Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

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Linda Kazinetz
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


06/23/2017

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Date

Introduction

On May 9, 2012, the U.S. Office of Personnel Management (OPM) received a letter dated May 9, 2012, from the Law Offices of Bernstein & Lipsett, P.C. (B & L), the claimant’s duly appointed representative, concerning a Fair Labor Standards Act (FLSA) claim they had initially filed on the claimant’s behalf with the General Accounting Office (GAO), now the U.S. Government Accountability Office, on or about September 8, 1992, and subsequently with OPM on June 23, 1999, challenging his exemption status under the FLSA when he was employed as a Customs Patrol Officer, GS-1884, at the GS-7 and GS-9 levels, and a Criminal Investigator, GS-1811, at the GS-9, 11, and 12 levels with the U.S. Customs Service (USCS), now integrated into the Department of Homeland Security (DHS).  The claimant was a plaintiff in a lawsuit filed in the U.S. Court of Federal Claims at approximately the same time the administrative claim was filed with GAO.  Based on information provided by B & L, the claimant was awarded back pay under a settlement agreement for the pay period ending September 8, 1990, to the pay period ending October 29, 1994, subject to the two-year statute of limitations for FLSA claims under 29 United States Code (U.S.C.) 255(a).

B & L has requested OPM adjudicate the administrative claim filed with OPM and asserts that, because the claimant served in the military during the Gulf War, the statute of limitations applicable to this claim is the five-year statute of limitations under 31 U.S.C. 3702(b)(2) rather than the two-year statute of limitations (three years for willful violations) applicable to FLSA administrative claims filed under the Barring Act.  See 73 Comp. Gen 157 (May 23, 1994); 31 U.S.C. 3702(b); 29 U.S.C. 255(a).  B & L states the claimant was called to active duty with the United States Army Reserve “from approximately December 6, 1990 to July 11, 1991” in connection with Operation Desert Shield/Storm and, citing the provisions of 31 U.S.C. 3702(b)(2), asserts: “[H]e is entitled to retroactive back pay and interest… for the period he was employed prior to the commencement of the Gulf War on August 2, 1990, up to the date he recovered under previous FLSA settlements.  This period includes August 2, 1985 to August 25, 1990, less Mr. Coulon’s active duty military service time, for which he does not seek recovery.”

Background

We previously accepted and decided six similar claims under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, U.S.C., which we denied as time barred.  Subsequently, claimant’s representative brought suit under the Administrative Procedure Act (5 U.S.C. 551 et seq., and 701 et seq.) in the United States District Court for the District of Columbia, alleging that OPM wrongfully applied a two-year statute of limitations in denying their administrative claims for unpaid FLSA overtime pay.  Armstrong v. Archuleta, 77 F.Supp.3d 9 (December 30, 2014).  In relevant part, the court stated in its opinion:

All Plaintiffs are deemed to have timely filed their claims as of the date of their filings with the Claims Court. As a result, Plaintiffs . . . can recover for the entire claim period under the five-year statute of limitations- that is, for all claims that accrued within five years before the Gulf War commenced on August 2, 1990—minus monies paid under their DOJ Settlements.

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 [T]he case is remanded to OPM to adjudicate and process damages in accordance with FLSA and other applicable laws, and Plaintiffs’ respective employing agencies are directed to compensate them in accordance with OPM’s determinations.

 Consistent with the holding in the Armstrong case, we will apply the five-year statute of limitations and corrective methodology (subtracting monies already received under prior settlements or judgments) to the claims of similarly-situated claimants we find to be FLSA non-exempt and potentially due FLSA overtime pay. 

 Analysis

Customs Patrol Officer, GS-1884-7/9 (August 2, 1985, to November 9, 1985)

The claimant was employed as a GS-7 Customs Patrol Officer during the claim period commencing August 2, 1985.  The record does not include the Standard Form (SF) 50 showing the claimant’s appointment to the GS-1884-7 position, but B & L states the claimant occupied the position on August 2, 1985, and the agency does not disagree.  We also note the record includes an SF-50 documenting a change to his Federal Employees’ Group Life Insurance (FEGLI) effective August 4, 1985, and dated June 14, 1985, by the approving official, stating it was “effective under open enrollment for FEGLI, June 1-July1, 1985,” and showing he occupied a GS-7 Customs Patrol Officer position designated as FLSA nonexempt at that time.

