No. 98-1265
In the Supreme Court of the United States
STEPHEN S. ADAMS, ET AL.,
PETITIONERS
v.
JAMES F. HINCHMAN, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
BARBARA C. BIDDLE
WENDY M. KEATS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether Congress has unequivocally expressed an intent to waive the sovereign
immunity of the United States to liability under the Fair Labor Standards
Act, 29 U.S.C. 201 et seq., for back pay covering a six-year period before
any claim is filed, even though similarly situated private employers would
be subject to liability only for a two-to-three-year period.
2. Whether the manner in which petitioners' administrative claims were handled
violated due process.
In the Supreme Court of the United States
No. 98-1265
STEPHEN S. ADAMS, ET AL.,
PETITIONERS
v.
JAMES F. HINCHMAN, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-12a) is reported at 154
F.3d 420. The opinion of the district court (Pet. App. 13a-31a) is reported
at 946 F. Supp. 37.
JURISDICTION
The judgment of the court of appeals was entered on August 28, 1998. Petitions
for rehearing were denied on November 9, 1998. The petition for a writ of
certiorari was filed on February 5, 1999. The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. Subject to certain occupational and other exemptions, the Fair Labor
Standards Act of 1938 (FLSA), 29 U.S.C. 201 et seq., entitles employees
to overtime pay (usually based on hours worked in excess of a 40-hour work
week) at the rate of one and one-half times an employee's normal hourly
compensation. 29 U.S.C. 207(a), 213(a)(1). Employees may bring suit for
unpaid FLSA overtime compensation in "any Federal or State court of
competent jurisdiction." 29 U.S.C. 216(b). In the Portal-to-Portal
Act of 1947, 29 U.S.C. 251 et seq., Congress added the following statute
of limitations to the FLSA:
Any action commenced * * * to enforce any cause of action for * * * unpaid
overtime compensation * * * under the Fair Labor Standards Act * * *
(a) * * * may be commenced within two years after the cause of action accrued,
and every such action shall be forever barred unless commenced within two
years after the cause of action accrued, except that a cause of action arising
out of a willful violation may be commenced within three years after the
cause of action accrued.
29 U.S.C. 255(a). One of Congress's declared purposes in enacting that provision
was to substitute this uniform federal limitations period for "the
varying and extended periods of time for which * * * potential retroactive
liability" under the FLSA had been imposed upon employers under state
law. 29 U.S.C. 251(a).
When the FLSA and the Portal-to-Portal Act were enacted, federal employees
were expressly excluded from the FLSA's coverage. See Carter v. Panama Canal
Co., 463 F.2d 1289, 1294 & n.10 (D.C. Cir.), cert. denied, 409 U.S.
1012 (1972). Amendments in 1966 brought limited classes of federal employees
within the FLSA, which continued to exclude all other federal employees.
Id. at 1294-1295. In 1974, the FLSA was amended to cover federal employees
generally, subject to the statute's general exemptions (e.g., 29 U.S.C.
213 (1994 & Supp. III 1997)) for executive, administrative, and professional
employees, among others. Pub. L. No. 93-259, 88 Stat. 55 (codified in relevant
part at 29 U.S.C. 203(e)(2)(A)). Each time federal employees were brought
within the FLSA, Congress's purpose was to achieve comparable treatment
with private sector employees already covered by the Act. See AFGE v. OPM,
821 F.2d 761, 769 (D.C. Cir. 1987); Carter, 463 F.2d at 1298-1299; H.R.
Rep. No. 913, 93d Cong., 2d Sess. 28 (1974). Congress expressed no intention
to provide federal employees with greater protections under the FLSA than
those provided to other employees. See Hickman v. United States, 10 Cl.
Ct. 550, 552 (1986).1
In addition to their judicial remedies, federal employees may invoke the
general administrative claims settlement process provided under the Barring
Act, 31 U.S.C. 3702 (1994 & Supp. III 1997).2 The Barring Act applies
to a wide range of money claims against the United States, and, when the
claims at issue here were filed, authorized the Comptroller General to settle
claims "received * * * within 6 years after the claim accrues except
* * * as provided in this chapter or another law." 31 U.S.C. 3702(b)(1)(A).3
The Barring Act administrative claims settlement process is optional and
non-binding on the claimant; a claimant is not required to exhaust the administrative
process before seeking judicial enforcement, and filing an administrative
claim does not toll the time for bringing suit. See Hickman v. United States,
10 Cl. Ct. at 553; see also Irvin Indus. Canada, Ltd. v. United States Air
Force, 924 F.2d 1068, 1077 n.88 (D.C. Cir. 1990); Burich v. United States,
366 F.2d 984, 986-987 (Ct. Cl. 1966) (citing cases), cert. denied, 389 U.S.
885 (1967). Because they are not pursuing claims against the government,
non-federal employees may not, of course, invoke the Barring Act's administrative
process.
