Alamo v. United States, 13-211C

CourtCourt of Federal Claims
PartiesMICHAEL ALAMO, et al., Plaintiffs, v. THE UNITED STATES, Defendant.
Docket NumberNo. 13-211C,13-211C
Decision Date30 July 2015

MICHAEL ALAMO, et al., Plaintiffs,

No. 13-211C

United States Court of Federal Claims

Reissued for Publication: August 18, 2015*
July 30, 2015

Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219; Federal Employee Pay Act (Title V), 5 U.S.C. §§ 5541-5550; Cross-Motions for Summary Judgment, Rule 56.

Jacob Y. Statman, Snider & Associates, LLC, Baltimore, M.D., for plaintiffs.

Emma E. Bond, Trial Attorney, Steven J. Gillingham, Assistant Director, Robert E. Kirschman, Jr., Director, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., Rebecca E. Ausprung, Of Counsel, Chief, Civilian Personnel Branch, United States Army Litigation Division, Fort Belvoir, V.A., for defendant.



Plaintiffs, current and former paramedics and emergency medical technicians, bring this back pay action against the United States, pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219 (2012), and the Federal Employee Pay Act ("Title V"), 5 U.S.C. §§ 5541-5550 (2012). Specifically, plaintiffs allege that the government has improperly calculated their regularly scheduled overtime pay under the FLSA and Title V. The parties filed cross-motions

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for summary judgment on this question, pursuant to Rule 56 of the Rules of the United States Court of Federal Claims ("RCFC"). For the reasons set forth below, the Court DENIES plaintiffs' motion for summary judgment and GRANTS defendant's motion for summary judgment.


A. Factual Background

The material facts in this case are undisputed. Plaintiffs are 29 current or former employees of the United States Department of the Army assigned to Fort Stewart, Liberty, Georgia. Joint Stip. at 2. Plaintiffs are, or have previously been, employed as Emergency Medical Technicians ("EMT") and/or Paramedics. Id.

All but four plaintiffs are classified as non-exempt under the FLSA ("Non-exempt Plaintiffs"). Id. at 3; 29 U.S.C. § 213(a). No plaintiffs have engaged in fire suppression or law enforcement activities. Joint Stip. at 3.

At all times relevant here, plaintiffs received pay at pay grade GS-10 (or its equivalent) or below. Id. During the relevant time period, the Non-exempt Plaintiffs also received standby duty premium pay at a rate of 10 percent of their annual salary pursuant to 5 U.S.C. § 5545(c)(1). Id.; Compl. at 5.

Generally, plaintiffs work a compressed work schedule, consisting of two 24-hour shifts per week. Joint Stip. at 3. Plaintiffs' work schedules consist of hours beyond eight hours per day, or 40 hours per week. See generally Compl. Plaintiffs' overtime hours consist of those hours that are regularly scheduled in advance ("regularly scheduled overtime") and those hours that have not been scheduled in advance ("unscheduled overtime"). Joint Stip. at 5.

The government calculates the Non-exempt Plaintiffs' pay for regularly scheduled overtime, by adding the Non-exempt Plaintiffs' weekly basic pay2 and weekly standby duty

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premium pay.3 Id. at 4-5. This result, known as the total remuneration, is then divided by the total number of hours worked during the week to derive the Non-exempt Plaintiffs' hourly regular rate. Id. The government then multiplies the hourly regular rate by 0.5 ("FLSA half-time pay"). This figure is then multiplied by the total number of regularly scheduled overtime hours worked during the week to arrive at plaintiffs' regularly scheduled overtime pay.4 Id.

