Joseph Abrantes, Neftali Acevedo, Hector Acosta, Jose Acosta, David Adams, Sean… v. United States

United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH ABRANTES, NEFTALI ACEVEDO,
HECTOR ACOSTA, JOSE ACOSTA, DAVID ADAMS,
SEAN ADARME, JOSE AGUILAR, DANIEL ALBA,
MICHELLE ALBERTSON, KENIE ACEVEDO-
CORREA, AND ALL PLAINTIFFS REPRESENTED
BY ALAN LESCHT AND ASSOCIATES, PC WITH
JACK JARRETT AS LEAD COUNSEL,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2021
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00129-PEC, Judge Patricia E. Campbell-
Smith.
______________________
Decided: November 30, 2022
______________________
L EON D AYAN, Bredhoff & Kaiser, PLLC, Washington,
DC, argued for plaintiffs-appellees. Also represented by
G ARY E. MASON, D ANIELLE L YNN P ERRY , Mason LLP,
Washington, DC; CONOR D ANIEL AHERN, Alan Lescht and
Associates, PC, Washington, DC.
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ABRANTES v. US 2
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 J ANDA, MICHAEL SHIH .
______________________
Before REYNA, L INN, and HUGHES , Circuit Judges.
Opinion for the court filed by Circuit Judge HUGHES .
Dissenting opinion filed by Circuit Judge REYNA.
HUGHES , Circuit Judge.
The government appeals a decision of the United
States Court of Federal Claims denying the government’s
motion to dismiss for failure to state a claim. The govern-
ment delayed payment to border patrol agents until the
end of a partial government shutdown, as dictated by the
Anti-Deficiency Act. The Court of Federal Claims ruled
that the delay established a prima facie violation of the
Border Patrol Agent Pay Reform Act and an unjustified or
unwarranted personnel action entitling employees to inter-
est and attorney fees under the Back Pay Act. Because we
hold that the Border Patrol Agent Pay Reform Act and
Back Pay Act do not require the government to make pay-
ments during a lapse in appropriations, we reverse.
I
The facts and procedural history of this case mirror
those laid out in our opinion issued today in Avalos v.
United States, No. 21-2008 (Fed. Cir. Nov. 30, 2022). In Av-
alos, 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 after the shutdown ended. This case con-
cerns border patrol agents who also worked during the
shutdown but are exempt from the FLSA under 29 U.S.C.
§ 213(a)(18).
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ABRANTES v. US 3
From December 22, 2018, to January 25, 2019, the fed-
eral government partially shut down due to a lapse in ap-
propriations. Plaintiffs-Appellees, border patrol agents
working for U.S. Customs and Border Protection, were “ex-
cepted employees” required to keep working during the
shutdown. 31 U.S.C. §§ 1341(c)(2), 1342. The government
did not pay Plaintiffs-Appellees during the shutdown, in-
stead adhering to the Anti-Deficiency Act’s prohibition on
“authoriz[ing] an expenditure or obligation exceeding an
amount available in an appropriation or fund for the ex-
penditure or obligation.” Id. § 1341(a)(1)(A). The parties do
not dispute that the government paid Plaintiffs-Appellees
their accrued wages after the partial shutdown ended, and
Plaintiffs-Appellees do not allege that the government
failed to pay them at the earliest possible date after the
shutdown ended, as the Anti-Deficiency Act requires. See
id. § 1341(c)(2).
Plaintiffs-Appellees sued in the Court of Federal
Claims, alleging that the government “violated [the Border
Patrol Agent Pay Reform Act (BPAPRA)] by not paying
Plaintiffs[-Appellees] their wages on their regularly sched-
uled payday” for work they performed after the shutdown
began. Complaint at ¶ 16, Abrantes v. United States, 151
Fed. Cl. 551 (2020) (No. 19-129C), ECF No. 1. Plaintiffs-
Appellees further alleged that the late payments were un-
justified personnel actions under the Back Pay Act and
therefore seek both interest on their back pay and attorney
fees. See id. at 36–37 ¶¶ 17–18, 44 ¶¶ (f)–(g); Plaintiffs-Ap-
pellees’ Br. 8.
