Donald Martin, Jr., Patricia A. Manbeck, Jeff Roberts, Jose Rojas, Randall Sumner v. United States

United States Court of Appeals
for the Federal Circuit
______________________
DONALD MARTIN, JR., PATRICIA A. MANBECK,
JEFF ROBERTS, JOSE ROJAS, RANDALL
SUMNER,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2255
______________________
Appeal from the United States Court of Federal Claims
in No. 1:13-cv-00834-PEC, Judge Patricia E. Campbell-
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
BENDER, MICHAEL BENJAMIN, JR., BRYAN
BENTLEY, WILLIAM BERTRAND, CHRISTOPHER
BIJOU, ALL PLAINTIFFS,
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MARTIN v. US 2
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant -Appellee
______________________
2018-1354
______________________
Appeal from the United States Court of Federal Claims
in No. 1:16-cv-01297-PEC, Judge Patricia E. Campbell-
Smith.
______________________
Decided: November 30, 2022
______________________
HEIDI R. BURAKIEWICZ, Kalijarvi, Chuzi, Newman &
Fitch, PC, Washington, DC, argued for all plaintffs-appel-
lants, plaintiffs-appellees. Patricia A. Manbeck, Donald
Martin, Jr., Jeff Roberts, Jose Rojas, Randall Sumner also
represented by D ONALD R OBERT D EP RIEST ; MICHAEL
L IEDER, 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 repre-
sented by BRIAN M. B OYNTON, 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 R EYNA.
HUGHES , Circuit Judge.
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MARTIN v. US 3
The Martin appeal asks whether the government vio-
lates 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 determined that it does, even
though the Anti-Deficiency Act legally bars the govern-
ment from making payments during the shutdown. Be-
cause we hold today in Avalos v. United States, No. 21-2008
(Fed. Cir. Nov. 30, 2022) that the government does not vio-
late 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 determination in Marrs.
I
The facts and procedural history of this appeal largely
mirror those laid out in our opinion issued today in Avalos.
In Avalos, federal employees who worked during the 2018–
2019 partial government shutdown alleged that the gov-
ernment violated the Fair Labor Standards Act (FLSA) by
delaying payments until after the lapse in appropriations
ended. This appeal concerns a similar shutdown that oc-
curred from October 1, 2013 to October 16, 2013.
In its summary-judgment ruling in Martin, the Court
of Federal Claims determined that Plaintiffs-Appellees 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 pro-
hibited the government from paying these employees dur-
ing the shutdown, 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
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MARTIN v. US 4
employees in accordance with the manner in which the
FLSA is commonly applied. Rather, the court would re-
quire 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 demon-
strate a good faith belief based on reasonable grounds, the
trial court could exercise its discretion under 29 U.S.C.
§ 260 to award no liquidated damages. Id. But after hear-
ing argument on this issue, the Court of Federal Claims
determined that the government had not demonstrated a
good faith belief based on reasonable grounds and con-
cluded 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 Martin
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 applies 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 be-
cause 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 decision in
Marrs. We have jurisdiction under 28 U.S.C. § 1295(a)(3).
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MARTIN v. US 5
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).
III
The government appeals the Court of Federal Claims’
decision in Martin v. United States, 130 Fed. Cl. 578 (2017),
finding the government liable for liquidated damages un-
der the FLSA. Our opinion today in Avalos v. United States,
No. 21-2008 (Fed. Cir. Nov. 30, 2022), resolves the same
question raised in the Martin appeal: how the Anti-Defi-
ciency Act’s prohibition on government spending during a
partial shutdown coexists with the FLSA’s seemingly con-
tradictory 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 com-
plies with the Anti-Deficiency Act by withholding payment
during a lapse in appropriations.” Avalos, No. 21-2008, slip
op. 15.
This holding applies equally to the Martin appeal,
which involves substantially identical circumstances to Av-
alos. Indeed, the trial court relied on its decision in Martin
to form the basis for its decision in Avalos. See id. at 11
(“The trial court relied on its decision in Martin v. United
States, 130 Fed. Cl. 578 (2017), in which it determined that
‘the appropriate 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 appropriate’ per
29 U.S.C. § 260.”). For the same reasons in Avalos, we con-
clude that the government did not violate the FLSA’s
timely payment obligation as a matter of law.
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MARTIN v. US 6
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 de-
termination in Marrs.
IV
We accordingly reverse the trial court’s decision in
Martin that held the government liable for liquidated dam-
ages. 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 judg-
ment consistent with this opinion.
REVERSED-IN-PART, VACATED-IN-PART, AND
REMANDED
COSTS
No costs.
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United States Court of Appeals
for the Federal Circuit
______________________
DONALD MARTIN, JR., PATRICIA A. MANBECK,
JEFF ROBERTS, JOSE ROJAS, RANDALL
SUMNER,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2255
______________________
Appeal from the United States Court of Federal Claims
in No. 1:13-cv-00834-PEC, Judge Patricia E. Campbell-
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
BENDER, MICHAEL BENJAMIN, JR., BRYAN
BENTLEY, WILLIAM BERTRAND, CHRISTOPHER
BIJOU, ALL PLAINTIFFS,
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MARTIN v. US 2
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant -Appellee
______________________
2018-1354
______________________
Appeal from the United States Court of Federal Claims
in No. 1:16-cv-01297-PEC, Judge Patricia E. Campbell-
Smith.
______________________
REYNA, Circuit Judge, dissenting.
The majority decides this appeal on the basis of its in-
terpretation 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 mean-
ing of the statutory texts, and that is unsupported and in-
consistent with the congressional 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 rea-
sons for why I would uphold the judgment of the Court of
Federal Claims and find that the Plaintiffs-Appellees suf-
ficiently plead an allegation that the government violated
the FLSA when it failed to timely pay excepted federal
workers their earned wages during the relevant govern-
ment shutdown. For purposes of economy, I adopt and
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.
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MARTIN v. US 3
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 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 be-
lieve that each statute stands alone and that the relevant
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
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MARTIN v. US 4
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
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
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MARTIN v. US 5
government spending during a partial shutdown coexists
with the FLSA’s seemingly contradictory timely payment
obligation.” Maj. Op. 14. The majority reverses and re-
mands 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 em-
ployee wages was due to a government shutdown. I disa-
gree 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.
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
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MARTIN v. US 6
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.
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
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MARTIN v. US 7
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 compen-
sating the employee. Id. at 707 (“[T]he liquidated damages
provision is not penal in its nature but constitutes compen-
sation for the retention of a workman’s pay which might
result in damages too obscure and difficult of proof for es-
timate 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 (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 some-
how defeat the obligations of the government.” Moda
Health Plan, Inc. v. United States, 892 F.3d 1311, 1322
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MARTIN v. US 8
(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 (em-
phasis added) (citation omitted). And as this court has ex-
plained, 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 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 ‘unpaid’ is when
they are not paid at the time work has been done, the min-
imum wage is due, and wages are ordinarily paid—on pay-
day.”); Olsen v. Superior Pontiac-GMC, Inc., 765 F.2d 1570,
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MARTIN v. US 9
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
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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