B & L and the agency state the claimant occupied a GS-9 Customs Patrol Officer position from September 15, 1985, to November 9, 1985, when he was reassigned to a GS-1811-9 position.  However, the record includes an SF-50 documenting a September 1, 1985, reassignment from a GS-1884-9 to a GS-1811-9 position.  To resolve this discrepancy,[1] we obtained the claimant’s retirement records listing his service history, including action types and effective dates, from OPM’s Retirement Operations Center – Boyers, Pennsylvania.  His retirement records show his September 15, 1985, promotion to the GS-1884-9 position he occupied until he was reassigned to the GS-1811-9 position on November 10, 1985.  Since the retirement records show the claimant occupied the GS-1884-9 position from September 15, 1985, to November 9, 1985, we concur with the dates identified by B & L and the agency.

The complaint filed in a lawsuit before the U.S. Court of Federal Claims (CFC) on September 8, 1992, in which the claimant was identified as a plaintiff states, in relevant part:

1. This civil action is brought on behalf of several classes of present and former employees of the United States of America (hereinafter “defendant”), who have been employed previously or presently in…other agencies of defendant as special agents, criminal investigators, and other positions, to recover from defendant back pay, liquidated damages, interest, attorney’s fees and costs pursuant to the [FLSA].

In addition, B & L’s claim filed with the GAO on or about September 8, 1992, states:

The undersigned are attorneys representing one hundred twenty-nine (129) present and former Special Agents employed by the United States Secret Service; Drug Enforcement Administration; Bureau of Alcohol, Tobacco and Firearms; Internal Revenue Service; the Customs Service; the Naval Investigative Service, Defense Criminal Investigative Service, United States Department of Agriculture, United States Department of Treasury, United States Department of Labor and/or other federal agencies.  We are filing claims herewith on behalf of these individuals (“claimants”) with the [GAO], seeking back pay and other compensation and benefits due and owing to claimants under the [FLSA]…

The complaint filed before the CFC and the claim filed with GAO challenge the FLSA exemption status of positions identified as “special agents, criminal investigators, and other positions” in the former and as “Special Agents” in the latter filing.  The GAO claim specifically limits the claim to “Special Agents” and does not include Customs Patrol Officers.  Therefore, the GS-1884 portion of the claim was not preserved by the GAO filing.  The CFC complaint references “other positions” which could be construed as including Customs Patrol Officers.  However, the time period within which a claim must be received under the administrative claims process in 31 U.S.C. 3702 is based upon the claim being “received by the official responsible…for settling the claim or by the agency that conducts the activity from which the claim arises…”  Therefore, a court filing with CFC does not preserve an administrative claim under 31 U.S.C. 3702.

On May 9, 2012, OPM received a letter from B & L concerning the FLSA claim filed on the claimant’s behalf, stating:

Paul J. Coulon began his employment with the federal government as a GS-1884 Customs Patrol Officer with the United States Customs Service (“Customs”) on May 23, 1984.  He was reassigned as a GS-1811 criminal investigator on November 10, 1985.  An administrative claim was filed September 8, 1992 on his behalf seeking back pay alleging violations of the [FLSA]…Specifically, Mr. Coulon claims he was improperly classified as exempt from the FLSA overtime pay provisions or otherwise did not receive overtime pay consistent with the requirements of the law.

Since the claimant served in the military during the Gulf War, we applied the statute of limitations applicable to this situation under 31 U.S.C. 3702(b)(2), which states:

When the claim of a member of the armed forces accrues during war or within 5 years before war begins, the claim must be received within 5 years after peace is established or within the period provided in paragraph (1) of this subsection, whichever is later.

Consistent with 31 U.S.C. 3702(b)(2), this claim must have been received by February 28, 1996, which is five years after peace in the Gulf War was established on February 28, 1991.  Since OPM did not receive the claim concerning the exemption status of the claimant’s GS-1884 position until May 9, 2012, this condition is not met.  The alternative date referenced under 31 U.S.C. 3702(b)(2) would require the claim to have been received within the period described under 31 U.S.C. 3702(b)(1), which, as previously cited, states, “[t]he claim must be received by the official responsible…for settling the claim or by the agency that conducts the activity from which the claim arises within 6 years after the claim accrues…”  Since the claimant seeks FLSA overtime pay from August 2, 1985, to November 9, 1985, the claim must have been received by November 9, 1991, which is six years after the claim accrued, in order to meet the terms of this provision.  This condition is also not met.  However, the later date provided by 31 U.S.C. 3702(b)(2) is controlling.  Therefore, any claim for FLSA overtime pay for work performed during the period of the claim when the claimant was employed as a GS-1884 Customs Patrol Officer (August 2, 1985, to November 9, 1985) is time barred under 31 U.S.C. 3702(b) and thus denied.