2. a. Petitioners are 14,122 current and former federal criminal investigators
or other federal law enforcement officers who seek back overtime compensation
under the FLSA for periods between 1984 and 1995. Pet. App. 1a-2a. In suits
filed between February 1990 and December 1995 in the Court of Federal Claims
(CFC), petitioners claimed that their employing agencies had incorrectly
classified their positions as exempt from the overtime provisions of the
FLSA, and they sought back payment of amounts due. Simultaneously with filing
suit in the CFC, each petitioner lodged an administrative claim for back
FLSA overtime pay with the GAO under the Barring Act. Id. at 2a.
In October 1992, the CFC issued a consolidated partial summary judgment
holding that certain grades of employees were not exempt from the FLSA and
had therefore been entitled to overtime pay. Adams v. United States, 27
Fed. Cl. 5 (1992), modified on other grounds, No. 98-5011, 1998 WL 804552
(Fed. Cir. Sept. 23, 1998). In March 1994, petitioners entered into settlement
agreements with the United States that gave those employees back overtime
pay and interest for the two-year period before the date that each such
employee had filed suit, without prejudice to their right to pursue administrative
remedies.4 Pet. App. 1a-2a. Returning to GAO, petitioners sought a total
of six years back FLSA overtime pay-four years beyond what they obtained
in the CFC settlement, and four years beyond what the FLSA itself provides,
see 29 U.S.C. 255(a)-through the administrative claims settlement process.
Pet. App. 2a-4a.
b. When GAO had first confronted the question in 1978, it had concluded
that the six-year period set forth in the Barring Act, 31 U.S.C. 3702(b)(1)(A),
applied to administrative proceedings to recover back overtime pay under
the FLSA. In re Transportation Sys. Ctr., 57 Comp. Gen. 441 (1978). By the
time petitioners' administrative claims were pending, however, GAO had begun
actively reconsidering that ruling. In In re Joseph M. Ford, 73 Comp. Gen.
157 (1994), GAO overruled Transportation Systems and determined that the
relevant limitations period is the one set forth in the FLSA itself, as
amended by the Portal-to-Portal Act. GAO reasoned that "[w]hen a statute
creates a right that did not exist at common law and restricts the time
to enforce it, expiration of the time limit not only bars the remedy but
extinguishes the underlying rights and liabilities of the parties."
73 Comp. Gen. at 160-161 (citing William Danzer & Co. v. Gulf &
Ship Island R.R., 268 U.S. 633, 635-637 (1925)). Thus, GAO concluded, "a
time limitation imposed on a statutorily created judicial cause of action
will apply to administrative proceedings to adjudicate the same claims absent
a specific provision to the contrary. * * * [L]egislative determinations
to limit the extent of a party's exposure to liability or to discourage
claims involving stale facts or documentation problems are no less relevant
to administrative than to judicial proceedings." 73 Comp. Gen. at 161.5
Moreover, GAO explained, when Congress extended FLSA coverage to federal
employees, "'no congressional intent was manifested in the amending
language or its underlying legislative history that federal employees would
be accorded a more liberal limitations period than employees in the private
sector.'" 73 Comp. Gen. at 160 (quoting Hickman v. United States, 10
Cl. Ct. at 552). Application of the Barring Act to extend the limitations
period for administrative back pay claims against the government, GAO concluded,
would thwart congressional intent by "creat[ing] disparate treatment
* * * between federal employees and private sector employees," who
have no administrative alternative to filing a court suit for back pay.
73 Comp. Gen. at 161. Following its "usual practice," GAO announced
that it would apply its policy "to all FLSA claims that have not been
settled prior to the date of today's decision." Ibid.
c. Petitioners and others quickly persuaded Congress to grant relief from
the effect of the Ford decision on many already-pending FLSA administrative
claims. In Section 640 of the Treasury, Postal Service and General Government
Appropriations Act of 1995, enacted September 30, 1994, Congress provided:
In the administration of section 3702 of title 31, United States Code, the
Comptroller General of the United States shall apply a 6-year statute of
limitations to any claim of a Federal employee under the Fair Labor Standards
Act of 1938 (29 U.S.C. 201 et seq.) for claims filed before June 30, 1994.
Pub. L. No. 103-329, 108 Stat. 2432.
Invoking Section 640, petitioners contacted GAO seeking resolution of their
claims. GAO acknowledged that Section 640 modified the effect of Ford, but
it reminded petitioners that, in accordance with GAO regulations, their
claims had to be processed first through each claimant's employing agency.
Pet. App. 5a-6a; see 4 C.F.R. 31.4.6 Petitioners brought their claims to
the attention of the employing agencies, which denied them on the ground
that Section 640 by its terms authorized only the Comptroller General to
apply a six-year statute of limitations. Pet. App. 5a-6a.
