DEVLIN v. BERRY et al

Filing 27

MEMORANDUM OPINION. Signed by Judge Barbara Jacobs Rothstein on 3/18/14. (lcbjr4)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

THOMAS B. DEVLIN,
Plaintiff,
Civil Action No. 13-408 (BJR)

v.

MEMORANDUM OPINION

JOHN BERRY, Director,
Office of Personnel Management, et al.,
Defendants.

This case is before the Court on a motion to dismiss by Defendants John Berry, the Office of
Personnel Management, and the United States of America (hereinafter “OPM”). See
Defendant’s Motion to Dismiss (“Defs’ Mot.”), Dkt. #14. Plaintiff Thomas Devlin challenges
OPM’s denial of an administrative claim he filed in 1995. Devlin’s claim alleged unpaid
overtime under the Fair Labor Standards Act (FLSA). He brings this suit under the
Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq. OPM moved to dismiss under
Federal Rule of Civil Procedure 12(b)(6), arguing that Devlin has failed to state a claim for relief
because his 1995 administrative filing was time-barred. Defs’ Mot. at 2. Devlin filed a crossmotion for summary judgment. See Plaintiff’s Cross Motion for Summary Judgment (“Pl’s
Mot.”), Dkt. #18. Having reviewed the parties’ briefs together with all relevant materials, the
Court denies both OPM’s motion to dismiss and Devlin’s summary judgment motion, for the
reasons discussed below.
I.

BACKGROUND

During the period of time relevant to this action, January of 1993 through October 1994,
Devlin worked as a criminal investigator for the Federal Bureau of Investigation (FBI).
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Plaintiff’s Statement of Material Facts (“Pl’s SUF”), Dkt. #17, ¶ 1. 1 On January 6, 1995,
Devlin’s counsel filed an administrative claim with the General Accounting Office (GAO), now
the Government Accountability Office, on behalf of Devlin and over 200 other criminal
investigators. Id. ¶ 2. The administrative claim alleged violations of the FLSA, specifically that
the FBI had improperly classified Devlin and the other criminal investigators as exempt
employees. Id. They asserted a right to unpaid overtime. Id.
Also on January 6, Devlin’s counsel filed a complaint in the Court of Federal Claims on
behalf of Devlin and the other investigators, alleging the same FLSA violations. Id. ¶ 6.
However, Devlin did not remain a party to that suit. On November 18, 1996, upon a motion by
Devlin’s counsel, the court dismissed Devlin’s claim without prejudice. Id. ¶ 7.
On June 17, 2011, Devlin’s counsel wrote OPM to request a meeting. Id. ¶ 11. Counsel
enclosed a copy of the 1995 administrative claim filed with the GAO, and explained that the
federal court action on behalf of other criminal investigators, which had recently settled, did not
include Devlin as a party. Id. Devlin’s counsel repeated the request in September. Id. ¶ 12.
OPM then responded, asking for documentation, which Devlin’s counsel supplied. Id. ¶¶ 13-14.
On November 12, 2012, OPM denied Devlin’s claims. Id. ¶ 15. In the denial letter,
OPM stated:
Because determination of exemption status is necessary to determine FLSA
overtime pay entitlement, disputes regarding FLSA exemption status must be
resolved prior to making any determinations regarding the amount of FLSA
overtime pay due or the applicable statute of limitations. OPM is authorized to
make such determinations under the provisions of 29 U.S.C. § 204(f). A review of
guidance provided in claims decisions issued by GAO, the agency formerly
charged with settling compensation and leave claims under 31 U.S.c. § 3702 and
the agency which was responsible for settling such claims at the time the
claimant’s representative submitted their January 6, 1995 letter to GAO, is
instructive. GAO decisions make clear GAO did not view its claims settlement
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The facts contained in this section were all admitted by OPM. See Defendants’ Statement of Facts in Dispute
(“Defs’ SFD”), Dkt. #22.

