Little v. United States

• Decision Date: 23 November 2015
• Docket Number: No. 14-320C,14-320C
• Parties: PETER LITTLE, et al., Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

PETER LITTLE, et al., Plaintiffs, v. UNITED STATES, Defendant.

No. 14-320C

United States Court of Federal Claims

November 23, 2015

Motion to Dismiss; Lack of Subject Matter Jurisdiction; Failure to State a Claim; Special Pay Authority, 5 U.S.C. § 5305; Maximum Payable Rate Rule, 5 C.F.R. § 531.221; Back Pay Act, 5 U.S.C. § 5596; Mandatory Pay Retention, 5 C.F.R. § 536.301.

Thom K. Cope, Mesch, Clark & Rothschild, P.C., Tucson, AZ, for plaintiffs.

A. Bondurant Eley, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With her were Kathryn E. Witwer, Trial Attorney, Steven J. Gillingham, Assistant Director, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Washington, D.C. Susan Gibson, Associate General Counsel of the U.S. Marshals Service, of counsel.

OPINION

HORN, J.

FINDINGS OF FACT

Plaintiffs Peter Little, Kevin Kirsh, Orlando Luna, Carlos Najera, Allen Schrader, Jon Serdula, Thomas Rohn, Timothy Tobias, Andrew Robinson, and John Garrison filed a complaint, followed by an amended complaint, in the United States Court of Federal Claims. The amended complaint asserted that "[t]he USMS [U.S. Marshals Service] wrongfully paid Plaintiffs as GL 7-10 employees" and, by wrongfully paying plaintiffs as GL 7-10 employees, "the USMS committed an unjustified or unwarranted personnel action" that "resulted in the reduction of Plaintiffs' pay, allowances, and differentials." The parties have stipulated that between April 2008 and April 2013 plaintiffs were hired as Deputy U.S. Marshals in the U.S. Marshals Service through either the Federal Career Intern Program or through the competitive process after responding to a position announcement. Immediately before they were hired as Deputy U.S. Marshals by the U.S. Marshals Service, a component of the United States Department of Justice, all plaintiffs were employed by a different federal executive branch agency, the United States Department of Homeland Security, as border patrol agents or federal air marshals.¹ Plaintiffs allege, and defendant does not contest, that at all times relevant for this matter, plaintiffs maintained law enforcement officer status.

The parties have stipulated that the U.S. Marshals Service is authorized to hire Deputy U.S. Marshals at either grade 05 or 07, depending on an applicant's qualifications. Plaintiffs were hired as Deputy U.S. Marshals at the pay grade and series: GL-0082-07, Step 10. At the time the amended complaint was filed, all plaintiffs still were currently employed as Deputy U.S. Marshals.

The parties further stipulated that the U.S. Marshals Service hired plaintiffs Little, Kirsh, Luna, Najera, Schrader, Serdula, and Rohn as excepted appointments through the Federal Career Intern Program between April 2008 and August 2010.² The Federal Career Intern Program was created in July 2000 by Executive Order 13162 and was designed to assist agencies to attract candidates for entry level or trainee positions. See Exec. Order 13162, 65 Fed. Reg. 43211 (July 6, 2000). The parties have stipulated that in January 2007, the U.S. Marshals Service began using the Federal Career Intern Program to fill entry level Deputy U.S. Marshal positions. The parties have furtherstipulated that, at the time plaintiffs Little, Kirsh, Schrader, Najera, Luna, Rohn, and Serdula were hired, candidates who accepted appointments through the Federal Career Intern Program only could be hired to GS grades 05, 07, or 09. See 5 C.F.R. § 213.3202(o)(1) (effective May 11, 2006 to July 9, 2012).³ Moreover, the parties agree that the U.S. Marshals Service only was authorized to hire Deputy U.S. Marshals at either the 07 or 05 grade. In accordance with its authority, the U.S. Marshals Service appointed all Deputy U.S. Marshals hired through the Federal Career Intern Program, including plaintiffs, to either GL Grade 05 or GL Grade 07. The authority to hire at either the 07 or 05 grade was explained in the Federal Career Intern Program Deputy U.S. Marshal position description document released to the public by the U.S. Marshals Service, which indicated that individuals selected would "fill entry level 082 Deputy positions at the GL-5 or GL-7 level." The document explained that "[t]he FCIP [Federal Career Intern Program] gives the U.S. Marshals Service greater flexibility in recruiting, assessing and selecting candidates to fill Deputy U.S. Marshal Positions. FCIP is a formal training and development program that can be used to attract high potential individuals to the Federal Government, specifically the USMS." The Federal Career Intern Program was discontinued in March 2011. See Exec. Order 13562, 75 Fed. Reg. 82585 (Dec. 27, 2010).

