Jones v. United States

DAVID JONES, et al., Plaintiffs, v. THE UNITED STATES, Defendant.

No. 19-257C

United States Court of Federal Claims

December 1, 2020

Motion to Dismiss; RCFC 12(b)(6); Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19; 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).

Joshua Sanford, Little Rock, AR, for plaintiff.

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, through the United States Department of Agriculture, Food Safety and Inspection Service (FSIS), violated the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19, 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 1-3, 5 (complaint). On May 3, 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. See ECF No. 15.

In analyzing defendant's motion, the court has considered: (1) plaintiffs' complaint, ECF No. 1; (2) defendant's motion to dismiss, ECF No. 15; (3) plaintiffs' response to defendant's motion, ECF No. 16; (4) defendant's reply in support of its motion, ECF No. 20; (5) defendant's first supplemental brief in support of its motion, ECF No. 22; (6) plaintiffs' response to defendant's first supplemental brief, ECF No. 23; (7) defendant's second supplemental brief in support of its motion, ECF No. 31;¹ (8) defendant's third supplemental brief in support of its motion, ECF No. 39; and (9) plaintiffs' response to defendant's third supplemental brief, ECF No. 41. The motion is now fully briefed and ripe for ruling.² 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

In their complaint, plaintiffs define the putative class bringing this collective action as "employees who are or were Food Safety and Inspection Service food inspectors for [d]efendant, who, during the applicable time period, work/worked for [d]efendant and are/were denied their rights under applicable federal wage and hour laws." ECF No. 1 at 2. Plaintiffs further allege that they are "excepted employees" and that they "like 2,400 other FSIS food inspectors, [were] retained for the shutdown," which began on December 22, 2018. Id. at 5-6. Plaintiffs seek "declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and costs, including reasonable attorney's fees." Id. at 3.

Beginning at 12:01 a.m. on December 22, 2018, "a partial government shutdown began," affecting the FSIS, among other agencies. Id. at 5. The ADA "authorizes the executive branch to require employees to work, without pay, during a lapse in appropriated funds, if their work relates to 'the safety [of] human life or the protection ofproperty.'" Id. at 5 (quoting 31 U.S.C. § 1342). While some employees were furloughed during the shutdown, plaintiffs were deemed "excepted" employees under the ADA, and were required to continue work. Id. at 5-6. As of February 15, 2019, the date of the complaint, plaintiffs had been required to work throughout the shutdown and defendant "ha[d] not paid its [FSIS] food inspectors minimum or overtime wages as required by the FLSA." Id. at 2. Specifically, plaintiffs have not received "a lawful minimum wage for all hours worked up to forty (40) in one week or one and one-half (1.5) times their regular rate for all hours in excess of forty (40) in a week." Id. at 6. According to plaintiffs, defendant's failure to pay regular wages and earned overtime is a per se violation of the FLSA. Id. at 7.

Plaintiffs also allege that defendant "neither acted in good faith, nor had reasonable grounds for believing that failing to pay FLSA nonexempt employees their overtime wages on time was compliant with the FLSA." Id. In support of this statement, plaintiffs note that this court decided a FLSA case in plaintiffs' favor in a similar case, referring to Martin v. United States, 130 Fed. Cl. 578 (2017). See id. at 7-8. As such, plaintiffs contend that defendant "was on notice . . . that a failure to pay FLSA nonexempt employees their overtime wages on time" constituted "bad faith." Id. at 7, 11. Plaintiffs allege that defendant is, as a result, liable for a penalty of liquidated damages under the FLSA. See id. at 8.

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 two statutes, the ADA and the FLSA. 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 theUnited 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 FLSA, which governs minimum wage and overtime wage compensation for certain employees.⁴ See 29 U.S.C. § 213 (identifying categories of exempt employees). The FLSA requires that the government "pay to each of [its] employees" a minimum wage. 29 U.S.C. § 206(a). Pursuant to the FLSA, the government also must compensate employees for hours worked in excess of a forty-hour workweek "at a rate not less than one and one-half times the regular rate at which [they are] employed." 29 U.S.C. § 207(a)(1). Although the text of the statute does not specify the date on which wages must be paid, courts have held that employers are required to pay these wages on the employee's next regularly scheduled payday. See Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 707 (1945); Biggs v. Wilson, 1 F.3d 1537, 1540 (9th Cir. 1993). If an employer violates the FLSA's pay provisions, the employer is "liable to the . . . employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be." 29 U.S.C. § 216(b). The employer may also be liable "in an additional equal amount as liquidated damages," id., unless "the employer shows to the satisfaction of the court that the act or omission . . . was in good faith, and that [the employer] had reasonable groundsfor believing that his act or omission was not a violation of the [FLSA]," 29 U.S.C. § 260.

B. The Court's Reasoning in Martin Applies

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—even excepted employees who were required to work. See ECF No. 15 at 13-14. This mandate, in defendant's view, means that defendant cannot be held liable for violating its obligations under the FLSA. See id. Defendant argues:

When Congress criminalized payments during an appropriations lapse, it plainly precluded payments on the schedule plaintiffs assert is required by the FLSA. Federal officials who comply with that criminal prohibition do not violate the FLSA, and Congress did not create a scheme under which compliance with the [ADA] Act would result in additional compensation as damages to federal

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