In 1995, petitioners appealed those agency determinations to GAO. By then,
however, Congress was considering repeal of Section 640. GAO announced in
a separate pending FLSA administrative case (in which petitioners had been
granted leave to intervene) that it did "not intend to issue a decision"
concerning application of Section 640 "until the [1996 Treasury Appropriations
bill] is enacted (because of the possible retroactive repeal of §640)."
Pet. App. 6a (discussing proceedings underlying In re Marvin B. Atkinson,
No. B-256938.2, 1996 WL 31212 (Comp. Gen. Jan. 29, 1996)); see also C.A.
App. 95, 96. GAO transmitted a similar message to Congress. C.A. App. 227,
228. Petitioners filed this lawsuit on October 27, 1995, seeking mandamus,
injunctive and declaratory relief requiring GAO to apply a six-year statute
of limitations to their claims notwithstanding Ford. Pet. App. 8a.
On November 19, 1995, Congress added the following amendment to Section
640:
This section [i.e., Section 640] shall not apply to any claim where the
employee has received any compensation for overtime hours worked during
the period covered by the claim under any other provision of law, including,
but not limited to, 5 U.S.C. 5545(c), or to any claim for compensation for
time spent commuting between the employee's residence and duty station.
Treasury, Postal Service, and General Government Appropriations Act of 1996,
Pub. L. No. 104-52, 109 Stat. 468-469. That amendment substantially reduces
the number of claimants who could rely on Section 640 to support pending
claims that would otherwise be foreclosed by the Ford decision. In discussing
the purpose of the amendment, its sponsor explained that GAO's 1978 decision
to apply a six-year limitations period had been "incorrect [because]
the law states that everyone would only be entitled to 2 years" back
pay for FLSA violations. 141 Cong. Rec. H12,376 (daily ed. Nov. 15, 1995)
(remarks of Rep. Lightfoot). He added that, although in Ford GAO had "corrected
its mistake," the 1994 legislation-which required GAO to allow up to
six years back pay for claims that had already been filed by June 30, 1994-would
cost the government as much as $460 million, "nearly the entire Secret
Service budget." Ibid. "The conferees were faced with a choice-either
pay hundreds of millions for work done many years ago and fire four or five
thousand employees[,] or give the Federal workers the same rights as their
private sector counterparts." Ibid. Therefore, "we included language
providing for the same treatment for public and private workers * * * not
just because [to do otherwise] costs a lot of money, but because it is fair."
Ibid.
GAO applied amended Section 640 in the pending case in which petitioners
had intervened. In re Marvin B. Atkinson, No. B-256938.2, 1996 WL 31212
(Comp. Gen. Jan. 29, 1996). GAO then advised petitioners in March 1996 that
it would similarly adjudicate their FLSA claims in accordance with amended
Section 640. See Pet. App. 16a.
3. Meanwhile, petitioners' lawsuits were pending in the district court,
and, in supplemental complaints filed on December 13, 1995 and January 29,
1996, petitioners added challenges to amended Section 640 and Atkinson.
Petitioners demanded relief based on asserted property interests in their
unpaid overtime compensation and in their pending administrative claims.
They contended that due process had been violated by the alleged retroactive
shortening of their limitations period; by GAO's requirement that they bring
their claims initially before their employing agencies; by the refusal of
those agencies to determine their claims in accordance with the original
Section 640; and by GAO's failure to pass on their appeals before the amendment
to Section 640. See Pet. App. 8a. Petitioners also sought relief under the
Administrative Procedure Act (APA), 5 U.S.C. 706(1), and further claimed
a denial of equal protection on the ground that GAO had processed the claims
of an unrelated group of federal employees under Section 640's six-year
statute of limitations before the 1995 amendment was enacted. See Pet. App.
28a-30a.
a. The district court granted the government's motion for summary judgment.
Pet. App. 13a-31a. The court held that petitioners' pending administrative
claims did not constitute separate "property" rights entitling
them to demand application of the pre-Ford interpretation of the law, because
a cause of action is "inchoate, and affords no definite or enforceable
property right until reduced to a final judgment." Id. at 19a (quoting
Austin v. City of Bisbee, 855 F.2d 1429, 1435 (9th Cir. 1988)). The court
also held that petitioners had no enforceable property interest in their
"earned but unpaid FLSA overtime compensation." Id. at 19a-22a.
"[T]he FLSA," it explained, "is a creature of statute and
can only confer benefits contained within the statute," id. at 20a,
and "there was nothing in the legislative record [of the FLSA] indicating
congressional intent to impart a more liberal limitations period to federal
employees than to employees in the private sector." Id. at 21a. Indeed,
"[u]ntil the passage of Section 640 in the 1995 Act, GAO had no authority
to permit a 6 year limitation period for FLSA claims," and its past
practice of doing so was simply "wrong." Ibid.
The court added, however, that those petitioners who had filed their administrative
claims before June 30, 1994 had derived "property interests in their
unpaid overtime compensation" from the enactment of Section 640. Pet.
