Abbey v. United States, 07-272C

CourtCourt of Federal Claims
PartiesMARK G. ABBEY, et al., Plaintiff, v. THE UNITED STATES, Defendant.
Docket NumberNo. 07-272C,07-272C
Decision Date01 December 2015

MARK G. ABBEY, et al., Plaintiff,

No. 07-272C

United States Court of Federal Claims

December 1, 2015

On Remand; Cross-Motions for Summary Judgment; RCFC 56; FLSA; 29 U.S.C. §§ 201-219; Federal Employees Flexible & Compressed Work Schedules; 5 U.S.C. §§ 6120-6133.

Gregory K. McGillivary, Washington, D.C., for plaintiffs. Sara L. Faulman, Washington, D.C., of counsel.

Hillary A. Stern, Senior Trial Counsel, with whom where Joyce Branda, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Reginald T. Blades, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. Brett Daee and Michael Doherty, Office of Chief Counsel, Federal Aviation Administration, Washington, D.C., of counsel.



The court considers this case on remand. Current and former air-traffi-c-control specialists or traffic-management coordinators (collectively, controllers), who are or were flexible work schedule (FWS) employees of the Federal Aviation Administration (FAA), seek overtime pay under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201-219 (FLSA), for hours worked in excess of their basic work requirement from May 1, 2005 to present. It is undisputed that the controllers performed this work with the FAA's knowledge and authorization. Defendant, on behalf of the FAA, contends that the controllers received compensatory time or credit hours for this work and that no overtime pay is or was ever due. The question now before the court is whether the FAA's compensatory time and credit hour programs were legally permissible either in whole or in part and if not, whether the FAA is liable for overtime for excess hours.

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For the reasons set forth below, the court finds that the FAA's policies during the statutory period fell only partly within the authorizing provisions of Title 5, 5 U.S.C. §§ 5543, 6120-6133. See Federal Employees Flexible and Compressed Work Schedules Act of 1982 (the Flexible Schedules Act), Pub. L. No. 97-221, 96 Stat. 227 (1982) (codified as amended at 5 U.S.C. §§ 6120-6133). Thus, defendant's motion for summary judgment is DENIED-IN-PART with respect to the FAA's credit hour policy, and plaintiffs' motion for summary judgment is GRANTED-IN-PART. The court finds that the FAA is liable for overtime pay for the excess credit hours accrued by the controllers. Consistent with the court's earlier opinions, plaintiffs are entitled to back pay damages for a two-year statutory period plus liquidated damages and attorney's fees.

I. Background

In earlier issued opinions, the court held that the FAA had no authority to grant compensatory time and credit hours in exchange for the excess hours that its controllers worked, and thus the FAA was liable for FLSA overtime pay and liquidated damages. See Abbey v. United States (Abbey I), 82 Fed. Cl. 722 (2008) (finding liability on partial summary judgment); Abbey v. United States (Abbey II), 99 Fed. Cl. 430 (2011); Abbey v. United States (Abbey III), 106 Fed. Cl. 254 (2012) (finding that plaintiffs were entitled to liquidated damages and that an extension of the FLSA statute of limitations was not warranted); Abbey v. United States (Abbey IV), 106 Fed. Cl. 789 (2012) (awarding damages post-trial).1

On appeal, the Federal Circuit rejected the premise that the FAA lacked authority to depart from the FLSA's overtime pay provision. Abbey v. United States (Abbey V), 745 F.3d 1363 (Fed. Cir. 2014), reh'g en banc denied (Aug. 22, 2014). The Federal Circuit held that particular provisions of the federal personnel laws, specifically, 5 U.S.C. §§ 5543 and 6120-6133, survived the 1996 Appropriations Act to provide continued authorization for the FAA to depart from the FLSA's overtime pay provision. Id. at 1373 (vacating Abbey I and Abbey IV); Department of Transportation & Related Agencies Appropriation Act of 1996 (1996 Appropriations Act), Pub. L. No. 104-50, § 347, 109 Stat 436, 460 (1996) (later codified as amended at 49 U.S.C. § 40122(g)). Accordingly, the issue left open on remand is "whether the challenged FAA['s] [compensatory time and credit hour] policies are fully, or only partly, within the authority of those Title 5 exemptions from the FLSA." Id. at 1365. As the Federal Circuit stated in AbbeyV, "unless 5 U.S.C. §§ 5543 and 6120-6133 continue to authorize a departure from the money-payment overtime command of the FLSA, the FAA cannot act contrary to that command." Id. at 1372. The Federal Circuit added that the "validity of the challenged FAA policies on compensatory time and credit hours in lieu of FLSA overtime pay turns

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on whether those policies are within the authorization of 5 U.S.C. §§ 5543 and 6120-6133." Id. at 1375.

