Acala v. United States ( 2022 )

CORRECTED
In the United States Court of Federal Claims
No. 21-1396
(Filed: August 23, 2022)
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JEREMY ACALA, et al., *
*
Plaintiffs, * Law Enforcement Availability Pay Act
* of 1994; 5 U.S.C. § 5545a; Premium
v. * Pay; Availability Pay; Overtime Pay;
* Failure to State a Claim; RCFC
THE UNITED STATES, * 12(b)(6).
*
Defendant. *
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Gregory K. McGillivary, McGillivary Steele Elkin LLP, Washington DC, counsel for Plaintiffs.
Matney E. Rolfe, U.S. Department of Justice, Washington DC, counsel for Defendant.
OPINION AND ORDER
DIETZ, Judge.
Plaintiffs, current and former federal criminal investigators, bring this suit against the
United States seeking overtime pay under the Law Enforcement Availability Pay Act of 1994
(the “LEAP Act”) for regularly scheduled overtime work that they performed on days outside of
their basic workweek while training at Federal Law Enforcement Training Centers (“FLETC”).
The government moves to dismiss their complaint pursuant to Rule 12(b)(6) of the Rules of the
United States Court of Federal Claims (“RCFC”) on the grounds that the governing statutes and
regulations generally prohibit payment of overtime pay to LEAP-eligible employees during
periods of training and, therefore, the law does not entitle Plaintiffs to the relief sought. The
Court finds that Plaintiffs have failed to state a claim upon which relief can be granted because
the LEAP Act does not entitle Plaintiffs to overtime pay for time spent in training. Accordingly,
the government’s motion to dismiss is GRANTED.
I. BACKGROUND
The two representative plaintiffs of this putative class, Ehab Rahman and Clay Wildt, are
criminal investigators employed by the United States Department of Homeland Security who
attended training at FLETC. Compl. ¶¶ 4-6, ECF No. 1. FLETC, the nation’s largest provider of
law enforcement training, serves as an interagency law enforcement training body and “provides
training in areas common to all law enforcement officers, such as firearms, driving, tactics,
investigations, and legal training.” Id. ¶¶ 8-10. This training fulfills criminal investigative
training requirements for criminal investigators. Id. ¶ 9.
As criminal investigators, Plaintiffs are eligible to receive premium pay under the LEAP
Act. See 5 U.S.C. § 5545a. “Premium pay” is defined as “additional pay . . . for overtime, night,
Sunday, or holiday work; or for standby duty, administratively controllable overtime work, or
availability duty.” 5 C.F.R. § 550.103 (2022) (internal citation omitted). Congress enacted the
LEAP Act to ensure that federal criminal investigators, who routinely work more than eight
hours each day, are uniformly compensated irrespective of their unpredictable schedules. See S.
Rep. No. 103-286, at 100 (1994). To achieve this purpose, the LEAP Act provides “premium pay
to criminal investigators to ensure the availability of criminal investigators 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 Act entitles criminal investigators to a form of premium pay referred to as
availability pay. See id. at § 5545a(h).
Availability pay under the LEAP Act consists of a twenty-five percent salary
enhancement in addition to a criminal investigator’s base salary. 5 U.S.C. § 5545a(h). This salary
enhancement is intended to compensate criminal investigators for unscheduled overtime work
that an investigator performs, or is available to perform, “that [is] not part of the 40 hours in the
basic work week of the investigator or overtime hours paid under [5 U.S.C. § 5542.]” Id. at §
5545a(a)(3). The LEAP Act instructs that “[a]vailability 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 [5
U.S.C. § 5542], night duty, Sunday duty, or holiday duty.” Id. at § 5545a(c) (emphasis added).
Premium pay for regularly scheduled overtime work by criminal investigators is compensated
with another form of premium pay, overtime pay, pursuant to 5 U.S.C. § 5542. See id.Overtime pay under section 5542 is paid at “an amount equal to one and one-half times
the hourly rate of basic pay.” 5 U.S.C. § 5542(a)(1). With respect to criminal investigators
receiving availability pay under the LEAP Act, section 5542 provides that the investigator shall
be compensated with overtime pay for “overtime work which is scheduled in advance of the
administrative workweek in excess of 10 hours on a day during such investigator’s basic 40 hour
workweek or on a day outside such investigator’s basic 40 hour workweek[.]” Id. at §
5542(d)(1)(A)-(B) (internal citations omitted). All other overtime—scheduled or unscheduled—
is compensated by the availability pay. Id. at § 5542(d)(2); Horvath v. United States, 896 F.3d
1317, 1319 (Fed. Cir. 2018).
