Carter v. Gibbs
| Decision Date | 31 August 1989 |
| Docket Number | No. 88-1576,88-1576 |
| Parties | 134 L.R.R.M. (BNA) 3069, 29 Wage & Hour Cas. (BN 725, 112 Lab.Cas. P 35,263 Carl CARTER, Frank Percina, William E. Dunn, Donald Honaker, Carolyn Hudson, Clara Morrison, Charlene Limenih and Similarly Situated Unnamed Plaintiffs, Plaintiffs-Appellants, v. Lawrence GIBBS, James A. Baker III and The United States of America, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Federal Circuit |
Gregory O'Duden, Director of Litigation, of Nat. Treasury Employees Union, Washington, D.C., argued, for plaintiffs-appellants. With him on the brief, were Clinton Wolcott, Michele L. Rusen and Lucinda A. Riley, Asst. Counsel.
Robert A. Reutershan, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for defendants-appellees. With him on the brief, were John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director and Jane W. Vanneman, Atty., of counsel.
Before FRIEDMAN, MAYER, and MICHEL, Circuit Judges.
The question in this case, here on appeal from the United States District Court for the Central District of California, is whether government employees who are covered by a collective bargaining agreement containing a grievance procedure that does not exclude overtime claims under the Fair Labor Standards Act are precluded by the Civil Service Reform Act of 1978 from maintaining a suit in the district court for overtime pay under the Fair Labor Standards Act. The district court held that the Civil Service Reform Act bars such a suit. Carter v. Gibbs, 690 F.Supp. 897 (C.D.Cal.1988). We reverse.
A. The Statutes. This case presents issues involving the interplay of provisions in two statutes governing the rights of federal employees, section 16(b) of the Fair Labor Standards Act of 1938 (FLSA) and section 7121 of the Civil Service Reform Act of 1978 (Reform Act).
1. Section 16(b) of the Fair Labor Standards Act of 1938. As originally enacted, section 16(b) of the Fair Labor Standards Act of 1938, ch. 676, Sec. 16, 52 Stat. 1069, did not cover federal employees. It provided:
Any employer who violates the provisions of section 206 [minimum wage provision] or section 207 [maximum hours provision] of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of 29 U.S.C. Sec. 216(b) (1940). The terms "employer" and "employee," as defined in sections 203(d) and 203(e), respectively, specifically excluded federal employees. Section 203(d) defined "Employer" as "includ[ing] any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States," and section 203(e) defined "Employee" as "includ[ing] any individual employed by an employer."
competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.... The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.
In the Fair Labor Standards Amendments of 1966, Pub.L. No. 89-601, Sec. 306, 80 Stat. 830, reprinted in 1966 U.S.Code Cong. & Admin.News 978, 990, Congress added section 218(b) to provide that approximately 685,000 federal employees--"certain Federal wage board employees, employees of naval facilities whose wages are established to conform with those in the immediate vicinity, and employees in nonappropriated fund instrumentalities of the Armed Forces"--were to receive a minimum wage and overtime pay not less than that provided in the FLSA (29 U.S.C. Sec. 206(a)(1) and 29 U.S.C. Sec. 207(a)(1), respectively). S.Rep. No. 1487, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Admin.News 3002, 3036. Congress, however, did not amend the statutory definitions of employer or employee, and there is no indication that Congress intended to make applicable to those employees any other provision of the FLSA. See 1966 U.S.Code Cong. & Admin.News at 3036.
In the Fair Labor Standards Amendments of 1974, Pub.L. No. 93-259, 88 Stat. 55, reprinted in 1974 U.S.Code Cong. & Admin.News 55, Congress extended the Act to cover, among others, most federal employees in nonsupervisory positions. It did so by changing the definition of "Employer" to "include[ ] a public agency," 29 U.S.C. Sec. 203(d), which section 203(x) defined to include the "Government of the United States." The definition of "Employee" was changed to include "any individual employed by the Government of the United States" in six specified broad categories. 29 U.S.C. Sec. 203(e). Section 216(b) was amended to give federal employees the right to sue the United States for violation of the minimum wage and maximum hour provisions of the FLSA by substituting the phrase "maintained against any employer (including a public agency) in any Federal or State Court" for the "maintained in any court of competent jurisdiction" language of the original 1938 Act. Section 216(b) now provides in pertinent part:
An action to recover the liability prescribed [covering minimum wage and overtime pay] ... may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.