On remand, the parties filed cross-motions for summary judgment. See Def.'s Mot. Summ. J. (Def.'s MSJ), Nov. 19, 2014, ECF No. 305; Pls.' Opp'n [] & Cross-Mot. Summ. J. (Pls.' MSJ), Dec. 16, 2014, ECF No. 306; Pls.' Stmt. Uncontroverted Facts (PSUF), Dec. 16, 2014, ECF No. 307; Def.'s Reply, Jan. 30, 2015, ECF No. 310; Pls.' Reply, Feb. 20, 2015, ECF No. 315. Both parties filed an appendix with documents in support of their motions. Pls.' App. (PA), ECF No. 307-1-2; Def.'s App. (DA), ECF No. 305. Following the close of briefing, the Federal Circuit issued a decision clarifying the state of the law with respect to overtime by inducement under the Federal Employees Pay Act of 1945, 5 U.S.C. § 5542(a). Mercier v. United States, 786 F.3d 971 (Fed. Cir. 2015). In turn, the parties were ordered to submit briefs on what effect, if any, the Mercier holding has in this case. Def.'s Suppl. Br., July 1, 2015, ECF No. 319; Pls.' Suppl. Br., July 1, 2015, ECF No. 320; Def.'s Suppl. Reply, Aug. 26, 2015, ECF No. 324; Pls.' Suppl. Reply, Aug. 26, 2015, ECF No. 325.

In their briefing, the controllers concede that the FAA's policies concerning compensatory time in lieu of overtime pay fit entirely within Title 5's compensatory time exemptions from the FLSA overtime pay requirement, see 5 U.S.C. §§ 5543, 6123(a)(1), 6121(6). See Pls.' MSJ 1 n.1. Thus, the only question remaining on remand is whether the FAA's credit hour policies are "fully or partly" authorized by 5 U.S.C. §§ 5543 and 6120-6133 and what, if any, ramifications there are for violations. See Abbey V, 745 F.3d at 1365. The matter is ripe for decision.

II. Legal Standards

A. Cross-Motions for Summary Judgment

The parties have filed cross-motions for summary judgment pursuant to Rule 56 of the Rules of the United States Court of Federal Claims (RCFC).2 A motion for summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." RCFC 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). When considering cross-motions for

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summary judgment, "the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987).

In considering a motion for summary judgment, the court draws all inferences in favor of the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Mann v. United States, 334 F.3d 1048, 1050 (Fed. Cir. 2003). The moving party has the initial burden of establishing "the absence of any genuine issue of material fact and entitlement to judgment as a matter of law." Crater Corp. v. Lucent Techs., Inc., 255 F.3d 1361, 1366 (Fed. Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986)). This burden may be discharged by "pointing out . . . that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. "The party opposing the motion must point to an evidentiary conflict created on the record; mere denials or conclusory statements are insufficient." SRI Int'l v. Matsushita Electric Corp. of Am., 775 F.2d 1107, 1116 (Fed. Cir. 1985).

"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson 477 U.S. 247-48 (emphasis omitted). A fact is material if it might affect the outcome of the suit, and a dispute over a material fact is genuine "if the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party." Id. at 248. An issue is genuine if it might "reasonably be resolved in favor of either party." Id. at 250. "Denial of both motions is warranted if genuine disputes exist over material facts." Whalen v. United States, 93 Fed. Cl. 579, 587 (2010) (citing Mingus Constructors, Inc., 812 F.2d 1391).

To prevail on either motion for summary judgment here, the moving party must demonstrate that there is no "genuine issue of material fact," see Celotex, 477 U.S. at 322-24, as to: (1) what extent the FAA's credit hour policies comply with 5 U.S.C. §§ 5543 and 6120-6133; and (2) whether FLSA overtime-pay and liquidated damages are appropriate and if so, whether the statutory period should be extended. Because the factual record developed over the long pendency of this case is extensive and the outstanding issues are legal in nature, summary judgment is appropriate. To the extent that any factual disputes remain, see, e.g., Def.'s Reply 4 and 14, those disputes are not material.

B. Overtime Compensation Under the FLSA

The legal standard for obtaining overtime compensation under the FLSA has been addressed in detail in two earlier opinions in this case. See Abbey I, 82 Fed. Cl. at 727-28; Abbey II, 99 Fed. Cl. at 430. To prevail on a FLSA claim for an overtime activity suffered or permitted to be performed, plaintiffs must prove each of the...

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