Dewayne F. ADAMS, et al., Plaintiffs, v. The UNITED STATES of America, Defendant.
No. 15-69C
United States Court of Federal Claims.
(Filed: March 17, 2016)
125 Fed. Cl. 608
KAPLAN, Judge.
Keywords: Motion to Dismiss for Lack of Jurisdiction; RCFC 12(b)(1); 5 U.S.C. § 6101(a)(3); Money Mandating Statute.
Hillary A. Stern, Senior Trial Counsel, with whom were Benjamin C. Mizer, First Principal Deputy Attorney General, Robert E. Kirschman, Jr., Director, and Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for Defendant.
OPINION AND ORDER
KAPLAN, Judge.
BACKGROUND1
Plaintiffs in this action are current and former Physical Security Specialists employed by the United States Secret Service (USSS), Department of Homeland Security (DHS), in the agency‘s Technical Security Division (TSD). Fourth Amended Compl. (Compl.) ¶¶ 9, 12, ECF No. 31.2 Plaintiffs contend that the USSS engaged in a variety of unlawful scheduling and recordkeeping practices and that they were denied the overtime pay to which they were entitled under Title 5 of the United States Code and the Fair Labor Standards Act,
The case is currently before the Court on the government‘s partial motion to dismiss Count I of Plaintiffs’ Amended Complaint pursuant to RCFC 12(b)(1) for lack of subject matter jurisdiction. In Count I, Plaintiffs challenge the lawfulness of two scheduling practices that the USSS allegedly adopted to reduce the agency‘s reliance on overtime to accomplish its mission. The new practices were instituted in the wake of the automatic spending cuts that went into effect in 2013 pursuant to the Balanced Budget and Emergency Deficit Control Act of 2011. See Def.‘s Partial Mot. to Dismiss (Def.‘s Mot.) at 2, ECF No. 25. The practices remained in effect until January 18, 2015. Id. at 4.
First, Plaintiffs challenge the agency‘s modification of Plaintiffs’ regular Monday-to-Friday workweek. Plaintiffs allege that under the new practice, one day in the middle of the week would be designated a non-work day (or “flex day“), and that Saturday—which had previously been a day off—would be designated a workday. Compl. ¶ 17. According to Plaintiffs, this new practice violated
Except when the head of an Executive agency ... determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that ... the basic 40-hour
workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive.
See Compl. ¶ 17. Second, Plaintiffs allege that USSS sometimes implemented the new schedules by modifying Plaintiffs’ regular schedules after their workweeks had begun. According to Plaintiffs, these actions violated
Plaintiffs argue that, as a result of the new practices, they were denied the two consecutive days off from work to which they are statutorily entitled. Further, they contend that the new practice of having them work on a Saturday and take a day off midweek deprived them of: (1) pay at their regular rate for the unpaid midweek flex days; and (2) overtime pay to which they would have been entitled for working an additional day outside their regular workweek, but for the midweek flex days. Id.
The government argues that this Court lacks jurisdiction over Count I of Plaintiffs’ complaint on the grounds that subsections 6101(a)(3)(A) and (B) are not “money-mandating” statutory provisions. For the reasons set forth below, the Court agrees with the government. Accordingly, the government‘s motion to dismiss in part is GRANTED and Count I of Plaintiffs’ complaint is DISMISSED without prejudice.3
DISCUSSION
The Court of Federal Claims has jurisdiction under the Tucker Act to hear “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.”
A statute or regulation is money-mandating for jurisdictional purposes if it “can fairly be interpreted as mandating compensation for damages sustained as a result of the breach of the duties [it] impose[s].” Fisher v. United States, 402 F.3d 1167, 1173 (Fed.Cir.2005) (en banc in relevant part) (quoting Mitchell, 463 U.S. at 217, 103 S.Ct. 2961). To determine whether a statute is money-mandating, the court must evaluate the extent to which the statute or statutes at issue impose a specific obligation on the government to pay money where statutory conditions are satisfied. Samish Indian Nation v. United States, 657 F.3d 1330, 1335 (Fed.Cir.2011), vacated in part on other grounds, — U.S. —, 133 S.Ct. 423, 184 L.Ed.2d 253 (2012). The statute must “create[ ] an entitlement by leaving the Government with no discretion over the payment of funds.” Id. at 1336 (citing Doe v. United States, 100 F.3d 1576, 1581 (Fed.Cir.1996)). Additionally, the Federal Circuit has articulated that in “limited situations,” the “money-mandating” requirement may be satisfied if even if a statute reserves to the government discretion over the disbursement of funds where the statute: “(1) provides ‘clear standards for paying’ money to recipients; (2) states the ‘precise amounts’ that must be paid; or (3) as interpreted, compels payment on satisfaction of certain conditions.” Id. (quoting Perri v. United States, 340 F.3d 1337, 1342-43 (Fed.Cir.2003)).
Except when the head of an Executive agency ... determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that—
(A) assignments to tours of duty are scheduled in advance over periods of not less than one week; [and]
(B) the basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive.
Neither of these subsections addresses employees’ entitlement to pay. Instead, they concern work scheduling practices. As the Federal Circuit has already held, money damages may not be awarded for a violation of section 6101(a)(3)(B) because “[n]either [5 U.S.C. § 6101] nor the regulations promulgated thereunder prescribes any penalty for failure by the government to comply with the scheduling requirements governing the number of consecutive days worked.” Sanford v. Weinberger, 752 F.2d 636, 640 (Fed.Cir.1985). In other words, the Federal Circuit has already recognized that subsection 6101(a)(3)(B) is not a “money mandating” statute. Id. (observing that “[a] fundamental precept of law holds that no monetary damages can be awarded against the United States unless some provision of law commands the payment of same.” (citing Testan, 424 U.S. at 399, 96 S.Ct. 948)). The same is true, of course, as to the requirement that tours of duty be scheduled at least one week ahead of time, contained in subsection (A).
