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.
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)
and various other provisions, provides sources of jurisdiction in connection with cases against the United States not sounding in tort.
Based on the Tucker Act, so long as the Plaintiffs' non-tort claims do not exceed $10,000 in amount, this Court has concurrent jurisdiction with the Claims Court over this matter. However, if Plaintiffs' claims exceed this amount, then the Claims Court would have exclusive jurisdiction over that portion of this matter.
The Tucker Act "is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages . . . the Act merely confers jurisdiction . . . whenever the substantive right exists." United States v. Testan, 424 U.S. 392, 398, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976) (citation omitted).
Further, in determining whether the district court has jurisdiction over a non-tort action involving the United States as a defendant, although the aggregate claims may total an amount exceeding $10,000, what is controlling is the amount of each individual claim. If each claim presented separately does not exceed $10,000 or if the claimant has waived recovery of an amount greater than $10,000, then Tucker Act jurisdiction under 28 U.S.C. § 1346(a)(2) is properly invoked by the district court. Commonwealth of Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11, 25 (3d Cir. 1975). The National Association Court held that in determining Tucker Act jurisdiction, a class action does not preclude the finding of concurrent jurisdiction under 28 U.S.C. § 1346(a)(2), so long as the individual claims meet the statutory requirements. The fact that this case is not a class action, but instead an action by over 4500 individual plaintiffs is of no significance in this determination, as their claims are to be viewed individually.
Further, in ascertaining whether the amount claimed exceeds $10,000 for Tucker Act purposes in connection with claims under the FLSA, since attorneys' fees are provided for in 29 U.S.C. § 216(b), the request for attorneys' fees is to be included in the computation. Graham v. Henegar, 640 F.2d 732 (5th Cir. 1981).
Therefore, in the instant action, in order for this Court to have subject matter jurisdiction, the Plaintiffs' claims, including attorneys' fees must not exceed $10,000 individually.
In this connection, with respect to six Plaintiffs, their claims are clearly for amounts of less than $10,000 as each has submitted an affidavit stating that they are not seeking recovery in excess of $10,000.
Therefore, even if it is later determined that their claims, including attorneys' fees, should they be entitled to them, are valued in excess of $10,000, these six individuals have affirmatively waived recovery of more than this amount. With respect to these six individuals, this Court clearly has subject matter jurisdiction.
In regard to all other Plaintiffs, it appears that this Court has jurisdiction over the adjudication of their claims as these claims all appear to be for amounts less than $10,000, and Plaintiffs have not asserted otherwise.
Plaintiffs have not set forth the amounts requested in their Complaint nor in any subsequent pleading. Moreover, in their brief in support of their Motion for Summary Judgment they assert that the damages have yet to be calculated but that hopefully, after liability is resolved, damages can be decided on an "amicable basis." Further, in their brief, Plaintiffs admit that "virtually all of the claims of Plaintiffs do not exceed $10,000."
Clearly, at this point in time, Plaintiffs' individual claims cannot be deemed to be in excess of $10,000.
Therefore, this Court has subject matter jurisdiction over this matter. However, in the event that any of Plaintiffs' claims become valued in excess of $10,000, inclusive of attorneys' fees, absent a valid waiver to recover greater than the jurisdictional amount, (including attorneys' fees), this Court would be without jurisdiction to hear those matters.
Standing to Challenge 5 C.F.R. § 551.432(b)
The Plaintiffs have challenged the authority of the OPM to promulgate 5 C.F.R. § 551.432(b) which provides, inter alia : "for employees engaged in fire protection activities or law enforcement activities, the exclusion of sleep time is appropriate for tours of duty of more than 24 hours only." (Emphasis in original).
In order to determine whether this regulation applies to Plaintiffs, i.e., whether Plaintiffs serve "tours of duty" greater than 24 hours, it is necessary to define "tour of duty".
Concerning the FLSA, Attachment 2, subd. C of F.P.M. Letter 551-5 provides in pertinent part:
2. Tour of Duty
The term 'tour of duty' as used in section 7(k) of the FLSA, means the period during which an employee is on duty. It may be a scheduled or unscheduled period. Scheduled periods refer to shifts, i.e., the period of time which elapses between scheduled arrival and departure times (as in the case for example, of a firefighter who has a scheduled 24 hour shift from 8:00 a.m. one morning until 8:00 a.m. the next morning; or in the case for example, of a criminal investigator who has a scheduled eight and one-half hour shift from 8:30 a.m. until 5:00 p.m. the same day), or to scheduled periods outside the shift (as in the case for example, of a special detail involving crowd control during a parade or other such event). Unscheduled periods refer to time spent by employees on duty outside their scheduled shift (for example; time spent by firefighters fighting a fire outside their scheduled shift, time spent by police officers in court outside their scheduled shift, time spent by criminal investigators shadowing a suspect in continuation of their scheduled shift, or time spent by employees after a shift in order to complete required work). When an employee is actually on duty fewer hours than those specified in his scheduled shift, the employee's tour of duty is reduced accordingly.