App. 22a. The court concluded, however, that those petitioners are not entitled
to relief, because such interests could be extinguished consistently with
due process by economic legislation having "'a legitimate legislative
purpose furthered by rational means.'" Id. at 22a-23a (quoting General
Motors Corp. v. Romein, 503 U.S. 181, 191 (1992)). The court found that
the amendment to Section 640 met that standard. Id. at 23a-26a.
For similar reasons, the court held that petitioners had identified no unconstitutional
"taking" that could justify the injunctive relief they sought.
Pet. App. 26a-28a. Applying the analysis of Connolly v. Pension Benefit
Guaranty Corp., 475 U.S. 211, 224-225 (1986), the district court found,
among other things, that the denial of petitioners' administrative claims
had caused no undue interference with any legitimate expectations. Pet.
App. 26a-27a. The court further held that, in amending Section 640 in 1995,
Congress had reasonably determined that it would be "unfair for the
public to bear the burden of a mistake made by GAO." Id. at 27a-28a.
Finally, the court rejected petitioners' equal protection and APA claims.
Id. at 28a-30a.
b. With one exception, the court of appeals affirmed the district court's
holdings "substantially for the reasons stated in the court's thorough
and well-reasoned opinion." Pet. App. 8a-9a. The exception concerned
the district court's disposition of petitioners' claim that the amendment
to Section 640 gave rise to a compensable "taking" of rights conferred
under the original Section 640. The court of appeals held that it lacked
jurisdiction to consider that claim. It explained that "[t]he usual
remedy for unconstitutional takings is a suit for money damage (i.e., the
'just compensation' that the Constitution assures)" either in the CFC
under the Tucker Act, 28 U.S.C. 1491 (1994 & Supp. III 1997), or, if
the amount in controversy is less than $10,000, in the district court under
the Little Tucker Act, 28 U.S.C. 1346(a)(2). Pet. App. 11a (citations and
footnote omitted). The court found that, if petitioners' counsel were correct
in representing that petitioners' individual FLSA back pay claims each exceeded
$10,000, the district court would have lacked jurisdiction to consider whether
the administrative denial of those claims amounted to a compensable "taking."
Id. at 11a-12a. In any event, the court added, even if some of those claims
were under $10,000, exclusive appellate jurisdiction would lie in the Federal
Circuit. Id. at 12a. The court thus remanded the "takings issue"
to the district court for further proceedings on the jurisdictional question.
Ibid.7
ARGUMENT
Petitioners appear to acknowledge that the court of appeals' decision has
little precedential value beyond the precise dispute presented in this case,
which, for that matter, the decision did not even entirely resolve on the
merits. See Pet. 16-17 ("the conclusory nature of the opinions below
do[es] not provide much insight into the courts' reasoning"). Moreover,
as discussed below, there is no merit to petitioners' contention that the
result in this case is somehow inconsistent with any decision of this Court
or of another court of appeals. Thus, at bottom, this certiorari petition
amounts to a request for error correction. But that is not ordinarily a
basis for this Court's review, and, in any event, there is no error to correct.
Further review is therefore not warranted.
1. Much of the analysis in the proceedings below concerned whether the enactment
of Section 640 in 1994 conferred an enforceable property interest on the
group of plaintiffs-the vast majority of petitioners here (Pet. App. 2a)-who
filed claims before June 30, 1994, but who fall within the scope of the
1995 amendment to Section 640.8 Although the court of appeals remanded for
further proceedings on that issue, petitioners have filed this petition
alleging independent claims of entitlement, distinct from any claim under
Section 640, to the same back pay remedy. Those claims lack merit.
a. The statutory provisions subjecting the United States to back pay liability
under the FLSA constitute a waiver of sovereign immunity. See Hickman v.
United States, 10 Cl. Ct. 550, 552-553 (1986); see generally Hubbard v.
Administrator, 982 F.2d 531 (D.C. Cir. 1992) (en banc). It is axiomatic
that such waivers must "be strictly construed, in terms of [their]
scope, in favor of the sovereign." Department of the Army v. Blue Fox,
119 S. Ct. 687, 691 (1999); accord Lane v. Peña, 518 U.S. 187, 192
(1996); United States v. Nordic Village, Inc., 503 U.S. 30, 37 (1992); see
also Gov't C.A. Br. 29-30.
Petitioners' burden here is formidable. They acknowledge that their position
would expose the United States to considerably greater back-pay liability
under the FLSA than similarly situated private employers would face. See
Pet. 20-24 & nn.11-12. That is so because private-sector employees (as
well as the employees of state and local governments) must bring any FLSA
claim for back wages in federal court subject to the limitations period
of the Portal-to-Portal Act, see 29 U.S.C. 216(b) and (c), whereas, under
petitioners' position, federal employees could escape that limitations period
by initiating administrative proceedings. Petitioners must therefore identify
some provision in which Congress "unequivocally expressed" (Blue
Fox, 119 S. Ct. at 691) an intent to place the United States in that inferior
position and to deprive it of the statutory protections to which all other
employers are entitled.
