Abbott v. U.S.

• Decision Date: 02 March 1998
• Docket Number: No. 97-2254,97-2254
• Citation: 144 F.3d 1
• Parties: 4 Wage & Hour Cas.2d (BNA) 1163 Dennis J. ABBOTT, III, et al., Plaintiffs, Appellants, v. UNITED STATES of America, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

144 F.3d 1

4 Wage & Hour Cas.2d (BNA) 1163

Dennis J. ABBOTT, III, et al., Plaintiffs, Appellants, v. UNITED STATES of America, et al., Defendants, Appellees.

No. 97-2254.

United States Court of Appeals First Circuit.

Heard March 2, 1998.

Decided April 27, 1998.

James G. Noucas, Jr., with whom Christopher W. Keenan and Noucas & Keenan were on brief, for Plaintiffs.

Deborah Ruth Kant, Attorney, Department of Justice, with whom Frank W. Hunger, Assistant Attorney General, Jay P. McCloskey, United States Attorney, and Barbara C. Biddle, Attorney, Department of Justice, were on brief, for Defendant the United States.

Julia Akins Clark, for Defendant International Federation of Professional and Technical Engineers, AFL-CIO & CLC, Local 4.

Before LYNCH, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.

LYNCH, Circuit Judge:

Engineering and technical employees at the Portsmouth Naval Shipyard felt they were not being paid overtime to which they were entitled. Their union filed a grievance and asked the employees specifically to notify the union if they wished to be part of the grievance. The union also used language which implied that those employees who did not join this grievance could later file grievances. A settlement was reached of the union grievance: from November 12, 1993 forward, each employee in these categories would receive overtime pay, but only those individuals who had joined the grievance would receive compensation for overtime past due and owed up to that date.

This lawsuit is by those who did not join in the union grievance, trying to recover past overtime pay for the period up to November 12, 1993. In 1996, these employees filed suit against both the United States and the union. The suit proceeds under the special sets of laws which govern the federal employees at the Shipyard, and those laws determine the outcome. Congress enacted a comprehensive remedial scheme for such claims, a scheme which requires that we affirm the dismissal of the action against the union; we also affirm dismissal against the United States on statute of limitations grounds.

I. Background

In reviewing the district court's decision to grant the defendants' motions to dismiss under Fed.R.Civ.P. 12(b)(6), we take all well-pleaded facts in the complaint to be true, but need not credit the complaint's "bald assertions" or legal conclusions. See Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1216 (1st Cir.1996).

Plaintiffs are a group of over one hundred present and former employees at the Portsmouth Naval Shipyard. The United States Navy owns the Portsmouth Naval Shipyard. Plaintiffs are or were members of defendant union, the International Federation of Professional and Technical Engineers, AFL-CIO & CLC, Local 4. The union is the exclusive bargaining agent for certain professional and technical federal employees at the Shipyard.

This saga starts in November of 1985, when the Fair Labor Standards Act regulations of the United States Office of Personnel Management became effective. These regulations presumed that federal employees at the GS-11 level and above were exempt from the overtime pay provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-19. Under the provisions of FLSA § 7(a)(1), covered employees must be paid one and one-half times their regular hourly wage if they work more than forty hours in a work week. See 29 U.S.C. § 207(a)(1). Federal employees exempted from this provision, however, are compensated for overtime work in accordance with the (less generous) Federal Employment Pay Act. See 5 U.S.C. § 5542. The OPM regulations were invalidated in 1987, see American Fed'n of Gov't Employees v. Office of Personnel Management, 821 F.2d 761 (D.C.Cir.1987), but the "exempt" status of the plaintiffs as GS-11 or higher pay grade employees was not changed. ¹

In 1990, the Federal Circuit held that under the Civil Service Reform Act, Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in various sections of 5 U.S.C.) ("CSRA"), the grievance procedure in a collective bargaining agreement was the exclusive forum for the resolution of FLSA claims, unless the grievance procedure explicitly excluded FLSA claims. See Carter v. Gibbs, 909 F.2d 1452, 1458 (Fed.Cir.) (en banc), cert. denied sub nom. Carter v. Goldberg, 498 U.S. 811, 111 S.Ct. 46, 112 L.Ed.2d 22 (1990). The union, accordingly, filed a grievance as provided in its collective bargaining agreement, in September of 1990. The grievance challenged the Shipyard's classification of the bargaining unit employees as "exempt" from the overtime pay requirements of the FLSA.

