Petition for Writ of Certiorari — Donald Martin, Jr., et al., Petitioners v. United States

Supreme Court briefAug 7, 2023

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APPENDIX TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals

for the Federal Circuit, Martin v. United

States, November 30, 2022..................................

Opinion of the United States Court of Appeals

for the Federal Circuit, Avalos v. United

States, November 30, 2022..................................

17a

Order of the Court of Appeals Denying Rehear

ing En Banc, Martin v. United States, March

10,2023 ...................................................................

47a

Order of the Court of Appeals Denying Rehear

ing En Banc, Avalos v. United States, March

10,2023 ...................................................................

50a

Opinion of the Court of Federal Claims, Anello v.

United States, December 4, 2020......................

59a

Opinion of the Court of Federal Claims, Arnold

v. United States, December 9, 2020...................

77a

Opinion of the Court of Federal Claims, Avalos

v. United States, December 9, 2020...................

95a

Opinion of the Court of Federal Claims, Baca v.

United States, December 4, 2020...................... 123a

Opinion of the Court of Federal Claims, D.P. v.

United States, December 1, 2020...................... 147a

Opinion of the Court of Federal Claims, Hernan

dez v. United States, December 1, 2020........... 165a

Opinion of the Court of Federal Claims, Jones v.

United States, December 1, 2020...................... 184a

Opinion of the Court of Federal Claims, Marrs v.

United States, October 27, 2017......................... 203a

APPENDIX TABLE OF CONTENTS—Continued

Page

Opinion of the Court of Federal Claims, Martin

v. United States, February 24, 2017.................. 223a

Opinion of the Court of Federal Claims, Martin

v. United States, July 31, 2014........................... 248a

Opinion of the Court of Federal Claims, I.P. v.

United States, December 1, 2020...................... 290a

Opinion of the Court of Federal Claims, Plaintiff

No. 1 v. United States, March 4, 2021............... 309a

Opinion of the Court of Federal Claims, Rich

mond v. United States, December 2, 2020........ 327a

Opinion of the Court of Federal Claims, Rowe v.

United States, November 20, 2020.................... 346a

Opinion of the Court of Federal Claims, Tarovisky v. United States, December 1, 2020.......... 365a

Statutes and Regulations Involved........................ 385a

54 F.4th 1325

United States Court of Appeals, Federal Circuit.

Donald MARTIN, Jr., Patricia A. Manbeck,

Jeff Roberts, Jose Rojas, Randall Sumner,

Plaintiffs-Appellees

UNITED STATES, Defendant-Appellant

Frank Marrs, Nicole Adamson, Bethany Afraid, Joel

Albrecht, Jesus Arevalo, Nathan Arnold, Shawn

Ashworth, Jeremiah Austin, Michael Avenali, Jose

Balarezo, Ebony Baldwin, Charles Bambery, David

Barraza, Gregory Barrett, Donna Barringer, David

Bautista, Gary Bayes, Darrell Becton, Fraun

Bellamy, Darnell Bembo, Jessica Bender, Michael

Benjamin, Jr., Bryan Bentley, William Bertrand,

Christopher Bijou, All Plaintiffs,

PI aintiffs -App ell ants

United States, Defendant-Appellee

2021-2255, 2018-1354

Decided: November 30, 2022

Attorneys and Law Firms

Heidi R. Burakiewicz, Kalijarvi, Chuzi, Newman &

Fitch, PC, Washington, DC, argued for all plaintiffsappellants, plaintiffs-appellees. Patricia A. Manbeck,

Donald Martin, Jr., Jeff Roberts, Jose Rojas, Randall

Sumner also represented by Donald Robert DePriest;

Michael Lieder, Mehri & Skalet, PLLC, Washington,

DC.

Mark B. Stern, Appellate Staff, Civil Division, United

States Department of Justice, Washington, DC, argued

for defendant-appellant, defendant-appellee. Also rep

resented by Brian M. Boynton, Sean Janda, Michael

Shih.

Before Reyna, Linn, and Hughes, Circuit Judges.

Opinion

Dissenting opinion filed by Circuit Judge Reyna.

Hughes, Circuit Judge.

The Martin appeal asks whether the government

violates the Fair Labor Standards Act by not paying

federal employees who work during a government

shutdown until after the lapse in appropriations has

been resolved. The Court of Federal Claims deter

mined that it does, even though the Anti-Deficiency Act

legally bars the government from making payments

during the shutdown. Because we hold today in Avalos

v. United States, No. 21-2008, 54 F.4th 1343 (Fed. Cir.

Nov. 30,2022) that the government does not violate the

FLSA’s timely payment obligation as a matter of law

under these circumstances, we reverse.

The Marrs appeal involves an additional issue about

whether the government willfully violated the FLSA,

thereby extending the FLSA’s statute-of-limitations

period to three years. Because we conclude that the

government did not violate the FLSA, we need not

reach the trial court’s statute-of-limitations determi

nation in Marrs.

The facts and procedural history of this appeal

largely mirror those laid out in our opinion issued to

day in Avalos. In Avalos, federal employees who worked

during the 2018-2019 partial government shutdown

alleged that the government violated the Fair Labor

Standards Act (FLSA) by delaying payments until af

ter the lapse in appropriations ended. This appeal con

cerns a similar shutdown that occurred from October

1, 2013 to October 16, 2013.

In its summary-judgment ruling in Martin, the

Court of Federal Claims determined that PlaintiffsAppellees had stated a claim for an FLSA violation by

alleging that the government had not compensated

government employees during the shutdown. Martin

v. United States, 130 Fed. Cl. 578, 583 (2017). Even

though the Anti-Deficiency Act prohibited the govern

ment from paying these employees during the shut

down, the Court of Federal Claims reasoned that “the

appropriate way to reconcile the two statutes is not to

cancel [the government’s] obligation to pay its employ

ees in accordance with the manner in which the FLSA

is commonly applied. Rather, the court would require

that [the government] demonstrate [s] a good faith be

lief, based on reasonable grounds, that its actions

were appropriate.” Id. at 584. If the government were

to demonstrate a good faith belief based on reasonable

grounds, the trial court could exercise its discretion un

der 29 U.S.C. § 260 to award no liquidated damages. Id.

But after hearing argument on this issue, the Court of

Federal Claims determined that the government had

not demonstrated a good faith belief based on reason

able grounds and concluded that the Martin “plaintiffs

are entitled to liquidated damages in an amount equal

to the minimum and overtime wages that defendant

failed to timely pay.” Id. at 587-88 (citing 29 U.S.C.

§ 216(b)).

Because the court’s liability determination in Mar

tin applied to Marrs, the parties in Marrs stipulated

that the only remaining issue to resolve was “whether

the FLSA’s two or three year statute of limitations ap

plies to [the Marrs] plaintiffs.” Marrs v. United States,

No. 16-1297C (Fed. Cl. Mar. 17, 2017), ECF No. 13, at

1. The court ruled that the FLSA’s two-year statute of

limitations applied because the plaintiffs could not

meet their burden to show willfulness and extend the

statute of limitations period to three years. Marrs v.

United States, 135 Fed. Cl. 155,162 (2017). Because the

Marrs plaintiffs filed suit more than two years after

their claims accrued, the court concluded that the

Marrs plaintiffs’ claims are barred by the statute of

limitations and thus dismissed the case for lack of sub

ject matter jurisdiction. Id.

The government appeals the court’s decision in

Martin, and the Marrs plaintiffs appeal the court’s de

cision in Marrs. We have jurisdiction under 28 U.S.C.

§ 1295(a)(3).

We review the Court of Federal Claims’ legal con

clusions de novo and its factual findings for clear error.

Adams v. United States, 350 F.3d 1216, 1221 (Fed. Cir.

2003).

Ill

The government appeals the Court of Federal

Claims’ decision in Martin u. United States, 130 Fed.

Cl. 578 (2017), finding the government liable for liqui

dated damages under the FLSA. Our opinion today in

Avalos v. United States, No. 21-2008, 54 F.4th 1343

(Fed. Cir. Nov. 30, 2022), resolves the same question

raised in the Martin appeal: how the Anti-Deficiency

Act’s prohibition on government spending during a

partial shutdown coexists with the FLSA’s seemingly

contradictory timely payment obligation. We hold in

Avalos that “the FLSA’s timely payment obligation

considers the circumstances of payment and that, as a

matter of law, the government does not violate this

obligation when it complies with the Anti-Deficiency

Act by withholding payment during a lapse in appro

priations.” Avalos, No. 21-2008, slip op. 15, 54 F.4th

at 1349.

This holding applies equally to the Martin appeal,

which involves substantially identical circumstances

to Avalos. Indeed, the trial court relied on its decision

in Martin to form the basis for its decision in Avalos.

See id. at 11, 54 F.4th at 1347 (“The trial court relied

on its decision in Martin v. United States, 130 Fed. Cl.

578 (2017), in which it determined that ‘the appropri

ate way to reconcile [the Anti-Deficiency Act and the

FLSA] is not to cancel the defendant’s obligation to pay

its employees’ under the FLSA, but to ‘require that

[the] defendant demonstrate a good faith belief, based

on reasonable grounds, that its actions were appropri

ate’ per 29 U.S.C. § 260.”). For the same reasons in Av

alos, we conclude that the government did not violate

the FLSA’s timely payment obligation as a matter of

law.

Because the trial court’s finding of a potential

FLSA violation in Marrs depended on its decision in

Martin, we need not reach the trial court’s subsequent

willfulness determination in Marrs.

We accordingly reverse the trial court’s decision in

Martin that held the government liable for liquidated

damages. We also vacate the Court of Federal Claims’

decision in Marrs to the extent that it relied on Martin.

We remand both cases to the Court of Federal Claims

to enter judgment consistent with this opinion.

REVERSED-IN-PART, VACATED-IN-PART, AND

REMANDED

COSTS

No costs.

Reyna, Circuit Judge, dissenting.

The majority decides this appeal on the basis of

its interpretation of the Fair Labor Standards Act

(“FLSA”) and the Anti-Deficiency Act (“ADA”).1 The

majority reaches a conclusion in this appeal that is

contrary to the plain meaning of the statutory texts,

and that is unsupported and inconsistent with the con

gressional purpose of the statutes. This is the same

conclusion it reached in the companion case Avalos. In

Avalos,2 I lay out in greater detail the reasons for why

I would uphold the judgment of the Court of Federal

Claims and find that the Plaintiffs-Appellees suffi

ciently plead an allegation that the government vio

lated the FLSA when it failed to timely pay excepted

federal workers their earned wages during the rele

vant government shutdown. For purposes of economy,

I adopt and submit in this appeal my full dissent in

Avalos, as set out below:

This appeal involves two statutes. The Fair Labor

Standards Act (“FLSA”) requires employers, including

the U.S. government, to pay workers earned wages on

a regularly scheduled pay period basis. Employers that

fail to pay their workers on a timely scheduled basis

are subject to certain penalties, including liquidated

damages. The other statute, the Anti-Deficiency Act

(“ADA”), applies to government officials. It prohibits

1 Martin v. United States, 130 Fed. Cl. 578 (2017); Marrs v.

United States, 135 Fed. Cl. 155 (2017).

2 Avalos v. U.S., Nos. 2021-2008 through 2021-2012 and

2021-2014 through 2021-2020,__ F.4th___.

government officials from making expenditures, where

the expenditure is not funded by duly passed appropri

ations. In other words, the government lacks authority

to spend money it does not have.

The majority interprets the relevant provisions of

the ADA and FLSA to mean that the ADA renders null

the liquidated damages provision of the FLSA. I disa

gree. I believe that each statute stands alone and that

the relevant provisions of the two statutes are not in

consistent with each other.

From December 22, 2018, to January 25, 2019, the

federal government partially shutdown due to lack of

appropriations (funding). Avalos v. United States, 151

Fed. Cl. 380, 382 (2020); J.A. 274. To keep key parts of

the government functioning, the government created

two categories of federal employee: “excepted” and “nonexcepted.” Non-excepted employees were instructed to

not show-up for work and received no compensation for

the period of time they did not report for work. This

appeal does not involve non-excepted employees.

The “excepted” employees were required to report

for work during the shutdown, to continue working

and to perform normal duties. Despite working and

earning wages during the shutdown, the excepted em

ployees were not paid for their work until the first pay

day after the shutdown ended. Avalos, 151 Fed. Cl. at

382-83. This means that excepted employees received

no pay on their regularly scheduled paydays during

the shutdown.

At the time of the shutdown, Plaintiffs-Appellees

were employed as Customs and Border Protection Of

ficers for the U.S. Department of Homeland Security.

These officers (“CBP Officers”) were designated as ex

cepted employees and were required to report for work.

Id. at 382. They received no pay during the shutdown

but were paid on the first regularly scheduled payday

that came after January 25, 2019, the day the shut

down ended. Id.\ J.A. 280-83.

On January 29, 2019, the CBP Officers filed their

amended complaint in the United States Court of Fed

eral Claims (“Court of Claims”) seeking liquidated

damages for the time they worked without pay during

the shutdown. J.A. 288. The CBP Officers alleged that,

under the FLSA, the government was liable for liqui

dated damages because during the shutdown it failed

to pay wages on their regularly scheduled payday(s).