The government moved to dismiss Plaintiffs-Appellees’
complaint for failing to state a claim, under Court of Fed-
eral Claims Rule 12(b)(6). The government argued that,
when Congress enacted provisions of the Anti-Deficiency
Act that “criminalized payments during an appropriations
lapse, Congress plainly precluded payments on the sched-
ule plaintiffs assert is required by the BPAPRA and the
[Back Pay Act].” Defendant’s Motion to Dismiss at 10–11,
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ABRANTES v. US 4
Abrantes, 151 Fed. Cl. 551 (No. 19-129C), ECF No. 23.
“Federal officials who comply with that criminal prohibi-
tion do not violate the BPAPRA or the [Back Pay Act],” the
government argued, because “Congress did not create a
scheme under which compliance with the Anti-Deficiency
Act would result in additional compensation as damages to
federal employees.” Id. at 11.
The Court of Federal Claims denied the government’s
motion to dismiss, reasoning that the government’s “obli-
gations under the [Anti-Deficiency Act] do not abrogate its
obligations under” the BPAPRA and the Back Pay Act.
Abrantes, 151 Fed. Cl. at 556–57. Although “[t]he text of
the BPAPRA does not specify a date on which wages must
be paid,” the Court of Federal Claims viewed Plaintiffs-Ap-
pellees’ claim as having accrued during the shutdown, “at
the time the [g]overnment fail[ed] to make the payment al-
leged to be due.” Id. at 554–55 (quoting Burich v. United
States, 366 F.2d 984, 986 (Ct. Cl. 1966)).
The Court of Federal Claims then granted the govern-
ment’s motion to certify an interlocutory appeal of “the le-
gal reasoning underlying the government’s position” that it
is not “liable for damages under the BPAPRA when it com-
plies with the Anti-Deficiency Act’s command to defer pay-
ment of federal employees’ wages during a lapse in
appropriations.” Order at 1–2, Abrantes, 151 Fed. Cl. 551
(No. 19-129C), ECF No. 69 (cleaned up). The government
appeals. We have jurisdiction under 28 U.S.C. § 1292(d).
II
We review the Court of Federal Claims’ legal conclu-
sions de novo and its factual findings for clear error. Adams
v. United States, 350 F.3d 1216, 1221 (Fed. Cir. 2003). Be-
cause the Court of Federal Claims certified for interlocu-
tory appeal the “legal reasoning” of the parties’ positions
on a motion to dismiss, we review the legal question de
novo, “accept[ing] all well-pleaded factual allegations as
true and draw[ing] all reasonable inferences in [Plaintiffs-
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ABRANTES v. US 5
Appellees’] favor.” Harris v. United States, 868 F.3d 1376,
1379 (Fed. Cir. 2017).
As we detail in Avalos, the Anti-Deficiency Act dates
back to 1870. The Act has long prohibited “an officer or em-
ployee” of the United States government from “mak[ing] or
authoriz[ing] an expenditure or obligation exceeding an
amount available in an appropriation or fund for the ex-
penditure or obligation.” 31 U.S.C. § 1341(a)(1). An officer
or employee who violates this provision is subject to “ad-
ministrative discipline” and, for willful violations, criminal
penalties. Id. §§ 1349(a), 1350.
The BPAPRA, enacted in 2014, governs compensation
for border patrol agents. Border Patrol Agent Pay Reform
Act of 2014, Pub. L. No. 113-277, 128 Stat. 2995 (codified
primarily at 5 U.S.C. § 5550). Under BPAPRA, each border
patrol agent “shall receive pay” that corresponds with the
agent’s assigned level of pay. 5 U.S.C. § 5550(b)(2)(B),
(b)(3)(B); see also id. § 5550(b)(4)(A). And each “border pa-
trol agent shall receive compensatory time off or pay at the
overtime hourly rate of pay for hours of work in excess of”
the regular number of hours set for each level. Id.
§ 5550(b)(2)(D), (b)(3)(D), (b)(4)(B). The BPAPRA does not
specify a date on which the government must pay wages.
The BPAPRA includes no provision authorizing mone-
tary relief for violations, so employees seeking such relief
must proceed under some other remedial statute. Plain-
tiffs-Appellees proceed under the Back Pay Act. Passed in
1966, the Back Pay Act provides that an agency employee
“affected by an unjustified or unwarranted personnel ac-
tion which has resulted in the withdrawal or reduction of
all or part of the [employee’s] pay” is “entitled, on correction
of the personnel action, to receive” back pay. Back Pay Act
of 1966, Pub. L. No. 89-380, 80 Stat. 94 (codified at 5 U.S.C.
