           In the United States Court of Federal Claims
                                           No. 16-1378C
                                      Filed: January 18, 2019

                                               )
 RICHARD W. ADAMS, et al.,                     )
                                               )
                        Plaintiffs,            )
                                               )       Fair Labor Standards Act (“FLSA”);
 v.                                            )       RCFC 56; Customs Officer Pay Reform
                                               )       Act (“COPRA”); Department of
 THE UNITED STATES,                            )       Homeland Security Appropriations Act.
                                               )
                        Defendant.             )
                                               )

       Gregory K. McGillivary, Counsel of Record, Molly A. Elkin, Attorney, T. Reid Coploff,
Attorney, Woodley & McGillivary LLP, Washington, DC, for plaintiffs.

       Mollie L. Finnan, Trial Attorney, Reginald T. Blades, Assistant Director, Robert E.
Kirschman, Jr., Director, Joseph A. Hunt, Assistant Attorney General, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, DC; Frislanda
Goldfeder, Of Counsel, United States Customs and Border Protection, Washington, DC, for
defendant.

                          MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I.     INTRODUCTION

       Plaintiffs, border patrol agents working as canine handlers and instructors, bring this
action against the United States alleging that the government has failed to compensate them for
overtime worked, pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (“FLSA”),
and the Federal Employee Pay Act, 5 U.S.C. §§ 5541-5550 (“Title V”). The government has
filed a corrected motion for partial summary judgment and plaintiffs have filed a cross-motion
for partial summary judgment on the issue of whether the overtime pay cap in the annual
Department of Homeland Security (“DHS”) Appropriations Act (“DHS Cap”) limits certain
plaintiffs’ eligibility to earn or receive overtime compensation for each fiscal year within the
claim period for this case, pursuant to Rule 56 of the Rules of the United States Court of Federal
Claims (“RCFC”). For the reasons set forth below, the Court: (1) GRANTS the government’s
corrected motion for partial summary judgment on appropriations caps; (2) DENIES plaintiff’s
cross-motion for partial summary judgment on appropriations caps; and (3) DENIES AS
MOOT the government’s motion for partial summary judgment on appropriations caps.

II.     FACTUAL AND PROCEDURAL BACKGROUND1

        A.      Factual Background

                1.    Plaintiffs’ Back-Pay Claims

        Plaintiffs—border patrol agents who work as canine handlers or instructors for the United
States Customs and Border Protection (“CBP”)—filed this action seeking earned, but unpaid,
overtime compensation under the FLSA and Title V for work performed during the period 2011-
2016. Def. Mot. at 4. On April 23, 2018, the parties entered into a settlement agreement that
calls for the payment of settlement funds comprised of back-pay, liquidated damages, attorney
fees, expenses, and costs to certain plaintiffs (the “Settlement Agreement”). Def. App’x at A1-
A11. The remaining plaintiffs—Roy Lopez, Scott Stacy, and Bryan Trujillo—have not yet
resolved their claims and they seek a determination by the Court regarding whether the DHS Cap
limits the amount of back-pay that they may receive under the Settlement Agreement. Pl. Mot.
at 2.

        Specifically, plaintiff Roy Lopez seeks overtime pay for work performed during the
period March 23, 2014, through September 5, 2015. Pl. Mot. at 6; Def. App’x. at A12. The
parties have agreed to two different amounts to settle this claim. Def. Mot. at 2-4; Pl. Mot. at 6-
7. First, should the Court determine that the DHS Cap applies, the parties agree that Mr. Lopez
will receive $748.12 in back-pay and an equal amount in liquidated damages, resulting in a total
award of $1,496.24, and that this amount would not exceed the DHS Cap. Def. Mot. at 3; Def.
App’x at A3-A4; Pl. Mot. at 6. Second, should the Court determine that the DHS Cap does not
apply, the parties agree that Mr. Lopez will receive $8,625.12 in back-pay and an equal amount
in liquidated damages, resulting in a total award of $17,270.24, and that this amount would result
in Mr. Lopez exceeding the DHS Cap during the relevant claim period. Def. Mot. at 3; Def.