The government moved to dismiss the suit for fail

ure to state a claim. The government did not dispute

that the CBP Officers were not timely paid during the

shutdown. The government asserted that the govern

ment shutdown was caused by a lack of general appro

priation and, therefore, it was prohibited from paying

the CBP Officers. According to the government, it can

not, as a matter of law, be held liable for liquidated

damages that are based on wages not paid during the

shutdown because the ADA prohibited it from paying

the wages for which there was no funding during a

shutdown. The Court of Claims denied the govern

ment’s motion based largely on its decision in Martin,

which involved issues identical to the issues in this

10a

case. Avalos, 151 Fed. Cl. at 387-91 (discussing Martin

v. United States, 130 Fed. Cl. 578 (2017)). The govern

ment appeals the judgment of the Court of Claims.

According to the majority, the “central question in

this appeal is how the Anti-Deficiency Act’s prohibition

on government spending during a partial shutdown co

exists with the FLSA’s seemingly contradictory timely

payment obligation.” Maj. Op. 14. The majority re

verses and remands to the Court of Claims, holding

that the government cannot, as a matter of law, be held

liable for liquidated damages under the FLSA where

the failure to pay employee wages was due to a govern

ment shutdown. I disagree with my colleagues on sev

eral fronts.

First, the majority errs that as a matter of law,

there is no FLSA violation in this case. The law is wellsettled on the question of whether federal employees

are entitled to liquidated damages under the FLSA

when they are not paid on their regular payday. The

FLSA makes clear that failure to pay wages on regu

larly scheduled paydays constitutes a FLSA violation.

The majority is also incorrect that liquidated dam

ages cannot attach because the government was pro

hibited by the ADA, and presumably not of its own

choosing, from paying the CBP Officers.

My sense is that the FLSA and ADA are distinct

statutes with distinct purposes whose operations in

this case neither intersect nor are otherwise incon

sistent. Stated differently, the ADA in this instance

11a

does not trump the FLSA and render its liquidated

damages provision null.

The FLSA provides in relevant part:

Every employer shall pay to each of his em

ployees who in any workweek is engaged in

commerce or in the production of goods for

commerce, or is employed in an enterprise en

gaged in commerce or in the production of

goods for commerce, wages at the following

rates . . . not less than $7.25 an hour.

29 U.S.C. § 206(a)(1)(C). The FLSA is administered to

federal employees by the Office of Personnel Manage

ment (“OPM”). OPM has promulgated a regulation

providing that employees must be paid “wages at rates

not less than the minimum wage . . . for all hours of

work.” 5 CFR § 551.301(a)(1). The FLSA provides that

employers who violate these provisions “shall be liable

to the employee . . . affected in the amount of their un

paid minimum wages, or their unpaid overtime com

pensation . . . and in an additional equal amount as

liquidated damages.” 29 U.S.C. § 216(b).

Again, the undisputed facts are that the govern

ment required the CBP Officers to report to work dur

ing the shutdown; and that the CBP Officers were

not paid wages on their regularly scheduled paydays.

These circumstances clearly apply to § 216(b) of the

FLSA, and on this basis, I would find that the govern

ment’s failure to pay the CBP Officers during the shut

down was a violation of the FLSA.

12a

The majority appears to agree with the foregoing

conclusion, but my colleagues take steps to avoid say

ing so. Namely, they engage in an unorthodox statutory

interpretation that first examines whether the stat

utes are contradictory and whether the statutes can

coexist. BedRoc Ltd., LLC v. United States, 541 U.S.

176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (The

statutory interpretation “inquiry begins with the stat

utory text, and ends there as well if the text is unam

biguous.”); see also Me. Cmty. Health Options v. United

, 140 S. Ct. 1308, 1321-22, 206

U.S.

States,

L.Ed.2d 764 (2020) (explaining that the ADA did not

“quality” the government’s obligation to pay an amount

created by the “plain terms” of a statute). In so doing,

the majority concludes that the government is shielded

from liquidated damages if the failure to pay is due to

a shutdown. In other words, the statutes can be said to

coexist because the FLSA is rendered nugatory.

There is no principled basis for the majority view.

Indeed, the opposite is true. The FLSA is remedial in

nature, and it acts as a shield to protect workers. Not

so with the ADA. The ADA is meant to punish gov

ernment officials for certain actions. The ADA nei

ther references the FLSA nor the liquidated damages

provision of § 216(b). Nothing in the statutes, or appli

cable caselaw, supports an argument that the ADA ap

plies to federal workers.

The Supreme Court has recognized that the FLSA

was enacted “to protect certain groups of the popula

tion from substandard wages and excessive hours

which endangered the national health and well-being

13a

and the free flow of goods in interstate commerce.”

Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 706, 65

S.Ct. 895,89 L.Ed. 1296 (1945) (citing H. Rep. No. 2738,

75th Cong., 3d Sess., pp. 1, 13, 21, and 28). The FLSA

recognizes that employees do not have equal bargain

ing power and serves to protect them. Id.

Similarly, the Supreme Court has explained that

the FLSA liquidated damages provision is not meant

as punishment for the employer, but rather, focuses on

compensating the employee. Id. at 707, 65 S.Ct. 895

(“[T]he liquidated damages provision is not penal in its

nature but constitutes compensation for the retention

of a workman’s pay which might result in damages too

obscure and difficult of proof for estimate other than

by liquidated damages.”).

According to the Supreme Court, the ADA’s re

quirements “apply to the official, but they do not affect

the rights in this court of the citizen honestly contract

ing with the Government.” Salazar v. Ramah Navajo

Chapter, 567 U.S. 182,197,132 S.Ct. 2181,183 L.Ed.2d

186 (2012) (citation omitted).

Here, the CBP Officers were honestly “contract

ing” with the government. There is no legal support for

the belief that government workers forfeit their FLSA

protection at a time of shutdowns. As the Supreme

Court has noted, the insufficiency of an appropriation

“does not pay the Government’s debts, nor cancel its

obligations.” Me. Cmty., 140 S. Ct. at 1321-22 (quoting

Ramah, 567 U.S. at 197,132 S.Ct. 2181). This court has

recognized, “the Supreme Court has rejected the notion

14a

that the Anti-Deficiency Act’s requirements some

how defeat the obligations of the government.” Moda

Health Plan, Inc. v. United States, 892 F.3d 1311,1322

(Fed. Cir. 2018) rev’d on other grounds, Me. Cmty., 140

S. Ct. 1308.

The majority fails to point to legal authority for

the proposition that the ADA cancels the government’s

obligation to protect the very federal employees that

the FLSA was intended by Congress to protect. I see

no congressional requirement or Supreme Court prec

edent that negates liquidated damages under the

FLSA or the ADA. Rather, the liquidated damages

provision of the FLSA “constitutes a Congressional

recognition that failure to pay the statutory minimum

on time may be so detrimental to maintenance of the

minimum standard of living ‘necessary for health, effi

ciency, and general well-being of workers’ and to the

free flow of commerce, that double payment must be

made in the event of delay.” Brooklyn Sav., 324 U.S. at

707, 65 S.Ct. 895 (emphasis added) (citation omitted).

And as this court has explained, the “usual rule” is

“that a claim for unpaid overtime under the FLSA ac

crues at the end of each pay period when it is not paid.”

Cook v. United States, 855 F.2d 848, 851 (Fed. Cir.

1988).

Other regional circuits have concluded that a

FLSA claim accrues when an employer fails to pay em

ployees on their regular payday, and that the FLSA vi

olation occurs on that date. See Atl. Co. v. Broughton,

146 F.2d 480, 482 (5th Cir. 1944) (“[I]f an employer on

any regular payment date fails to pay the full amount

15a

. . . due an employee, there immediately arises an obli

gation upon the employer to pay the employee . . . liq

uidated damages.”); Birbalas v. Cuneo Printing Indus.,

140 F.2d 826, 828 (7th Cir. 1944) (“[OJvertime compen

sation shall be paid in the course of employment and

not accumulated beyond the regular pay day. . . . [T]he

failure to pay it, when due, [is] a violation of [the

FLSA].”); Biggs v. Wilson, 1 F.3d 1537, 1540 (9th Cir.

1993) (“The only logical point that wages become ‘un

paid’ is when they are not paid at the time work has

been done, the minimum wage is due, and wages are

ordinarily paid—on pay-day.”); Olson v. Superior Pontiac-GMC, Inc., 765 F.2d 1570, 1579 (11th Cir. 1985),

modified, 776 F.2d 265 (11th Cir. 1985) (“The employee

must actually receive the minimum wage each pay pe

riod.”).

The majority asserts a number of other conclu

sions: that the ADA trumps the FLSA because it was

passed first and is more specific than the FLSA; that

requiring liquidated damages in this situation would

lead to an “absurd result”; and that the government

would be forced to “choose between a violation of the

Anti-Deficiency Act or the FLSA.” Maj. Op. 18—19. But

we need not reach these questions because there is no

justiciable conflict between the two laws. See, e.g.,Epic

Sys. Corp. v. Lewis,___U.S.

, 138 S. Ct. 1612, 1624,

200 L.Ed.2d 889 (2018) (“Respect for Congress as

drafter counsels against too easily finding irreconcil

able conflicts in its work. . . . Allowing judges to pick

and choose between statutes risks transforming them

from expounders of what the law is into policymakers

16a

choosing what the law should be”). I do agree with the

majority that “where two statutes are capable of co-ex

istence, it is the duty of the courts, absent a clearly ex

pressed congressional intention to the contrary, to

regard each as effective.” Maj. Op. 19 (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018, 104 S.Ct.

2862, 81 L.Ed.2d 815 (1984)).

Payday is important to the everyday worker. Miss

ing a paycheck can have devastating consequences.

That is what this case is about. Congress sought a rem

edy for such consequences by extending the potential

for liquidated damages. Here, the employer should not

be absolved of adherence to the FLSA, more so where

the employer is the government that brought on the

shutdown.

The Court of Claims correctly analyzed the statute

and binding Supreme Court precedent. I would affirm

the Court of Claims’ decision and allow the case to con

tinue.

17a

54 F.4th 1343

United States Court of Appeals, Federal Circuit.

Eleazar AVALOS, James Davis,

Plaintiffs-Appellees

UNITED STATES,

Defendant-Appellant

L. Kevin Arnold, Martin Lee, Mark Munoz,

Matthew Perry, Aaron Savage, Jennifer Taylor,

Ralph Fulvio, David Kirsh, Robert Riggs,

Plaintiffs-Appellees

United States, Defendant-Appellant

Roberto Hernandez, Joseph Quintanar, Individually

and on Behalf of All Others Similarly Situated,

Plaintiffs-Appellees

United States, Defendant-Appellant

Lori Anello, Karl Black, George Clary,

William Denell, Justin Grossnickle, Eric

Inkrote, Timothy McGrew, Mark Miller, David

Nalborczyk, Martin Neal, Jr., Luke Palmer,

Thomas Rhinehart, Jr., Ivan Todd,

Plaintiffs-Appellees

United States, Defendant-Appellant

Brian Richmond, Adam Smith, Thomas Moore,

Chris Barrett, William Adams, Kelly Butterbaugh,

Dan Erzal, Brian W. Kline, Kevin J. Sheehan, Jason

Karlheim, Charles Pinnizzotto, Jason Dignan,

Mathew Beck, Stephen Shrift, James Bianconi,

Christopher Grafton, Jesse Carter, Michael Cruz,

Carl Warner, Brian Owens, Brian Mueller, Bryan

18a

Bower, Corey Trammel, James Kirkland, Kimberly

Bush, Bobby Marburger, Rodney Atkins, Leonel

Hernandez, Joseph Augusta, Edward Watt,

Plaintiffs-Appellees

United States, Defendant-Appellant

Justin Tarovisky, Grayson Sharp, Sandra Parr,

Justin Bieger, James Bratton, William Frost, Steve

Glaser, Aaron Hardin, Stuart Hillenbrand, Joseph

Karwoski, Patrick Richoux, Derreck Root, Carlos

Shannon, Shannon Swaggerty, Geoffry Wellein,

Becky White, Tammy Wilson,

Plaintiffs-Appellees

United States, Defendant-Appellant

Quentin Baca, Lephas Bailey, Christopher

Ballester, Kevin Beine, David Bell, Richard

Blam, Maximilian Crawford, Matthew Crumrine,

John Dewey, Jeffrey Diamond,

Plaintiffs-Appellees

United States, Defendant-Appellant

David Jones, Individually and on

Behalf of All Others Similarly Situated,

Plaintiff-Appellee

United States, Defendant-Appellant

Tony Rowe, Alieu Jallow, Karletta Bahe,

Johnny Durant, Jesse A. McKay, III,

George Demarce, Jacquie Demarce,

Plaintiffs-Appellees

United States, Defendant-Appellant

19a

D. P., T. S., J. V., Plaintiffs-Appellees

United States, Defendant-Appellant

Plaintiff No. 1, Plaintiff No. 2,

Plaintiff No. 3, Plaintiff No. 4,

Plaintiffs-Appellees

United States, Defendant-Appellant

I. P, A. C., S. W., D. W., P. V., M. R., R. C., K.

W., B. G., R. H., Individually and on

Behalf of All Others Similarly Situated,

Plaintiffs-Appellees

United States, Defendant-Appellant

2021-2008, 2021-2009, 2021-2010, 2021-2011,

2021-2012, 2021-2014, 2021-2015, 2021-2016,

2021-2017, 2021-2018, 2021-2019, 2021-2020

Decided: November 30, 2022

Attorneys and Law Firms

Leon Dayan, Bredhoff & Kaiser, PLLC, Washington,

DC, argued for all plaintiffs-appellees. Plaintiffsappellees Eleazar Avalos, James Davis also repre

sented by Joshua A. Segal; Allison Giles, Julie M. Wil

son, National Treasury Employees Union, Washington,

DC.