Petitioners can make no such showing. The Barring Act, upon which they rely
here, does not contain a waiver of sovereign immunity for FLSA claims, much
less an "unequivocal expression" of such a waiver (Nordic Village,
503 U.S. at 37). The Act nowhere mentions the FLSA, nor does it confer an
affirmative entitlement on any class of claimants to a particular statute
of limitations. Instead, the Act confers generic "[a]uthority"
on a particular federal decisionmaker- the Comptroller General during much
of the period at issue-to "settle claims" against the government
in a broad variety of circumstances. 31 U.S.C. 3702 (1994 & Supp. III
1997); see note 3, supra. The Barring Act does create an administrative
procedure that claimants may invoke as an alternative to filing suit in
court-a procedure that the Act itself makes unavailable if the claim is
not filed within six years after it accrues, except "as provided in
* * * another law." 31 U.S.C. 3702(b)(1)(A). But the Act does not itself
create rights to collect money from the public fisc, nor does it enlarge
the rights or remedies that claimants may derive from the statutory scheme
underlying their claim.
Here that underlying statutory scheme is the FLSA, and "[t]he limitations
of the Portal-to-Portal Act are an integral part of the overtime compensation
prescribed by the FLSA." Carter v. Panama Canal Co., 463 F.2d 1289,
1298 (D.C. Cir.), cert. denied, 409 U.S. 1012 (1972); see also note 11,
infra. In the Portal-to-Portal Act, Congress imposed a two-to-three-year
statute of limitations (together with other restrictions) for all FLSA actions
specifically to protect the economic interests of all "employers,"
who, Congress found, might otherwise face "wholly unexpected liabilities,
immense in amount and retroactive in operation." 29 U.S.C. 251(a),
255(a). Congress found that, unless limited, the FLSA would threaten "the
Public Treasury" through its impact on private employers-i.e., by reducing
tax revenues and increasing the cost to the government of purchasing goods
and services. 29 U.S.C. 251(a)(8) and (9). But that indirect effect on the
Treasury could be dwarfed by the consequences of petitioners' position,
which would routinely expose "the Public Treasury" to direct liability
for back-pay claims against federal employers reaching back three times
as far as ordinary claims that could be brought against private employers.
Moreover, when Congress amended the FLSA in 1974 to cover federal employees
generally, it gave no indication that it wished to treat those employees
differently from private-sector employees in this respect or that it intended
to expose the public fisc to degrees of liability to which private employers
are immune. To the contrary, the legislative record reveals an emphasis
on ensuring that the FLSA claims of federal employees would be administered
"in such a manner as to assure consistency with" the application
of the Act "in other sectors of the economy." H.R. Rep. No. 913,
93d Cong., 2d Sess. 28 (1974). As one court observed in reviewing a pre-1974
amendment extending the FLSA to restricted categories of federal employees
(see pp. 2-3, supra), Congress "intended to provide for equality of
treatment" as between federal employees and their private-sector counterparts,
a statutory objective that extends to "the limitations of the Portal-to-Portal
Act." Carter, 463 F.2d at 1298-1299; see also AFGE v. OPM, 821 F.2d
761, 769 (D.C. Cir. 1987).9
Any doubt about petitioners' failure to show an "unequivocal"
waiver of sovereign immunity would be resolved by Section 640 as amended.
That provision is significant here not because Congress has the power to
"preclud[e] judicial review by implication," Pet. 27 (emphasis
omitted), but because any inquiry into whether Congress has unequivocally
expressed an intent to waive sovereign immunity must make sense of all relevant
provisions of federal law. See, e.g., Lehman v. Nakshian, 453 U.S. 156 (1981).
As amended, Section 640 provides that some FLSA claims filed with the GAO
before June 30, 1994 are subject to a six-year statute of limitations. The
imposition of that six-year limitations period would serve little purpose
if, as petitioners contend, all claimants would be entitled to a six-year
limitations period in any event. See also Pet. App. 24a-25a.
Even more important, petitioners' position would render the 1995 amendment
a nullity. By carving out exceptions to Section 640, that amendment is obviously
intended to ensure that some limitations period shorter than six years will
apply whenever Section 640 does not. Petitioners' position, however, would
entitle claimants to a six-year limitations period whether or not Section
640 applies, and it would drain the 1995 amendment of any significance.
That consequence confirms that petitioner's position is wrong, for statutory
schemes must be interpreted, if possible, to give each provision operative
effect. See, e.g., Walters v. Metropolitan Educ. Enters., Inc., 519 U.S.
202, 209 (1997).10
b. There is no merit to petitioners' contention that the decision below
conflicts with Unexcelled Chemical Corp. v. United States, 345 U.S. 59 (1953).
