Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
linda Kazinetz
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
06/12/2017
Date
As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which the Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA). The agency should identify all similarly situated current and, to the extent possible, former employees, ensure that they are treated in a manner consistent with this decision, and inform them in writing of their right to file an FLSA claim with the agency or OPM. There is no further right of administrative appeal. This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708 (address provided in section 551.710). The claimant has the right to bring action in the appropriate Federal court if dissatisfied with this decision.
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 May 25, 1990, and subsequently with OPM on or about September 9, 1999, challenging his exemption status under the FLSA when he was employed as an Administrative Supply Technician and a Unit Administrative Technician, GS-303-5, and a Staff Administrative Specialist, GS-303-7, with the Department of Army (Army). 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 July 15, 1989, to the pay period ending July 14, 1990; for the pay period ending July 28, 1990, to September 30, 1991; and from October 1, 1991, 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 January 23, 1991 to June 27, 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 19, 1985 to July 1, 1989, less Mr. Castro’s active duty military service time, for which he does not seek recovery.”[1]
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
The complaint filed in a lawsuit before the U.S. Court of Federal Claims on May 30, 1990, in which the claimant was identified as a plaintiff states, in relevant part:
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This civil action is brought on behalf of a class of present and former Special Agents (Criminal Investigators – Occupational Series 1811), who are, or have been, employed by the United States of America . . . in the [United States Customs Service (USCS)] of the Department of the Treasury . . . and other agencies of defendant, to recover from defendant back pay, pension and insurance contributions and benefits, liquidated damages, interest, attorney’s fees and costs, pursuant to the [FLSA]…
In addition, B & L’s May 25, 1990, letter filed with the GAO states:
The undersigned are attorneys representing one hundred eighty-one (181) present and former Special Agents, Criminal Investigators and Patrol Officers employed by the [USCS]. We are filing claims herewith on behalf of these Special Agents, Criminal Investigators and Patrol Officers (“claimants”) with the [GAO], seeking back pay and other compensation and benefits due and owing to claimants under the [FLSA]…
The May 30, 1990, complaint filed before the U.S. Court of Federal Claims and the claim filed with GAO reflect allegations concerning the FLSA exemption status of positions identified as “Special Agents (Criminal Investigators – Occupational Series 1811)” in the former and as “Special Agents, Criminal Investigators and Patrol Officers” in the latter filing. Furthermore, although the complaint refers to employees of the USCS and “other agencies,” the GAO filing only refers to the USCS.
Given that: 1) neither the complaint filed with the U.S. Court of Federal Claims nor the claim filed with GAO covers work performed by employees in GS-303 positions, and 2) the claim filed with GAO only covers USCS employees, we find that the claimant failed to preserve his exemption status claim with regard to the work he performed as a GS-303 with Army.
On May 9, 2012, OPM received a letter from B & L concerning the FLSA claim filed on the claimant’s behalf, stating:
Marcos R. Castro began his employment with the federal government as a GS-0303 with the U.S. Army Forces Command on August 19, 1985….An administrative claim was filed May 25, 1990 on his behalf seeking back pay alleging violations of the [FLSA]…Specifically, Mr. Castro 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-303 positions 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 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 19, 1985, to July 4, 1987, the claim must have been received by July 4, 1993, 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 as asserted by the claimant (August 19, 1985, to July 4, 1987) is time barred under 31 U.S.C. 3702(b).
Regardless, the Standard Form 50s documenting the claimant’s employment with Army show he was designated nonexempt from the FLSA as a GS-303 at the GS-5 and 7 levels from August 19, 1985, to July 4, 1987. Absent an assertion by the claimant that he was not paid at the FLSA overtime rate during the period he was designated as nonexempt, we must conclude he was properly compensated under the FLSA during this period, i.e., August 19, 1985, to July 4, 1985.
Decision
The claim is denied since it is time barred. The claim is also denied for failure to state a claim on which relief may be granted.