Jacob Y. Statman, Snider & Associates, LLC, Balti

more, MD, for plaintiffs-appellees L. Kevin Arnold,

Ralph Fulvio, David Kirsh, Martin Lee, Mark Munoz,

20a

Matthew Perry, Robert Riggs, Aaron Savage, Jennifer

Taylor. Also represented by Jason Ian Weisbrot.

William Clifton Alexander, Anderson Alexander, PLLC,

Corpus Christi, TX, for plaintifts-appellees Roberto

Hernandez, Joseph Quintanar. Also represented by

Alan Clifton Gordon.

Theodore Reid Coploff, McGillivary Steele Elkin LLP,

Washington, DC, for plaintifts-appellees Lori Anello,

Karl Black, George Clary, William Denell, Justin

Grossnickle, Eric Inkrote, Timothy McGrew, Mark Mil

ler, David Nalborczyk, Martin Neal, Jr., Luke Palmer,

Thomas Rhinehart, Jr., Ivan Todd. Also represented by

Sarah Block, Gregory K. McGillivary.

Jack K. Whitehead, JR., Whitehead Law Firm, Baton

Rouge, LA, for plaintifts-appellees William Adams, Rod

ney Atkins, Joseph Augusta, Chris Barrett, Mathew

Beck, James Bianconi, Bryan Bower, Kimberly Bush,

Kelly Butterbaugh, Jesse Carter, Michael Cruz, Jason

Dignan, Dan Erzal, Christopher Grafton, Leonel Her

nandez, Jason Karlheim, James Kirkland, Brian W.

Kline, Bobby Marburger, Thomas Moore, Brian Mueller,

Brian Owens, Charles Pinnizzotto, Brian Richmond,

Kevin J. Sheehan, Stephen Shrift, Adam Smith, Corey

Trammel, Carl Warner, Edward Watt.

Heidi R. Burakiewicz, Kalijarvi, Chuzi, Newman &

Fitch, PC, Washington, DC, for plaintifts-appellees Jus

tin Bieger, James Bratton, William Frost, Steve Glaser,

Aaron Hardin, Stuart Hillenbrand, Joseph Karwoski,

Sandra Parr, Patrick Richoux, Derreck Root, Carlos

Shannon, Grayson Sharp, Shannon Swaggerty, Justin

21a

Tarovisky, Geoffry Wellein, Becky White, Tammy Wilson.

Also represented by Donald Robert Depriest; Denise

Duarte Alves, American Federation of Government

Employees, Washington, DC.

Molly A. Elkin, McGillivary Steele Elkin LLP, Wash

ington, DC, for plaintiffs-appellees Quentin Baca,

Lephas Bailey, Christopher Ballester, Kevin Beine, Da

vid Bell, Richard Blam, Maximilian Crawford, Mat

thew Crumrine, John Dewey, Jeffrey Diamond. Also

represented by Gregory K. McGillivary.

Josh Sanford, Sanford Law Firm, PLLC, Little Rock,

AR, for plaintiff-appellee David Jones.

Marshall Ray, Law Offices of Marshall J. Ray, LLC, Al

buquerque, NM, for plaintiffs-appellees Karletta Bahe,

George Demarce, Jacquie Demarce, Johnny Durant,

Alieu Jallow, Jesse A. McKay, III, Tony Rowe. Also rep

resented by Jason Jon Lewis, Law Office of Jason J.

Lewis LLC, Albuquerque, NM.

Nicholas Wieczorek, Clark Hill PLLC, Las Vegas, NV,

for plaintiffs-appellees D. P, T. S., J. V.

Jules Bernstein, Bernstein & Lipsett PC, Washington,

DC, for plaintiffs-appellees Plaintiff No. 1, Plaintiff No.

2, Plaintiff No. 3, Plaintiff No. 4. Also represented by

Linda Lipsett; Daniel M. Rosenthal, Brita C. Zacek,

James & Hoffman, PC., Washington, DC.

Lauren Reznick, Borrelli & Associates, PLLC, Garden

City, NY, for plaintiffs-appellees A. C., R. C., B. G., R.

H., I. P., M. R., D. W., K. W., S. W., P. V.

22a

Mark B. Stern, Appellate Staff, Civil Division, United

States Department of Justice, Washington, DC, argued

for defendant-appellant. Also represented by Brian M.

Boynton, Sean Janda, Michael Shih.

Before Reyna, Linn, and Hughes, Circuit Judges.

Opinion

Dissenting opinion filed by Circuit Judge Reyna.

Hughes, Circuit Judge.

This interlocutory appeal addresses whether the

government violates the Fair Labor Standards Act by

not paying federal employees who work during a gov

ernment shutdown until after the lapse in appropria

tions has been resolved. The Court of Federal Claims

determined that the employees had established a

prima facie case of an FLSA violation even though the

Anti-Deficiency Act legally barred the government

from making payments during the shutdown. Because

we determine that the government did not violate the

FLSA’s timely payment obligation as a matter of law,

we reverse.

From December 22, 2018 to January 25, 2019, the

federal government partially shut down because of a

lapse in appropriations. Plaintiffs-Appellees contin

ued to work despite the shutdown because of their sta

tus as “excepted employees”—employees who work on

23a

“emergencies involving the safety of human life or the

protection of property” and whom the government can

“require [] to perform work during a covered lapse in

appropriations.” 31 U.S.C. §§ 1341(c)(2), 1342. During

this shutdown period, the government was barred from

paying wages to excepted employees by the Anti-Defi

ciency Act, which prohibits the government from “au

thorizing] an expenditure or obligation exceeding an

amount available in an appropriation or fund for the

expenditure or obligation.” 31 U.S.C. § 1341(a)(1)(A).

The parties do not dispute that the government paid

Plaintiffs-Appellees their accrued wages after the par

tial shutdown ended.

Plaintiffs-Appellees sued the government in the

United States Court of Federal Claims, alleging that

the government violated the Fair Labor Standards

Act (FLSA) “by failing to timely pay their earned over

time and regular wages during the partial government

shutdown.” Appxl2. Plaintiffs-Appellees sought liqui

dated damages under the FLSA, asserting that the

government failed to make timely payments when it

missed three scheduled pay dates during the partial

shutdown: December 28, 2018; January 10, 2019; and

January 24, 2019. Plaintiffs-Appellees’ Br. 8; see 29

U.S.C. § 260. Under the FLSA, any employer who does

not timely pay minimum or overtime wages is liable

for liquidated damages equal to the amount of the un

timely paid wages. See 29 U.S.C. § 216(b). But the

Court of Federal Claims has the discretion to award no

liquidated damages “if the employer shows . . . that the

act or omission giving rise to [the FLSA] action was in

24a

good faith” and was based on “reasonable grounds for

believing that [the] act was not a violation of the” Act.

Id. § 260.

The government moved to dismiss Plaintiffs-Ap

pellees’ complaint under Court of Federal Claims Rule

12(b)(6) for failing to state a claim. The government ar

gued that it “cannot be held liable for violating its ob

ligations under the FLSA” because the Anti-Deficiency

Act prohibited the government from paying PlaintiffsAppellees during the partial shutdown. Appx21. The

Court of Federal Claims denied the government’s mo

tion to dismiss, reasoning that Plaintiffs-Appellees

“had ‘alleged that [the government] had failed to pay

wages’ on [Plaintiffs-Appellees’] ‘next regularly sched

uled payday’” and therefore stated a claim for relief

under the FLSA. Avalos v. United States, 151 Fed. Cl.

380, 388 (2020) (quoting Martin v. United States, 130

Fed. Cl. 578, 584 (2017)). The trial court relied on its

decision in Martin, in which it determined that “the

appropriate way to reconcile [the Anti-Deficiency Act

and the FLSA] is not to cancel the defendant’s obliga

tion to pay its employees” under the FLSA, but to “re

quire that [the] defendant demonstrate a good faith

belief, based on reasonable grounds, that its actions

were appropriate” per 29 U.S.C. § 260. Martin, 130 Fed.

Cl. at 584. The trial court then granted the govern

ment’s motion to stay proceedings and certify an inter

locutory appeal to address the question of “whether

[the] defendant is liable for liquidated damages under

the FLSA when [the] defendant complies with the

Anti-Deficiency Act’s command to defer payment of

25a

Federal employees’ wages during a lapse in appropria

tions.” Appx297 (cleaned up). The government appeals.

We have jurisdiction under 28 U.S.C. § 1292(d)(2).

We review the Court of Federal Claims’ legal con

clusions de novo and its factual findings for clear error.

Adams v. United States, 350 F.3d 1216, 1221 (Fed. Cir.

2003).

Congress passed an early version of the Anti-Defi

ciency Act in 1870, making it unlawful “for any depart

ment of the government to expend in any one fiscal

year any sum in excess of appropriations made by Con

gress for that fiscal year, or to involve the government

in any contract for the future payment of money in ex

cess of such appropriations.” Act of July 12, 1870, ch.

251, § 7,16 Stat. 230,251. In 1884, Congress developed

this prohibition further, mandating that “no Depart

ment or officer of the United States shall accept volun

tary service for the Government or employ personal

service in excess of that authorized by law except in

cases of sudden emergency involving the loss of human

life or the destruction of property.” Act of May 1, 1884,

ch. 37, 23 Stat. 15,17.

These provisions took on more life over the subse

quent years: In 1905, Congress required appropria

tions to be apportioned monthly “to prevent undue

26a

expenditures in one portion of the year that may re

quire deficiency or additional appropriations to com

plete the service of the fiscal year.” Act of Mar. 3,1905,

ch. 1484, § 4,33 Stat. 1214,1257-58. And in 1906, Con

gress mandated that “all such apportionments shall be

adhered to and shall not be waived or modified except

upon the happening of some extraordinary emergency

or unusual circumstance which could not be antici

pated at the time of making such apportionment” and

subjected any person who violated the provision to re

moval from office and a potential fine, imprisonment,

or both. Act of Feb. 27, 1906, ch. 510, § 3, 34 Stat. 27,

49.

Congress continued to amend the Anti-Deficiency

Act over the next 100 years. In its current form, the

Act prohibits “an officer or employee” of the United

States government from “mak[ing] or authorizing] an

expenditure or obligation exceeding an amount availa

ble in an appropriation or fund for the expenditure or

obligation.” 31 U.S.C. § 1341(a)(1). The Act further

prohibits officers and employees from “accepting] vol

untary services ... or employing] personal services

exceeding that authorized by law except for emergen

cies involving the safety of human life or the protection

of property.” Id. § 1342. The Anti-Deficiency Act clari

fies that “each excepted employee who is required to

perform work during a covered lapse in appropriations

shall be paid for such work ... at the earliest date pos

sible after the lapse in appropriations ends, regardless

of scheduled pay dates, and subject to the enactment of

appropriations Acts ending the lapse.” Id. § 1341(c)(2).

27a

An officer or employee that violates these prohibi

tions receives “appropriate administrative discipline,”

which could include “suspension from duty without

pay or removal from office.” Id. § 1349. Further, if the

violation is knowing and willful, the offending officer

or employee is subject to a criminal fine “not more than

$5,000,” imprisonment “for not more than 2 years,” or

both. Id. § 1350.

Congress passed the FLSA in 1938 after finding

“that the existence ... of labor conditions detrimental

to the maintenance of the minimum standard of living

necessary for health, efficiency, and general well-being

of workers” causes certain undesirable outcomes. Fair

Labor Standards Act of 1938, Pub. L. No. 75-718, § 2,

52 Stat. 1060, 1060. Relevant to this appeal, the 1938

version of the FLSA required “[e]very employer [to]

pay to each of his employees who is engaged in com

merce or in the production of goods for commerce” a

minimum wage. Id. § 6, 52 Stat. 1062. It also required

employers to pay employees one-and-a-half times the

employees’ regular rate “for a workweek longer than

forty hours.” Id. § 7, 52 Stat. 1063. The current version

of the FLSA contains substantially identical require

ments. See 29 U.S.C. §§ 206, 207.

Initially, the FLSA excluded the United States

from its definition of “employer,” Pub. L. No. 75-718,

§ 2, 52 Stat. 1060, and excluded individuals “employed

in a bona fide executive, administrative, professional,

28a

or local retailing capacity” from the minimum wage

and overtime requirements, id. § 13, 52 Stat. 1067. But

in 1974, Congress amended the FLSA’s definition of

“employer” to remove the language excluding the

United States, and it amended the FLSA’s definition of

“employee” to expressly include “an individual em

ployed by a public agency” of “the Government of the

United States,” subject to certain conditions. Fair La

bor Standards Amendments of 1974, Pub. L. No. 93259, § 6, 88 Stat. 55, 58-60.