Congress authorized the Office of Personnel Management (“OPM”) to promulgate rules
and regulations for the administration of premium pay. 5 U.S.C. §§ 4118, 5545, 5545a(i); see
also 5 U.S.C. § 1103(c). Congress also provided the head of an agency with discretion to pay all
or a part of the compensation of an employee during an authorized training period. 5 U.S.C. §
4109; see also Almeda v. United States, 453 F.2d 1397, 1399-400 (Ct. Cl. 1972). However, an
agency is not permitted to compensate an employee with overtime pay during training. 5 U.S.C.
§ 4109(a)(1) (stating the head of the agency may “pay all or a part of the pay (except overtime,
holiday, or night differential pay) of an employee of the agency . . . for the period of training”
(emphasis added)).
When attending training at FLETC, Plaintiffs allege that they were regularly scheduled,
in advance of their workweek, to work six days a week. Compl. ¶ 10. For the first five days,
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Plaintiffs worked eight hours plus two hours of availability work. Id. On the sixth day, Plaintiffs
worked another eight to ten hours. Id. The sixth day was not included in the criminal
investigator’s basic forty-hour workweek. Id. Plaintiffs were told that they were not entitled to
regularly scheduled overtime compensation on the additional workday because that worktime
was compensated by availability pay under the LEAP Act. Id. ¶ 17.
Plaintiffs filed their complaint in this Court alleging that the government violated the
LEAP Act by unlawfully depriving them of overtime pay, in addition to availability pay, for their
regularly scheduled overtime work performed on an additional workday outside of their basic
forty-hour workweek while at FLETC. Compl. ¶¶ 18, 33. The government filed a motion to
dismiss Plaintiffs’ complaint pursuant to RCFC 12(b)(6) on the grounds that the governing
statutes and regulations generally prohibit payment of overtime compensation to LEAP-eligible
employees during periods of training and, therefore, the law does not entitle Plaintiffs to
overtime pay. Def.’s Mot. to Dismiss at 4, ECF No. 9 [hereinafter Def.’s Mot.]. The Court
conducted oral argument on May 6, 2022. See ECF No. 12.
II. LEGAL STANDARDS
A challenge to this Court’s ability to “exercise its general power with regard to the facts
peculiar to the specific claim” is properly raised by a Rule 12(b)(6) motion. Palmer v. United
States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC 12(b)(6). When deciding a Rule
12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, the
Court construes the complaint’s allegations in favor of the plaintiff. RCFC 12(b)(6); Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457
U.S. 800, 814-15 (1982). If the facts asserted by the plaintiffs do not entitle them to a legal
remedy, then the complaint should be dismissed under Rule 12(b)(6). Welty v. United States, 926
F.3d 1319, 1323 (Fed. Cir. 2019).
This Court construes statutes and regulations the same way, by beginning with the plain
language. See Tesoro Haw. Corp. v. United States, 405 F.3d 1339, 1346-47 (Fed. Cir. 2005)
(citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 401, 414-15 (1945)); see Whelan v.
United States, 529 F.2d 1000, 1002-03 (Ct. Cl. 1976) (“The ‘plain meaning’ rules of statutory
construction apply to the interpretation of administrative regulations.”). If the statutory or
regulatory language is clear and unambiguous, then the Court does not need to conduct any
further inquiry. Roberto v. Dep’t of Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006). The Court must
“give effect, if possible, to every clause and word of a statute [or regulation] and should avoid
rendering any statutory [or regulatory] text meaningless or as mere surplusage.” Sharp v. United
States, 580 F.3d 1234, 1238 (Fed. Cir. 2009) (quoting Duncan v. Walker, 533 U.S. 167, 174
(2001)) (internal quotation marks omitted).