1
  The facts recited in this Memorandum Opinion and Order are taken from the government’s corrected
motion for partial summary judgment on appropriations caps (“Def. Mot.”); the Appendix attached
thereto (“Def. App’x”); and plaintiffs’ cross-motion for partial summary judgment on appropriations caps
(“Pl. Mot.”). Except where otherwise noted, all facts recited herein are undisputed.


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App’x. at A12; Pl. Mot. at 6.

        Plaintiff Scott Stacy seeks overtime pay for work performed during the period November
2, 2014, through January 9, 2016. Pl. Mot. at 6.; Def. Mot. at 3; Def. App’x. at A12. Should the
Court determine that the DHS Cap applies, the parties agree that Mr. Stacy will receive
$5,380.72 in back-pay and an equal amount in liquidated damages, resulting in a total award of
$10,761.44, and that this amount would not exceed the DHS Cap. Def. Mot. at 3; Def. App’x at
A3-A4. Def. App’x. at A13; Pl. Mot. at 6. Should the Court determine that the DHS Cap does
not apply, the parties agree that Mr. Stacy will receive $7,044.44 in back-pay and an equal
amount in liquidated damages, resulting in a total award of $14,088.88, and that this amount
would result in Mr. Stacy exceeding the DHS Cap. Def. Mot. at 3-4; Def. App’x at A13; Pl.
Mot. at 6.

        Lastly, plaintiff Bryan Trujillo seeks overtime pay for work performed during the period
November 3, 2013, through October 4, 2014. Pl. Mot. at 7; Def. Mot. at 4; Def. App’x. at A13.
Should the Court determine that the DHS Cap applies, the parties agree that Mr. Trujillo will
receive $4,198.96 in back-pay and an equal amount in liquidated damages, resulting in a total
award of $8,397.92, and that this amount does not exceed the DHS Cap. Def. Mot. at 4; Def.
App’x at A3-A4. Should the Court determine that the DHS Cap does not apply, the parties agree
that Mr. Trujillo will receive $5,453.76 in back-pay and an equal amount in liquidated damages,
resulting in a total award of $10,907.52, and that this amount would result in Mr. Trujillo
exceeding the DHS Cap. Def. Mot. at 4; Def. App’x at A3-A4; Pl. Mot. at 7.

             2.   Title V And The FLSA

        During the period 2011-2016, plaintiffs were eligible to earn various forms of overtime
pay, including overtime pay under Title V and the FLSA.2 Def. Mot. at 4.

        As background, Title V and the FLSA govern hourly overtime compensation for certain
federal employees, including customs officers and border patrol agents. See generally 5 U.S.C.


2
 In December 2014, Congress passed the Border Patrol Agent Pay Reform Act (“BPAPRA”), which
created a new pay system for border patrol agents. See Pub. L. No. 113-277, 128 Stat. 2995, 3005 (2014).
BPAPRA exempts border patrol agents, including canine handlers, from the FLSA’s overtime provisions
as of January 1, 2016. See Clarification—Border Patrol Agent Pay Reform Act of 2014, Pub. L. No. 114-
13, 129 Stat. 197 (2015) (clarifying that certain provisions of BPAPRA “shall take effect on the first day
of the first pay period beginning on or after January 1, 2016.”)


                                                                                                        3
§§ 5541-5550b; 29 U.S.C. §§ 201-219. Prior to 1974, federal employees received overtime
compensation exclusively pursuant to Title V. 5 U.S.C. §§ 5541-5550; Christofferson v. United
States, 64 Fed. Cl. 316, 319 (2005); Aaron v. United States, 56 Fed. Cl. 98, 100-01 (2003). Title
V authorizes eligible employees to earn 1.5 times for “work officially ordered or approved” in
excess of 40 hours in an administrative workweek. 5 U.S.C. § 5542(a)(1)-(2). But, Title V
places limitations on how much an employee can earn in overtime if that employee is entitled to
overtime pay under multiple statutes. Id. In this regard, Title V’s implementing regulations
provide in relevant part that:

       An employee entitled to overtime pay under this subpart and overtime pay under
       any authority outside of title 5, United States Code, shall be paid under whichever
       authority provides the greater overtime pay entitlement in the workweek.