Ill

The central question in this appeal is how the

Anti-Deficiency Act’s prohibition on government spend

ing during a partial shutdown coexists with the FLSA’s

seemingly contradictory timely payment obligation.

The government argues that the FLSA’s timely pay

ment obligation “does not require the impossible” and

considers what is “convenient or practicable under the

circumstances.” Defendant-Appellant’s Br. 16 (quoting

Walling v. Harnischfeger Corp., 325 U.S. 427, 432-33,

65 S.Ct. 1246, 89 L.Ed. 1711 (1945)). The government

therefore asserts that it did not violate the FLSA’s

timely payment obligation because it paid excepted

employees as soon as possible and practicable under

the circumstances—when the Anti-Deficiency Act le

gally allowed the government to make those payments.

Id. at 15.

Plaintiffs-Appellees argue that the FLSA’s timely

payment obligation is more rigid, requiring “employers

29a

to pay statutorily mandated wages promptly—that is,

on the first regular, recurring payday after the amount

due is ascertainable.” Plaintiffs-Appellees’ Br. 14-15.

Plaintiffs-Appellees argue that the government should

pay employees both wages and liquidated damages

when a partial shutdown ends in recognition of “the

government’s own delay in meeting its obligations” un

der the FLSA. Id. at 12.

We hold that the FLSA’s timely payment obliga

tion considers the circumstances of payment and that,

as a matter of law, the government does not violate this

obligation when it complies with the Anti-Deficiency

Act by withholding payment during a lapse in appro

priations.

We begin with the text of the FLSA. United States

v. Gonzales, 520 U.S. 1, 4, 117 S.Ct. 1032, 137 L.Ed.2d

132 (1997). The FLSA does not address whether the

government violates the law by not paying employees

on their regularly scheduled pay date during a partial

shutdown. In fact, the FLSA does not specify at all

when an employer must pay wages to its employees. It

merely requires that “[e]very employer shall pay to

each of his employees who in any workweek is engaged

in commerce” a minimum wage, with no explicit men

tion of when the employer must make this payment.

See 29 U.S.C. § 206 (emphasis added).

But an employer must still pay its employees in a

timely manner. The Supreme Court has explained that

the FLSA’s liquidated-damages provision, 29 U.S.C.

§ 216(b), “constitutes a Congressional recognition that

30a

failure to pay the statutory minimum on time may be

so detrimental to maintenance of the minimum stand

ard of living . . . that double payment must be made in

the event of delay. . . Brooklyn Sau. Bank u. O’Neil,

324 U.S. 697, 707, 65 S.Ct. 895, 89 L.Ed. 1296 (1945).

Courts have interpreted the FLSA’s implicit timely

payment obligation to ordinarily require employers to

pay wages by “the employee’s regular payday.” Biggs v.

Wilson, 1 F.3d 1537, 1541 (9th Cir. 1993); see also, e.g.,

Roland Elec. Co. v. Black, 163 F.2d 417, 421 (4th Cir.

1947) (“[I]f [an employer] fails to pay overtime compen

sation promptly and when due on any regular payment

date, the statutory action for the unpaid minimum and

liquidated damages given under Section 16(b) immedi

ately arises in favor of the aggrieved employee.”); Ail.

Co. v. Broughton, 146 F.2d 480,482 (5th Cir. 1944) (“[I]f

an employer on any regular payment date fails to pay

the full amount of the minimum wages and overtime

compensation due an employee, there immediately

arises an obligation upon the employer to pay the em

ployee . . . liquidated damages.”).

But there are exceptions to this general rule. The

Supreme Court has recognized that—at least for the

overtime provision, 29 U.S.C. § 207(a)—failing to pay

on a regular pay date is not a per se violation of the

FLSA. Walling, 325 U.S. at 432-33, 65 S.Ct. 1246. For

example, the employer in Walling did not violate the

FLSA when it did not pay overtime wages on its em

ployees’ regular pay date because “the correct overtime

compensation [could not] be determined until some

time after the regular pay period.” Id. at 432, 65 S.Ct.

31a

1246. The Supreme Court clarified that the FLSA

“does not require the impossible” but requires payment

only “as soon as convenient or practicable under the

circumstances.” Id. at 432—33, 65 S.Ct. 1246.

The Second Circuit has also suggested that, while

contractual pay dates can be relevant and probative to

this inquiry, “what constitutes timely payment must be

determined by objective standards—and not solely by

reference to the parties’ contractual arrangements.”

Rogers v. City of Troy, 148 F.3d 52, 57 & n.4 (2d Cir.

1998). Agency interpretation of the statute arrives at

the same conclusion: The Department of Labor advises

employers that “compensation due [to] an employee

must ordinarily be made at the regular payday for the

workweek.” U.S. Dep’t of Labor, Wage and Hour Div.,

Field Operations Handbook § 30b04 (2016) (emphasis

added).1

Because the FLSA does not explicitly address

whether paying excepted employees immediately after

a lapse in appropriations ends is timely, we turn to can

ons of statutory construction to aid our interpretation.

1 As the government notes, “Department of Labor guidance

is not directly applicable to federal employees like [the] plaintiffs,

for whom the FLSA is implemented by the Office of Personnel

Management.” Defendant-Appellant’s Br. 4 n.l (citing 5 U.S.C.

204(f); 5 C.F.R. pt. 551). But, in general, Congress has advised

the Office of Personnel Management to “administer the provisions

of law in such a manner as to assure consistency with the mean

ing, scope, and application [of] rulings, regulations, interpreta

tions, and opinions of the Secretary of Labor which are applicable

in other sectors of the economy.” H.R. Rep. No. 93-913, at 28

(1974), as reprinted in 1974 U.S.C.C.A.N. 2811, 2837.

32a

See Timex V.I., Inc. v. United States, 157 F.3d 879, 882

(Fed. Cir. 1998) (citing Chevron US.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 843 n.9, 104 S.Ct.

2778, 81 L.Ed.2d 694 (1984)). “When confronted with

two Acts of Congress allegedly touching on the same

topic, [courts are] not at ‘liberty to pick and choose

among congressional enactments’ and must instead

strive ‘to give effect to both.’”Epic Sys. Corp. v. Lewis,

, 138 S. Ct. 1612, 1624, 200 L.Ed.2d 889

U.S.

(2018) (citation omitted). Plaintiffs-Appellees suggest

that we can give effect to both the Anti-Deficiency Act

and the FLSA because they “do not conflict.” PlaintiffsAppellees’ Br. 12. According to Plaintiffs-Appellees,

“once a shutdown ends, the government can act in a

way that effectuates the purposes of both the FLSA

and the [Anti-Deficiency Act] by compensating its em

ployees, pursuant to the FLSA’s liquidated damages

provision, for the government’s own delay in meeting

its obligations to them.” Plaintiffs-Appellees’ Br. 12.

But this interpretation would have us create a conflict

between the two statutes by holding that the AntiDeficiency Act forbids, but the FLSA simultaneously

requires, payment during a lapse in appropriations. If

we were to adopt Plaintiffs-Appellees’ proposed inter

pretation, we would be forcing the government to

choose between a violation of the Anti-Deficiency Act

or the FLSA. This is an absurd result that we should

avoid, if possible. See Haggar Co. v. Helvering, 308 U.S.

389, 394, 60 S.Ct. 337, 84 L.Ed. 340 (1940).

“[I]n approaching a claimed conflict, we come armed

with the ‘strong[] presum[ption]’ . . . that ‘Congress

33a

will specifically address’ preexisting law when it

wishes to suspend its normal operations in a later stat

ute.” Epic, 138 S. Ct. at 1624 (quoting United States u.

Fausto, 484 U.S. 439,453,108 S.Ct. 668,98 L.Ed.2d 830

(1988)). We disfavor repeals by implication, “particu

larly . . . when, as here, we are urged to find that a spe

cific statute . . . has been superseded by a more general

one.” Sw. Marine ofS.F., Inc. v. United States, 896 F.2d

532, 533 (Fed. Cir. 1990). Normally, “a specific statute

controls over a general one.” Bulova Watch Co. v.

United States, 365 U.S. 753, 758, 81 S.Ct. 864, 6

L.Ed.2d 72 (1961).

The Anti-Deficiency Act is more specific than the

FLSA. The Anti-Deficiency Act explicitly forbids the

government from making expenditures during a lapse

in appropriations and further specifies when the gov

ernment must pay excepted employees for work per

formed during a partial shutdown, 31 U.S.C. § 1341(a)(1),

(c)(2), whereas the FLSA discusses the much broader

topic of general payment requirements for all employ

ers, 29 U.S.C. §§ 206, 207. And the FLSA does not ex

plicitly discuss when an employer must make these

payments; it merely implies that payment must be

timely under the circumstances. See Brooklyn Sau.

Bank, 324 U.S. at 707, 65 S.Ct. 895; Walling, 325 U.S.

at 433, 65 S.Ct. 1246.

Further, some form of the Anti-Deficiency Act had

existed for nearly 70 years before Congress passed the

FLSA, and for over 100 years by the time Congress ex

tended the FLSA’s protections to federal government

employees. See supra Section II. If Congress intended

34a

to upend or modify the Anti-Deficiency Act’s long

standing prohibition on making expenditures for which

Congress has not apportioned funds, it would have

done so explicitly. “A party seeking to suggest that two

statutes cannot be harmonized, and that one displaces

the other, bears the heavy burden of showing a clearly

expressed congressional intention that such a result

should follow.” Epic, 138 S. Ct. at 1624 (cleaned up).

Plaintiffs-Appellees have not shown a clearly expressed

intention; instead, they rely on judicial opinions that

interpret an implicit obligation in the context of dis

tinct fact patterns. See Plaintiffs-Appellees’ Br. 16-17

(collecting and discussing cases). Plaintiffs-Appellees

have not otherwise shown why a later-enacted, more

general statute should supersede a long-standing, spe

cific one.

“[W]here two statutes are capable of co-existence,

it is the duty of the courts, absent a clearly expressed

congressional intention to the contrary, to regard each

as effective.” Ruckelshaus v. Monsanto Co., 467 U.S.

986, 1018, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984) (in

ternal quotation marks omitted). We conclude that

Congress did not intend for the FLSA to overturn, con

flict with, or supersede the Anti-Deficiency Act’s prohi

bition on making expenditures during a lapse in

appropriations. Rather, Congress intended for the two

statutes to coexist in the following manner: The FLSA

requires employers to pay their employees as soon as

practicable under the circumstances. Walling, 325 U.S.

at 433,65 S.Ct. 1246. Paying federal government wages

during a lapse in appropriations is not practicable

35a

because the government would violate the Anti-Defi

ciency Act and could incur civil and criminal liability

by making those expenditures. Therefore, the federal

government timely pays wages, per the FLSA, when it

pays its employees at the earliest date possible after

the lapse in appropriations ends.

Our holding does not create a “moving target” as

to “when the employee actually gets paid.” Biggs, 1

F.3d at 1540. Indeed, the Anti-Deficiency Act expressly

addresses when payment should be made following a

lapse in appropriations: “the earliest date possible

after the lapse in appropriations ends.” 31 U.S.C.

§ 1341(c)(2). This effectuates the implicit timely pay

ment requirement of the FLSA and relieves “employ

ees, employers, and courts alike [from] guess [ing] when

‘late payment’ becomes ‘nonpayment’ in order to deter

mine whether the statute of limitations has begun to

run, the amount of unpaid wages and liquidated dam

ages to be awarded, and how much prejudgment inter

est has been accrued.” Biggs, 1 F.3d at 1540.

Finally, we note that the cases on which PlaintiffsAppellees rely are distinguishable. Many of these cases

“involved substantial delays in payment, and—more

importantly]—the practices disapproved of resulted

in evasions of the minimum wage and overtime provi

sions of the FLSA.” Rogers, 148 F.3d at 56 (discussing

Brooklyn Sav. Bank, 324 U.S. 697, 65 S.Ct. 895, which

involved a two-year delay; Calderon v. Witvoet, 999

F.2d 1101 (7th Cir. 1993), which involved a five-year

delay; and United States v. Klinghoffer Brothers Realty

Corp., 285 F.2d 487 (2d Cir. 1960), which involved a

36a

one-year delay); see Plaintiffs-Appellees’ Br. 16-17, 29

(discussing the same cases). Here, the government

paid Plaintiffs-Appellees immediately after the onemonth shutdown ended.

Brooklyn Savings Bank v. O’Neil is particularly

distinguishable, even beyond the substantial delays

and attempts to evade the FLSA’s requirements that

are present in that case. The employees in Brooklyn

Savings accepted overdue minimum and overtime

wages from their employers and signed contracts re

leasing their employers from liability for FLSA claims.

