Abrantes v. United States

JOSEPH ABRANTES, et al., Plaintiffs, v. THE UNITED STATES, Defendant.

No. 19-129C

United States Court of Federal Claims

December 11, 2020

Motion to Dismiss; RCFC 12(b)(6); Border Patrol Agent Pay Reform Act, 5 U.S.C. § 5550; Back Pay Act, 5 U.S.C. § 5596; Anti-Deficiency Act (ADA), 31 U.S.C. §§ 1341-42; Government Employees Fair Treatment Act of 2019 (GEFTA); Pub. L. No. 116-1, 133 Stat. 3 (2019).

Gary E. Mason, Washington, DC, for plaintiff. Danielle L. Perry, Alan Lescht, Jack Jarrett, Neil Landeen, Gregory F. Coleman, Lisa A. White, Mark E. Silvey, of counsel.

Erin K. Murdock-Park, Trial Attorney, with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. Ann C. Motto, of counsel.

OPINION AND ORDER

CAMPBELL-SMITH, Judge.

Plaintiffs in this putative collective action allege that the government violated the Border Patrol Agent Pay Reform Act (BPAPRA), 5 U.S.C. § 5550, by failing to timely pay their earned overtime and regular wages during the partial government shutdown and lapse of appropriations that began on December 22, 2018. See ECF No. 1 at 35-37 (complaint).¹ Plaintiffs assert claims against defendant pursuant to the BPAPRA and theBack Pay Act, 5 U.S.C. § 5596. See id. at 40-41. On May 17, 2019, defendant moved to dismiss the complaint for failure to state a claim on which relief may be granted, pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC), on the basis that the Anti-Deficiency Act (ADA), 31 U.S.C. §§ 1341-42, prohibited the government from paying employees.² See ECF No. 23.

In analyzing defendant's motion, the court has considered: (1) plaintiffs' complaint, ECF No. 1; (2) defendant's motion to dismiss, ECF No. 23; (3) plaintiffs' response to defendant's motion, ECF No. 24; (4) defendant's reply in support of its motion, ECF No. 30; (5) defendant's first supplemental brief in support of its motion, ECF No. 33; (6) plaintiffs' response to defendant's first supplemental brief, ECF No. 34; (7) defendant's second supplemental brief in support of its motion, ECF No. 43; (8) plaintiffs' response to defendant's second supplemental brief, ECF No. 46; (9) defendant's third supplemental brief in support of its motion, ECF No. 52; and (10) plaintiffs' response to defendant's third supplemental brief, ECF No. 53. The motion is now fully briefed and ripe for ruling. The court has considered all of the arguments presented by the parties, and addresses the issues that are pertinent to the court's ruling in this opinion. For the following reasons, defendant's motion is DENIED.

I. Background

At 12:01 a.m. on December 22, 2018, the federal government partially shut down due to a lack of appropriations. See ECF No. 1 at 35. The named plaintiffs in this case were, at the time of the shutdown, employees of the "Customs and Border Protection, a subdivision of the Department of Homeland Security." Id. at 34. "Plaintiffs were required to report to work and perform their normal duties, but they were not timely compensated for certain work performed . . . after midnight on Saturday, December 22, 2018." Id. at 35. Plaintiffs further allege that, pursuant to the BPAPRA, "[d]efendant is obligated to pay [p]laintiffs their assigned border patrol rate of pay and to pay [p]lainitffs overtime pay for work performed in excess of applicable thresholds." Id. at 36.

"Plaintiffs bring the current suit on behalf of themselves and other employees similarly situated for declaratory judgment, back wages, interest on their back wages, and other associated relief for Defendant's willful and unlawful violations of federal law." Id. at 34.