§ 5596(b)). Congress amended the Back Pay Act in 1978 to
provide for attorney fees, Civil Service Reform Act of 1978,
Pub. L. No. 95-454 § 702, 92 Stat. 1111, 1216 (codified at 5
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ABRANTES v. US 6
U.S.C. § 5596(b)(1)(A)(ii)), and again in 1987 to provide for
interest computed from “the effective date of the with-
drawal or reduction involved.” Joint Resolution Making
Further Continuing Appropriations for the Fiscal Year
1988, and for Other Purposes, Pub. L. No. 100-202, tit. VI
§ 623(a), 101 Stat. 1329, 1329-428–29 (1987) (codified at 5
U.S.C. § 5596(b)(2)).
III
This appeal turns on whether the BPAPRA and the
Back Pay Act require payment on an employee’s regular
pay date during a lapse in appropriations, even though the
Anti-Deficiency Act prohibits the government from making
such payments until after the lapse ends. Plaintiffs-Appel-
lees argue that delayed payment violates the BPAPRA and
is an unwarranted or unjustified personnel action actiona-
ble under the Back Pay Act, notwithstanding the Anti-De-
ficiency Act. The government may thus be liable for
interest and attorney fees even after paying the wages due.
The government responds that Congress did not intend for
the BPAPRA to impose any implicit obligation to pay wages
on a particular date that “would penalize compliance with
the existing provisions of the Anti-Deficiency Act.” Defend-
ant-Appellant’s Reply Br. 17.
For reasons similar to those in Avalos, we hold that the
government does not violate any implicit timely payment
obligation in the BPAPRA and Back Pay Act when, as re-
quired by the Anti-Deficiency Act, it defers payments to ex-
cepted employees until after a lapse in appropriations
ends.
A
Our opinion today in Avalos addresses the analogous
question of whether the FLSA, which implicitly imposes a
timely payment obligation, requires payment during a
shutdown and thus imposes liability for liquidated
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ABRANTES v. US 7
damages for the government’s failure to pay wages until
after the shutdown ends.
The FLSA imposes a firmly established, implicit timely
payment obligation. Rogers v. City of Troy, 148 F.3d 52, 55
(2d Cir. 1998); Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697,
707 (1945) (reasoning that the FLSA’s liquidated damages
provision “constitutes a Congressional recognition that
failure to pay the statutory minimum on time may be so
detrimental . . . that double payment must be made in the
event of delay”). Relying in part on the principle that claims
for nonpayment of wages accrue on the employee’s regular
pay date, courts have held that FLSA’s implicit timely pay-
ment obligation ordinarily requires employers to pay wages
by “the employee’s regular payday.” Biggs v. Wilson, 1 F.3d
1537, 1541 (9th Cir. 1993).
We hold in Avalos that “the FLSA’s timely payment ob-
ligation 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 appropriations.”
Avalos, No. 21-2008, slip op. 15. Under this interpretation,
we reason, the FLSA’s timely payment obligation neither
conflicts with nor implicitly overrules the Anti-Deficiency
Act. Id.
B
Plaintiffs-Appellees urge that a timely payment obliga-
tion is implicit in the BPAPRA and Back Pay Act for the
same reasons that one is implicit in the FLSA. We need not
decide today whether the BPAPRA and Back Pay Act con-
tain any type of implicit timely payment requirement. It is
enough to note that the BPAPRA and Back Pay Act do not
impose any more rigid a timely payment than the FLSA.
Plaintiffs-Appellees acknowledge that, like the FLSA,
the BPAPRA and Back Pay Act do not explicitly address
when payment generally is due or whether payment is due
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ABRANTES v. US 8
during a lapse in appropriations. Plaintiffs-Appellees note
that both the FLSA and BPAPRA include similar manda-
tory language: the FLSA states that each employer “shall
pay” certain wages, 29 U.S.C. § 206(a), and the BPAPRA
mandates that each border patrol agent “shall receive pay”
at a certain rate. 5 U.S.C. § 5550(b)(2)(B), (b)(3)(B). But
even if the BPAPRA together with the Back Pay Act gen-
erally require timely payment on regular pay dates, a lapse
in appropriations is a circumstance that justifies later pay-
ment. As we found in Avalos, this interpretation of the
BPAPRA and Back Pay Act avoids conflict with or implicit
overruling of the Anti-Deficiency Act.
