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 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 a Criminal Investigator, GS-1811, at the GS-5 and GS-7 levels with the Immigration and Naturalization Service (INS) and U.S. Customs Service (USCS), both 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 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

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.  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 July 5, 1987, to January 28, 1989, when he was employed with INS, and from January 29, 1989, to July 1, 1989, when he was employed with USCS, less his active duty military service time.[2]  Therefore, INS and USCS would have been required to compensate the claimant under the overtime pay 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 entire claim period (July 5, 1987, to July 1, 1989) is covered.

The Standard Form (SF) 50s documenting the claimant’s employment show he occupied a GS-5 position with INS commencing July 5, 1987, until he was promoted to a GS-7 position on June 19, 1988.[3]  The claimant subsequently transferred to a GS-7 position with USCS effective January 29, 1989.  On March 26, 1989, he was reassigned to another GS-7 position with USCS, which he occupied for the remainder of the claim period.  B & L incorrectly reported the claimant’s employment history in its claim request to OPM.  In addition to stating all of the claimant’s positions post July 5, 1987, were with USCS, B & L indicates he occupied GS-1811 criminal investigator positions as follows:  a GS-5 position from July 5, 1987, to June 18, 1988; a GS-7 position from June 19, 1988, to May 30, 1989; a GS-9 position from May 31, 1989, to June 17, 1989; and a GS-7 position from June 18, 1989, to July 1, 1989.  B & L evidently reported his occupying a GS-9 position based on the “Employment History” document included in the claim request to OPM, which identifies effective date, action type, grade, and other information.  We note the document identifies an action, on May 31, 1989, described as “Rating of Record Update” for a GS-9 position; however, the next action describes a June 18, 1989, within grade increase for a GS-7 position followed by a July 2, 1989, promotion to the GS-9 level.  Furthermore, in response to OPM’s June 27, 2012, request for clarification, B & L explained, “From May 25, 1988 to January 28, 1989 Mr. Castro was employed by the [INS] as a GS-5/7 and did not recover back pay for this time period.  From January 29, 1989 to July 1, 1989 Mr. Castro was employed by USCS as a GS-7 and did not recover back pay for this time period.”  We thus conclude the inclusion of the GS-9 position to the claimant’s employment history, unsupported by the SF-50s provided and statements made by B & L in its clarification memorandum, was an error.

By email dated December 15, 2016, B & L advised they “will not be pursuing” the claim for the claimant’s “FLSA non-exempt GS-7” position with INS and his “FLSA non-exempt GS-7” position with USCS; however, the GS-5 position he occupied with INS was not addressed.  Regardless, we note the SF-50 documenting the claimant’s INS employment shows he was designated nonexempt from the FLSA at the GS-5 level.  The SF-50s show that his positions with INS and USCS were also designated nonexempt from the FLSA at the GS-7 level.[4]  We thus conclude he was designated nonexempt for the entire claim period covered by this decision.  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., July 5, 1987, to July 1, 1989.

Decision

The claim is denied for failure to state a claim on which relief may be granted.

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