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ZUMERLING v. DEVINE

July 30, 1984

MICHAEL ZUMERLING, TERRY L. LEVAN, PATON P. HODGE, JAMES J. McGINLEY, SAMUEL CULLUM, JAMES R. CYR, ALLEN CYR, PAUL KAYLOR, LARRY RETTIG, NORMAN WHITEHURST, HERBERT D'ALBINI, GENERAL GRANVILLE, JR., EDWARD R. TOMS, LEONARD SORRENTINO, Plaintiffs,
v.
DONALD J. DEVINE, Director of U.S. Office of Personnel Management, RAYMOND DONOVAN, Secretary of Labor of the United States of America, ANDREW L. LEWIS, JR., Secretary Department of Transporation of the United States of America, CASPAR W. WEINBERGER, Secretary Department of Defense of the United States of America, JOHN O. MARSH, JR., Secretary Department of the Army of the United States of America, JOHN F. LEHMAN, JR., Secretary of Department of the Navy of the United States of America, VERNE ORR, Secretary Department of the Air Force of the United States of America, DONALD L. CUSTIS, M.D., Acting Administrator Veterans Administration of the United States of America, JOHN R. BLOCK, Secretary Department of Agriculture of the United States of America, MALCOLM BALDRIGE, Secretary Department of Commerce of the United States of America, RICHARD SCHWEIKER, Secretary Department of Health & Human Services of the United States of America, JAMES G. WATT, Secretary Department of Interior of the United States of America, ALEXANDER M. HAIG, JR., Secretary Department of State of the United States of America, DR. ALAN M. LOVELACE, Acting Administrator National Aeronautics and Space Administration of the United States of America, DONALD T. REGAN, Secretary, Department of Treasury of the United States of America, WILLIAM FRENCH SMITH, Attorney General U.S. Department of Justice of the United States of America, UNITED STATES OF AMERICA, Defendants



The opinion of the court was delivered by: MANSMANN

 This matter comes before the Court on cross-motions for summary judgment. For the reasons and to the extent set forth in this Opinion, the motions are denied in part and granted in part.

 Also before this Court are Defendants' Motion to Dismiss all Government Officials Named in their Official Capacities, Plaintiffs' Motion for the Imposition of Sanctions and Defendants' Motion for a Protective Order. For the reasons set forth in this Opinion, Defendants' Motion to Dismiss is granted only to the extent that all government officials sued herein whose agencies do not employ Plaintiffs are dismissed. In light of this, the motions for sanctions and for a protective order are denied as moot.

 BACKGROUND

 The Plaintiffs in this action are either current or former federal employees employed by the Departments of Army, Navy, Air Force and Justice as well as the Veterans Administration and the General Services Administration. All Plaintiffs are or were employed in fire protection or law enforcement activities at various locations.

 Although the Plaintiffs originally commenced this action as a class action, prior to seeking certification, Plaintiffs decided to pursue their claims individually. Since this action has commenced, more than 4500 individuals presently or formerly engaged in firefighting or law enforcement activities and employed by the federal agencies referenced above have filed consents with this Court to become plaintiffs.

 In their Complaint, Plaintiffs request the following relief: declaratory judgment setting aside 5 C.F.R. § 551.432 and declaring that Defendants have violated the Fair Labor Standards Act ("FLSA"); an injunction preventing Defendants from violating the FLSA by unlawfully withholding minimum wages and appropriate overtime compensation; an order compelling Defendants, under Plaintiffs' counsel's supervision, to make full and accurate accounting of all compensation due each Plaintiff, and thereupon, to enter judgment under 29 U.S.C. § 216(b) for sums due plus interest and liquidated damages; an order compelling Defendants to comply with their statutory duty owed to Plaintiffs; and the award of reasonable attorneys' fees, costs and disbursements in connection with this action.

 In their First Claim, Plaintiffs allege that the Office of Personnel Management *fn1" ("OPM") acted arbitrarily, capriciously and abused its discretion in promulgating 5 C.F.R. § 551.432 which excludes "sleep time" from compensable hours of federal employees engaged in fire protection or law enforcement activities when their tours of duty exceed 24 hours. *fn2" Plaintiffs also allege that they are entitled to interest, liquidated damages, attorneys' fees and costs under § 16(b) of the FLSA, 29 U.S.C. § 216(b). *fn3"

 Plaintiffs allege in their Second Claim that since May 1, 1974, Defendants have paid Plaintiffs in wages less than the applicable minimum wage in violation of § 6 of the FLSA, 29 U.S.C. § 206 and of "applicable regulations, rules, interpretations and Federal Personnel Manual ("F.P.M.") Letters."