Plaintiffs contend, however, that Sanford is not controlling, arguing that the Court of Appeals’ discussion of the jurisdictional issue in that case was dicta. As Plaintiffs correctly observe, the Court of Appeals discussed whether section 6101(a)(3)(A) provided a basis for recovery of overtime pay only after it had already addressed and rejected the merits of the plaintiffs’ claims that the statute had been violated. Dicta are “statements made by a court that are ‘unnecessary to the decision in the case, and therefore ... not precedential (although [they] may be considered persuasive).‘” Nat‘l Am. Ins. Co. v. United States, 498 F.3d 1301, 1306 (Fed.Cir.2007) (alteration in original) (quoting Co-Steel Raritan, Inc. v. Int‘l Trade Comm‘n, 357 F.3d 1294, 1307 (Fed.Cir.2004)). But jurisdiction is a threshold issue that the Court must address before examining the merits. Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Given that subject matter jurisdiction is a threshold issue, the Court is hesitant to characterize the Court of Appeals’ discussion of its subject matter jurisdiction as non-binding “dicta.”
In any event, even if the jurisdictional discussion in Sanford were considered “dicta,” the Court would still conclude that subsections 6101(a)(3)(A) and (B) are not money mandating statutory provisions. Thus, neither provision “can fairly be interpreted as mandating compensation for damages sustained as a result of the breach of the duties [it] impose[s].” See Fisher, 402 F.3d at 1173. Rather, at most, subsections 6101(a)(3)(A) and (B) entitle Plaintiffs to have their basic 40-hour workweek scheduled in a particular fashion, unless the agency head finds that to do so would seriously handicap the agency in carrying out its functions or substantially increase its costs. As noted, absent such findings, the statute requires the workweek to be scheduled over five days, Monday through Friday where possible, with two consecutive days off. But whether Plaintiffs’ basic 40-hour workweek is Monday through Friday with Saturday and Sunday off, or Monday through Saturday with Wednesday and Sunday off, does not—in and of itself—affect employees’ statutory entitlement to pay.
The critical flaw in Plaintiffs’ jurisdictional argument is revealed by Plaintiffs’ assertion that by scheduling a “flex day” for Plaintiffs on a Wednesday, for example, and making Saturday a workday, “defendant failed to pay [P]laintiffs basic pay for Wednesday and overtime pay for Saturday, as required under
The Court is not persuaded by Plaintiffs’ reliance upon Gahagan v. United States, 19 Cl.Ct. 168 (1989), in which the court observed that “[s]ection 6101 delineates scheduling practices which entitle federal employees to pay” and that therefore, “violations of § 6101 deprive federal employees of pay.” Id. at 172 (discussing Acuna v. United States, 479 F.2d 1356, 1364 (Ct.Cl.1973), cert. denied, 416 U.S. 905, 94 S.Ct. 1608, 40 L.Ed.2d 109 (1974)). For one thing, this broad assertion is inconsistent with the jurisdictional holding in Sanford. For another, decisions by the Claims Court, like decisions by the Court of Federal Claims, “while persuasive, do not set binding precedent for separate and distinct cases.” W. Coast Gen. Corp. v. Dalton, 39 F.3d 312, 315 (Fed.Cir.1994).
Moreover, and in any event, the court‘s language in Gahagan must be read in the context of the claims that were actually at issue in that case. Those claims were based on subsection (E) of section 6101(a)(3), a provision that is distinguishable in its purposes and effects from subsections (A) and (B). See 19 Cl.Ct. at 172. Subsection (E) provides that unless an agency head “determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased ... the occurrence of holidays may not affect the designation of the basic workweek” with respect to each employee.
Thus, the court concluded in Gahagan that subsection (E) might fairly be interpreted as mandating compensation for its violation because it creates an entitlement on the part of employees to not have their workweeks manipulated to prevent workdays from falling on a holiday, which would entitle them to receive premium pay pursuant to
Finally, Plaintiffs’ reliance upon the Back Pay Act as a basis for subject matter jurisdiction is unavailing. That Act authorizes an appropriate authority to award backpay and interest where an employee can show that he suffered an unjustified personnel action which “resulted in the ... reduction of all or part of the pay ... of the employee.”
As the Federal Circuit has made clear, “[u]nless some other provision of law commands payment of money to the employee for the ‘unjustified or unwarranted personnel action,’ the Back Pay Act is inapplicable.” Spagnola v. Stockman, 732 F.2d 908, 912 (Fed.Cir.1984) (quoting United States v. Connolly, 716 F.2d 882, 887 (Fed.Cir.1983)); see also Worthington v. United States, 168 F.3d 24, 26 (Fed.Cir.1999) (Back Pay Act is a “money-mandating” statute “when based on
In short, Plaintiffs have failed to show that the statutory provisions upon which they rely—
CONCLUSION
On the basis of the forgoing, the government‘s partial motion to dismiss Count I of the complaint is GRANTED and Count I is DISMISSED without prejudice.4
IT IS SO ORDERED.
Notes
ELAINE D. KAPLAN
Judge