Regardless, the SF-50s documenting the claimant’s employment with USCS show he was designated nonexempt from the FLSA as a Customs Patrol Officer, GS-1884, at the GS-7 and GS-9 levels.  Absent any assertion by the claimant to the contrary, we must conclude he was properly compensated under the FLSA during this period.

Criminal Investigator, GS-1811-9/11/12 (November 10, 1985, to August 25, 1990)

Under the provisions of 5 CFR 551.706, OPM determines the facts necessary to adjudicate a claim.  Applying the court’s mandate to determine whether the claimant is owed overtime pay under the FLSA, we must first determine whether the work performed during the claim period is exempt or nonexempt from the overtime pay provisions of the FLSA.  On September 29, 2015, in response to the aforementioned court decision, OPM requested an agency administrative report (AAR) from DHS regarding this FLSA claim.  By letter dated October 28, 2016, DHS advised OPM that during the claim period, GS-1811 criminal investigators (“special agents”) were designated FLSA nonexempt at the GS-5 and GS-7 grade levels, and FLSA exempt at the GS-9 and above levels.  DHS described the major duties and responsibilities of special agents at the GS-9, 11, and 12 grade levels as including initiating, planning, and conducting criminal and civil investigations; preparing detailed written investigative reports concerning case development and disposition; and planning, conducting, and coordinating in-depth criminal and civil investigations.  However, the agency advised OPM based on their fact-finding that:

…DHS believes that the GS-9, GS-11, and GS-12 criminal investigators should be considered non-exempt.  At these grade levels, an investigator does not serve as an “advisor, assistant, or representative of management, or a specialist in a management or general business function or supporting service.”  5 C.F.R. § 551.205(a) (1984).  Nor do they “[s]ignificantly affect [] the formulation or execution of management policies or programs.”  Id. at § 551.205(a)(1).  Further, the degree of supervision exercised over the Agents – at least at the GS-9 level – suggests that an Agent was not expected to “exercise discretion and independent judgment, under only general supervision.”  5 C.F.R. § 551.205(c).

Based on careful review of the record, we concur with the agency’s determination.  The claimant is requesting compensation for work performed from November 10, 1985, to August 25, 1990, less his active duty military service time.[2]  Therefore, USCS would have been required to compensate the claimant under the overtime provisions of Subpart E of Part 551 of 5 CFR for work performed within the claim period; i.e., within five years before the commencement of the Gulf War on August 2, 1990, and subject to deduction for any monies paid under the claimant’s DOJ settlement agreement.  In this case, the claim period of November 10, 1985, to August 25, 1990, is covered.

Decision

The period of the claim the claimant worked as a Customs Patrol Officer, GS-1884, and was designated as FLSA nonexempt (August 2, 1985, to November 9, 1985) is denied as time barred and for failure to state a claim on which relief may be granted.  However, during the period of the claim he occupied Criminal Investigator, GS-1811, positions, the work he performed is FLSA nonexempt (i.e., covered by FLSA overtime provisions), and he is entitled to compensation for all overtime hours worked at the FLSA overtime rate for the period of the claim he was improperly designated as FLSA exempt, i.e., from November 10, 1985, to August 25, 1990.  Since both his active duty military service time and his previous FLSA settlement were for time periods subsequent to August 25, 1990, they are not germane to the overtime pay calculations for the period of the claim covered by this decision.  The agency must follow the compliance requirements on page ii of this decision.

The claimant must submit evidence showing the amount and extent of overtime that was performed as provided for in 5 CFR 551.706(a).  The agency will have the opportunity to review this evidence using any sources of information available, including witnesses, before a determination is made as to whether the claimant is entitled to any back pay under the FLSA and any interest as required under 5 CFR part 550, subpart H.[3]  Any petition for attorney’s fees and expenses must be submitted to the agency out of which this claim arose.  Should the claimant be determined to be entitled to back pay which the claimant believes to be incorrectly computed, the claimant may file a new FLSA claim with this office.

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