 In their Third and Fourth Claims, Plaintiffs allege that Defendants have failed to pay them the required overtime wage of "one and one-half times their regular rate for all hours worked in excess of hourly levels prescribed by the FLSA," in violation of §§ 7(a) and 7(k) of the FLSA, 29 U.S.C. §§ 207(a) and 207(k) as well as various "applicable regulations."

 In Plaintiffs' Fifth and Sixth claims, respectively, they allege that Defendants' method of computation of overtime compensation is erroneous (due to allegedly improperly computed "regular rate" of pay), and that therefore they receive overtime compensation on an incorrect basis, that they have been denied equal protection in violation of the Fifth Amendment, when compared to other general schedule employees of Defendants.

 In Plaintiffs' Seventh Claim, they allege that Defendants owe them a statutory duty by "ensuring that the FLSA and related rules, interpretations and Federal Personnel Manual letters are properly administered and applied to Plaintiffs." Plaintiffs further allege that this mandatory statutory duty is nondiscretionary.

 CROSS-MOTIONS FOR SUMMARY JUDGMENT

 The Contentions of the Parties

 The Defendants moved this Court for summary judgment on various grounds.

 Defendants claim that the Plaintiffs lack standing to challenge 5 C.F.R. § 551.432(b) (which excludes "sleep time" for federal firefighters or law enforcement personnel whose tours of duty are greater than 24 hours) because none of the Plaintiffs have tours of duty in excess of 24 hours. Therefore, Defendants contend, Plaintiffs have not sustained "injury in fact." Defendants also assert that Plaintiffs have not demonstrated that Plaintiffs have had "sleep time" deducted, and that, in any event, "sleep time" has not been deducted from their compensable hours.

 The Defendants also claim, in any event, that they have a viable good faith defense to any of Plaintiffs' claims under 29 U.S.C. § 259, as Defendants assert that they acted in good faith and in conformity with administrative regulations, orders and rulings approved by agencies of the United States.

 Regarding Plaintiffs' minimum wage, overtime and regular rate claims, Defendants assert that their methodology for computing Plaintiffs' compensation was based on the guidelines set forth in F.P.M. Letter 551-5 which they were bound to follow. *fn4" Defendants further contend that each agency which employs Plaintiffs has relied upon and conformed with the requirements of F.P.M. Letter 551-5.

 Additionally, Defendants contend that Plaintiffs' Fifth Amendment claims do not state cognizable claims for money damages, and that in any event, the United States has not waived its sovereign immunity with respect to these claims.

 Alternatively, Defendants assert that because Plaintiffs' claims appear to be individually in excess of $10,000, this matter should be transferred to the Claims Court in light of 28 U.S.C. § 1346(a)(2) which provides that the Claims Court has exclusive jurisdiction over non-tort claims against the United States which are in excess of $10,000. Defendants further claim that the FLSA does not confer jurisdiction upon the district courts in connection with suits against the United States for overtime and minimum wages for claims which are in excess of $10,000.

 Due to the foregoing, Defendants claim they are entitled to summary judgment in this case, or are at least entitled to the transfer of this action to the Claims Court.

 The Plaintiffs, in opposition to Defendants' Motion for Summary Judgment and in support of their Motion for Summary Judgment, assert that the OPM was without the authority to promulgate 5 C.F.R. § 551.432(b), and that only the Secretary of Labor has such authority. However, Plaintiffs do not dispute the OPM's authority to issue letters such as F.P.M. Letter 551-5, and do not challenge its application to the Plaintiffs.

 With respect to the exclusion of "sleep time" (for those firefighters or law enforcement individuals whose tours of duty are greater than 24 hours), Plaintiffs claim that the exclusion of "sleep time" without these employees' individual agreements is not in accordance with the law. Plaintiffs further assert that they possess standing to attack the regulation as they claim that they are subject to the regulation any time that they are required to work a shift or "tour of duty" greater than 24 hours (in an emergency, for example). Notwithstanding these claims, Plaintiffs initially did not dispute that their regularly scheduled "tours of duty" are 24 hours. *fn5"

 Plaintiffs also assert that Defendants have failed to comply with their "statutory duties" by not following the compulsory requirements of the FLSA, and therefore that this Court should issue a writ of mandamus pursuant to 28 U.S.C. § 1361.