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authority as encompassing FLSA exemption status determinations.
Complaint, Ex. 1, p. 4. OPM quoted the following passage from a 1976 GAO decision, Matter
of Claims Representatives and Examiners – Exemption from Fair Labor Standards Act Overtime
Coverage:
We consider that the role granted to the Commission [the former Civil Service
Commission, now OPM] to administer the FLSA with respect to Federal
employees, [sic] necessarily carries with it the authority to make final
determinations as to whether employees are covered by the various provisions of
the [FLSA]. Accordingly, this Office will not review the Commission’s
determinations as to an employee’s exemption status.
Id.; see B-51325, 1976 WL 9626 at *2 (Oct. 7, 1976). OPM also cited the FLSA
provision authorizing the Director of OPM to “administer the provisions of this chapter
with respect to any individual employed by the United States.” Compl., Ex. 1, p. 5; see
also 29 U.S.C. § 204(f). The denial letter referenced OPM’s own administrative claims
process, which the agency had established prior to the time that Devlin filed his claim
with the GAO. Compl., Ex. 1, p. 5. Therefore, according to OPM, “[Devlin’s] filing
with the GAO regarding [his] FLSA exemption status did not preserve [his] exemption
status claim.” Id. Because the 1995 administrative claim was not preserved, OPM
treated the June 2011 letter from Devlin’s counsel as a freshly filed administrative claim.
Id. OPM denied the claim as time-barred. Id. This action followed.
II.

LEGAL STANDARD

When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court “must
construe the allegations and facts in the complaint in the light most favorable to the
plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from
the facts alleged.” Bailey v. Verizon Commc’ns, Inc., 544 F. Supp. 2d 33, 36 (D.D.C.
2008). To survive a Rule 12(b)(6) motion, the complaint must plead sufficient facts,
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taken as true, to provide “plausible grounds” that discovery will reveal evidence to
support the plaintiff’s allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Summary judgment under Rule 56 is granted when there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A party asserting that a
fact cannot be or is genuinely disputed must support the assertion by citing to particular
parts of materials in the record…or showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P. 56(c).
Under the APA, a court shall set aside agency actions found to be “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§706(2)(A). The APA standard of review is “narrow,” and “a court is not to substitute its
judgment for that of the agency.” Motor Vehicle Manufacturers Ass'n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). However, the agency “must
examine the relevant data and articulate a satisfactory explanation for its action.” Id.
III.

DISCUSSION
a. OPM’s Motion to Dismiss
The question at the heart of this dispute is whether Devlin was required to file his

administrative claim with OPM rather than with the GAO. OPM’s arguments rely entirely on the
proposition that Devlin filed his claim with the wrong agency in 1995, thereby failing to preserve
the claim such that OPM could adjudicate it in 2011. If Devlin and the other investigators chose
the correct path, or at least a permissible one, Devlin’s claim survives OPM’s motion to dismiss. 2

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The Court notes that, in addition to the facts set forth in Part I, supra, Devlin also alleged in his Complaint that
GAO acknowledged receipt of his claim, that he never withdrew the claim, and that GAO never returned the claim

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It is undisputed that Devlin’s 1995 claim, if properly filed, would have fallen within the
applicable two-year statute of limitations for such claims. 3
Before 1996, federal law required the Comptroller General (director of the GAO) to
“settle all claims of or against the United States Government.” See 31 U.S.C. § 3702 (1995). In
1996, the General Accounting Office Act transferred the authority to settle FLSA and other
claims to the Office of Personnel Management (OPM), where it remains. See General
Accounting Office Act of 1996, Pub. L. 104-316, § 202(n)(1)(B), 110 Stat. 3826, 3843-44
(October 19, 1996); 31 U.S.C. § 3702 (a)(2) (“The Director of the Office of Personnel
Management shall settle claims involving Federal civilian employees' compensation and
leave.”). The General Accounting Office Act included a “Savings Provision” applicable to
“pending matters and proceedings,” which read:
This Act shall not affect any pending matters or proceedings, including notices of
proposed rulemaking, relating to a function or authority transferred under this
Act. Such matters or proceedings shall continue under the authority of the agency
to which the function or authority is transferred until completed or terminated in
accordance with law.
Id. § 101(d)(2). Devlin alleges, and the Court must accept, that GAO never returned his
claim. See Compl. ¶ 21. As such, Devlin’s claim was still “pending” when the transfer
took effect in 1996, and “continue[d] under the authority of the agency to which the
function or authority is transferred,” i.e., OPM, from the time of the transfer forward. See
id. The Court must also draw the reasonable inference that OPM never “completed or
terminated” Devlin’s claim. Therefore, for purposes of OPM’s motion to dismiss, the
Court assumes that Devlin’s claim was still before OPM when Devlin’s counsel

to him. See Compl. ¶¶ 19, 21, 24. For the purposes of deciding OPM’s 12(b)(6) motion, the Court must accept
these allegations as true and draw all reasonable inferences in Devlin’s favor.
3
Devlin sought back pay for the period of January 1993 through October 1994. Compl. ¶ 16. The parties agree that
the applicable statute of limitations is two years. See Defs’ Mot. at 7; Pl’s Mot. at 12, n. 3.