III. DISCUSSION
The question in this case is whether criminal investigators who receive availability pay
under the LEAP Act are entitled to overtime pay for regularly scheduled duty performed during
training on days outside of their basic workweek. The government argues that criminal
investigators who receive availability pay are not entitled to overtime pay for regularly scheduled
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duty performed during training because the governing statutes and regulations generally prohibit
payment of overtime pay for time spent in training. See Def.’s Mot. at 5-6. Plaintiffs argue that,
in addition to availability pay for unscheduled duty, the LEAP Act requires that criminal
investigators be compensated with overtime pay for regularly scheduled duty performed outside
of their basic forty-hour workweek and that the general prohibition on payment of overtime pay
for time spent in training has no bearing on this requirement. See Pls.’ Resp. 6-12, ECF No. 10.
As explained below, the Court finds that, while the LEAP Act entitles Plaintiffs to overtime pay
for regularly scheduled duty performed outside of a criminal investigator’s basic forty-hour
workweek, it does not entitle Plaintiffs to overtime pay for regularly scheduled duty performed
during periods of training because the payment of overtime pay during training is prohibited by
statute and regulation.
Section 5545a(c) of the LEAP Act provides that criminal investigators are entitled to
“premium pay for regularly scheduled overtime work as provided under section 5542[.]” Section
5542(d)(1)(B) provides that a criminal investigator who is paid availability pay under section
5545a shall be paid one and one-half times their hourly rate for overtime work that is scheduled
in advance and performed on a day outside of such investigator’s basic forty-hour workweek.
Thus, if the overtime work at issue in this case did not consist of training, Plaintiffs would be
entitled under the LEAP Act to overtime pay for such regularly scheduled overtime work.
However, because the regularly scheduled overtime work at issue involves training, payment of
overtime pay is prohibited.
An agency is prohibited by statute from using its funds to pay overtime to an employee
for time spent in training. 1 5 U.S.C. § 4109(a)(1) (stating the head of the agency may “pay all or
a part of the pay (except overtime, holiday, or night differential pay) of an employee of the
agency . . . for the period of training” (emphasis added)). Congress authorized OPM to
promulgate regulations governing premium pay and training. See 5 U.S.C. §§ 4109, 4118, 5545,
5545a(i); see also 5 U.S.C. § 1103(c). In this regard, OPM has established a general rule that
prohibits an agency from paying any premium pay to an employee for time spent in training
unless an exception applies. 2 See 5 C.F.R. § 410.402 (2022); id. § 550.111(i) (2022); see also
Moreno v. United States, 88 Fed. Cl. 266, 270 (2009) (“Thus, under Title 5 regulations, premium
pay for training is not available unless a regulatory exception applies[.]”).
Section 410.402(b) provides a list of exceptions to the general rule prohibiting an agency
from “us[ing] its funds, appropriated or available, to pay premium pay to an employee engaged
in training[.]” 5 C.F.R. § 410.402(a)-(b). Relevant here, section 410.402(b)(4) contains an
exception providing that “[a]n agency shall continue to pay availability pay during agency-
sanctioned training to a criminal investigator who is eligible for it under 5 U.S.C. [§] 5545a and
implementing regulations.” OPM’s regulation aligns with the LEAP Act, which similarly states
that “[a] criminal investigator who is eligible for availability pay shall receive such pay during
1
The statute carves out two exceptions for air traffic controllers and firefighters. See 5 U.S.C. § 4109(c)-(d).
2
The Comptroller General has long recognized the general prohibition against the payment of premium pay for
training as contained in 5 U.S.C. § 4109. See In the Customs Patrol Officers - Entitlement to Overtime & Night
Premium Pay During Training, 58 Comp. Gen. 547, 549 (1979); To the Exec. Vice President, Nat'l Ass'n of Gov't
Emps., 48 Comp. Gen. 620, 620 (1969).
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any period such investigator is attending agency sanctioned training.” 5 U.S.C. § 5545a(f)(1)(A).
This exception that entitles criminal investigators to availability pay for time spent in
training does not also entitle them to overtime pay. Plaintiffs’ assertion that the term “availability
pay” as used in section 410.402(b)(4) encompasses both the twenty-five percent salary
enhancement for unscheduled overtime under section 5545a(h) and overtime pay for scheduled
overtime under section 5542 mischaracterizes the term “availability pay” under the LEAP Act.