 Additionally, Plaintiffs contend that Defendants' good faith argument is baseless. Plaintiffs assert, inter alia, that 29 U.S.C. § 259 does not apply to the United States.

 Further, in response to Defendants' argument that this Court lacks subject matter jurisdiction under the Tucker Act and that this case should be transferred to the Claims Court, Plaintiffs assert that this matter is properly before this Court. In this connection, Plaintiffs assert that federal employees, like employees from the private sector, are not precluded from adjudicating their FLSA claims in district courts. Plaintiffs also claim that this Court has jurisdiction to hear Plaintiffs' claims because, apart from the FLSA, Plaintiffs' action has independent jurisdictional bases inasmuch as Plaintiffs' claims arise under federal law. *fn6" Lastly, Plaintiffs assert that since not all of the claims exceed $10,000, that this Court has jurisdiction because the Claims Court and the District Court have concurrent jurisdiction under 28 U.S.C. § 1346(a)(2) for claims equal to or below this amount.

 In reply to Plaintiffs' arguments, Defendants again assert that the OPM had authority to promulgate 5 C.F.R. § 551.432(b) as the OPM administers the FLSA to the federal sector, whereas the Secretary of Labor administers the FLSA to the private sector. In support thereof, Defendants rely on § 4(f) of the FLSA, 29 U.S.C. § 204(f) which provides in pertinent part: "notwithstanding any other provision of this Act, or any other law, the Civil Service Commission [now OPM] is authorized to administer the provisions of this Act." Additionally, Defendants submit that the exclusion of "sleep time" is correct, although not relevant in this context. In any event, Defendants reassert that Plaintiffs are without standing to challenge the regulation because they do not have regular shifts or "tours of duty" which exceed 24 hours and no Plaintiff has had "sleep time" deducted. Therefore, Defendants claim that Plaintiffs have not been "injured in fact." *fn7"

 Defendants also reiterated that Plaintiffs are paid at least minimum wage, and are and have been compensated for overtime in accordance with the FLSA (time and one-half). Defendants also indicate that hourly "regular rate" of pay and hourly "basic pay" have different meanings and have different statutory sources, and are not to be used interchangeably. Additionally, Defendants submit that "annual premium pay" and overtime pay are not synonymous. In their reply papers, Defendants also illustrate how Plaintiffs' pay is computed.

 Regarding Plaintiffs' claim for a writ of mandamus, Defendants again dispute that Plaintiffs have demonstrated entitlement to this relief.

 Defendants also oppose Plaintiffs' argument that Defendants are not permitted to utilize 29 U.S.C. § 259, as they have acted in good faith, relied upon various regulations and acted in conformity with those regulations, and again assert that this defense is available to the United States.

 Regarding subject matter jurisdiction, Defendants concede that with respect to suits against the United States relating to the FLSA, the Claims Court and the district courts have concurrent jurisdiction, so long as such claims do not exceed $10,000. In any event, Defendants contend that those six Plaintiffs who have submitted affidavits indicating that their claims are less than $10,000 have waived the rights to any greater recovery.

 Plaintiffs also submitted a reply brief. In doing so, they largely reiterated their previous arguments. However, with respect to their argument that they have standing to challenge 5 C.F.R. § 551.432(b), Plaintiffs appear to have changed their position on the meaning of "tour of duty." For the first time, Plaintiffs assert, accompanied by Affidavit, that one of the Plaintiffs, Ronald Bailey has a "tour of duty" which is 72 hours. *fn8"

 Because of this individual, Plaintiffs contend that they have standing to challenge the regulation. Plaintiffs also attempt to define "tour of duty" to include all irregular or unscheduled time, while conceding that some Plaintiffs in this lawsuit stated under oath that they do not have "regularly scheduled tours of duty of more than 24 hours."

 Plaintiffs have also submitted a "Supplemental Memorandum" in which they reassert that the Department of Labor alone has the duty to issue regulations concerning the FLSA.

 The foregoing arguments will be addressed below.

 Subject Matter Jurisdiction

 At the outset, this Court will address Defendants' assertion that this Court lacks subject matter jurisdiction, because if Defendants are correct, this Court will be without the authority to resolve the other issues now pending.

 The Tucker Act, 28 U.S.C. §§ 1346(a)(2) *fn9" and 1491 *fn10" and various other provisions, provides sources of jurisdiction in ...


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