The union advised its members about the status of the grievance. In the summer of 1992, the union circulated a bulletin stating, "This is also a 'last call' for all who have not filed a grievance and would like to join in. If you do not file at this time, you will not be considered in this case. Another grievance will have to be filed at a later date." Plaintiffs did not participate in this grievance. Plaintiffs assert that the union's communications led them to believe that their interests would be protected by the union in the pending grievance, or that they would be able to file a subsequent grievance.

In November of 1993, the union and the United States entered into a settlement agreement, memorialized in a memorandum of understanding ("MOU"), which resolved the pending grievance. The MOU classified the listed grievants as non-exempt and awarded them back pay for overtime for up to six years. The MOU classified employees not listed in the grievance as non-exempt from November 12, 1993, thus agreeing that they would get overtime from that date forward. But the MOU precluded them from receiving, or filing new grievances for, FLSA overtime back pay for work done prior to November 12, 1993. ²

In a letter dated June 2, 1994, plaintiffs requested arbitration of their grievances concerning the 1993 MOU under the collective bargaining agreement between the union and the Shipyard. This request for arbitration was denied by the Shipyard in a letter dated August 23, 1994, on the ground that the issue had been resolved by the MOU and the plaintiffs did not have authority to invoke arbitration under the terms of the collective bargaining agreement between the union and the Shipyard. The plaintiffs renewed their request in a letter dated September 7, 1994, and this request was again turned down by the Shipyard in a letter dated October 28, 1994.

Plaintiffs had also filed unfair labor practice claims against the Shipyard and the union with the Federal Labor Relations Authority ("FLRA") in May of 1994. The FLRA denied the plaintiffs' appeal on May 31, 1994. According to the FLRA, there was "no reason to conclude that the grievance settlement ... violates the Statute or that either the Shipyard or Local 4 violated the protected rights of any bargaining unit employees by entering into that settlement.... [N]othing suggests that [the settlement] was arrived at arbitrarily or discriminatorily or that it was based on any considerations prohibited by the Statute."

Some of the plaintiffs also sought to be included in a "global settlement" of FLSA issues that was negotiated between the International Federation of Professional and Technical Engineers and the Naval Sea Systems Command on a national level. ³ This process resulted in a partial "global settlement" dated July 20, 1995, and in a final "Global Memorandum of Understanding" dated December 6 and 7, 1995. These plaintiffs were not included in the global settlement or the global MOU because their claims were declared by the Navy to have been settled in the November, 1993 MOU.

Plaintiffs then filed suit against the union and the United States in United States District Court for the District of Maine on March 13, 1996. The plaintiffs alleged that each of them had either filed a grievance based on the settlement of the union's 1990 grievance, filed unfair labor practice claims against the defendants based on their handling of the 1990 union grievance, or were "listed grievants" in the 1990 union grievance who were dropped from the grievance by the union. Plaintiffs sought declaratory relief establishing that the November 1993 MOU is illegal and invalid to the extent that it precluded them from seeking overtime back pay under the FLSA and the Back Pay Act, 5 U.S.C. § 5596. Against the United States, the plaintiffs also sought monetary relief, including overtime back pay with interest, statutory liquidated damages, and attorney's fees.

Both the union and the United States moved to dismiss the complaint under Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. The union contended that the complaint failed to establish subject matter jurisdiction or to state a claim upon which relief may be granted. The United States alleged that the plaintiffs had failed to establish subject matter jurisdiction and proper venue, and had raised claims that were barred by the applicable statute of limitations. After the plaintiffs amended their complaint to allege jurisdiction under 28 U.S.C. § 1331, the United States argued that the court nonetheless did not have subject matter jurisdiction.

The district court referred the case to a magistrate. The district court adopted the recommended decision of the magistrate judge and granted the defendants' motions to dismiss. The district court decided the motions as motions to dismiss for failure to state a claim. As to the union, the court held that the complaint failed to state a claim upon which relief could be granted because it was tantamount to a claim that the union had breached its duty of fair representation, and, under the CSRA, the grievance procedure established by the collective bargaining agreement is the exclusive route available to plaintiffs to resolve their FLSA claims.

As to the United States, the court found the statute of limitations to be dispositive. The court held...