“[W]here two statutes are capable of co-existence, it is
the duty of the courts, absent a clearly expressed congres-
sional intention to the contrary, to regard each as effec-
tive.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018
(1984) (internal quotation omitted). Plaintiffs-Appellees
propose giving effect to both statutes by holding that de-
layed payment due to a lapse in appropriations violates the
BPAPRA and the Back Pay Act. But this would create an
unnecessary conflict with the Anti-Deficiency Act. The
BPAPRA and the Back Pay Act would require payment
during a lapse in appropriations, while the Anti-Deficiency
Act would prohibit it. This is an absurd result that we
should avoid, if possible. See Haggar Co. v. Helvering, 308
U.S. 389, 394 (1940).
Interpreting the Back Pay Act and BPAPRA to abro-
gate the Anti-Deficiency Act’s prohibition on making pay-
ments during a lapse in appropriations would be even more
untenable. We disfavor repeals by implication, “particu-
larly . . . when, as here, we are urged to find that a specific
statute . . . has been superseded by a more general one.”
Sw. Marine of S.F., Inc. v. United States, 896 F.2d 532, 533
(Fed. Cir. 1990). “A party seeking to suggest that two stat-
utes cannot be harmonized, and that one displaces the
other, bears the heavy burden of showing ‘a clearly ex-
pressed congressional intention’ that such a result should
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ABRANTES v. US 9
follow.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624
(2018) (cleaned up). The Anti-Deficiency Act lays out with
specificity that the government may not pay workers dur-
ing a shutdown. The later-enacted BPAPRA, although spe-
cific about who must be paid and how much, is more
general with respect to when payments must be made. The
Back Pay Act is likewise non-specific as to timing. If Con-
gress intended to upend or modify the Anti-Deficiency Act’s
long-standing prohibition on making expenditures for
which Congress has not appropriated funds, it could have
done so with a specific and express statement. Plaintiffs-
Appellees have not shown that providing a remedy for “un-
justified or unwarranted personnel actions” was a clear
statement of Congressional intent to overturn the specific
prohibitions of the Anti-Deficiency Act.
The government’s position gives full effect to the Anti-
Deficiency Act, BPAPRA, and Back Pay Act and avoids the
implicit repeal of any provision of the Anti-Deficiency Act:
A lapse in appropriations justifies the government paying
wages after an employee’s regularly scheduled pay date.
Payment at the earliest possible date after a shutdown is
not an “unjustified or unwarranted” personnel action cre-
ating liability for interest or attorney fees under the Back
Pay Act.
* * *
Because the government, as a matter of law, did not
violate the BPAPRA and the Back Pay Act when it paid
border patrol agents “at the earliest date possible after the
lapse in appropriations end[ed],” 31 U.S.C. § 1341(c)(2), we
reverse the Court of Federal Claims’ decision denying the
government’s motion to dismiss for failure to state a claim
and remand for entry of judgment consistent with this
opinion.
REVERSED AND REMANDED
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ABRANTES v. US 10
COSTS
No costs.
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United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH ABRANTES, NEFTALI ACEVEDO,
HECTOR ACOSTA, JOSE ACOSTA, DAVID ADAMS,
SEAN ADARME, JOSE AGUILAR, DANIEL ALBA,
MICHELLE ALBERTSON, KENIE ACEVEDO-
CORREA, AND ALL PLAINTIFFS REPRESENTED
BY ALAN LESCHT AND ASSOCIATES, PC WITH
JACK JARRETT AS LEAD COUNSEL,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2021
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00129-PEC, Judge Patricia E. Campbell-
Smith.
______________________
REYNA, Circuit Judge, dissenting.
The United States Court of Federal Claims denied the
government’s motion to dismiss for failure to state a cause
of action. It determined that Plaintiffs-Appellees suffi-
ciently stated a claim for relief under the Back Pay Act and
the Border Patrol Agent Pay Reform Act (“BPAPRA”).
Abrantes v. United States, 151 Fed. Cl. 551, 552–53 (2020).
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ABRANTES v. US 2
The majority reverses and remands, holding that the
Anti-Deficiency Act renders null the relevant provisions of
the BPAPRA and Back Pay Act when the failure to pay
timely wages is a result of a government shutdown.
Maj. Op. 7–9. I disagree.