Distinct from plaintiffs Peter Little, Kevin Kirsh, Orlando Luna, Carlos Najera, Allen Schrader, Jon Serdula, and Thomas Rohn, plaintiffs Timothy Tobias, John Garrison, and Andrew Robinson were not appointed through the Federal Career Intern Program. Instead, plaintiffs Tobias, Garrison, and Robinson were appointed as Deputy U.S. Marshals on April 24, 2013 after successfully applying for positions with the U.S. Marshals Service through competitive job announcement CK502724BD, which indicated that the series and grade for the competed position was "GL-0082-07."⁴ The position announcement required applicants "[t]o qualify at the GL-07 level."

As a result of being hired as Deputy U.S. Marshals, all plaintiffs left the United States Department of Homeland Security. The parties have stipulated that "[n]one of theten plaintiffs were hired from other components or offices of the Department of Justice. All ten plaintiffs previously worked for components of the Department of Homeland Security prior to accepting appointments as Deputy U.S. Marshals" in the United States Department of Justice.

Upon accepting employment with the U.S. Marshals Service, all plaintiffs were appointed as Deputy U.S. Marshals at the pay grade and series of GL-0082-07, Step 10. Step 10 is the highest possible step for Grade 07. As Deputy U.S. Marshals, plaintiffs received a special base rate of pay for law enforcement officers, or "LEOs." An "LEO special base rate" is a rate "established for GS law enforcement officers at grades GS-3 through GS-10," and this rate "is used in lieu of a GS rate." 5 C.F.R. § 531.203 (2015).⁵ The LEO special base rate was applied because plaintiffs were appointed to Grade 07, which is between grades GS-3 and GS-10. Law enforcement officers who receive the LEO special base rate are covered by the GS classification and pay system. See id. Aside from the LEO special base rate, the parties have stipulated that plaintiffs did not receive a special pay supplement or pay retention. At the time of plaintiffs' appointments, and since 2010, the Office of Personnel Management (OPM) had not designated a special pay rate for the occupational series 0082.

Plaintiffs allege that when they were hired by the U.S. Marshals Service they inquired about "the possibility of pay matching." Plaintiffs allege they were told that the U.S. Marshals Service would not "match" plaintiffs' prior rates of pay and that the highest starting salary for a Deputy U.S. Marshal position was GL-0082-07, Step 10.⁶ The parties have stipulated that each plaintiff received a written offer letter that stated the specific salary he would receive as a Deputy U.S. Marshal, GL-0082-07, Step 10. The parties agree that before accepting the Deputy U.S. Marshal position, plaintiffs Little, Kirsh, Najera, Schrader, Garrison, Tobias, and Robinson each signed a written acknowledgement that stated the appointee was willing to accept a change to a lower grade and thereby receive a lower salary. According to the parties' joint stipulations, these seven plaintiffs believed that signing the written acknowledgment was a prerequisite to an appointment with the U.S. Marshals Service. Plaintiffs accepted the Deputy U.S. Marshal appointments with the knowledge that the U.S. Marshals Servicewould not match the salaries they had received at their prior employment. Now, plaintiffs allege that they are entitled to "a rate of pay equal to their prior rates of pay," and that the GL-0082-07, Step 10 rate of pay is less than plaintiffs' rates of pay at their prior employment.

The parties have stipulated that the U.S. Marshals Service hired 1,117 Deputy U.S. Marshals between April 2008 and December 2014, including plaintiffs. Of the 1,117 deputies hired, 24 of them received pay retention so that their salaries as Deputy U.S. Marshals remained the same as their prior employment. None of these 24 deputies are plaintiffs in the above captioned case. These 24 Deputy U.S. Marshals were appointed through the Federal Career Intern Program and were previously employed by agencies other than the Department of Justice. These 24 Deputy U.S. Marshals were hired at the pay grade and series GL-0082-07, Step 00. The GL pay plan code only includes Steps 1 through 10; it does not account for Step 00. Step 00 represents a base rate of pay that exceeds the Step 10 base rate of pay. Step 00 indicates that the 24 Deputy U.S. Marshals received pay retention. Thus, the retained rate of pay that these 24 Deputy U.S. Marshals received at Grade 7, Step 00 was higher than the Grade 07, Step 10 rate of pay that plaintiffs received. The U.S. Marshals Service was made aware of the pay retention for only 24 of the Deputy U.S. Marshals, but declined to change the pay retention or extend it to all of the Deputy U.S. Marshals, including plaintiffs in this action.

In the amended complaint, plaintiffs contend that, as Deputy U.S. Marshals for the U.S. Marshals Service, they are "entitled to a rate of pay equal to their prior rates of pay" and that they were "wrongly paid at the GL 7-10 rate of pay" and "wrongly denied payment at the GL 7-00 special rate of pay" and the "corresponding...