5 C.F.R. § 551.513. In addition, an employee may receive Title V premium pay “only to the
extent that the payment does not cause the aggregate of basic pay and such premium pay for any
pay period for such employee to exceed . . . the maximum rate of basic pay payable for GS-15.”
5 U.S.C. § 5547(a)(1).

       In 1974, Congress extended the FLSA to cover federal employees unless the employee
was expressly exempted from coverage. 29 U.S.C. § 213(a). In general, the FLSA requires that
“no employer shall employ any of his employees . . . for a workweek longer than forty hours
unless such employee receives compensation for his employment in excess of the hours above
specified at a rate not less than one and one-half times the regular rate at which he is employed.”
29 U.S.C. § 207(a)(1); Abbey v. United States, 745 F.3d 1363, 1365 (Fed. Cir. 2014). The FLSA
also authorizes employees to earn overtime pay at 1.5 times an eligible employee’s pay for
activities that qualify as “work” that was “suffered or permitted” in excess of a 40 hour
workweek. 29 U.S.C. § 207(a)(1); 5 C.F.R. §§ 551.104, 551.401(a)(2).

           3.    Overtime Pay Caps For Customs And Border Patrol Agents

       The Federal Circuit addressed the statutory and regulatory framework that governs the
compensation of customs inspectors in Bull v. United States, 479 F.3d 1365 (Fed. Cir. 2007).
Specifically relevant to this case, the Federal Circuit recognized that, in 1911, Congress enacted
a comprehensive statutory scheme that, among other things, directed the Secretary of the
Treasury to “‘fix a reasonable rate of extra compensation [for customs inspectors] . . . [which]



                                                                                                     4
shall not exceed an amount equal to double the rate of compensation allowed to each such officer
or employee for like services rendered by day’ for [customs] inspections at night, on Sundays,
and on holidays.” Bull, 479 F.3d at 1371 (quoting Act of Feb. 13, 1911, § 5, 36 Stat. 899, 901).

       The 1911 Act did not, however, provide compensation for overtime work performed
during customary working hours, or during the first hour after 5:00 p.m. Id. Given this, customs
inspectors were to be compensated for overtime work pursuant to the overtime pay provisions of
the FLSA or Title V. Id. at 1371-72 (first citing GAO Report, Customs Service: 1911 Act
Governing Overtime is Outdated, at 49 (1991), https://www.gao.gov/assets/160/150608.pdf; then
citing GAO Report, Premium Pay for Federal Inspectors at U.S. Ports-Of-Entry, at 3 (1975),
https://www.gao.gov/assets/120/114587.pdf). And so, for work performed outside of the time
periods covered by the 1911 Act, customs inspectors were eligible to earn or receive Title V
overtime if the work was “officially ordered” and to earn or receive FLSA overtime if the work
was “suffered or permitted.”  Bull, 479 F.3d at 1372.

       In 1976, Congress shifted the financial responsibility for overtime charges incurred by
customs inspectors on Sundays and holidays from private parties to the Federal Government.
See Airport and Airway Dev. Act Amendments of 1976, Pub. L. No. 94-353, 90 Stat. 871, 882
(codified at 49 U.S.C. § 1741 (repealed)). As the Federal Circuit observed in Bull:

       Shortly thereafter, Congress became concerned with the financial burden being
       caused by the 1911 Act. According to a report by the House Committee on
       Appropriations, in fiscal year 1979, 2,045 Customs inspectors received over
       $10,000 in overtime pay, 277 Customs inspectors received over $20,000 in
       overtime pay, and three Customs inspectors received over $39,000 in overtime pay.
       H. R. Rep. No. 96-248, at 11 (1979). The Committee expressed concern not only
       about the high dollar amounts, but also about the “well known fact that such
       excessive overtime is injurious to a person's health as well as being the cause of
       serious family disruptions.”

Bull, 479 F.3d at 1372.