2. Section 7121 of the Civil Service Reform Act of 1978. Prior to 1978, labor-management relations in the federal sector were governed by a 1962 Executive order. Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 91, 104 S.Ct. 439, 441, 78 L.Ed.2d 195 (1983). As part of the Reform Act's "comprehensive[ ] overhaul [of] the civil service system," Lindahl v. OPM, 470 U.S. 768, 773, 105 S.Ct. 1620, 1624, 84 L.Ed.2d 674 (1985), title VII of the Act provided a statutory basis and framework for labor-management relations in the federal sector.
Section 7121 of the Act requires that, with certain exceptions discussed below, "any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability," and that "the procedures shall be the exclusive procedures for resolving grievances which fall within its coverage." 5 U.S.C. Sec. 7121(a)(1). Grievance is defined broadly in section 7103(a)(9) to include any complaint by "any employee concerning any matter relating" to his or her employment, "any labor organization concerning any matter relating to the employment of any employee," or "any employee, labor organization, or agency concerning-- Subsection 7121(a)(2) provides that a collective bargaining agreement may exclude from its grievance procedures any matter that otherwise would be subject to those procedures. Subsection (b) provides that "any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration which may be invoked by either the exclusive representative or the agency." Subsection (c) excludes certain matters from the grievance procedure, e.g., retirement, insurance, suspensions or removals under section 7532, certifications or appointments, and certain classifications. Subsections (d) and (e) provide that employees who believe that they have been subject to prohibited personnel practices under section 2302(b)(1), employees who have been demoted or removed under section 4303, and employees who have been subject to adverse actions under section 7512, may pursue their claims through either the negotiated grievance procedure or other statutory procedures, but not both. Where an employee claims discrimination, the employee may file a grievance and, if he or she is not satisfied with the resolution of the grievance, may pursue the claim before the Merit Systems Protection Board or the Equal Employment Opportunity Commission.
any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment."
B. The Facts of This Case. The seven named appellants are revenue officers and tax auditors employed by the Internal Revenue Service (IRS) who brought the present action in the district court seeking recovery of unpaid overtime compensation as well as liquidated damages and attorney's fees. See 29 U.S.C. Sec. 216(b). All are members of the National Treasury and Employees Union (Union), and are subject to a collective bargaining agreement between the Union and the IRS. The collective bargaining agreement, negotiated pursuant to chapter 71 of 5 U.S.C., does not specifically exclude FLSA overtime pay claims from the grievance procedures.
After the complaint was filed, some 300 federal employees have joined the action, in accordance with 29 U.S.C. Sec. 216(b).
On the government's motion, the district court dismissed the complaint for lack of subject matter jurisdiction, on the ground that the Reform Act "preempted" the appellants' FLSA cause of action. The court stated:
Sec. 7121 requires a collective bargaining agreement to contain grievance procedures. The parties to the agreement may exclude any matter from the grievance procedures. If a matter is not excluded by agreement, it must go through the established grievance process unless [it is] of the type specified in subsections (c), (d) or (e), which do not apply in this case.
The parties do not dispute that the overtime claim is a grievance within the above definition, or that the claim is grievable through the collective bargaining agreement. The collective bargaining agreement entered into between the Union and the government does not exclude FLSA matters from operation of the...
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Carter v. Gibbs, 88-1576
...court is affirmed. AFFIRMED. FRIEDMAN, Senior Circuit Judge, dissenting. For the reason given in my opinion for the panel, reported at 883 F.2d 1563, I would reverse the judgment of the district court. To summarize, I conclude 1. The holding that the Civil Service Reform Act of 1978 bars go......