Horvath v. United States

Decision Date13 August 2020
Docket NumberNo. 16-688C,16-688C
PartiesMICHAEL HORVATH, individually, and on behalf of the classes of federal Secret Service agents and federal Diplomatic Security Service agents similarly situated to him, Plaintiff, v. UNITED STATES, Defendant.
CourtCourt of Federal Claims


Keywords: RCFC 23; Class Certification; Commonality; Typicality; Adequacy; Civilian Pay; Overtime; LEAP; 5 U.S.C. § 5542(e); Secret Service; Diplomatic Security Service

Nicholas Michael Wieczorek, Clark Hill, PLC, Las Vegas, Nevada, for the plaintiff.

Galina I. Fomenkova, National Courts Branch, Civil Division, U.S. Department of Justice, Washington, D.C., with whom were Jane M. Brittan, Office of the Chief Counsel, U.S. Secret Service, and Rebecca C. Wulffen, Office of Employment Law, Office of the Legal Adviser, U.S. Department of State, of counsel, for the defendant.



Secret Service Special Agent Michael Horvath, on behalf of himself and similarly situated U.S. Secret Service and Diplomatic Security Service special agents, seeks backpay he alleges was illegally denied by a regulation that was inconsistent with the governing statute. The Federal Circuit agreed with the plaintiff and held the regulation unlawfully required agents' unscheduled hours of protective duty to be "consecutive" before triggering the two additional hours of overtime pay guaranteed by 5 U.S.C. § 5542(e). See Horvath v. United States, 896 F.3d 1317 (Fed. Cir. 2018). The Federal Circuit has remanded the case for this Court to consider "whether class certification is appropriate." Id. at 1322.

The Secret Service has demonstrated, based on an analysis of its time and payroll records, that Mr. Horvath was not denied overtime pay due to the application of the now-invalidated rule. Mr. Horvath, however, seeks more. Based on discovery from the Secret Service, he argues that he may have been denied overtime pay on some basis other than the invalidated regulation. He argues that the Court should certify a broader class of all Secret Service and Diplomatic Security Service special agents who performed protective duties and may have been denied § 5542(e) pay on account of any basis at all and not just due to the invalidated regulation.

Neither the plaintiff's complaint nor the record in the case supports Mr. Horvath's effort to certify this broader class of special agents. Despite providing examples of other special agents who, like himself, were denied pay for consecutive unscheduled hours, Mr. Horvath has failed to establish that this allegedly broader denial of § 5542(e) pay was attributable to a policy, practice, or unexplained systematic and widespread error that meets the requirements of Rule 23 of the Rules of the Court of Federal Claims ("RCFC") for the United States to have acted on grounds generally applicable to such a class.

Mr. Horvath's ultimate lack of damages on the narrower claim that was expected to yield variable damages for each class member is not necessarily fatal to class certification. In this case, however, Mr. Horvath's interests no longer sufficiently align with those of the potential class members to make him an adequate representative of the putative class. Mr. Horvath's response to the government's analysis questions the accuracy of the time and payroll records that putative class members would rely on to prove their claims, potentially jeopardizing the commonality of the class's claims. Additionally, when crafting, negotiating, and litigating discovery requests, Mr. Horvath's interests in proving his individual claim based on consecutive unscheduled hours may overshadow the class interest in proving claims for nonconsecutive unscheduled hours.

Accordingly, the plaintiff's motion to certify a class is denied.1


Special agents of the Secret Service and the Diplomatic Security Service are regularly scheduled to work 12-hour shifts protecting the President, Vice President, Secretary of State, other dignitaries, candidates, or families of these individuals. The Court describes the three statutory provisions that compensate special agents for their especially long workdays and then describes the Secret Service time-reporting practices at issue in this case used to implement these provisions.

A. Pay Statutes and Regulations

Special agents are exempt from the overtime-pay provisions of the Fair Labor Standards Act ("FLSA"), but they are compensated for hours worked in excess of a standard eight-hourworkday by provisions of the Federal Employees Pay Act, 5 U.S.C. §§ 5541-5550b ("FEPA"). FEPA's Law Enforcement Availability Pay ("LEAP") provision, § 5545a, augments some special agents' base salary by 25-percent. FEPA's overtime provision, § 5542, pays time-and-a-half for overtime hours.