       To address these concerns, Congress enacted an annual statutory cap to limit the amount
of overtime pay that a customs employee could receive. See Treasury Dep’t Approp. Act, 1980,
Pub. L. No. 96-74, 93 Stat. 559, 560 (1979). The cap provided that: “[N]one of the funds made
available by this Act shall be available for administrative expenses to pay any employee [of the
United States Customs Service] overtime pay in an amount in excess of $20,000.” Id. Congress



                                                                                                   5
subsequently raised the amount of this cap to $25,000 and $30,000, respectively. Bull, 479 F.3d
at 1373; see Trade and Tariff Act of 1984, Pub. L. No. 98-573, 98 Stat. 2948, 3043 (codified at
19 U.S.C. § 2075(d)); Dep’t of Homeland Sec. (“DHS”) Approp. Act, 2004, Pub. L. No. 108–
90, Tit. I, 117 Stat. 1137, 1139 (2004).

       Beginning in 1985, border patrol agents became subject to the cap on overtime
compensation for customs employees.3 Dep’ts of Commerce, Justice, and State, the Judiciary, &
Related Agencies (“DOJ”) Approp. Act, 1985, Pub. L. No. 98-411, Tit. II, 98 Stat. 1545, 1556
(1984); see also Def. Mot. at 8-9. In 2001, Congress briefly repealed this cap on overtime
compensation due to the events of September 11, 2001. See Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (“USA
PATRIOT”) Act of 2001, Pub. L. No. 107-56, Tit. IV, Subtit. A, § 404, 115 Stat. 272, 345
(2001); see also Def. Mot. at 10.

       Since border patrol agents have become a part of the DHS, Congress has included
language setting an overtime pay cap for these employees in the annual DHS Appropriations
legislation. The relevant DHS Cap provides as follows:

       [F]or fiscal year 2014, the overtime limitation prescribed in section 5(c)(1) of the
       Act of February 13, 1911 (19 U.S.C. 267(c)(1)) shall be $35,000; and
       notwithstanding any other provision of law, none of the funds appropriated by this
       Act shall be available to compensate any employee of U.S. Customs and Border
       Protection for overtime, from whatever source, in an amount that exceeds such
       limitation, except in individual cases determined by the Secretary of Homeland
       Security, or the designee of the Secretary, to be necessary for national security
       purposes, to prevent excessive costs, or in cases of immigration emergencies . . . .

E.g., DHS Approp. Act, 2014, Pub. L. No. 113-76, Div. F., Tit. II, 128 Stat. 5, 249 (2014).

       Congress has also enacted the Consolidated Omnibus Budget Reconciliation Act of 1985
(“COBRA”) to address overtime pay for customs inspectors. Pub. L. No. 99-272, 100 Stat. 82,
310 (1986) (codified at 19 U.S.C. § 58c). Pursuant to COBRA, the Customs Service collected

3
 The United States Border Patrol was founded on May 28, 1924, as an agency of the United States
Department of Labor, pursuant to the Labor Appropriations Act of 1924. See Border Patrol History, U.S.
CUSTOMS AND BORDER PROT. (Oct. 5, 2018), https://www.cbp.gov/border-security/along-us-
borders/history. In 1933, President Franklin Roosevelt established the Immigration and Naturalization
Service, which later moved to the United States Department of Justice. Id. Following the attacks of
September 11, 2001, the United States Border Patrol became a part of the United States Customs and
Border Protection within the DHS. Id.


                                                                                                     6
user fees from passengers and vessels entering the United States and the funds collected for these
fees were used to pay for inspector overtime. 19 U.S.C. § 58c(f)(2); see also GAO Report,
Customs Service: Information on User Fees, at 13 (1994),
https://www.gao.gov/assets/90/89698.pdf.

       After Congress became concerned that customs inspectors were abusing the user fee
account, Congress once again enacted legislation to address overtime pay. The Customs Officer
Pay Reform Act, Pub. L. No. 103-66, 107 Stat. 312, 668-72 (1993) (codified at 19 U.S.C. § 267)
(“COPRA”), provides for, among other things, double-time pay rates for “officially assigned”
work in excess of 40 hours per week or eight hours in a day. 19 U.S.C. § 267(a)(1). The
Federal Circuit has observed that “[i]t was Congress’ intent that this new pay-rate regime,
coupled with the promulgation of Treasury Department regulations designed to prevent abuse of
the overtime system, would mirror [Title V] and FLSA in the sense that payments would reflect
the amount of time actually worked.” Bull, 479 F.3d at 1374; see also 19 U.S.C. § 267(d); 19
C.F.R. § 24.16(c)-(g).