In that case, the United States charged that a private employer had knowingly
employed child labor from 1942 to 1945 in violation of the Walsh-Healey
Act (see 41 U.S.C. 35 et seq.); it had commenced administrative proceedings
in 1947 and had then filed a court suit in 1950. This Court held that the
suit was barred by the statute of limitations imposed by the Portal-to-Portal
Act, which applies to suits filed under the Walsh-Healey Act (and the Bacon-Davis
Act, 40 U.S.C. 276a et seq.) as well as the FLSA. Although the Court's decision
focused on the applicability of the Portal-to-Portal Act to the suit, the
United States had alternatively contended that even if the Act applied,
the "action," for purposes of the Act, had "commenced when
the administrative proceedings were initiated." 345 U.S. at 66. The
proceedings whose timeliness was disputed were not the administrative proceedings
themselves but the subsequent court suit, and the government's argument
was thus that the administrative proceedings had tolled the statute of limitations
for the court suit. The Court rejected that claim, stating that Congress,
when it enacted the Portal-to-Portal Act, "was addressing itself to
lawsuits in the conventional sense." Ibid.
The question presented here, however, is not whether administrative proceedings
brought by the United States as plaintiff can toll the limitations period
for any subsequent tort suit. The question is whether petitioners have identified
some provision of federal law that "unequivocally expresse[s]"
a congressional intent to expose the United States as employer to much greater
FLSA liability than similarly situated private employers would face. Indeed,
Unexcelled Chemical did not address the provision on which petitioners rely
as a waiver of sovereign immunity: the limitations provision of the Barring
Act, which applies only to claims against the United States, and which,
as discussed, does not in fact waive sovereign immunity. See 31 U.S.C. 3702(b)(1).
If anything, this Court's decision in Unexcelled Chemical cuts more against
petitioners' position than for it. In rejecting the efforts of the United
States as plaintiff to circumvent the limitations period of the Portal-to-Portal
Act, the Court noted the surpassing breadth of Congress's desire to protect
employers against the "harsh results" of the FLSA as previously
enforced. 345 U.S. at 61. It would be anomalous to construe that decision
as a basis for subjecting the United States as employer to precisely the
"harsh results" that Congress designed the Portal-to-Portal Act
to avoid.
There is also no "conflict[]" (Pet. 16) between the decision below
and the concluding footnote of Glenn Electric Co. v. Donovan, 755 F.2d 1028
(3d Cir. 1985). In that case, the government had brought administrative
proceedings as plaintiff against a private employer under, among other statutes,
the United States Housing Act of 1937, 42 U.S.C. 1437 et seq. (U.S. Housing
Act). Although that statute is not among the three to which the Portal-to-Portal
Act applies, the employer nonetheless argued that the Act's limitations
provision barred the proceedings. The Third Circuit rejected that argument
on the ground that the Portal-to-Portal Act is simply inapplicable to proceedings
under the U.S. Housing Act. See 755 F.2d at 1031-1034. In a footnote, the
court alternatively remarked that, even if the Portal-to-Portal Act were
applicable to proceedings under the U.S. Housing Act, its limitations period
would still be inapplicable on the facts of Glenn Electric "[i]nasmuch
as the [government's] enforcement action has been entirely administrative."
Id. at 1034 n.7 (citing Unexcelled Chemical).
Whether or not that footnote could plausibly be said to have precedential
value, it is entirely consistent with the decision below. Again, the question
in this case is whether Congress has "unequivocally expressed"
an intention to waive sovereign immunity as to FLSA claims against the United
States as employer in circumstances where similarly situated private-sector
employers would be immune from such claims. Like Unexcelled Chemical, Glenn
Electric did not address that issue, nor did it address the provision of
the Barring Act upon which petitioners erroneously rely in claiming that
sovereign immunity has indeed been waived.11
2. Finally, petitioners present a diffuse set of arguments (Pet. 27-29)
that the manner in which their administrative claims were handled violated
due process. Those arguments are factbound and, in any event, without merit.
Petitioners contend that GAO displayed a "lack of genuine investigation
into, or interest in, the statutory interpretation questions actually at
issue." Pet. 28. But that "due process" argument is wholly
derivative of petitioners' own mistaken position on the statutory issue
presented here. Although petitioners allege that GAO acted in bad faith
in reversing its position on that issue, that allegation is difficult to
square with, among other things, the unanimous conclusion of the four federal
judges who have reviewed this case that GAO's prior position was "wrong"
and that its present one is correct. Pet. App. 21a; accord id. at 8a-10a;
see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
420 (1971) ("there must be a strong showing of bad faith or improper
behavior" before a court will permit "inquiry into the mental
processes of administrative decisionmakers"); Withrow v. Larkin, 421
U.S. 35, 55 (1975) (similar).12
Finally, there is no merit to petitioners' claim (Pet. 28) that GAO acted
unconstitutionally in failing to process their claims before the 1995 enactment
of the amendment to Section 640. Petitioners cite no authority for the proposition
that the delay was unlawful, and, in any event, the district court correctly
determined that petitioners "did not have a sufficiently developed
factual record for their claims and, given the sheer number of [claimants]
in this case, would not have had one by the time amended Section 640 was
enacted." Pet. App. 29a; see also id. at 10a.13
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
BARBARA C. BIDDLE
WENDY M. KEATS
Attorneys
MAY 1999
1 Apart from the FLSA, Title 5 of the United States Code independently provides
for overtime pay for many federal employees. See, e.g., 5 U.S.C. 5542 et
seq. Many, if not all, of petitioners here received some type of Title 5
overtime pay during the period relevant to this action.