Briefly, the BPAPRA governs compensation for border
patrol agents and outlines three “levels” of pay. See
5 U.S.C. § 5550. It provides that each “border patrol agent
shall receive pay” corresponding to their assigned level and
“shall receive compensatory time off or pay at the overtime
hourly rate of pay for hours of work in excess of” the num-
ber of hours set for each level. 5 U.S.C. § 5550(b)(2)(B),
(b)(2)(D), (b)(3)(B), (b)(3)(D), (b)(4)(B). The Back Pay Act
provides:
An employee of an agency who . . . is found by ap-
propriate authority under applicable law . . . to
have been affected by an unjustified or unwar-
ranted personnel action which has resulted in the
withdrawal or reduction of all or part of the pay,
allowances, or differentials of the employee—
(A) is entitled, on correction of the person-
nel action, to receive for the period for
which the personnel action was in effect—
(i) an amount equal to all or any
part of the pay, allowances, or dif-
ferentials, as applicable which the
employee normally would have
earned or received during the pe-
riod if the personnel action had not
occurred, less any amounts earned
by the employee through other em-
ployment during that period.
5 U.S.C. § 5596(b)(1).
Plaintiffs-Appellees allege that they were required to
work during a government shutdown and were not paid on
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ABRANTES v. US 3
their scheduled pay day. They allege that failure to timely
pay wages constitutes an unjustified and unwarranted per-
sonnel action under the Back Pay Act. Appellee’s Br. 13–
14.
The majority does not reach the question raised on ap-
peal noting that “even if the BPAPRA together with the
Back Pay Act generally require timely payment on regular
pay dates, a lapse in appropriations is a circumstance that
justifies later payment.” Maj. Op. 8.
I disagree with my colleagues for the reasons I set out
in my dissent in Avalos v. United States, No. 21-2008 (Fed.
Cir. Nov. 30, 2022) which, for purposes of economy, I incor-
porate and submit in this appeal. See infra. I determine
that the Plaintiffs-Appellees are not barred as a matter of
law from pursuing their claim for relief under the Back Pay
Act and the BPAPRA. As such, I would affirm the Court of
Federal Claims’ denial of the government’s motion to dis-
miss for failure to state a cause of action. Abrantes, 151
Fed. Cl. at 552–53.
* * *
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 regu-
larly 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 appropriations. 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 li-
quated damages provision of the FLSA. I disagree. I
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ABRANTES v. US 4
believe that each statute stands alone and that the rele-
vant provisions of the two statutes are not inconsistent
with each other.
From December 22, 2018, to January 25, 2019, the fed-
eral government partially shutdown due to lack of appro-
priations (funding). Avalos v. United States, 151 Fed. Cl.
380, 382 (2020); J.A. 274. To keep key parts of the govern-
ment functioning, the government created two categories
of federal employee: “excepted” and “non-excepted.” 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 per-
form normal duties. Despite working and earning wages
during the shutdown, the excepted employees were not
paid for their work until the first payday after the shut-
down 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 Officers for
the U.S. Department of Homeland Security. These officers
(“CBP Officers”) were designated as excepted employees
and were required to report for work. Id. at 382. They re-
ceived no pay during the shutdown but were paid on the
first regularly scheduled payday that came after January
25, 2019, the day the shutdown ended. Id.; J.A. 280–83.
On January 29, 2019, the CBP Officers filed their
amended complaint in the United States Court of Federal
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 liquidated damages because
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ABRANTES v. US 5
during the shutdown it failed to pay wages on their regu-
larly scheduled payday(s).
The government moved to dismiss the suit for failure
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 government shutdown
was caused by a lack of general appropriation and, there-
fore, it was prohibited from paying the CBP Officers. Ac-
cording to the government, it cannot, 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 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 gov-
ernment spending during a partial shutdown coexists with
the FLSA’s seemingly contradictory timely payment obli-
gation.” Maj. Op. 14. The majority reverses and remands
to the Court of Claims, holding that the government can-
not, as a matter of law, be held liable for liquidated dam-
ages under the FLSA where the failure to pay employee
wages was due to a government shutdown. I disagree with
my colleagues on several fronts.
First, the majority errs that as a matter of law, there is
no FLSA violation in this case. The law is well-settled 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 regularly scheduled paydays con-
stitutes a FLSA violation.
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ABRANTES v. US 6
The majority is also incorrect that liquidated damages
cannot attach because the government was prohibited 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 stat-
utes with distinct purposes whose operations in this case
neither intersect nor are otherwise inconsistent. 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 employees
who in any workweek is engaged in commerce or in
the production of goods for commerce, or is em-
ployed in an enterprise engaged 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 fed-
eral employees by the Office of Personnel Management
(“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 em-
ployee . . . affected in the amount of their unpaid minimum
wages, or their unpaid overtime compensation . . . and in
an additional equal amount as liquidated damages.”