       Congress also limited eligibility for these increased hourly rates to “customs inspector[s]
[and] canine enforcement officer[s].” 19 U.S.C. § 267(e)(1). To that end, COPRA contains an
exclusivity provision which provides that:

       A customs officer who receives overtime pay under subsection (a) or premium pay
       under subsection (b) for time worked may not receive pay or other compensation
       for that work under any other provision of law.

19 U.S.C. § 267(c)(2). In addition, COPRA prohibits any customs officer, as defined in 19
C.F.R. § 24.16(b)(7), from receiving more than $35,000 in annual overtime pay. 19 U.S.C. §
267(c)(1).

       B.      Procedural History

        On October 21, 2016, plaintiffs filed the complaint in this matter, which plaintiffs
subsequently amended on November 9, 2016; December 22, 2016; January 19, 2017; February
27, 2017; and March 15, 2017. See generally Compl.; 1st Am. Compl.; 2d Am. Compl.; 3d Am.
Compl.; 4th Am. Compl.; 5th Am. Compl. On May 9, 2017, plaintiffs filed a consent motion to
dismiss the claims of 27 plaintiffs and to re-caption this matter, which the Court granted on
March 22, 2018. See generally Pl. Consent Mot.; Order, dated March 22, 2018.



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       On April 23, 2018, the parties filed a joint status report advising the Court that they have
executed a settlement agreement resolving the claims of 59 of the 62 plaintiffs in this matter and
requesting briefing on the issue of whether the DHS Cap applies to the remaining plaintiffs’
overtime pay claims. See generally Joint Status Report, dated April 23, 2018. On May 4, 2018,
the government filed a motion for partial summary judgment on appropriations caps. See
generally Def. Mot. for Summ. J. On May 7, 2018, the government filed a corrected motion for
partial summary judgment on appropriations caps. See generally Def. Mot.

       On June 1, 2018, plaintiffs filed an opposition to the government’s corrected motion for
partial summary judgment and a cross-motion for partial summary judgment on appropriations
caps. See generally Pl. Mot. On July 20, 2018, the government filed a reply in support of its
corrected motion for partial summary judgment on appropriations caps and a response to
plaintiffs’ cross-motion for partial summary judgment. See generally Def. Resp.

       On August 24, 2018, plaintiffs filed a reply in support of its cross-motion for partial
summary judgment on appropriations caps. See generally Pl. Reply. On September 17, 2018,
the government filed a sur-reply in support of its corrected motion for partial summary judgment
on appropriations caps. See generally Def. Reply.

       The Court held oral argument on the parties’ cross-motions on December 18, 2018. See
generally Oral Arg. Tr. These matters having been fully briefed, the Court resolves the pending
motions.

III.   LEGAL STANDARDS

       A.      RCFC 56

       Pursuant to RCFC 56, a party is entitled to summary judgment when there is “no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC
56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d
202 (1986); Biery v. United States, 753 F.3d 1279, 1286 (Fed. Cir. 2014). A dispute is “genuine”
when “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. A fact is “material” if it could “affect the outcome of the suit
under the governing law.” Id.




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          The moving party bears the burden of demonstrating the absence of any genuine issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986). And so, ‘“the inferences to be drawn from the underlying facts . . . must be viewed in
the light most favorable to the party opposing the motion.”’ Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (quoting
United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962)).

          In making a summary judgment determination, the Court does not weigh the evidence
presented, but instead must “determine whether there is a genuine issue for trial.” Anderson, 477
U.S. at 249; see also Am. Ins. Co. v. United States, 62 Fed. Cl. 151, 154 (2004); Agosto v. INS,
436 U.S. 748, 756, 98 S. Ct. 2081, 56 L. Ed. 2d 677 (1978) (“[A trial] court generally cannot
grant summary judgment based on its assessment of the credibility of the evidence presented
. . . .”) (citations omitted). The Court may grant summary judgment when “the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving party . . . .” Matsushita
Elec. Indus. Co., Ltd., 475 U.S. at 587. The above standard applies when the Court considers
cross-motions for summary judgment. Principal Life Ins. Co. & Subs. v. United States, 116 Fed.
Cl. 82, 89 (2014); see also Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010).
And so, when both parties move for summary judgment, ‘“the court must evaluate each party’s
motion on its own merits, taking care in each instance to draw all reasonable inferences against
the party whose motion is under consideration.”’ Abbey v. United States, 99 Fed. Cl. 430, 436
(2011) (quoting Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir.
1987)).