2 As used in Section 3702, the term "settlement" denotes not a
compromise, but an "administrative determination of the amount due."
Illinois Surety Co. v. United States, 240 U.S. 214, 219-222 (1916).
3 See also 4 C.F.R. 31.5(a). During much of the period at issue in this
suit, the General Accounting Office (GAO), led by the Comptroller General,
exercised authority under 31 U.S.C. 3702 to "settle" a wide variety
of money claims against the United States. That authority was recently reassigned
to various Executive Branch agencies. The Office of Personnel Management
(OPM) is now the designated agency for administrative settlement of federal
employees' compensation claims. See 31 U.S.C. 3702(a)(2) (Supp. III 1997).
Because GAO was the relevant Section 3702 agency during most of this litigation,
for convenience we will continue to refer to GAO as the claims processing
agency unless otherwise significant.
4 That arrangement included employees who were not yet Adams plaintiffs
in the CFC but would become eligible for inclusion within the settlement
agreements upon becoming plaintiffs within one year. See C.A. App. 191-192.
5 GAO drew support for that position from a 1974 statute that had reduced
the Barring Act's limitation period from ten years to six years. See 73
Comp. Gen. at 161. That 1974 amendment, GAO observed, conformed the Barring
Act "to the 6-year limitation period applicable to judicial actions
on claims against the United States under 28 U.S.C. 2401 and 2501,"
and its legislative history "noted that '[t]his will make the time
limitation consistent with the Statute of Limitations now applicable to
claims filed in administrative agencies and the courts.'" 73 Comp.
Gen. at 161 (quoting S. Rep. No. 1314, 93d Cong., 2d Sess. 5-6 (1974)).
6 The relevant regulation provided that "[a] claimant should file his
or her claim with the administrative department or agency out of whose activities
the claim arose," which "shall initially adjudicate the claim";
and, if unsatisfied, the claimant "may appeal that determination to"
GAO. 4 C.F.R. 31.4; see also 4 C.F.R. 31.7 ("Claims are settled on
the basis of the facts as established by the Government agency concerned
and by evidence submitted by the claimant. * * * The burden is on claimants
to establish the liability of the United States, and the claimant's right
to payment.").
7 The United States argued in a petition for rehearing that the remand was
unnecessary because petitioners had consistently disavowed any claim for
money relief in this action and were seeking exclusively equitable relief
on all claims, including the "takings" claim. Petitioners confirmed
the same point in their own petition for rehearing. Appellants' Pet. for
Reh'g and Suggestion for Reh'g En Banc 11-14. Both petitions were denied.
Pet. App. 32a, 33a.
8 The court of appeals declined, on jurisdictional grounds, to address whether
the Takings Clause entitles those petitioners to just compensation in light
of the amendment to Section 640 in 1995. Pet. App. 10a-12a. If those petitioners
prevail on their just compensation claim on remand, they will obtain the
moneys to which they claim entitlement under the alternative theories of
recovery presented in this petition. As to them, "because the Court
of Appeals remanded the case, it is not yet ripe for review by this Court."
Brotherhood of Locomotive Firemen & Enginemen v. Bangor & Aroosook
R.R., 389 U.S. 327, 328 (1967); accord Virginia Military Inst. v. United
States, 508 U.S. 946, 946 (1993) (opinion of Scalia, J., respecting the
denial of certiorari). If a live dispute involving those petitioners persists
after remand, they will retain their right to present to this Court any
claim they present here so long as they have preserved it. See, e.g., Urie
v. Thompson, 337 U.S. 163, 172-173 (1949); Robert L. Stern & Eugene
Gressman, Supreme Court Practice § 4.18, at 198 (7th ed. 1993).
The court of appeals did not explain why, in its view, the claims it decided
on the merits fell within its jurisdiction whereas the claims it remanded
fell within the exclusive jurisdiction of the Federal Circuit. There is
no obvious basis for such a distinction, since petitioners' various claims
seek similar forms of relief against the government: mandamus and injunctive
and declaratory relief concerning the government's disposition of their
administrative claims for federal money. See Pet. App. 8a; see generally
Gov't Supp. C.A. Br. 1-14; Van Drasek v. Lehman, 762 F.2d 1065, 1071 n.11
(D.C. Cir. 1985) ("[j]urisdiction under the Tucker Act cannot be avoided
by * * * disguising" what is "essentially a monetary claim in
injunctive or declaratory terms") (internal quotation marks omitted).