324 U.S. at 699—702, 65 S.Ct. 895. The Supreme Court

held that employees cannot waive their right to mini

mum wages, overtime wages, or liquidated damages

under the FLSA. Id. at 706-07,65 S.Ct. 895. The Court

found support in the “Congressional recognition that

failure to pay the statutory minimum on time may be

so detrimental to maintenance of the minimum stand

ard of living . . . that double payment must be made in

the event of delay in order to insure restoration of the

worker to that minimum standard of well-being.” Id. at

707, 65 S.Ct. 895.

The Court in Brooklyn Savings analyzed whether

“a statutory right conferred on a private party, but af

fecting the public interest, may ... be waived or re

leased if such waiver or release contravenes the

statutory policy.” Id. at 704, 65 S.Ct. 895. That issue

is not relevant here; this appeal does not involve con

tractual waiver or other similar circumstances. In fact,

the hierarchy of competing legal interests in this

appeal is entirely different than that in Brooklyn

37a

Savings. There, the Court interpreted private con

tracts in light of a superior federal statute: the FLSA.

In contrast, this appeal turns on how we interpret the

FLSA in light of an even more established and more

specific federal statute: the Anti-Deficiency Act. Our

interpretation relies on well-established canons of con

struction to avoid a conflict between these two stat

utes. And we find no indication that Congress intended

to create such a conflict—much less the “clearly ex

pressed congressional intent!]” that caselaw requires,

Epic, 138 S. Ct. at 1624.

Because the government does not violate the

FLSA when it pays excepted employees for work per

formed during a government shutdown at the earliest

date possible after a lapse in appropriations ends, we

reverse the Court of Federal Claims’ decision denying

the government’s motion to dismiss for failure to state

a claim, and we remand for the court to enter judgment

consistent with this opinion.

REVERSED AND REMANDED

COSTS

No costs.

38a

Reyna, Circuit Judge, dissenting.

This appeal involves two statutes. The Fair Labor

Standards Act (“FLSA”) requires employers, including

the U.S. government, to pay workers earned wages on

a regularly scheduled pay period basis. Employers that

fail to pay their workers on a timely scheduled basis

are subject to certain penalties, including liquidated

damages. The other statute, the Anti-Deficiency Act

(“ADA”), applies to government officials. It prohibits

government officials from making expenditures, where

the expenditure is not funded by duly passed appropri

ations. In other words, the government lacks authority

to spend money it does not have.

The majority interprets the relevant provisions of

the ADA and FLSA to mean that the ADA renders null

the liquated damages provision of the FLSA. I disa

gree. I believe that each statute stands alone and that

the relevant provisions of the two statutes are not in

consistent with each other.

From December 22, 2018, to January 25,2019, the

federal government partially shutdown due to lack of

appropriations (funding). Avalos v. United States, 151

Fed. Cl. 380, 382 (2020); J.A. 274. To keep key parts of

the government functioning, the government created

two categories of federal employee: “excepted” and

“non-excepted.” Non-excepted employees were in

structed to not show-up for work and received no com

pensation for the period of time they did not report for

work. This appeal does not involve non-excepted em

ployees.

39a

The “excepted” employees were required to report

for work during the shutdown, to continue working

and to perform normal duties. Despite working and

earning wages during the shutdown, the excepted em

ployees were not paid for their work until the first pay

day after the shutdown ended. Avalos, 151 Fed. Cl. at

382-83. This means that excepted employees received

no pay on their regularly scheduled paydays during

the shutdown.

At the time of the shutdown, Plaintiffs-Appellees

were employed as Customs and Border Protection Of

ficers for the U.S. Department of Homeland Security.

These officers (“CBP Officers”) were designated as ex

cepted employees and were required to report for work.

Id. at 382. They received no pay during the shutdown

but were paid on the first regularly scheduled payday

that came after January 25, 2019, the day the shut

down ended. Id.; J.A. 280-83.

On January 29, 2019, the CBP Officers filed their

amended complaint in the United States Court of Fed

eral Claims (“Court of Claims”) seeking liquidated

damages for the time they worked without pay during

the shutdown. J.A. 288. The CBP Officers alleged that,

under the FLSA, the government was liable for liqui

dated damages because during the shutdown it failed

to pay wages on their regularly scheduled payday(s).

The government moved to dismiss the suit for

failure to state a claim. The government did not dis

pute that the CBP Officers were not timely paid dur

ing the shutdown. The government asserted that the

40a

government shutdown was caused by a lack of general

appropriation and, therefore, it was prohibited from

paying the CBP Officers. According to the government,

it cannot, as a matter of law, be held liable for liqui

dated damages that are based on wages not paid dur

ing the shutdown because the ADA prohibited it from

paying the wages for which there was no funding dur

ing a shutdown. The Court of Claims denied the gov

ernment’s motion based largely on its decision in

Martin, which involved issues identical to the issues in

this case. Avalos, 151 Fed. Cl. at 387-91 (discussing

Martin v. United States, 130 Fed. Cl. 578 (2017)). The

government appeals the judgment of the Court of

Claims.

According to the majority, the “central question in

this appeal is how the Anti-Deficiency Act’s prohibition

on government spending during a partial shutdown co

exists with the FLSA’s seemingly contradictory timely

payment obligation.” Maj. Op. 1349. The majority re

verses and remands to the Court of Claims, holding

that the government cannot, as a matter of law, be held

liable for liquidated damages under the FLSA where

the failure to pay employee wages was due to a govern

ment shutdown. I disagree with my colleagues on sev

eral fronts.

First, the majority errs that as a matter of law,

there is no FLSA violation in this case. The law is wellsettled on the question of whether federal employees

are entitled to liquidated damages under the FLSA

when they are not paid on their regular payday. The

41a

FLSA makes clear that failure to pay wages on regu

larly scheduled paydays constitutes a FLSA violation.

The majority is also incorrect that liquidated dam

ages cannot attach because the government was pro

hibited by the ADA, and presumably not of its own

choosing, from paying the CBP Officers.

My sense is that the FLSA and ADA are distinct

statutes with distinct purposes whose operations in

this case neither intersect nor are otherwise incon

sistent. Stated differently, the ADA in this instance

does not trump the FLSA and render its liquidated

damages provision null.

The FLSA provides in relevant part:

Every employer shall pay to each of his em

ployees who in any workweek is engaged in

commerce or in the production of goods for

commerce, or is employed in an enterprise en

gaged in commerce or in the production of

goods for commerce, wages at the following

rates . . . not less than $7.25 an hour.

29 U.S.C. § 206(a)(1)(C). The FLSA is administered to

federal employees by the Office of Personnel Manage

ment (“OPM”). OPM has promulgated a regulation

providing that employees must be paid “wages at rates

not less than the minimum wage . . . for all hours of

work.” 5 CFR § 551.301(a)(1). The FLSA provides that

employers who violate these provisions “shall be liable

to the employee . . . affected in the amount of their

unpaid minimum wages, or their unpaid overtime

42a

compensation . . . and in an additional equal amount

as liquidated damages.” 29 U.S.C. § 216(b). .

Again, the undisputed facts are that the govern

ment required the CBP Officers to report to work dur

ing the shutdown; and that the CBP Officers were not

paid wages on their regularly scheduled paydays.

These circumstances clearly apply to § 216(b) of the

FLSA, and on this basis, I would find that the govern

ment’s failure to pay the CBP Officers during the shut

down was a violation of the FLSA.

The majority appears to agree with the foregoing

conclusion, but my colleagues take steps to avoid say

ing so. Namely, they engage in an unorthodox statutory

interpretation that first examines whether the stat

utes are contradictory and whether the statutes can

coexist. BedRoc Ltd., LLC v. United States, 541 U.S.

176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (The

statutory interpretation “inquiry begins with the stat

utory text, and ends there as well if the text is unam

biguous.”); see also Me. Cmty. Health Options v. United

States,

U.S.

, 140 S. Ct. 1308, 1321-22, 206

L.Ed.2d 764 (2020) (explaining that the ADA did not

“qualify” the government’s obligation to pay an amount

created by the “plain terms” of a statute). In so doing,

the majority concludes that the government is shielded

from liquidated damages if the failure to pay is due to

a shutdown. In other words, the statutes can be said to

coexist because the FLSA is rendered nugatory.

There is no principled basis for the majority view.

Indeed, the opposite is true. The FLSA is remedial in

43a

nature, and it acts as a shield to protect workers. Not

so with the ADA. The ADA is meant to punish govern

ment officials for certain actions. The ADA neither

references the FLSA nor the liquidated damages pro

vision of § 216(b). Nothing in the statutes, or applicable

caselaw, supports an argument that the ADA applies

to federal workers.

The Supreme Court has recognized that the FLSA

was enacted “to protect certain groups of the popula

tion from substandard wages and excessive hours

which endangered the national health and well-being

and the free flow of goods in interstate commerce.”

Brooklyn Sau. Bank v. O’Neil, 324 U.S. 697, 706, 65

S.Ct. 895,89 L.Ed. 1296 (1945) (citing H. Rep. No. 2738,

75th Cong., 3d Sess., pp. 1, 13, 21, and 28). The FLSA

recognizes that employees do not have equal bargain

ing power and serves to protect them. Id.

Similarly, the Supreme Court has explained that

the FLSA liquidated damages provision is not meant

as punishment for the employer, but rather, focuses on

compensating the employee. Id. at 707, 65 S.Ct. 895

(“[T]he liquidated damages provision is not penal in its

nature but constitutes compensation for the retention

of a workman’s pay which might result in damages too

obscure and difficult of proof for estimate other than

by liquidated damages.”).

According to the Supreme Court, the ADA’s re

quirements “apply to the official, but they do not affect

the rights in this court of the citizen honestly contract

ing with the Government.” Salazar v. Ramah Navajo

44a

Chapter, 567 U.S. 182,197,132 S.Ct. 2181,183 L.Ed.2d

186 (2012) (citation omitted).

Here, the CBP Officers were honestly “contract

ing” with the government. There is no legal support for

the belief that government workers forfeit their FLSA

protection at a time of shutdowns. As the Supreme

Court has noted, the insufficiency of an appropriation

“does not pay the Government’s debts, nor cancel its

obligations.” Me. Cmty., 140 S. Ct. at 1321-22 (quoting

Ramah, 567 U.S. at 197, 132 S.Ct. 2181). This court

has recognized, “the Supreme Court has rejected the

notion that the Anti-Deficiency Act’s requirements

somehow defeat the obligations of the government.”

Moda Health Plan, Inc. v. United States, 892 F.3d 1311,

1322 (Fed. Cir. 2018) rev’d on other grounds, Me. Cmty.,

140 S. Ct. 1308.

The majority fails to point to legal authority for

the proposition that the ADA cancels the government’s

obligation to protect the very federal employees that

the FLSA was intended by Congress to protect. I see

no congressional requirement or Supreme Court prec

edent that negates liquidated damages under the

FLSA or the ADA. Rather, the liquated damages provi

sion of the FLSA “constitutes a Congressional recogni

tion that failure to pay the statutory minimum on time

may be so detrimental to maintenance of the minimum

standard of living ‘necessary for health, efficiency, and

general well-being of workers’ and to the free flow of

commerce, that double payment must be made in the

event of delay.” Brooklyn Sav., 324 U.S. at 707, 65 S.Ct.

895 (emphasis added) (citation omitted). And as this

45a

court has explained, the “usual rule” is “that a claim

for unpaid overtime under the FLSA accrues at the end

of each pay period when it is not paid.” Cook v. United

States, 855 F.2d 848, 851 (Fed. Cir. 1988).

Other regional circuits have concluded that a

FLSA claim accrues when an employer fails to pay em

ployees on their regular payday, and that the FLSA vi

olation occurs on that date. See Atl. Co. v. Broughton,

146 F.2d 480, 482 (5th Cir. 1944) (“[I]f an employer on

any regular payment date fails to pay the full amount

. . . due an employee, there immediately arises an obli

gation upon the employer to pay the employee . . . liq

uidated damages.”); Birbalas v. Cuneo Printing Indus.,

140 F.2d 826, 828 (7th Cir. 1944) (“[OJvertime compen

sation shall be paid in the course of employment and

not accumulated beyond the regular pay day. . . . [T]he

failure to pay it, when due, [is] a violation of [the

FLSA].”); Biggs v. Wilson, 1 F.3d 1537, 1540 (9th Cir.

1993) (“The only logical point that wages become ‘un

paid’ is when they are not paid at the time work has

been done, the minimum wage is due, and wages are

ordinarily paid—on pay-day.”); Olson v. Superior

Pontiac-GMC, Inc., 765 F.2d 1570, 1579 (11th Cir.

1985), modified, 776 F.2d 265 (11th Cir. 1985) (“The

employee must actually receive the minimum wage

each pay period.”).

The majority asserts a number of other conclu

sions: that the ADA trumps the FLSA because it was

passed first and is more specific than the FLSA; that

requiring liquidated damages in this situation would

lead to an “absurd result”; and that the government

46a

would be forced to “choose between a violation of the

Anti-Deficiency Act or the FLSA.” Maj. Op. 1351. But

we need not reach these questions because there is

no justiciable conflict between the two laws. See, e.g.,

Epic Sys. Corp. v. Lewis,

U.S.