          B.     Title V And The FLSA

          Congress first enacted the Federal Employees Pay Act, or Title V, in 1945. See generally
Federal Employees Pay Act of 1945, Pub. L. No. 79-106, 59 Stat. 295 (June 30, 1945); Doe v.
United States, 372 F.3d 1347, 1351 (Fed. Cir. 2004) (citing 5 U.S.C. § 5542(a)). Prior to 1974,
when the FLSA became applicable to federal employees, federal employees received overtime
compensation exclusively pursuant to Title V. 5 U.S.C. §§ 5541-5550; Christofferson v. United
States, 64 Fed. Cl. 316, 319 (2005); Aaron v. United States, 56 Fed. Cl. 98, 100-01 (2003). Title
V provides, in part, that:




                                                                                                    9
       For full-time, part-time and intermittent tours of duty, hours of work officially
       ordered or approved in excess of 40 hours in an administrative workweek, or . . . in
       excess of 8 hours in a day, performed by an employee are overtime work and shall
       be paid for . . . at [the rates provided in 5 U.S.C. § 5542(a)(1)-(5)].

5 U.S.C. § 5542(a). In 1974, Congress extended the FLSA to include federal employees unless
the employee is expressly exempted from coverage under the Act. 29 U.S.C. § 213(a). In
general, the FLSA requires that “no employer shall employ any of his employees . . . for a
workweek longer than forty hours unless such employee receives compensation for his
employment in excess of the hours above specified at a rate not less than one and one-half times
the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1); Abbey v. United States, 745
F.3d 1363, 1365 (Fed. Cir. 2014).

       C.      The DHS Cap

       Since 2005, Congress has included the following language establishing an overtime pay
cap of $35,000 for CBP employees in the annual DHS appropriations bills:

       [F]or fiscal year 2014, the overtime limitation prescribed in section 5(c)(1) of the
       Act of February 13, 1911 (19 U.S.C. 267(c)(1)) shall be $35,000; and
       notwithstanding any other provision of law, none of the funds appropriated by this
       Act shall be available to compensate any employee of U.S. Customs and Border
       Protection for overtime, from whatever source, in an amount that exceeds such
       limitation, except in individual cases determined by the Secretary of Homeland
       Security, or the designee of the Secretary, to be necessary for national security
       purposes, to prevent excessive costs, or in cases of immigration emergencies. . . .

E.g., DHS Approp. Act, 2014, Pub. L. No. 113-76, Div. F., Tit. II, 128 Stat. 5, 249 (2014). The
Federal Circuit has recently recognized that if Congress wants to suspend or repeal a statute in
force, “there can be no doubt that . . . it could accomplish its purpose by an amendment to an
appropriation bill, or otherwise.” Moda Health Plan, Inc. v. United States, 892 F.3d 1311, 1323
(Fed. Cir. 2018), reh’g denied, 908 F.3d 738 (Fed. Cir. 2018) (citation omitted); see also United
States v. Will, 449 U.S. 200, 221-22 (1980) (quoting United States v. Dickerson, 310 U.S. 554,
555 (1940)). The Federal Circuit has also recognized that whether an appropriations bill
impliedly suspends or repeals substantive law “‘depends on the intention of Congress as
expressed in the statutes.’” Moda, 892 F.3d at 1323 (quoting United States v. Mitchell, 109 U.S.
146, 150 (1883)). Specifically, Congress’ intention must be “expressed in the most clear and
positive terms, and where the language admits of no other reasonable interpretation.” Minis v.



                                                                                                   10
United States 40 U.S. 423, 445 (1841). And so, legislative history and previous appropriations
can provide persuasive evidence of Congress’ intent. Dickerson, 310 U.S. at 561 (holding that
Congress intended to suspend certain reenlistment bonuses during fiscal year 1939 by enacting
appropriations riders.)