Thus, if certiorari were granted, this Court could confront threshold jurisdictional
questions similar to those addressed by the D.C. Circuit but not raised
in the petition. See also note 10, infra.
9 When the Portal-to-Portal Act was enacted, federal employees were still
excluded from the scope of the FLSA, and thus the only applicable enforcement
mechanism for any covered class of employees for the collection of back
wages was a suit in any "court of competent jurisdiction." 29
U.S.C. 216(b). It is thus no surprise that some provisions of the Portal-to-Portal
Act refer to "court[s]." 29 U.S.C. 256; cf. Pet. 18. Congress's
failure to amend the Act when it included federal employees within the coverage
of the FLSA does not, as petitioners suggest (Pet. 21, 24), constitute an
"unequivocal expression" of intent to grant those employees, at
public expense, vastly broader back pay rights than any other employee covered
by the Act. Quite to the contrary, as discussed in the text, Congress intended
for federal and non-federal employees to receive "equality of treatment."
10 The regime that petitioners would extend to all FLSA claims against the
United States would be highly unusual. If an FLSA administrative claim is
denied and the claimant then files a court suit, the court does not "review"
the administrative determination -which has no effect on the claimant's
rights-but considers the claim de novo. Burich v. United States, 366 F.2d
984, 986-987 (Ct. Cl. 1966) (citing cases), cert. denied, 389 U.S. 885 (1967);
Schulthess v. United States, 3 Cl. Ct. 126 (1983); Hilton v. United States,
227 Ct. Cl. 734 (1981); see also p. 4, supra. Petitioners' position, however,
would entitle a claimant to relief in administrative proceedings long after
the limitations period for any court action had passed. For that reason,
any unsuccessful administrative claimant seeking relief in court after the
expiration of that period could not file an ordinary FLSA suit under 29
U.S.C. 216(b). He or she might instead file a suit like this, seeking "mandamus
and injunctive and declaratory relief" concerning the disposition of
the underlying administrative claim for money. Pet. App. 8a. But there is
little precedent concerning whether, and in what forum, the Administrative
Procedure Act or some other provision of federal law authorizes federal-court
actions of this kind. See Supp. Gov't C.A. Br. 12-14. (Although OPM is an
"agency" for purposes of the APA, GAO-the administrative entity
in which the administrative actions were initiated-is not. See Chen v. GAO,
821 F.2d 732, 737 n.6 (D.C. Cir. 1987); 5 U.S.C. 701(b)(1).) As noted above
(see note 8, supra), uncertainty about that issue, which the court of appeals
only cursorily addressed (see Pet. App. 10a-12a), could pose threshold jurisdictional
concerns that this Court might need to resolve before reaching the merits
of any issue presented in the petition.
11 Petitioners contend that the decision below is in "tension"
with several court of appeals decisions, all of which involved private employers,
holding that the limitations provision of the Portal-to-Portal Act may be
waived if not properly pleaded as a defense (or that defendants may be estopped
from relying on that provision if they fraudulently induce a plaintiff to
delay filing suit). See Pet. 23 (citing, inter alia, Hodgson v. Humphries,
454 F.2d 1279 (10th Cir. 1972)). The question here, however, is not whether
the government has waived sovereign immunity in the course of this litigation
(indeed, sovereign immunity cannot be so waived), but whether Congress has
affirmatively and unequivocally waived that immunity to the extent that
petitioners claim. The litigation-waiver and estoppel cases that petitioners
cite have no bearing on that issue.
12 It is well settled that "[a]n administrative agency is not disqualified
from changing its mind; and when it does, the courts still sit in review
of the administrative decision and should not approach the statutory construction
issue de novo and without regard to the administrative understanding of
the statutes." Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993)
(quoting NLRB v. Iron Workers, 434 U.S. 335, 351 (1978)); see also Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 863-864
(1984). There is thus no merit to petitioners' reliance on past statutory
interpretations "by the GAO and other agencies" (Pet. 12-15);
the cited administrative decisions either concerned statutes other than
the FLSA and the Portal-to-Portal Act or were overruled in Ford when GAO
correctly determined that its previous position had been erroneous. See
also Hickman, 10 Cl. Ct. at 552 (1986 decision accepting, without discussion,
GAO's previous position, which had not yet been overruled).
13 Petitioners are mistaken in alleging that petitioners' employing agencies
had engaged in a "systematic denial of statutorily-mandated wages to
thousands of government employees." Pet. 28. As the CFC explained in
Adams, many of the original classifications given petitioners' jobs by their
employing agencies were fully justified, and the others were overturned
only after detailed analysis under OPM criteria. See 27 Fed. Cl. at 12-29.
Indeed, petitioners did not claim a "willful violation" of the
FLSA in their CFC suit, even though such a finding would have entitled them
to three years' back overtime pay. See 29 U.S.C. 255(a).