Horvath v. United States, 16-688C

Decision Date24 January 2017
Docket NumberNo. 16-688C,16-688C
PartiesMICHAEL HORVATH, et al., individually, and on behalf of the classes of federal Secret Service agents similarly situated to him, Plaintiffs, v. THE UNITED STATES, Defendant.
CourtU.S. Claims Court

Federal Employees Pay Act (Title V), 5 U.S.C. §§ 5541, et seq.; 12(b)(1), Subject Matter Jurisdiction; 12(b)(6), Failure to State a Claim.

Nicholas M. Wieczorek, Counsel of Record, Morris Polich & Purdy LLP, Las Vegas, NV, David J. Vendler, Counsel of Record, Morris Polich & Purdy LLP, Los Angeles, CA, for plaintiff.

Sosun Bae, Trial Attorney, Claudia Burke, Assistant Director, Robert E. Kirschman, Jr., Director, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, United States Department of Justice, Civil Division, Washington, DC, for defendant.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

Plaintiff, Michael Horvath, a United States Secret Service ("USSS") Special Agent, brings this civilian pay action against the United States seeking back pay and declaratory and injunctive relief on behalf of himself and similarly situated USSS Special Agents, pursuant to the Federal Employees Pay Act ("Title V"), 5 U.S.C. §§ 5541, et seq. Specifically, Mr. Horvath alleges that the government has not properly compensated him and other similarly situated special agents for certain hours worked in excess of 40 hours per week. The government has moved to dismiss this action for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted, pursuant to Rules 12(b)(1) and (6) of the Rules of the United States Court of Federal Claims ("RCFC"). The government has also moved to strike certain documents that plaintiff filed in support of his back pay claims. For the reasons discussed below, the Court GRANTS the government's motion to dismiss and DENIES the government's motion to strike.

II. FACTUAL AND PROCEDURAL BACKGROUND1
A. Factual Background

Plaintiff, Michael Horvath, is a special agent employed by the USSS. Compl. at ¶ 3. In the complaint, Mr. Horvath asserts four legal challenges to his compensation. First, he alleges that the USSS has not properly compensated him, and other similarly situated special agents, for certain regularly scheduled hours worked in excess of 40 hours per week, in violation of the 5 U.S.C. § 5542 (the "Overtime Pay Statute") and 5 U.S.C. § 5545a (the "LEAP" Statute). Id. at ¶1. In this regard, Mr. Horvath contends that he and other similarly situated special agents are entitled to receive premium overtime pay for such hours. Id. at ¶¶ 14-18. Second, plaintiff alleges that the USSS has not properly compensated him, and other similarly situated special agents, for regularly scheduled overtime hours that have been worked on days when a special agent also worked at least two hours of non-consecutive unscheduled overtime, in violation of the Overtime Pay Statute. Id. at ¶ 1.

In addition, Mr. Horvath alleges that the USSS has not properly compensated him, and other similarly situated special agents, for days worked that were not a part of the regular week-day schedule, so-called "flex" days, in violation of 5 U.S.C. § 6101. Id. at ¶¶ 1, 23. Finally, plaintiff alleges that the USSS has also failed to properly compensate him, and other similarly situated special agents, for the regularly scheduled work days taken off as a compensatory day off in lieu of premium overtime pay, in violation of 5 U.S.C. § 5543 and 5 C.F.R. § 550.114. Id. at ¶¶ 1, 27. As relief, Mr. Horvath seeks back pay for all hours of work for which he has not been properly compensated and certain declaratory and injunctive relief. Id. at 20-21.

1. Mr. Horvath's Compensation

The facts regarding Mr. Horvath's compensation are not in dispute. Mr. Horvath has been employed as a special agent with the USSS since 2010. Compl. at ¶ 7. Currently, he is compensated at the GS-13 level, with an annual base salary of between $73,115 and $95,048. Id. In addition, Mr. Horvath receives a 25% enhancement to his base salary, known as law enforcement availability pay or "LEAP pay," pursuant to the LEAP Statute. Id.

Mr. Horvath's responsibilities as a special agent include ensuring the safety of current and former national leaders and their families, visiting heads of state and foreign embassies. Id. at ¶ 5; see also 18 U.S.C. § 3056(a). To this end, plaintiff's back pay claims in this case relate primarily to compensation for time that Mr. Horvath spent performing such protective missions. Compl. at ¶ 6.

