shaw bransford & roth case law update

Claims Court Dismisses Secret Service Scheduling Complaint

On March 17, 2016, the United States Court of Federal Claims dismissed, in part, a complaint brought by current and former Physical Security Specialists employed by the United States Secret Service, who claimed that the agency engaged in unlawful scheduling and recordkeeping practices in order to deny overtime pay.

The employees alleged a variety of unlawful scheduling practices by the Agency instituted in the wake of the Balanced Budget and Emergency Deficit Control Act of 2011, but the government’s partial motion to dismiss focused on Count 1 of the employees’ complaint. Count 1 alleged that the agency violated provisions of the Federal Employees Pay Act, 5 U.S.C. § 6101(a)(3), which governs the scheduling of tours of duty and days off within the basic 40-hour work week. The government’s partial motion to dismiss “Count 1” of the suit was based on an alleged lack of subject matter jurisdiction. In Count 1 of the suit, the employees alleged that two Secret Service scheduling practices that were adopted to reduce reliance on overtime pay were unlawful.

The first challenged scheduling practice designated a day in the middle of the week as a non-work or “flex” day, and made Saturday a designated work day. The employees alleged that this new practice violated 5 U.S.C. § 6101(a)(3)(B).

Specifically, the statue reads that “[e]xcept when the head of an Executive agency … determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that … the basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive.”

The second challenged scheduling practice was the agency’s alleged practice of implementing the new schedules via modification to regular schedules after workweeks had already begun, which the employees alleged violated 5 U.S.C. §6101(a)(3)(A).

However, because the Court of Federal Claim’s jurisdictional prerequisite under the Tucker Act to hear “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort” is only triggered by the identification of an independent source of a substantive right to money damages, a statute alleged to be violated must be a “money-mandating” statute. The claims court found that neither challenged statute of Count 1 was “money-mandating, because neither addressed the employees’ entitlement to pay.” Instead, the claims court found that “they concern work scheduling practices.”

The court cited the Federal Circuit decision in Sanford v. Weinberger, 752 F.2d 636, 640 (Fed. Cir. 1985) for the proposition that section 6101(a)(3)(B), and the regulations promulgated under the statute, do not prescribe any penalty for the government’s failure to comply with the scheduling practices described in the statute. Although the employees argued that Sanford was merely dicta because its discussion of the applicable statute’s ability to provide a basis for recovery of overtime pay came after it had “already addressed and rejected the merits of the plantiffs’ claims that the statute had been violated,” the claims court was hesitant to characterize it as dicta because of the status of jurisdiction as a “threshold issue.” Even if it were dicta, the court stated, it would still find that the statutes in question were not “money-mandating,” and therefore could not confer jurisdiction to the court for a Tucker Act claim with regard to Count 1’s allegations of unlawful scheduling practices.

For the above stated reasons, the United States Court of Federal Claims granted the government’s partial motion to dismiss Count 1 of the complaint and dismissed Count 1 with prejudice.

Read the full case:  Adams V. United States


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: US Court of Federal Claims, case law update, Secret Service, conor d dirks, conor dirks



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