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contacted the agency in 2011 requesting a meeting. That 2011 letter makes perfectly
clear that Devlin was not filing a new claim, but rather seeking resolution of the longpending claim he had filed in 1995. See Pl’s SUF ¶ 11 (“We are writing on behalf of our
client, Thomas Devlin, in connection with his claim against the United States under the
[FLSA]…Notwithstanding the withdrawal of Mr. Devlin’s claim in the United States
Court of Federal Claims, it is still pending before the [OPM], which succeeded GAO as
the repository for such claims”) (emphasis added).
Thus, the only question for this Court to resolve is whether GAO was a proper
recipient of the administrative claim filed by Devlin and the other criminal investigators.
This is a purely legal question upon which rides the fate of OPM’s motion to dismiss. If
GAO was a proper forum for Devlin’s administrative claim, taking all of Devlin’s
allegations as true and drawing all reasonable inferences in his favor, OPM’s denial of his
claim as time barred was not “in accordance with law” under the APA. See 5 U.S.C.
§706(a)(2).
As noted above, when the criminal investigators filed their claim in 1995, the
Comptroller General was charged with “settl[ing] all claims of or against the United
States Government.” See 31 U.S.C. § 3702 (1995). OPM suggests that because Devlin’s
claim alleged misclassification, he was required to file with OPM. Defs’ Mot. at 5. The
authority cited by OPM establishes no such rule.
OPM relied heavily upon the GAO’s decision in Claims Representatives, B51325, 1976 WL 9626, to support its contention that “at no time was GAO empowered to
adjudicate claims regarding FLSA exemption status determinations.” Defs’ Mot. at 5.
Claims Representatives actually demonstrates that GAO was empowered to adjudicate

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such claims, and did so. The case arose when a union official filed an administrative
claim with the GAO seeking overtime pay for claims representatives and examiners, who
the Civil Service Commission (CSC) had deemed exempt under the administrative
exemption. See B-51325, 1976 WL 9626 at *1. The Comptroller General requested a
report from the CSC on the merits of the union official’s claims, and the CSC responded.
Id. Then, after reviewing the CSC’s rational and comparing it with Department of Labor
regulations, the Comptroller General explained that CSC had statutory authority “to make
final determinations as to whether employees are covered by the various provisions of the
[FLSA].” Id. at *2. In light of that statutory authority, the Comptroller General pledged
that GAO “will not review the [CSC’s] determinations as to an employee’s exemption
status.” Id.
The case says nothing about a federal employee’s obligation to seek an exemption
status determination whenever he or she alleges misclassification. Nor does it suggest
that the union official, or the employees he spoke for, had chosen the wrong
administrative forum. If anything, the case confirms that the GAO was the proper
recipient of those and other federal employees’ overtime claims.
Claims Representatives does make clear that the GAO would not carelessly usurp
the CSC’s statutory authority over FLSA administration. However, the Comptroller
General explained in later decisions that “[t]he authority to finally decide whether the
expenditure of public funds under the FLSA is appropriate or not is vested in [the
Comptroller General’s] Office.” Matter of Plum Island Animal Disease Center—Sleep
and Meal Periods Under Fair Labor Standards Act, B-213179, 1984 WL 46700 at *5
(Oct. 2, 1984). Where the Comptroller General found CSC’s determinations to be