29 U.S.C. § 216(b).
Again, the undisputed facts are that the government
required the CBP Officers to report to work during the
shutdown; and that the CBP Officers were not paid wages
on their regularly scheduled paydays. These circum-
stances clearly apply to § 216(b) of the FLSA, and on this
basis, I would find that the government’s failure to pay the
CBP Officers during the shutdown was a violation of the
FLSA.
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ABRANTES v. US 7
The majority appears to agree with the foregoing con-
clusion, but my colleagues take steps to avoid saying so.
Namely, they engage in an unorthodox statutory interpre-
tation that first examines whether the statutes are contra-
dictory and whether the statutes can coexist. BedRoc Ltd.,
LLC v. United States, 541 U.S. 176, 183 (2004) (The statu-
tory interpretation “inquiry begins with the statutory text,
and ends there as well if the text is unambiguous.”); see
also Me. Cmty. Health Options v. United States, 140 S. Ct.
1308, 1321–22 (2020) (explaining that the ADA did not
“qualify” the government’s obligation to pay an amount cre-
ated 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 shut-
down. 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. In-
deed, 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 government officials for
certain actions. The ADA neither references the FLSA nor
the liquidated damages provision of § 216(b). Nothing in
the statues, 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 population from
substandard wages and excessive hours which endangered
the national health and well-being and the free flow of
goods in interstate commerce.” Brooklyn Sav. Bank v.
O’Neil, 324 U.S. 697, 706 (1945) (citing H. Rep. No. 2738,
75th Cong., 3d Sess., pp. 1, 13, 21, and 28). The FLSA rec-
ognizes that employees do not have equal bargaining power
and serves to protect them. Id.
Similarly, the Supreme Court has explained that the
FLSA liquidated damages provision is not meant as pun-
ishment for the employer, but rather, focuses on
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ABRANTES v. US 8
compensating the employee. Id. at 707 (“[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 require-
ments “apply to the official, but they do not affect the rights
in this court of the citizen honestly contracting with the
Government.” Salazar v. Ramah Navajo Chapter, 567 U.S.
182, 197 (2012) (citation omitted).
Here, the CBP Officers were honestly “contracting”
with the government. There is no legal support for the be-
lief 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 Gov-
ernment’s debts, nor cancel its obligations.” Me. Cmty., 140
S. Ct. at 1321–22 (2020) (quoting Ramah, 567 U.S. at 197).
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 obliga-
tion to protect the very federal employees that the FLSA
was intended by Congress to protect. I see no congressional
requirement or Supreme Court precedent that negates liq-
uidated damages under the FLSA or the ADA. Rather, the
liquated 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
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ABRANTES v. US 9
(emphasis added) (citation omitted). And as this court has
explained, the “usual rule” is “that a claim for unpaid over-
time 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 employees on
their regular payday, and that the FLSA violation 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 obligation upon the employer to pay
the employee . . . liquidated damages.”); Birbalas v. Cuneo
Printing Indus., 140 F.2d 826, 828 (7th Cir. 1944) (“[O]ver-
time compensation shall be paid in the course of employ-
ment 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 payday.”); Olsen 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 conclusions:
that the ADA trumps the FLSA because it was passed first
and is more specific than the FLSA; that requiring liqui-
dated 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 ques-
tions because there is no justiciable conflict between the
two laws. See, e.g., Epic Sys. Corp. v. Lewis, 138 S. Ct.
1612, 1624 (2018) (“Respect for Congress as drafter coun-
sels against too easily finding irreconcilable conflicts in its
work . . . . Allowing judges to pick and choose between
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ABRANTES v. US 10
statutes risks transforming them from expounders of what
the law is into policymakers choosing what the law should
be.”). I do agree with the majority that “where two statutes
are capable of co-existence, it is the duty of the courts, ab-
sent a clearly expressed congressional intention to the con-
trary, to regard each as effective.” Maj. Op. 19 (quoting
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 (1984)).
Payday is important to the everyday worker. Missing
a paycheck can have devasting consequences. That is what
this case is about. Congress sought a remedy for such con-
sequences by extending the potential for liquidated dam-
ages. 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 continue.
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