B. Procedural Background

On September 18, 2014, plaintiffs moved for summary judgment ("Pls. Mot.") upon the ground that the government has improperly calculated their overtime pay under the FLSA and Title V. Pls. Mot. at 1. On November 5, 2014, defendant responded to plaintiffs' motion and also moved for summary judgment ("Def. Mot.") upon the ground that the government has properly calculated plaintiffs' overtime pay under these statutes. Def. Mot. at 3-4. On December 22, 2014, plaintiffs filed their reply and response to defendant's cross-motion ("Pls. Rep."), in which they withdrew the claim for back pay with respect to the four plaintiffs who are exempt from coverage under the FLSA. Pls. Rep. at 3. And so, the remaining issue in this case is whether the government has properly calculated the overtime pay for the Non-exempt Plaintiffs.

On March 16, 2015, the Court requested supplemental briefing on this issue and the parties subsequently filed supplemental briefs on April 3, 2015, April 17, 2015 and April 24, 2015. See generally Pls. Supp. Br. 1; Def. Supp. Br. 1; Pls. Supp. Br. 2; Def. Supp. Br. 2; Pls. Supp. Br. 3; Def. Supp. Br. 3. The Court held oral argument in this case on July 16, 2015. See generally Oral Argument Transcript.

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A. Jurisdiction And RCFC 56

The Tucker Act grants this Court jurisdiction over non-tort monetary claims "against the United States founded . . . upon . . . any Act of Congress . . . ." 28 U.S.C. § 1491(a)(1) (2011). The FLSA is a money-mandating statute, and so, claims may be brought pursuant to the FLSA in this Court due to the Tucker Act's waiver of sovereign immunity. Id.; 29 U.S.C. § 216(b); see Abbey v. United States, 745 F.3d 1363, 1369 (Fed. Cir. 2014); Zumerling v. Devine, 769 F.2d 745, 748 (Fed. Cir. 1985) (citing United States v. Testan, 424 U.S. 392, 398 (1976)).

In addition, summary judgment is appropriate when "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); Biery v. United States, 753 F.3d 1279, 1286 (Fed. Cir. 2014). A dispute is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. A fact is "material" if it could "affect the outcome of the suit under the governing law . . . ." Id.

The moving party bears the burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Accordingly, '"the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion."' Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

In making a summary judgment determination, the Court does not weigh the evidence presented, but instead must "determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249; see also Am. Ins. Co. v. United States, 62 Fed. Cl. 151, 154 (2004); Agosto v. INS, 436 U.S. 748, 756 (1978) ("[A trial] court generally cannot grant summary judgment based on its assessment of the credibility of the evidence presented . . . ."). The Court may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party . . . ." Matsushita, 475 U.S. at 587.

The above standard applies when the Court considers cross-motions for summary judgment. Principal Life Ins. Co. & Subsidiaries v. United States, 116 Fed. Cl. 82, 89 (2014); see also Estate of Hevia v. Portrio Corp, 602 F.3d 34, 40 (1st Cir. 2010). And so, when both

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parties move for 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."' Abbey v. United States, 99 Fed. Cl. 430, 436 (2011) (quoting Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)).

B. The Fair Labor Standards Act, Title V And Relevant OPM Regulations

Prior to 1974, federal employees received overtime compensation exclusively pursuant to Title V. 5 U.S.C. §§ 5541-5550; Christofferson v. United States, 64 Fed. Cl. 316, 319 (2005); Aaron v. United States, 56 Fed. Cl. 98, 100-01 (2003). Congress enacted section 5545(c)(1) of Title V to address pay for federal employees required to regularly remain at work in a standby status for longer than ordinary periods of duty. See 5 U.S.C. § 5545(c)(1). Specifically, section 5545(c)(1) provides:

[A]n employee in a position requiring him regularly to remain at, or within the confines of, his station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this subchapter, except for irregular, unscheduled overtime duty in excess of his regularly scheduled weekly tour.

Id. Under section 5545, federal employees receive standby duty premium pay as a percentage of their annual pay. 5 U.S.C. § 5545(c). This pay is based upon the understanding that certain types of federal jobs do not fit into a typical eight hours per day, 40 hours per week work schedule and should be compensated accordingly. Alexander v. United States, 28 Fed. Cl. 475, 482-83 (1993), aff'd, 32 F.3d 1571 (Fed. Cir. 1994).

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