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“contrary to the law or without legal basis,” the Comptroller General would adjudicate
the claim under the correct standard. Id. at *5 (“Although we will accord great weight to
OPM's administrative determinations as to entitlements under the FLSA, we will not
accept a determination that is contrary to law or without legal basis”); see also Matter of
Dept. of Ag. Meat Graders—Travel Time Under Fair Labor Standards Act, B-163450,
1978 WL 11226 at *4 (Sep. 20, 1978) (“If, however, we find CSC’s factual conclusions
to be clearly erroneous, or the legal conclusions to be contrary to the law or regulations
set out thereunder, we would have no option but so rule”).
This is consistent with the D.C. Circuit’s description of the GAO’s authority
during that period, which the court adopted from the GAO’s own manual. See Adams v.
Hinchman, 154 F.3d 420, 422 (D.C. Cir. 1998), cert. denied, 526 U.S. 1158 (1999)
(quoting General Accounting Office, Principles of Federal Appropriations Law 11–6
(1982) ) (“to settle a claim means to administratively determine the validity of that
claim.... Settlement includes the making of both factual and legal determinations”).
In sum, it is possible that if the GAO had considered Devlin’s claim in 1995, it
would have deferred to OPM’s determination that Devlin and the other criminal
investigators were exempt. But even then the GAO would still have been a proper forum
for the administrative claim at that time.
OPM requests deference under Chevron v. Natural Resources Defense Council,
467 U.S. 837 (1984), for its decision to deny Devlin’s claim. Specifically, OPM argues
that this Court should defer to the agency’s conclusion that Devlin’s claim was timebarred. Defs’ Mot. at 9. OPM also argues that its conclusion as to the “proper forum for
bringing federal employees’ FLSA claims” is also entitled to deference. Id. at 10.

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OPM ignores the first step of the Chevron inquiry, which is to “consider ‘the text,
structure, purpose, and history of an agency's authorizing statute’ to determine whether a
provision reveals congressional intent about the precise question at issue.” Adirondack
Med. Ctr. v. Sebelius, 740 F.3d 692, 696 (D.C. Cir. 2014) (quoting Hearth, Patio &
Barbecue Ass’n v. U.S. Dep’t of Energy, 706 F.3d 499, 503 (D.C. Cir. 2013). The statute
in question, 31 U.S.C. §3702, is unambiguous. At the time Devlin filed his
administrative claim, the Comptroller General had statutory authority to “settle all claims
of or against the United States Government.” 31 U.S.C. § 3702 (1995). 29 U.S.C. §
204(f), which gives OPM authority “to administer the provisions of [the FLSA] with
respect to any individual employed by the United States government,” does not contradict
or nullify the GAO’s claims settlement authority under 31 U.S.C. § 3702. Thus, OPM’s
conclusion concerning the proper forum for Devlin’s claims, and OPM’s resultant
conclusion concerning timeliness, were contrary to law. Such conclusions are not
entitled to deference.
Because Devlin timely filed his administrative claim in a proper forum, and –
construing facts as required on a 12(b)(6) motion – the claim was not otherwise processed
or returned, the claim is not time-barred. The Court denies OPM’s motion to dismiss.
b. Devlin’s Motion for Summary Judgment
Devlin’s request that the Court grant summary judgment in his favor is denied.
While the Court has resolved the central legal question posed by the parties, there remain
disputes of material fact that preclude granting summary judgment. Specifically, OPM
disputes that the GAO never returned Devlin’s administrative claim. See Defs’ SFD, ¶ 5.
OPM also disputes that Devlin never withdrew his administrative claim. Id. ¶ 8. These

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are material facts, in that if the GAO returned or terminated Devlin’s claim prior to the
1996 transfer of pending claims to OPM, Devlin would not have preserved his claim and
it would be time barred. Devlin also would have failed to preserve his claim if at some
point he withdrew it, either from the GAO or OPM.
As Devlin observes, OPM phrased its denials in terms of what OPM “does not
admit,” without pointing to any contrary evidence in the record. See id. ¶¶ 5, 8. The
Court is mindful that under normal circumstances a party asserting a genuine issue of
material fact must support the assertion by identifying specific evidence in the record.
See Fed. R. Civ. P. 56(c)(1)(A). However, in cases involving review of an agency
decision, the defendant cannot necessarily point to contrary evidence until the
administrative record is filed. Though the full administrative record may contain no
additional evidence on either of the disputed factual issues, Rule 56 dictates that this
Court not grant summary judgment at this stage of the litigation.
Devlin maintains that in fact there is no administrative record to be filed in this
case because he has already placed all relevant materials before the Court. Pl’s Reply,
Dkt. #25, at 16. However, OPM has not yet had an opportunity to muster any evidence
that would support the agency’s decision to dismiss Devlin’s administrative claim as
time-barred. The Court is loath to grant a motion for summary judgment in an APA
proceeding where the entire record has not yet been filed. For that reason, Devlin’s
motion for summary judgment is denied, with leave to renew. The Court orders OPM to
produce whatever remains of the administrative record within 30 days, at which point the
Court will set a schedule for briefing summary judgment motions. An Order consistent
with this Memorandum Opinion shall issue.

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March 18, 2014

BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE

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