, 138 S. Ct. 1612,

1624,200 L.Ed.2d 889 (2018) (“Respect for Congress as

drafter counsels against too easily finding irreconcila

ble conflicts in its work. . . . Allowing judges to pick and

choose between statutes risks transforming them from

expounders of what the law is into policymakers choos

ing what the law should be”). I do agree with the ma

jority that “where two statutes are capable of co

existence, it is the duty of the courts, absent a clearly

expressed congressional intention to the contrary, to

regard each as effective.” Maj. Op. 1351 (quoting

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018, 104

S.Ct. 2862, 81 L.Ed.2d 815 (1984)).

Payday is important to the everyday worker. Miss

ing a paycheck can have devastating consequences.

That is what this case is about. Congress sought a rem

edy for such consequences by extending the potential

for liquidated damages. Here, the employer should not

be absolved of adherence to the FLSA, more so where

the employer is the government that brought on the

shutdown.

The Court of Claims correctly analyzed the statute

and binding Supreme Court precedent. I would affirm

the Court of Claims’ decision and allow the case to con

tinue.

47a

Note: This order is nonprecedential.

United States Court of Appeals

for the Federal Circuit

DONALD MARTIN, JR., PATRICIA A.

MANBECK, JEFF ROBERTS,

JOSE ROJAS, RANDALL SUMNER,

Plaintiffs-Appellees

UNITED STATES,

Defendant-Appellant

2021-2255

Appeal from the United States Court of Federal

Claims in No. l:13-cv-00834-PEC, Judge Patricia E.

C ampbell- Smith.

FRANK MARRS, NICOLE ADAMSON,

BETHANY AFRAID, JOEL ALBRECHT, JESUS

AREVALO, NATHAN ARNOLD, SHAWN

ASHWORTH, JEREMIAH AUSTIN, MICHAEL

AVENALI, JOSE BALAREZO, EBONY

BALDWIN, CHARLES BAMBERY, DAVID

BARRAZA, GREGORY BARRETT, DONNA

BARRINGER, DAVID BAUTISTA, GARY

BAYES, DARRELL BECTON, FRAUN

BELLAMY, DARNELL BEMBO, JESSICA

48a

BENDER, MICHAEL BENJAMIN, JR.,

BRYAN BENTLEY, WILLIAM BERTRAND,

CHRISTOPHER BIJOU, ALL PLAINTIFFS,

Plaintiffs-Appellants

UNITED STATES,

Defendant-Appellee

2018-1354

Appeal from the United States Court of Federal

Claims in No. l:16-cv-01297-PEC, Judge Patricia E.

Campbell-Smith.

ON PETITION FOR REHEARING EN BANC

(Filed Mar. 10, 2023)

Before Moore, Chief Judge, Newman, Lourie, Linn1,

Dyk, Prost, Reyna, Taranto, Chen, Hughes, Stoll,

Cunningham, and Stark, Circuit Judges.

Per Curiam.

1 Circuit Judge Linn participated only in the decision on the

petition for panel rehearing.

49a

ORDER

Appellees filed a petition for rehearing en banc. A

response to the petition was invited by the court and

filed by the United States.

Metropolitan Washington Employment Lawyers

Association, National Employment Lawyers Associa

tion, National Employment Law Project, and The Im

pact Fund requested leave to file a brief as amici curiae

which the court granted.

The petition was first referred as a petition for re

hearing to the panel that heard the appeal, and there

after the petition for rehearing en banc was referred to

the circuit judges who are in regular active service.

Upon consideration thereof,

It Is Ordered That:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

The mandate of the court will issue March 17,

2023.

For the Court

March 10, 2023

Date

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

50a

Note: This order is nonprecedential.

United States Court of Appeals

for the Federal Circuit

ELEAZAR AVALOS, JAMES DAVIS,

Plaintiffs-Appellees

UNITED STATES,

Defendant-Appellant

2021-2008

Appeal from the United States Court of Federal

Claims in No. l:19-cv-00048-PEC, Judge Patricia E.

Campbell-Smith.

L. KEVIN ARNOLD, MARTIN LEE, MARK

MUNOZ, MATTHEW PERRY, AARON SAVAGE,

JENNIFER TAYLOR, RALPH FULVIO,

DAVID KIRSH, ROBERT RIGGS,

Plaintiffs-Appellees

UNITED STATES,

Defendant-Appellant

2021-2009

51a

Appeal from the United States Court of Federal

Claims in No. l:19-cv-00059-PEC, Judge Patricia E.

Campbell-Smith.

ROBERTO HERNANDEZ,

JOSEPH QUINTANAR, INDIVIDUALLY

AND ON BEHALF OF ALL OTHERS

SIMILARLY SITUATED,

Plaintiffs-Appellees

UNITED STATES,

Defendant-Appellant

2021-2010

Appeal from the United States Court of Federal

Claims in No. l:19-cv-00063-PEC, Judge Patricia E.

Campbell-Smith.

LORI ANELLO, KARL BLACK,

GEORGE CLARY, WILLIAM DENELL,

JUSTIN GROSSNICKLE, ERIC INKROTE,

TIMOTHY MCGREW, MARK MILLER,

DAVID NALBORCZYK, MARTIN

NEAL, JR., LUKE PALMER, THOMAS

RHINEHART, JR., IVAN TODD,

Plaintiffs-Appellees

52a

UNITED STATES,

Defendant-Appellant

2021-2011

Appeal from the United States Court of Federal

Claims in No. l:19-cv-00118-PEC, Judge Patricia E.

Campbell-Smith.

BRIAN RICHMOND, ADAM SMITH, THOMAS

MOORE, CHRIS BARRETT, WILLIAM ADAMS,

KELLY BUTTERBAUGH, DAN ERZAL, BRIAN

W. KLINE, KEVIN J. SHEEHAN, JASON

KARLHEIM, CHARLES PINNIZZOTTO,

JASON DIGNAN, MATHEW BECK, STEPHEN

SHRIFT, JAMES BIANCONI, CHRISTOPHER

GRAFTON, JESSE CARTER, MICHAEL

CRUZ, CARL WARNER, BRIAN OWENS,

BRIAN MUELLER, BRYAN BOWER,

COREY TRAMMEL, JAMES KIRKLAND,

KIMBERLY BUSH, BOBBY MARBURGER,

RODNEY ATKINS, LEONEL HERNANDEZ,

JOSEPH AUGUSTA, EDWARD WATT,

Plaintiffs-Appellees

UNITED STATES,

Defendant-Appellant

53a

2021-2012

Appeal from the United States Court of Federal

Claims in No. l:19-cv-00161-PEC, Judge Patricia E.

Campbell-Smith.

JUSTIN TAROVISKY, GRAYSON SHARP,

SANDRA PARR, JUSTIN RIEGER, JAMES

BRATTON, WILLIAM FROST, STEVE GLASER,

AARON HARDIN, STUART HILLENBRAND,

JOSEPH KARWOSKI, PATRICK RICHOUX,

DERRECK ROOT, CARLOS SHANNON,

SHANNON SWAGGERTY, GEOFFRY

WELLEIN, BECKY WHITE, TAMMY WILSON,

Plaintiffs-Appellees

UNITED STATES,

Defendant-Appellant

2021-2014

Appeal from the United States Court of Federal

Claims in No. l:19-cv-00004-PEC, Judge Patricia E.

Campbell-Smith.

54a

QUENTIN BACA, LEPHAS BAILEY,

CHRISTOPHER BALLESTER, KEVIN BEINE,

DAVID BELL, RICHARD BLAM, MAXIMILIAN

CRAWFORD, MATTHEW CRUMRINE,

JOHN DEWEY, JEFFREY DIAMOND,

Plaintiffs-Appellees

UNITED STATES,

Defendant-Appellant

2021-2015

Appeal from the United States Court of Federal

Claims in No. l:19-cv-00213-PEC, Judge Patricia E.

Campbell-Smith.

DAVID JONES, INDIVIDUALLY

AND ON BEHALF OF ALL OTHERS

SIMILARLY SITUATED,

Plaintiff-Appellee

UNITED STATES,

Defendant-Appellant

2021-2016

55a

Appeal from the United States Court of Federal

Claims in No. l:19-cv-00257-PEC, Judge Patricia E.

Campbell-Smith.

TONY ROWE, ALIEU JALLOW,

KARLETTA BAHE, JOHNNY DURANT,

JESSE A. MCKAY, III, GEORGE

DEMARCE, JACQUIE DEMARCE,

Plaintiffs-Appellees

UNITED STATES,

Defendant-Appellant

2021-2017

Appeal from the United States Court of Federal

Claims in No. l:19-cv-00067-PEC, Judge Patricia E.

C ampbell-Smith.

D. P., T. S., J. V.,

Plaintiffs-Appellees

UNITED STATES,

Defendant-Appellant

2021-2018

56a

Appeal from the United States Court of Federal

Claims in No. l:19-cv-00054-PEC, Judge Patricia E.

Campbell-Smith.

PLAINTIFF NO. 1, PLAINTIFF NO. 2,

PLAINTIFF NO. 3, PLAINTIFF NO. 4,

Plaintiffs-Appellees

UNITED STATES,

Defendant-Appellant

2021-2019

Appeal from the United States Court of Federal

Claims in No. l:19-cv-00094-PEC, Judge Patricia E.

Campbell-Smith.

I. P., A. C., S. W., D. W., P. V., M. R., R. C., K. W.,

B. G., R. H., INDIVIDUALLY AND ON BEHALF

OF ALL OTHERS SIMILARLY SITUATED,

Plaintiffs-Appellees

UNITED STATES,

Defendant-Appellant

2021-2020

57a

Appeal from the United States Court of Federal

Claims in No. l:19-cv-00095-PEC, Judge Patricia E.

C ampbell-Smith.

ON PETITION FOR PANEL REHEARING

AND REHEARING EN BANC

(Filed Mar. 10, 2023)

Before Moore, Chief Judge, Newman, Lourie, Linn1,

Dyk, Prost, Reyna, Taranto, Chen, Hughes, Stoll,

Cunningham, and Stark, Circuit Judges.

Per Curiam.

ORDER

Appellees filed a combined petition for panel re

hearing and rehearing en banc. A response to the peti

tion was invited by the court and filed by the United

States.

American Federation of Labor and Congress of In

dustrial Organizations (AFL-CIO) requested leave to

file a brief as amicus curiae which the court granted.

Metropolitan Washington Employment Lawyers As

sociation, National Employment Lawyers Association,

National Employment Law Project, and The Impact

1 Circuit Judge Linn participated only in the decision on the

petition for panel rehearing.

58a

Fund also requested leave to file a brief as amici curiae

which the court granted.

The petition was referred to the panel that heard

the appeal, and thereafter the petition for rehearing en

banc was referred to the circuit judges who are in reg

ular active service.

Upon consideration thereof,

It Is Ordered That:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

The mandate of the court will issue March 17,

2023.

For the Court

March 10, 2023

Date

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

59a

151 Fed.Cl. 372

United States Court of Federal Claims.

Lori ANELLO, et al., Plaintiffs,

The UNITED STATES, Defendant.

No. 19-118C

(E-Filed: December 4, 2020)

Attorneys and Law Firms

Theodore Reid Coploff, Washington, DC, for plaintiff.

Sarah M. Block, of counsel.

Erin K. Murdock-Park, Trial Attorney, with whom

were Joseph H. Hunt, Assistant Attorney General,

Robert E. Kirschman, Jr., Director, Reginald T. Blades,

Jr., Assistant Director, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, for defendant. Ann C. Motto, of coun

sel.

OPINION AND ORDER

CAMPBELL-SMITH, Judge.

Plaintiffs in this putative collective action allege

that the government, through several agencies, vio

lated the Fair Labor Standards Act (FLSA), 29 U.S.C.

§§ 201-19, by failing to timely pay their earned over

time and regular wages during the partial government

shutdown and lapse of appropriations that began on

December 22, 2018. See ECF No. 1 at 1-2 (complaint).

60a

On May 3, 2019, defendant moved to dismiss the com

plaint for failure to state a claim on which relief may

be granted, pursuant to Rule 12(b)(6) of the Rules of

the United States Court of Federal Claims (RCFC), on

the basis that the Anti-Deficiency Act (ADA), 31 U.S.C.

§§ 1341-42, prohibited the government from paying

employees. See ECF No. 26.

In analyzing defendant’s motion, the court has

considered: (1) plaintiffs’ complaint, ECF No. 1; (2) de

fendant’s motion to dismiss, ECF No. 26; (3) plaintiffs’

response to defendant’s motion, ECF No. 27; (4) de

fendant’s reply in support of its motion, ECF No. 31;

(5) defendant’s first supplemental brief in support of

its motion, ECF No. 33; (6) plaintiffs’ response to de

fendant’s first supplemental brief, ECF No. 34; (7) de

fendant’s second supplemental brief in support of its

motion, ECF No. 43; (8) plaintiffs’ response to defend

ant’s second supplemental brief, ECF No. 47; (9) de

fendant’s third supplemental brief in support of its

motion, ECF No. 52; and (10) plaintiffs’ response to de

fendant’s third supplemental brief, ECF No. 53. The

motion is now fully briefed and ripe for ruling.1 The

1 Defendant moves for dismissal of plaintiffs’ complaint for

only one reason—“for failure to state a claim upon which relief

may be granted.” ECF No. 26 at 6. In one of its supplemental

briefs, defendant suggests that a recent decision issued by the Su

preme Court of the United States, Maine Community Health Op

140 S. Ct. 1308, 206 L.Ed.2d

tions v. United States.__ U.S.