       D.      COPRA And Its Implementing Regulations

       The Customs Officer Pay Reform Act provides for, among other things, double-time pay
rates for “officially assigned” work in excess of forty hours per week or eight hours in a day. 19
U.S.C. § 267(a)(1). COPRA limits the eligibility for increased hourly rates to “customs
inspector[s][and] canine enforcement officer[s].” 19 U.S.C. § 267(e)(1). The Act also includes
an exclusivity provision which provides that:

       A customs officer who receives overtime pay under subsection (a) or premium pay
       under subsection (b) for time worked may not receive pay or other compensation
       for that work under any other provision of law.

19 U.S.C. § 267(c)(2). In addition, COPRA prohibits any customs officer from receiving more
than $25,000 in annual overtime pay. 19 U.S.C. § 267(c)(1).

       The regulation implementing COPRA’s cap on overtime pay is set forth in 19 C.F.R. §
24.16(h) and provides that:

       Total payments for overtime/commute, and differentials for holiday, Sunday, and
       night work that a Customs Officer is paid shall not exceed any applicable fiscal
       year pay cap established by Congress. The Commissioner of Customs or the
       Commissioner’s designee may waive this limitation in individual cases to prevent
       excessive costs or to meet emergency requirements of the Customs Service.
       However, compensation awarded to a Customs Officer for work not performed,
       which includes overtime awards during military leave or court leave, continuation
       of pay under workers compensation law, and awards made in accordance with back
       pay settlements, shall not be applied to any applicable pay cap calculations.

19 C.F.R. § 24.16(h). This regulation also defines a “Customs Officer” as follows:

       Customs Officer means only those individuals assigned to position descriptions
       entitled “Customs Inspector,” “Supervisory Customs Inspector,” “Canine
       Enforcement Officer,” “Supervisory Canine Enforcement Officer,” “Customs and
       Border Protection Officer,” “Supervisory Customs and Border Protection Officer,”
       “Customs and Border Protection Agriculture Specialist,” or “Supervisory Customs
       and Border Protection Agriculture Specialist.”

19 C.F.R. § 24.16(b)(7).


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IV.    LEGAL ANALYSIS

       The parties have filed cross-motions for partial summary judgment on the issue of
whether the DHS Cap limits their eligibility to receive overtime pay for each fiscal year within
the claim period for this case. See generally Def. Mot.; Pl. Mot. In its corrected motion for
partial summary judgment, the government argues that the DHS Cap limits plaintiffs’ eligibility
for overtime pay during each fiscal year within the claim period, because Congress has clearly
expressed its intent to limit plaintiffs’ overtime pay in DHS appropriations legislation. Def. Mot.
at 20-27. And so, the government contends that the DHS Cap places a limit on the maximum
amount of overtime pay that plaintiffs can earn or receive—from whatever source and
notwithstanding any other provision of law—absent a waiver of that cap. Id. at 22-24.

       In their cross-motion for partial summary judgment, plaintiffs counter that the DHS Cap
does not waive their right to receive overtime pay under the FLSA, or permit the government to
require them to work without compensation, because this appropriations cap limits the number of
hours that plaintiffs may work rather than the amount of pay that plaintiffs may earn or receive.
Pl. Mot. at 8-19. Plaintiffs also counter that they may receive overtime pay in excess of the DHS
Cap under the Settlement Agreement, because back-pay settlements are excluded from the
calculation of the DHS Cap and any settlement payment would be paid from the Judgement
Fund. Id. at 19-24. And so, plaintiffs contend that they should be compensated for all overtime
suffered or performed within the claim period, notwithstanding the limitations placed on
overtime pay under the DHS Cap. Id. at 13-14.

       For the reasons set forth below, the plain language of the DHS Cap makes clear that this
appropriations cap limits the annual amount of plaintiffs’ overtime pay and that plaintiffs may
not receive a back-pay settlement amount that would exceed the appropriations cap. And so, the
Court: (1) GRANTS the government’s corrected motion for partial summary judgment on
appropriations caps; (2) DENIES plaintiff’s cross-motion for partial summary judgment on
appropriations caps; and (3) DENIES AS MOOT the government’s motion for partial summary
judgment on appropriations caps.




