.2d 984). Thus, Plaintiffs’ claims for additional overtime pay for hours worked accrued on the date that they should have been paid for those hours, i.e., their payday.

40 Though this argument was not further developed in Plaintiffs’ briefing, at Oral Argument Plaintiffs

asserted for the first time that under American Pipe & Const. Co. v. Utah, 414 U.S. 538 (1974),

“there is tolling of a statute of limitations period during the time that [a] putative class is pending

[] on the exact same issues.”27 Oral Arg. Tr. at 81:11–15 (citing Am. Pipe, 414 U.S. 538).

Accordingly, Plaintiffs contend they should be able to assert claims that first accrued as far back

as June 10, 2010, six years before the complaint in Horvath was first filed. See Pl. Resp. at 30.

Even if Plaintiffs had not waived this tardy assertion, see supra note 27, Plaintiffs’

argument would still fail on the merits. Plaintiffs’ argument for tolling is unavailing because the

Tucker Act’s statute of limitations is not subject to American Pipe class-action tolling. Blue Cross

& Blue Shield of Kans. City Welfare Benefit Plan v. United States, --- Fed. Cl. ----, 2024 WL

27 Plaintiffs waived this argument. See Elec. Welfare Tr. Fund v. United States, 166 Fed. Cl. 709 (finding waiver where argument was first presented at oral argument and not briefed); see also Glob. Equity Mgmt. (SA) Pty. Ltd. v. eBay Inc., 798 F. App’x 616, 620 (Fed. Cir. 2020) (citing SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006)) (when a party provides no developed argument on a point, the argument is waived)); Pandrol USA, LP v. Airboss R’y Prods., Inc., 320 F.3d 1354, 1366–67 (Fed. Cir. 2003) (holding an argument is “waived when it [is] not raised in response to the motion for summary judgment”).

In their Opposition to Defendant’s Motion for Summary Judgment, Plaintiffs contend that the limitations period should be retroactive to the filing of the complaint in Horvath because doing so would be an “equitable interpretation of the word accrues under Section 2501[.]” Pl. Resp. at 30. (emphasis in original). Plaintiffs do not cite to a single source of law to support this argument, nor do they develop the argument beyond two conclusory sentences. Pl. Resp. at 30–31.

At Oral Argument, counsel for Plaintiffs argued that class-action tolling under American Pipe applies to this action. Oral Arg. Tr. at 80:11–83:4. Counsel seemingly acknowledged that this American Pipe argument was a new argument from what was raised in Plaintiffs’ briefing. When asked by the Court if the American Pipe argument was in their briefs, counsel responded “No, I argued for equitable class tolling,” suggesting that counsel considers the argument made in their briefs to be distinct from an American Pipe argument. Id. at 83:5–14. Counsel apologized to the Court for not citing to cases in their brief saying that he did “not hav[e] the foresight” to do so. Id. at 83:10–14.

However, as explained further below, even if Plaintiffs had not waived this argument, it would still fail on the merits. 41 3738315 at *16 (2024); Kelly v. United States, 171 Fed. Cl. 550, 560 (2024). Two Supreme Court

decisions make this clear. First, in John R. Sand, the Supreme Court reiterated long-standing

precedent that Section 2501 is jurisdictional and “more absolute” than a typical statute of

limitations. 552 U.S. at 133–34; see Ideker Farms, Inc. v. United States, 71 F.4th 964, 974–75

(Fed. Cir. 2023) (“Section 2501’s six-year limitation is jurisdictional.”). Due to its jurisdictional

nature, Section 2501 “is impervious to equitable tolling.” Blue Cross, 2024 WL 3738315 at *17

(citing John R. Sand, 552 U.S. at 133–34); Reoforce, Inc. v. United States, 853 F.3d 1249, 1264

(Fed. Cir. 2017) (Section 2501 “may not be equitably tolled or waived”). Second, in California

Public Employees’ Retirement System v. ANZ Securities, Inc. (CalPERS), the Supreme Court

unequivocally held that American Pipe class action tolling is equitable—not statutory—in nature.

582 U.S. 497, 509–10 (2016) (holding that American Pipe tolling is “grounded in the traditional

equitable powers”); Blue Cross, 2024 WL 3738315 at *16 (citing CalPERS, 582 U.S. at 509–10).

As the Supreme Court has ruled both that Section 2501 is impervious to equitable tolling, and that

American Pipe tolling is equitable in nature, American Pipe tolling cannot toll the limitations

period of Section 2501.28 Blue Cross, 2024 WL 3738315 at *16, 27 (“American Pipe tolling

28 In its 2010 decision, Bright v. United States, the Federal Circuit held that American Pipe tolling did apply to Section 2501. 603 F.3d 1273, 1274 (Fed. Cir. 2010). However, that decision was issued prior to the Supreme Court’s CalPERS decision, and rested on the now-invalid thought that American Pipe was not an equitable doctrine, but rather a statutory directive. See id. at 1287–88. That premise was directly contradicted by the Supreme Court’s holding in CalPERS. See CalPERS, 582 U.S. at 509–10; Blue Cross, 2024 WL 3738315 at *17 (holding that CalPERS “struck a fatal blow to Bright’s reasoning at it relates to tolling under section 2501”); Kelly, 171 Fed. Cl. at 560 (same). This Court is bound by, and must follow, the intervening Supreme Court precedent in CalPERS rather than the contradictory and now-invalid reasoning in Bright. Blue Cross, 2024 WL 3738315 at *26; Kelly, 171 Fed. Cl. at 560; see also Troy v. Samson Mfg. Corp., 758 F.3d 1322, 1326 (Fed. Cir. 2014) (citing Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc)) (holding that a court may recognize an earlier decision “has been implicitly overruled as inconsistent with intervening Supreme Court authority”); Ideker Farms, 71 F.4th at 988 n.11 (stating that the principle in Troy remains true even if the Supreme Court does not reference the Federal Circuit precedent at issue).

42 cannot toll the deadlines in 28 U.S.C. § 2501.”); Kelly, 171 Fed. Cl. at 560 (“The Tucker Act’s

statute of limitations is not subject to class-action tolling.”).

Accordingly, as Horvath cannot toll the six-year statute of limitations of Section 2501,

Plaintiffs’ claims that accrued before March 15, 2015 are not timely. This Court simply lacks

jurisdiction over any such time-barred claims.

CONCLUSION

For the reasons set forth above, Defendant’s Motion for Summary Judgment (ECF No. 40)

is GRANTED in part and DENIED in part. Accordingly, Plaintiffs’ claims accruing prior to

March 15, 2015 are dismissed, and Deetz’s claims for additional pay in 2015 and 2016 are

dismissed.

The Clerk of Court is DIRECTED to LIFT the stay on Plaintiffs’ Class Motion (ECF No.

41). The parties shall FILE a Joint Status Report by November 13, 2024, which shall include a

proposed schedule for (i) amendment, if any, of the Class Motion, (ii) briefing of the Class Motion,

and (iii) any other anticipated future proceedings. Any remaining deadlines established by this

Court’s March 13, 2023 Order (ECF No. 46) concerning the Class Motion are accordingly void.

IT IS SO ORDERED.

Eleni M. Roumel ELENI M. ROUMEL Judge

October 29, 2024 Washington, D.C.

Furthermore, Plaintiffs do not argue that this Court remains bound by Bright and indeed fail to reference Bright at all. See generally Pl. Resp.; Oral Arg. Tr. at 80:11–83:25. In fact, in their response, Plaintiffs call the tolling they seek “equitable.” Pl. Resp. at 30 (“This is an equitable interpretation of the word accrues under Section 2501[.]”) (emphasis in original).