764 (2020), a case that does not involve FLSA claims, indicates

that this court lacks jurisdiction to hear this case because the

FLSA “contains its own provision for judicial review.” ECF No. 52

at 2. In the same brief, defendant acknowledges binding prece

dent from the United States Court of Appeals for the Federal

61a

court has considered all of the arguments presented by

the parties, and addresses the issues that are pertinent

to the court’s ruling in this opinion. For the following

reasons, defendant’s motion is DENIED.

Background

On December 22, 2018, the federal government

partially shut down due to a lack of appropriations. See

ECF No. 1 at 2. The named plaintiffs in this case were,

at the time of the shutdown, fire fighters employed ei

ther by the United States Department of Commerce at

the National Institute of Standards and Technology or

the United States Department of Homeland Security

at Training Center Petaluma.2 See id. at 1-2. Plaintiffs

further allege that they were “designated ‘excepted’

employees [and] were directed to continue working

Circuit to the contrary. See id. (citing Abbey v. United States. 745

F.3d 1363 (Fed. Cir. 2014)). The court will not review this entirely

new basis for dismissal, which was made for the first time in de

fendant’s third supplemental brief, and which defendant acknowl

edges contradicts binding precedent. If defendant believes this

court lacks jurisdiction to continue exercising its authority in this

case, it may file a motion properly raising the issue. See Rule

12(h)(3) of the Rules of the United States Court of Federal Claims

(RCFC) (“If the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.”).

2 Defendant argues, in a footnote, that claims made by

FLSA-exempt employees and employees who have asserted the

same claims in another court should be dismissed from this ac

tion. See ECF No. 26 at 15 n.4. The court does not evaluate these

assertions in this opinion because defendant neither identifies

any such plaintiffs in this case, nor sufficiently briefs the issues

to the court.

62a

without pay by defendant.” Id. at 7. Defendant’s failure

to timely pay plaintiffs, they allege, is a violation of the

FLSA. See id. at 10-12.

Plaintiffs assert that defendant “has violated and

continues to violate the provisions of the FLSA ... in

an intentional, willful, unreasonable, and bad faith

manner.” Id. at 10. “Plaintiffs bring this action as a col

lective action on behalf of themselves and all other

similarly situated employees who have worked and/or

are working in ‘excepted’ status without pay,” id. at 3,

and seek “monetary liquidated damages equal to any

minimum wage and overtime compensation earned

since December 22, 2018, as well as interest thereon,”

in addition to attorneys’ fees and costs, id. at 13.

II.

Legal Standards

When considering a motion to dismiss brought un

der RCFC 12(b)(6), the court “must presume that the

facts are as alleged in the complaint, and make all rea

sonable inferences in favor of the plaintiff.” Cary v.

United States. 552 F.3d 1373,1376 (Fed. Cir. 2009) (cit

ing Gould. Inc, v. United States. 935 F.2d 1271, 1274

(Fed. Cir. 1991)). It is well-settled that a complaint

should be dismissed under RCFC 12(b)(6) “when the

facts asserted by the claimant do not entitle him to a

legal remedy.” Lindsay v. United States. 295 F.3d 1252,

1257 (Fed. Cir. 2002). “To survive a motion to dismiss,

a complaint must contain sufficient factual matter, ac

cepted as true, to ‘state a claim to relief that is plausi

ble on its face.’ ” Ashcroft v. Iqbal. 556 U.S. 662,678,129

63a

S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl.

Corp. v. Twomblv. 550 U.S. 544,570,127 S.Ct. 1955,167

L.Ed.2d 929 (2007)).

III. Analysis

A. Relevant Statutes

This case fundamentally concerns the intersection

of two statutes, the ADA and the FLSA. The ADA

states that “an officer or employee” of the federal gov

ernment “may not . . . make or authorize an expendi

ture or obligation exceeding an amount available in an

appropriation or fund for the expenditure or obliga

tion.” 31 U.S.C. § 1341(a)(1)(A). In addition, the ADA

dictates that “[a]n officer or employee of the United

States Government or of the District of Columbia gov

ernment may not accept voluntary services for either

government or employ personal services exceeding

that authorized by law except for emergencies involv

ing the safety of human life or the protection of prop

erty.” 31 U.S.C. § 1342. In 2019, Congress amended the

ADA, adding, in relevant part, the following:

[E]ach excepted employee who is required to

perform work during a covered lapse in appro

priations131 shall be paid for such work, at the

employee’s standard rate of pay, at the earli

est date possible after the lapse in appropria

tions ends, regardless of scheduled pay dates,

3 The statute defines “covered lapse in appropriations” to

mean “any lapse in appropriations that begins on or after Decem

ber 22, 2018.” 31 U.S.C. § 1341(c)(1)(A).

64a

and subject to the enactment of appropria

tions Acts ending the lapse.

31 U.S.C. § 1341(c)(2) (footnote added). The amend

ment is commonly referred to as the Government Em

ployees Fair Treatment Act of 2019 (GEFTA), Pub. L.

No. 116-1, 133 Stat. 3 (2019). The knowing or willful

violation of the ADA is punishable by a fine of “not

more than $5,000” or imprisonment “for not more

than 2 years, or both.” 31 U.S.C. § 1350. And federal

employees who violate the ADA “shall be subject to

appropriate administrative discipline including, when

circumstances warrant, suspension from duty without

pay or removal from office.” 31 U.S.C. § 1349(a).

Defendant separately has obligations to its em

ployees pursuant to the FLSA, which governs mini

mum wage and overtime wage compensation for

certain employees.4 See 29 U.S.C. § 213 (identifying

categories of exempt employees). The FLSA requires

that the government “pay to each of [its] employees” a

minimum wage. 29 U.S.C. § 206(a). Pursuant to the

FLSA, the government also must compensate employ

ees for hours worked in excess of a forty-hour work

week “at a rate not less than one and one-half times

the regular rate at which [they are] employed.” 29

U.S.C. § 207(a)(1). Although the text of the statute does

not specify the date on which wages must be paid,

courts have held that employers are required to pay

4 The FLSA initially applied only to the private sector when

enacted in 1938, but was amended to cover public employees in

1974. See Fair Labor Standards Amendments of 1974, Pub. L. No.

93-259, 88 Stat. 55 (1974).

65a

these wages on the employee’s next regularly sched

uled payday. See Brooklyn Sav. Bank v. O’Neil. 324 U.S.

697, 707, 65 S.Ct. 895, 89 L.Ed. 1296 (1945); Biggs v

Wilson. 1 F.3d 1537, 1540 (9th Cir. 1993). If an em

ployer violates the FLSA’s pay provisions, the em

ployer is “liable to the . . . employees affected in the

amount of their unpaid minimum wages, or their un

paid overtime compensation, as the case may be.” 29

U.S.C. § 216(b). The employer may also be liable “in an

additional equal amount as liquidated damages,” id.,

unless “the employer shows to the satisfaction of the

court that the act or omission . . . was in good faith, and

that [the employer] had reasonable grounds for believ

ing that his act or omission was not a violation of the

[FLSA],” 29 U.S.C. § 260.

B. The Court’s Reasoning in Martin Applies

In its motion to dismiss, defendant first argues

that plaintiffs’ complaint should be dismissed for fail

ure to state a claim because the agencies for which

appropriations lapsed on December 22,2018, were pro

hibited by the ADA from paying their employees—even

excepted employees who were required to work. See

ECF No. 26 at 13-14. This mandate, in defendant’s

view, means that defendant cannot be held liable for

violating its obligations under the FLSA. See id. De

fendant argues:

When Congress criminalized payments during

an appropriations lapse, it plainly precluded

payments on the schedule plaintiffs assert is

required by the FLSA. Federal officials who

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comply with that criminal prohibition do not

violate the FLSA, and Congress did not create

a scheme under which compliance with the

[ADA] would result in additional compensa

tion as damages to federal employees.

Id. at 13.

The court has previously ruled on the intersection

of the ADA and the FLSA in the context of a lapse in

appropriations. See Martin v. United States. 130 Fed.

Cl. 578 (2017). In Martin, plaintiffs were “current or

former government employees who allege [d] that they

were not timely compensated for work performed dur

ing the shutdown, in violation of the [FLSA].” Id. at 580

(citing 29 U.S.C. § 201 et seq.). The plaintiffs in Martin

alleged the right to liquidated damages with regard to

both the government’s failure to timely pay minimum

wages and its failure to pay overtime wages. See id. In

its motion for summary judgment, the government ar

gued that “it should avoid liability under the FLSA for

its failure to [pay plaintiffs on their regularly sched

uled pay days during the shutdown] because it was

barred from making such payments pursuant to the

ADA.” See id. at 582. The government summarized its

argument in Martin as follows:

The FLSA and the Anti-Deficiency Act appear

to impose two conflicting obligations upon

Federal agencies: the FLSA mandates that

the agencies “shall pay to each of [its] employ

ees” a minimum wage, 29 U.S.C. § 206(a) (em

phasis added), which has been interpreted by

the courts to include a requirement that the

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minimum wage be paid on the employees’

next regularly scheduled pay day, see Brook

lyn Savings Bank v. O’Neil. 324 U.S. 697, 707

n.20, [65 S. Ct. 895, 89 L. Ed. 1296] (1945);

Biggs v. Wilson. 1 F.3d 1537, 1540 (9th Cir.

1993), and the [ADA] mandates that “[a]n of

ficer or employee of the United States Govern

ment . . . mav not . . . make or authorize an

expenditure . . . exceeding an amount availa

ble in an appropriation or fund for the expendi

ture. . . .” 31 U.S.C. § 1341(A)(1)(A) (emphasis

added). Thus, when Federal agencies are faced

with a lapse in appropriations and cannot pay

excepted employees on their next regularly

scheduled payday, the question arises of which

statutory mandate controls.

Id. at 582-83 (quoting defendant’s motion for summary

judgment) (alterations in original).

After reviewing applicable precedent and persua

sive authority, the court concluded that “the issue is

more complex than simply a choice between whether

the FLSA or the ADA controls.” Id. at 583. In the

court’s view:

the appropriate way to reconcile the [ADA and

the FLSA] is not to cancel defendant’s obliga

tion to pay its employees in accordance with

the manner in which the FLSA is commonly

applied. Rather, the court would require that

defendant demonstrate a good faith belief,

based on reasonable grounds, that its actions

were appropriate. As such, the court will pro

ceed to analyze this case under the construct

of the FLSA, and evaluate the existence and

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operation of the ADA as part of determining

whether defendant met the statutory require

ments to avoid liability for liquidated dam

ages.

Id. at 584.

The court noted that plaintiffs’ claims survived a

motion to dismiss because they had “alleged that de

fendant had failed to pay wages” on plaintiffs’ “next

regularly scheduled payday.” Id, at 584. On summary

judgment, the court concluded that plaintiffs had

proven this claim. See id. The court then concluded

that the evidence supported an award of liquidated

damages because the government failed to satisfy the

court that it acted in good faith and on reasonable

grounds when it failed to make the payments required

under the FLSA.5 See id. at 585-86.

Both parties acknowledge that the plaintiffs in

Martin were “situated similarly to plaintiffs here.”

ECF No. 26 at 14 (defendant’s motion to dismiss); see

also ECF No. 27 at 11 n.3 (noting that the Martin

plaintiffs’ claims were “almost identical to those here”).

6 In Martin, the defendant also argued that it should avoid

liability for liquidated damages with regard to overtime wages

due to its inability to calculate the correct amounts due. See Mar

tin v. United States. 130 Fed. Cl. 578, 586-87 (2017). This argu

ment was based on a bulletin from the Department of Labor, and

involves an issue that has not been raised in the present case. The

absence of this argument, however, has no bearing on the appli

cation of the court’s reasoning in Martin with regard to the struc

ture of the proper analysis in this case.

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In its motion to dismiss, defendant does not dis

pute plaintiffs’ allegations that they were required to

work during the shutdown, or that the plaintiffs were

not paid during that time due to the lapse in appropri

ations. See ECF No. 26. Defendant characterizes the

issue now before the court as “whether plaintiffs have

stated a claim for liquidated damages under the [FLSA]

notwithstanding the provisions of the [ADA].” Id. at 7.

In arguing its position, defendant reiterates the argu

ments advanced in Martin, but does not present any

meaningful distinction between the posture of the

Martin plaintiffs and the plaintiffs here. Instead, it

acknowledges that “[t]his Court in Martin v. United

States concluded that plaintiffs situated similarly to

plaintiffs here could recover liquidated damages under

FLSA,” but states that it “respectfully disagree[s] with

that holding.” Id. at 14.