Because he is a secret service agent, Mr. Horvath is considered to be a "criminal investigator" under the relevant federal statutes and regulations governing civilian pay. Id. at 8; see also 5 CFR § 550.103. It is undisputed that Mr. Horvath's back pay claims in this case are governed by the Federal Employees Pay Act, or Title V. 5 U.S.C. §§ 5541, et seq.; see also Compl. at ¶ 8; Def. Mot. at 2.

2. The Overtime Pay Statute And Regulations

As background, the Overtime Pay Statute governs hourly overtime pay for certain federal employees, including criminal investigators like Mr. Horvath. See generally 5 U.S.C. § 5542 (2015). This statute provides, in relevant part, that:

(a) For full-time, part-time and intermittent tours of duty, hours of work officially ordered or approved in excess of 40 hours in an administrative workweek, . . . in excess of 8 hours in a day, performed by an employee are overtime work and shall be paid for, except as otherwise provided by this subchapter, at the following rates:
(2) For an employee whose basic pay is at a rate which exceeds the minimum rate of basic pay for GS-10 . . . the overtime hourly rate of pay is an amount equal to the greater of one and one-half times the hourly rate of the minimum rate of basic pay for GS-10 . . . or the hourly rate of basic pay of the employee, and all that amount is premium pay.

5 U.S.C. § 5542(a). The Overtime Pay Statute also provides that a criminal investigator "shall be compensated for all other overtime under" the LEAP Statute:

1. (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). And so, a criminal investigator that receives LEAP pay is compensated at the premium overtime rates set forth in the Overtime Pay Statute if the criminal investigator either: (1) works at least 10 hours on a day that is part of the criminal investigator's 40-hour workweek; or (2) works on a day that is outside of the basic 40-hour workweek. 5 U.S.C. § 5542(d)(1).

The Overtime Pay Statute also provides special rules to compensate criminal investigators for regularly scheduled overtime that involves protective services. Specifically, section 5542(e) of the Overtime Pay Statute provides that:

(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 [protective services] 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). And so, a special agent who performs protective services will be compensated for all regularly scheduled overtime worked at the premium overtime rates under the Overtime Pay Statute on a day that the criminal investigator also worked at least two hours of unscheduled overtime. Id.

The United States Office of Personnel Management ("OPM") has promulgated two regulations implementing this provision. These regulations require that the two hours of unscheduled overtime required under section 5542(e) of the Overtime Pay Statute must be consecutive.2 5 C.F.R. §§ 550.111, 550.182; see also Def. Mot. at 4; Compl. at ¶¶ 20-22.

3. The LEAP Statute

Congress enacted the Law Enforcement Availability Pay or "LEAP" Statute, 5 U.S.C. § 5545a, to account for the unpredictable schedules of criminal investigators, including USSS special agents. Def. Mot. at 3; Compl. at ¶¶ 8-9, 11-12. Under the LEAP Statute, criminal investigators may receive an annual enhancement to their basic pay. 5 U.S.C. § 5545a; Def. Mot. at 3; Compl. at ¶¶ 8-9, 11-12. And so, the purpose of LEAP Statute is "'to provide premium pay to criminal investigators to ensure [their] availability . . . for unscheduled duty in excess of a 40 hour work week based on the needs of the employing agency.'" 5 U.S.C. § 5545a(b).

The LEAP Statute provides that a criminal investigator shall be paid LEAP pay to ensure the availability of that investigator for "unscheduled duty." The statute further provides, in relevant part, that:

Availability pay provided to a criminal investigator for such unscheduled duty shall be paid instead of premium pay provided by other provisions of this subchapter, except premium pay for regularly scheduled overtime work as provided under section [5 U.S.C. §] 5542, night duty, Sunday duty, or holiday duty.

5 U.S.C. § 5545a(c); see also Doe v. United States, 372 F.3d 1347, 1351-52 (Fed. Cir. 2004) ("The head of an agency also may . . . grant annual premium pay of up to twenty-five percent instead of overtime compensation when 'an employee [is] in a position in which the hours of duty cannot be controlled administratively, and which requires substantial amounts of irregular,unscheduled overtime duty . . . .'"). The LEAP Statute also describes the criteria that must be met by a criminal investigator in order to be eligible for annual LEAP pay. In this regard, the LEAP Statute...

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