See, e.g., Pls.’ Resp. at 7 (“[T]he [g]overnment has applied only one of the pay types required for
compliance with the availability pay scheme set forth in the Act, glossing over the second,
mandatory category of pay encompassed with the LEAP Act.” (emphasis in original)); id. at 8
(stating “when the [g]overment pays ‘availability pay’ . . . it must pay the 25% pay enhancement
for unscheduled hours and time-and-a-half overtime consistent with 5 U.S.C. [§] 5542(a)”
(emphasis in original)). Availability pay and overtime pay are distinct types of premium pay.
Availability pay is a twenty-five percent salary enhancement for unscheduled duty as provided
under section 5545a, and overtime pay is an amount equal to one and one-half times the hourly
rate for regularly scheduled duty as provided by section 5542. 5 U.S.C. §§ 5545a(c), (h),
5542(a)(1). The LEAP Act makes clear that the two types of premium pay are treated separately.
Section 5545a(c) of the LEAP Act provides premium pay for unscheduled duty in the form of
availability pay. This availability pay is provided “instead of premium pay provided by other
provisions . . . except premium pay for regularly scheduled overtime work as provided under
section 5542[.]” 5 U.S.C. § 5545a(c) (emphasis added). Section 5542 provides premium pay for
regularly scheduled duty in the form of overtime pay. Section 410.402(b)(4) contains an
exception only for availability pay, not overtime pay. As such, Plaintiffs are not entitled to
overtime pay for their time spent in training.
Plaintiffs attempt to broaden this exception by arguing that criminal investigators who are
excepted under section 410.402(b)(4) are entitled to overtime pay under 5 C.F.R. § 410.402(c),
which provides that “[a]n employee who is excepted under paragraph (b) of this section is
eligible to receive premium pay in accordance with the applicable pay authorities.” See Pls.’
Resp. at 9-10. Plaintiffs appear to argue that any employee who is excepted under paragraph (b)
is entitled to all types of premium pay in accordance with the applicable pay authorities. Under
Plaintiffs’ reading, even if availability pay and overtime pay are separate types of premium pay,
Plaintiffs are entitled to both because they qualify as employees “excepted under paragraph (b)”
and overtime pay qualifies as “premium pay” as used in section 410.402(c).
Despite Plaintiffs’ contention, section 410.402(c) does not entitle Plaintiffs to overtime
pay. Section 410.402(c) merely ensures that criminal investigators who are entitled to receive
availability pay during training under the exception set forth in section 410.402(b)(4) receive
such availability pay in accordance with the relevant pay authority—the LEAP Act. Section
410.402(b) contains exceptions to the general prohibition on using agency funds to pay premium
pay to an employee engaged in training. Section 410.402(b) entitles certain types of employees
to specific types of premium pay. Section 410.402(c) uses the umbrella term “premium pay” to
capture each type of premium pay payable to specific types of employees to whom an exception
applies under paragraph (b). Section 410.402(c) does not entitle each type of employee excepted
under paragraph (b) to all types of premium pay, only to those types listed in paragraph (b).
Although overtime pay and availability pay are both types of premium pay, section
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410.402(b)(4) makes it clear that the relevant type of premium pay in section 410.402(b)(4) is
availability pay. To read the regulation otherwise would render meaningless the language
specifying the type of premium pay to which each type of employee is entitled for time spent in
training as set forth in section 410.402(b). See Sharp, 580 F.3d at 1238. In sum, neither section
410.402(c) nor the LEAP Act circumvents the general statutory and regulatory prohibitions on
paying overtime pay during periods of training. 3
IV. CONCLUSION
For the reasons explained above, Defendant’s motion to dismiss, pursuant to RCFC
12(b)(6), is GRANTED. Plaintiffs’ complaint is DISMISSED WITH PREJUDICE. The Clerk
is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
s/ Thompson M. Dietz
THOMPSON M. DIETZ, Judge
3
Plaintiffs also rely upon the Fair Labor Standards Act (“FLSA”) to advance their argument that they should be paid
overtime pay for their time spent in training. See Pls.’ Resp. at 3, 7, 10-12. However, criminal investigators who
receive availability pay under the LEAP Act are exempt from the FLSA. See 29 U.S.C. § 213(a)(16), (b)(30); 5
C.F.R. § 551.213(a) (2007); id. § 550.186(c) (2022). Thus, the overtime provisions of the FLSA do not apply to
Plaintiffs.
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