1. § 5542(d)

For special agents who receive the LEAP premium, § 5542(d) increases the overtime threshold from eight hours to 10 hours:

(d) In applying subsection (a) of this section with respect to any criminal investigator who is paid availability pay under section 5545a
(1) such investigator shall be compensated under such subsection (a), at the rates there provided, for overtime work which is scheduled in advance of the administrative workweek—
(A) in excess of 10 hours on a day during such investigator's basic 40 hour workweek; or
(B) on a day outside such investigator's basic 40 hour workweek; and
(2) such investigator shall be compensated for all other overtime work under section 5545a.

5 U.S.C. § 5542(d). As a result, special agents who receive LEAP pay are compensated for hours 8 and 9 of their 12-hour shifts only with the fixed-amount LEAP premium and receive time-and-a-half overtime pay only for the last two hours of a shift.

2. § 5542(e)

Section 5542(e)—the focus of this case—is an exception to § 5542(d). Section 5542(e) reverts the overtime threshold for LEAP recipients performing protective duties from 10 hours back to eight hours on days when an agent performs at least two hours of unscheduled overtime work:2

(e) Notwithstanding subsection (d)(1) of this section, all hours of overtime work scheduled in advance of the administrative workweek shall be compensated under subsection (a) if that work involves duties as authorized by section 3056(a) of title 18 or section 37(a)(3) of the State Department Basic Authorities Act of 1956, and if the investigator performs, on that same day, at least 2 hours of overtime work not scheduled in advance of the administrative workweek.

5 U.S.C. § 5542(e). For a special agent performing protective duties on a shift of 12 scheduled hours who must arrive early or stay late by at least two unscheduled hours, subsection (e) turns hours 8 and 9, which otherwise would have only been compensated by LEAP, into overtime-pay hours.

In summary, broken down by hour, a special agent who works a scheduled 12-hour shift on a protective detail without additional unscheduled hours is paid:

• hours 1 through 8 at the base rate (x);

• hours 9 and 10 with the fixed-amount LEAP premium; and

• hours 11 and 12 at the overtime rate (1.5x).A special agent who works a scheduled 12-hour shift plus two additional hours on a protective detail is paid:

• hours 1 through 8 at the base rate (x);

• hours 9 and 10 at the overtime rate (1.5x);

• hours 11 and 12 at the overtime rate (1.5x); and

• hours 13 and 14 (which were unscheduled) with the fixed-amount LEAP premium.

3. Invalidated Consecutive-Hours Rule

When Mr. Horvath filed this case in 2016, an Office of Personnel Management regulation purported to implement § 5542(e) by requiring that a special agent's two unscheduled hours on a protective detail be "consecutive" in order to trigger the two additional hours of overtime pay. See 5 C.F.R. § 550.182(b)(2) (the "consecutive-hours rule").

B. Secret Service Pay Policies

Instead of calculating pay from records of special agents' start and end times, the Secret Service pays special agents based on their self-reported number of base, overtime, and LEAP hours. These self-reported time entries reside in a database called WebTA. Separate "MARS" reports track the start and end times of agents' LEAP hours, but their contents do not affect a special agent's pay.

When completed, a special agent's time entry for a 12-hour workday reads "8-2-2"—eight base, two overtime, and two LEAP hours.

An agent would report a 12-hour scheduled shift lengthened by two unscheduled hours (making it a 14-hour shift) with an 8-4-2 time-entry. An 8-4-2 time-entry nets an agent three additional hours of base pay (two overtime hours) than he would otherwise receive from an 8-2-2 entry, subject to annual pay caps.

Under the consecutive-hours rule, a special agent who needed to start a scheduled 12-hour shift an unscheduled hour early and stay an unscheduled hour late, despite having worked a daily total of two unscheduled hours, would have to settle for submitting an 8-2-2 time-entry rather than an 8-4-2 time-entry.3 The effect would be to cost the agent two hours of overtime pay (equivalent to three hours of base pay).


In 2016, Mr. Horvath sued on behalf of himself and similarly situated special agents of the Secret Service and the Diplomatic Security Service seeking backpay for non-consecutive overtime hours accrued when working on protective details. He claimed that the consecutive-hours rule was an invalid interpretation of § 5542(e). The rule, the plaintiff alleged, deprived him and similarly situated special agents of two hours of overtime pay each time a special agent was required to submit an 8-2-2 time-entry despite having worked the necessary number of unscheduled, although nonconsecutive, hours on a protective detail to allow the special agent to submit an 8-4-2 time-entry.

The defendant moved to dismiss the complaint, and a judge of this court granted the motion. On the plaintiff's appeal, however, the Federal Circuit held that the consecutive-hours rule was invalid and partially reversed the dismissal...

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