Zumerling v. Devine
| Decision Date | 31 July 1985 |
| Docket Number | No. 85-541,85-541 |
| Citation | 769 F.2d 745 |
| Parties | 27 Wage & Hour Cas. (BN 521, 103 Lab.Cas. P 34,707 Michael ZUMERLING, et al., Appellants, v. Donald J. DEVINE, et al., Appellees. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
Thomas A. Woodley, Mulholland & Hickey, Washington, D.C., argued for appellants. With him on brief was Erick J. Genser.
Robert A. Reutershan, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for appellees. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen. and David M. Cohen, Director.
John Salter, Office of Gen. Counsel, Office of Personnel Management, Washington, D.C., of counsel.
Before MARKEY, Chief Judge, RICH, Circuit Judge, and NICHOLS, Senior Circuit Judge.
This appeal presents for our review whether the Office of Personnel Management (OPM) has properly applied section 7(k) of the Fair Labor Standards Act (FLSA or Act), 29 U.S.C. Sec. 207(k), as amended in 1974, in formulating its equation for the calculation of overtime payments for federal firefighters and law enforcement officers. Appellants (firefighters), over 4,500 current and former employees of the United States employed in fire protection and law enforcement activities, individually brought suit in the District Court for the Western District of Pennsylvania asserting various claims concerning their minimum wage and overtime compensation. On cross-motions for summary judgment, the court, Mansmann, J., premised its jurisdiction on 28 U.S.C. Sec. 1346(a)(2) (the "Little Tucker Act") and held, in relevant part, that no violation of the overtime provision of the FLSA exists, but some claimants recovered under the minimum wage provisions of that Act. On the firefighters' appeal of the trial court's judgment on the overtime claims, we take jurisdiction under 28 U.S.C. Sec. 1295, and affirm the district court's judgment.
The facts of this case are set forth in detail in the district court opinion, Zumerling v. Marsh, 591 F.Supp. 537 (W.D.Pa.1984). While a complete repetition of these facts is not necessary to the resolution of the questions of law considered here, we recount the relevant statutory provisions and the overtime computation schemes set by OPM and requested by the firefighters.
In contrast to the typical general schedule (GS) employee who is scheduled for a 40-hour workweek, the appellants typically work six 24-hour shifts, or 144 hours, in every 14-day work period. Also, unlike a typical employee who is on duty for all working hours, the firefighters are only on duty for 8 hours of each 24-hour shift; the remaining 16 hours are standby time where the firefighters may do as they please within the confines of the duty area. Congress has recognized that appellants' work schedules are different from those of typical government employees, and in Title V set forth the computation for a firefighters' pay in recognition of this difference. In accordance with 5 U.S.C. Sec. 5545, on a weekly basis a firefighter receives basic pay, computed by dividing the yearly GS pay by 2,080 hours, and "premium pay" of up to 25 percent of the basic GS pay. This pay structure, doubled to compensate firefighters for their full 144-hour biweekly work period, is premised independently upon Title V and existed prior to the FLSA amendments mandating overtime compensation rates for federal firefighters.
In 1974 the FLSA was amended to include within its scope, among others, federal firefighters. Under section 7(a) of the FLSA, "[e]xcept as otherwise provided in this section," employees receive overtime compensation for a workweek over 40 hours at a rate of one and one-half times their "regular rate." 29 U.S.C. Sec. 207(a). Section 7(k), however, provides an exception to Sec. 7(a) for those engaged in fire protection and law enforcement activities. The subsection provides in pertinent part:
compensation at a rate not less than one and one-half times the regular rate at which he is employed.
Thus under Sec. 7(k) a firefighter's "overtime" period is calculated based on tours of duty in excess of a statutorily defined maximum work period, rather than hours worked over a 40-hour workweek.
Squarely at issue in this case is the method of determining the "regular rate" from which overtime wages are calculated. The parties agree as to the manner in which OPM calculates the regular rate, however, appellants assert this computation violates the statute and seek alternative methods more favorable to themselves. Both parties have been helpful by providing illustrations of the various computations. According to the illustrations in the affidavit of Dwight Brown, a Personnel Management Specialist at OPM, which are consistent with appellants' illustrations and which we will use throughout, the various computations are as follows:
1. OPM's method
OPM issued Federal Personnel Manual (FPM) Letter No. 551-5 in 1975 instructing federal agencies on the application of the FLSA to employees such as appellants. Title V and the FLSA are applied separately, and each employee's pay reflects the greater of the amounts necessitated by the separate laws.
OPM calculates the FLSA regular rate as follows:
regular rate = total remuneration
------------------
tour of duty hours
For a GS-3, step 1, firefighter in 1978, the lowest salaried classification and pay level occurring, the regular rate is:
$409.60 (Basic Pay) k
$102.40 (Premium Pay) = $3.56 reg
--------------------- rate
144 hours (2-week
tour of duty)
Overtime is mandated by FLSA Sec. 7(k) for all hours over the 108 "average" prescribed in Sec. 7(k). This amount is:
1/2 X hourly regular rate X number of hours
The multiplier of one-half the regular rate is a reflection of the fact the firefighters already get paid independently of FLSA for each hour of their 144 working hours. Thus the one-half pay in addition to the regular pay amounts to the one and one-half rate mandated by Sec. 7(k). A GS-3, step 1 employee who works 36 hours overtime in a 2-week period (144-108) receives:
1/2 X $3.56 (reg. rate) X 36 (overtime hours) = $64.08
The total for the employee is $576.08
2. Appellants' Interpretation
Appellants assert that OPM's calculation of the regular rate is faulty, as the rate should be the GS basic pay divided by a 40-hour workweek. Thus, for the GS-3 employee:
$409.60 (GS pay) = $5.12 regular
------------------- rate
80 (two 40-hour weeks)
Appellants continue that overtime should be at the rate of one and one-half this Title V hourly basic rate, which they contend is the FLSA "regular rate." Thus:
Overtime would be calculated as above using the $4.74 regular rate:
1 1/2 X $4.74 (reg. rate) X 36 hours = $255.96
In any event, hours on leave should not be counted in determining the regular rate, according to appellants. Thus, whenever part of a tour is taken by leave, the regular rate should rise. The OPM formula does not do this, as it includes neither the leave hours nor the compensation for those hours.
As a preliminary matter, we address the district court's jurisdiction over the claims at issue. The FLSA claims here are against the United States, and may not be brought unless the United States has waived its sovereign immunity. Such a waiver can be found in the Tucker Act, a jurisdictional statute not conferring a substantive right, United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976), which provides the district court with original jurisdiction, concurrent with the United States Claims Court, of
(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, * * * or for liquidated or unliquidated damages in cases not sounding in tort.
28 U.S.C. Sec. 1346(a)(2).
See United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 2967, 77 L.Ed.2d 580 (1983). Appellants' substantive rights are based upon the FLSA.
While it is clear that the United States has consented to be sued for the claims present here, it is similarly clear that the district court has jurisdiction only of claims not exceeding $10,000 in amount. Before the district court, the United States argued that jurisdiction was not present for most of the claims as the amounts claimed exceeded $10,000. The district court considered its jurisdiction, properly ascertaining that each claim must be considered individually, see, e.g., Commonwealth of Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11, 25 (3d Cir.1975); and that the amount claimed...
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