Notwithstanding defendant’s disagreement, the

court continues to believe that the framework it set out

in Martin is appropriate and applies here.6 As it did in

6 Defendant also argues that its obligations under the FLSA

are limited by the ADA because “a congressional payment instruc

tion to an agency must be read in light of the [ADA].” ECF No. 26

at 17. In support of this argument, defendant cites to Highland

Falls-Fort Montgomery Cent. Sch. Dist. v. United States. 48 F.3d

1166, 1171 (Fed. Cir. 1995). See id. In Highland-Falls, plaintiffs

challenged the Department of Education’s (DOE) method for allo

cating funds under the Impact Aid Act. Highland-Falls. 48 F.3d

at 1171. The United States Court of Appeals for the Federal Cir

cuit found, however, that the DOE’s “approach was consistent

with statutory requirements.” hL The case did not address FLSA

claims, and found that the DOE’s approach “harmonized the re

quirements of the Impact Aid Act and the [ADA].” See id. In the

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Martin, “the court will proceed to analyze this case un

der the construct of the FLSA, and evaluate the exist

ence and operation of the ADA as part of determining

whether defendant met the statutory requirements to

avoid liability for liquidated damages.”7 Martin. 130

Fed. Cl. at 584. The court will, of course, consider the

GEFTA amendment to the ADA as part of its analysis.

court’s view, the Federal Circuit’s decision in Highland-Falls does

not alter the analysis in this case. The United States District

Court for the District of Columbia’s combined decision in National

Treasury Employees Union v. Trump. Case No. 19-cv-50 and Hardv

v Trnmp. 444 F. Supp. 3d 108 (2020), discussed by defendant in

one of its supplemental filings, see ECF No. 43, is likewise un

helpful. Although it involved facts that arose from the same 2018

lapse in appropriations, the decision focuses almost exclusively on

an analysis of whether plaintiffs’ claims were moot, rather than

on the operation of the ADA.

7 The parties both claim that the Supreme Court of the

United States’ decision in Maine Community Health. 140 S. Ct.

1308, supports their position in this case. See ECF No. 52, ECF

No. 53. Maine Community Health does not address the FLSA, and

only includes a limited discussion of the ADA. See Maine Cmtv.

Health. 140 S. Ct. at 1321-22. Accordingly, the decision does not

dictate the outcome here. To the extent that the case informs the

present discussion, however, it tends to support plaintiffs. In the

opinion, the Supreme Court held that “the [ADA] confirms that

Congress can create obligations without contemporaneous fund

ing sources,” and concludes that “the plain terms of the [statute

at issue] created an obligation neither contingent on nor limited

by the availability of appropriations or other funds.” hL at 1322,

1323. Applied here, this conclusion suggests that the defendant

ran incur an obligation to pay plaintiffs pursuant to the normal

operation of the FLSA even when funding is not available.

71a

C. Waiver of Sovereign Immunity

Before analyzing the sufficiency of plaintiffs’ alle

gations, the court must address defendant’s contention

that plaintiffs’ claims are barred by the doctrine of sov

ereign immunity. In its motion to dismiss, defendant

correctly notes that “‘[a] waiver of the Federal Govern

ment’s sovereign immunity must be unequivocally ex

pressed in statutory text, and will not be implied.’”

ECF No. 26 at 19 (quoting Lane v. Pena. 518 U.S. 187,

192,116 S.Ct. 2092,135 L.Ed.2d 486 (1996)). And that

waiver “ ‘will be strictly construed, in terms of its scope,

in favor of the sovereign.’” Id. (quoting Lane. 518 U.S.

at 192, 116 S.Ct. 2092). Defendant concedes that the

FLSA includes a waiver of sovereign immunity, but ar

gues that the claims made by plaintiffs in this case fall

outside the scope of that waiver. See id.: see also King

v United States. 112 Fed. Cl. 396, 399 (2013) (stating

that “there is no question that sovereign immunity has

been waived under the FLSA”).

Defendant argues that the FLSA “does not require

that employees be paid on their regularly scheduled

pay date or make damages available when compensa

tion is not received on a pay date.” ECF No. 26 at 1920. As a result, defendant contends, the scope of the

FLSA’s waiver of sovereign immunity does not extend

to the category of claims alleging a FLSA violation be

cause wages were not paid as scheduled, such as plain

tiffs’ claims in this case. See id. at 20-21. According to

defendant, the GEFTA confirms its long-standing be

lief that the government’s payment obligations under

the FLSA are abrogated by a lack of appropriations:

72a

The [GEFTA] provides that “each excepted

employee who is required to perform work

during a . . . lapse in appropriations shall be

paid for such work, at the employee’s stand

ard rate of pay, at the earliest date possible

after the lapse in appropriations ends, regard

less of scheduled pay dates.” Pub. L. No. 1161, 133 Stat. 3. Congress has thus spoken di

rectly to the question of when compensation

should be paid. There can be no basis for in

ferring that compensation made in accord

ance with that explicit directive subjects the

United States to liquidated damages.

Id. at 21.

Defendant also asserts, without citation to any au

thority, as follows:

Given that the [ADA] not only prohibits fed

eral agencies from paying excepted employees

on their regularly scheduled paydays during a

lapse in appropriations, but also specifically

addresses when and at what rate wages are to

be paid following a lapse in appropriations,

the government’s waiver of sovereign immun

ity under the FLSA must be strictly construed

against liability for the delayed (but always

forthcoming) payment of wages because of a

lapse in appropriations.

ECF No. 31 at 13.

The court disagrees. The claims brought by plain

tiffs in this case are straightforward minimum wage

and overtime claims under the FLSA. See ECF No. 1

73a

at 10-12; ECF No. 27 at 6-7. Because the FLSA does not

specify when such claims arise, courts have interpreted

the statute to include a requirement that employers

make appropriate wage payments on the employee’s

next regularly scheduled payday. See Brooklyn Sav.

Bank. 324 U.S. at 707, 65 S.Ct. 895; Biggs. 1 F.3d at

1540. Contrary to defendant’s suggestion, the court is

unpersuaded that this judicially-imposed timing re

quirement transforms ordinary FLSA claims into some

thing analytically distinct, and beyond the scope of the

statute’s waiver of sovereign immunity.

Accordingly, the court finds that defendant has

waived sovereign immunity as to plaintiffs’ claims, as

it has with all FLSA claims, and the court will review

the sufficiency of plaintiffs’ allegations as it would in

any other FLSA case.

D. Plaintiffs State a Claim for FLSA Violations

As noted above, the FLSA requires that the gov

ernment “pay to each of [its] employees” a minimum

wage. 29 U.S.C. § 206(a). Pursuant to the FLSA, the

government also must compensate employees for hours

worked in excess of a forty-hour workweek “at a rate

not less than one and one-half times the regular rate

at which [they are] employed.” 29 U.S.C. § 207(a)(1).

And although the text of the statute does not specify

the date on which wages must be paid, courts have held

that employers are required to pay these wages on

the employee’s next regularly scheduled payday. See

74a

Brooklyn Sav. Bank. 324 U.S. at 707, 65 S.Ct. 895;

Biggs. 1 F.3d at 1540.

In their complaint, plaintiffs allege that during

the lapse in appropriations, they were each “desig

nated ‘excepted’ employees [and] were directed to con

tinue working without pay by defendant.” ECF No. 1

at 7. Plaintiffs allege specific facts demonstrating how

the allegations apply to each plaintiff. See id. at 7-9.

Defendant does not contest any of these allegations,

and in fact, concedes that “plaintiffs [were] employees

of agencies affected by the lapse in appropriations,”

and that “plaintiffs were paid at the earliest possible

date after the lapse in appropriations ended.” ECF No.

26 at 12, 13. Defendant also admits that “[p]laintiffs

are federal employees who performed excepted work

during the most recent lapse in appropriations.” Id. at

15. In short, defendant does not claim that plaintiffs

are not entitled to payment under the FLSA, but in

stead argues that it “fully complied with its statutory

obligations to plaintiffs.” Id. at 16.

The court finds that, presuming the facts as al

leged in the complaint and drawing all reasonable in

ferences in their favor, plaintiffs have stated a claim

for relief under the FLSA. See Cary. 552 F.3d at 1376

(citing Gould. 935 F.2d at 1274).

E. Liquidated Damages

Defendant insists that its failure to pay plaintiffs

was a decision made in good faith, in light of the ADA.

75a

See ECF No. 31 at 14. It further urges the court to find

that its good faith is so clear that the recovery of liqui

dated damages should be barred at this stage in the

litigation. See id. at 14-17. But as the court held in

Martin:

[I]t would be inappropriate to determine, on

motion to dismiss, whether the government

had reasonable grounds and good faith. It

may well be that the government can estab

lish these defenses, but its opportunity to do

so will come later on summary judgment or at

trial. Moreover, even if the court were to de

cide that a liquidated damages award is war

ranted, additional factual determinations

remain to be made as to which employees, if

any, are entitled to recover, and damages, if

any, to which those employees would be enti

tled.

Martin v. United States. 117 Fed. Cl. 611, 627 (2014).

Accordingly, the court declines to rule at this time on

the issue of whether defendant can establish a good

faith defense against liability for liquidated damages

in this case.

IV.

Conclusion

Accordingly, for the foregoing reasons:

(1) Defendant’s motion to dismiss, ECF No. 26, is

DENIED;

76a

(2) On or before February 5, 2021, defendant is

directed to FILE an answer or otherwise respond

to plaintiffs’ complaint; and

(3) On or before February 5, 2021, the parties

are directed to CONFER and FILE a joint sta

tus report informing the court of their positions

on the consolidation of this case with any other

matters before the court.

IT IS SO ORDERED.

77a

151 Fed.Cl. 504

United States Court of Federal Claims.

L. Kevin ARNOLD, et al., Plaintiffs,

The UNITED STATES, Defendant.

No. 19-59C

E-Filed: December 9, 2020

Attorneys and Law Firms

Jacob Y. Statman, Baltimore, MD, for plaintiff. Michael

J. Snider, Keith A. Kauffman, Jason I. Weisbrot, Jeffer

son Friday, Richard J. Hirn, Mark Schneider, Sarah

Suszczyk, Dennie Rose, Sefan P. Sutich, of counsel.

Erin K. Murdock-Park, Trial Attorney, with whom

were Joseph H. Hunt, Assistant Attorney General,

Robert E. Kirschman, Jr., Director, Reginald T. Blades,

Jr., Assistant Director, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, for defendant. Ann C. Motto, of coun

sel.

OPINION AND ORDER

CAMPBELL-SMITH, Judge.

Plaintiffs in this putative collective action allege

that the government, through several agencies, vio

lated the Fair Labor Standards Act (FLSA), 29 U.S.C.

§§ 201-19, by failing to timely pay their earned over

time and regular wages during the partial government

78a

shutdown and lapse of appropriations that began on

December 22, 2018. See ECF No. 6 at 6 (amended com

plaint, hereinafter referred to as the complaint). On

May 3, 2019, defendant moved to dismiss the com

plaint for failure to state a claim on which relief may

be granted, pursuant to Rule 12(b)(6) of the Rules of

the United States Court of Federal Claims (RCFC), on

the basis that the Anti-Deficiency Act (ADA), 31 U.S.C.

§§ 1341-42, prohibited the government from paying

employees. See ECF No. 25.

In analyzing defendant’s motion, the court has

considered: (1) plaintiffs’ complaint, ECF No. 6; (2) de

fendant’s motion to dismiss, ECF No. 25; (3) plaintiffs’

response to defendant’s motion, ECF No. 30; (4) de

fendant’s reply in support of its motion, ECF No. 34;

(5) defendant’s first supplemental brief in support of

its motion, ECF No. 36; (6) plaintiffs’ response to de

fendant’s first supplemental brief, ECF No. 39; (7) de

fendant’s second supplemental brief in support of its

motion, ECF No. 47; (8) plaintiffs’ response to defend

ant’s second supplemental brief, ECF No. 48; (9) de

fendant’s third supplemental brief in support of its

motion, ECF No. 55; and (10) plaintiffs’ response to de

fendant’s third supplemental brief, ECF No. 59. The

motion is now fully briefed and ripe for ruling.1 The

1 Defendant moves for dismissal of plaintiffs’ complaint for

only one reason—“for failure to state a claim upon which relief

may be granted.” ECF No. 25 at 6. In one of its supplemental

briefs, defendant suggests that a recent decision issued by the Su

preme Court of the United States, Maine Community Health Op

tions v. United States.__ U.S.

140 S. Ct. 1308, 206 L.Ed.2d

764 (2020), a case that does not involve FLSA claims, indicates

79a

court has considered all of the arguments presented by

the parties, and addresses the issues that are pertinent

to the court’s ruling in this opinion. For the following

reasons, defendant’s motion is DENIED.

Background

On December 22, 2018, the federal government

partially shut down due to a lack of appropriations. See

ECF No. 6 at 6. The named plaintiffs in this case were,

at the time of the lapse in appropriations, employees

of various agencies affected by the shutdown.2 See id.

at 2-5. Plaintiffs further allege that they were classi

fied as FLSA non-exempt, see id., and “designated as

that this court lacks jurisdiction to hear this case because the

FLSA “contains its own provision for judicial review.” ECF No. 55

at 2. In the same brief, defendant acknowledges binding prece

dent from the United States Court of Appeals for the Federal Cir

cuit to the contrary. See id. (citing Abbey v. United States. 745