II. Legal Standards

When considering a motion to dismiss brought under RCFC 12(b)(6), the court "must presume that the facts are as alleged in the complaint, and make all reasonable inferences in favor of the plaintiff." Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009) (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991)). It is well-settled that a complaint should be dismissed under RCFC 12(b)(6) "when the facts asserted by the claimant do not entitle him to a legal remedy." Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

III. Analysis

A. Relevant Statutes

This case fundamentally concerns the intersection of three statutes, the ADA, the BPAPRA, and the Back Pay Act. The ADA states that "an officer or employee" of the federal government "may not . . . make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation." 31 U.S.C. § 1341(a)(1)(A). In addition, the ADA dictates that "[a]n officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property." 31 U.S.C. § 1342. In 2019, Congress amended the ADA, adding, in relevant part, the following:

[E]ach excepted employee who is required to perform work during a covered lapse in appropriations³ shall be paid for such work, at the employee's standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates, and subject to the enactment of appropriations Acts ending the lapse.

31 U.S.C. § 1341(c)(2) (footnote added). The amendment is commonly referred to as the Government Employees Fair Treatment Act of 2019 (GEFTA), Pub. L. No. 116-1, 133 Stat. 3 (2019). The knowing or willful violation of the ADA is punishable by a fine of "not more than $5,000" or imprisonment "for not more than 2 years, or both." 31 U.S.C.§ 1350. And federal employees who violate the ADA "shall be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office." 31 U.S.C. § 1349(a).

Defendant separately has obligations to its employees pursuant to the Back Pay Act and the BPAPRA. The Back Pay Act provides as follows:

An employee of an agency who . . . is found by appropriate authority under applicable law . . . to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee—

(A) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect—

(i) an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred, less any amounts earned by the employee through other employment during that period.

5 U.S.C. § 5596(b)(1). The employee is also entitled to recover interest on their back pay, compounded daily. See 5 U.S.C. §§ 5596(b)(2)(A)-(B).

Here, plaintiffs allege that the unjustified or unwarranted personnel action was defendant's failure to pay their wages under the BPAPRA. See ECF No. 1 at 40-41. The BPAPRA governs compensation for border patrol agents. See 5 U.S.C. § 5550. The statute outlines three "levels" of pay, and requires that each border patrol agent either elect or be assigned a level annually. See 5 U.S.C. § 5550(b)(1). The statute further provides that each "border patrol agent shall receive pay" that corresponds with his or her assigned level. 5 U.S.C. §§ 5550(b)(2)(B), (b)(3)(B); see also 5 U.S.C. § 5550(b)(4)(A). And each "border patrol agent shall receive compensatory time off or pay at the overtime hourly rate of pay for hours of work in excess of" the regular number of hours set for each level. 5 U.S.C. § 5550(b)(2)(D), (b)(3)(D), (b)(4)(B).

The text of the BPAPRA does not specify a date on which wages must be paid, but "[t]his court has long adhered to the view that a suit for compensation due and payable periodically is, by its very nature, a 'continuing claim' which involves multiple causes of action, each arising at the time the Government fails to make the payment alleged to be due." Burich v. United States, 366 F.2d 984, 986 (Ct. Cl. 1966); see also Jones v. United States, 113 Fed. Cl. 39, 41 (2013) (stating that "plaintiffs' claims for Sunday premium pay accrued each time payment was due"); Bishop v. United States, 77 Fed. Cl. 470, 481(2007) (holding that plaintiff's claim for overtime pay under the Back Pay Act "began to accrue . . . when he allegedly worked uncompensated overtime"); Corrigan v. United States, 70 Fed. Cl. 665, 671 (2006) (holding that a claim for back pay accrues "each time . . . compensation [mandated by a statute] was excluded from [an employee's] paycheck"); Friedman v. United States, 310 F.2d 381, 385 (Ct. Cl. 1962) (stating that "where the payments are to be made periodically, each successive failure to make proper payment gives rise to a new claim upon which suit can be brought").

B. The Court's Reasoning in Martin Is Instructive Here

In its motion to dismiss, defendant first argues that plaintiffs' complaint should be dismissed for failure to state a claim because the agencies for which appropriations lapsed on December 22, 2018, were prohibited by the ADA from paying their employees. See ECF No. 23 at 19-21. This mandate, in defendant's view, means that defendant cannot be held liable for violating its obligations under the Back Pay Act and the BPAPRA. See id. Defendant argues:

When Congress criminalized payments during an appropriations

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