                                                                                                   12
        A.      Congress Has Clearly Expressed Its Intent To Cap Plaintiffs’ Overtime Pay

                1.      The Plain Language Of The DHS Cap Shows Congress’
                        Intent To Limit The Amount Of Plaintiffs’ Overtime Pay

        As an initial matter, a careful reading of the plain language of the DHS Cap makes clear
that Congress intended to limit the amount of plaintiffs’ annual overtime pay. It is well-
established that Congress may amend a pre-existing statutory obligation through appropriations
legislation if its intent to do so is clear. United States v. Dickerson, 301 U.S. 554, 555 (1940);
see also Moda Health Plan, Inc. v. United States, 892 F.3d 1311, 1322-23 (Fed. Cir. 2018), reh’g
denied, 908 F.3d 738 (Fed. Cir. 2018) (“Moda”) (holding that Congress has the ability to
suspend or repeal a statute by enacting “an amendment to an appropriation bill, or otherwise”);
United States v. Will, 449 U.S. 200, 221-22 (1980) (quoting Dickerson, 310 U.S. at 555). It is
also well-established that the plain language of an appropriations action, coupled with the
legislative history, is evidence of Congress’ intent. Will, 449 U.S. at 221-22. And so, the
Court’s determination of whether Congress intended for the DHS Cap to amend pre-existing
statutory obligations for the government to compensate plaintiffs for overtime under the FLSA in
this case, depends upon the intention of Congress as expressed in the appropriations legislation
and the legislative history. Moda, 892 F.3d at 1323 (quoting United States v. Mitchell, 109 U.S.
146, 150 (1883)); see also Minis v. United States 40 U.S. 423, 445 (1841); Barela v. Shinseki,
584 F.3d 1379, 1382-83 (Fed. Cir. 2009) (citation omitted) (holding that the Court must “start[]
with the plain language.”).

        A reading of the DHS Cap demonstrates that Congress clearly intended to limit the
amount of annual overtime pay that plaintiffs may earn or receive. Specifically, the DHS Cap
provides, in relevant part, that:

        [F]or fiscal year 2014, the overtime limitation prescribed in section 5(c)(1) of the
        Act of February 13, 1911 (19 U.S.C. 267(c)(1)) shall be $35,000; and
        notwithstanding any other provision of law, none of the funds appropriated by this
        Act shall be available to compensate any employee of U.S. Customs and Border
        Protection for overtime, from whatever source, in an amount that exceeds such
        limitation, except in individual cases determined by the Secretary of Homeland
        Security, or the designee of the Secretary, to be necessary for national security
        purposes, to prevent excessive costs, or in cases of immigration emergencies . . . .




                                                                                                     13
E.g. DHS Approp. Act, 2014, Pub. L. No. 113-76, Div. F., Tit. II, 128 Stat. 5, 249 (2014).
The DHS Cap contains several phrases that make clear that Congress intended for this
appropriations cap to limit the amount of annual overtime pay that plaintiffs may earn or
receive, regardless of the source of that pay.

       First, the text of the DHS Cap demonstrates Congress’ clear intent to establish a
maximum limit on the amount of overtime pay that plaintiffs may earn or receive during a given
fiscal year. In this regard, the DHS Cap provides that “the overtime limitation prescribed . . .
shall be $35,000.” Id. And so, the plain text of the DHS Cap makes clear that Congress placed a
limit of $35,000 on the amount of annual overtime pay that plaintiffs and other CBP employees
may earn or receive.4

       Congress’ intent to limit the amount of plaintiffs overtime pay is also expressed in other
language in the DHS Cap. Specifically, the DHS Cap states that “none of the funds appropriated
by this Act shall be available to compensate any employee for overtime, from whatever source,
in an amount that exceeds such limitation.” Id. This language similarly reflects Congress’ intent
to limit the amount of overtime pay for CBP employees to no more than $35,000 annually. Id.
And so, the Court reads the plain language in the DHS Cap to express Congress’ clear intent to
prohibit plaintiffs from earning or receiving overtime pay in excess of $35,000 per fiscal year,
absent a waiver of the appropriations cap.

       The text of the DHS Cap also demonstrates Congress’ clear intent to limit the amount of
overtime pay that plaintiffs may earn or receive regardless of the source of that pay. Notably,
Congress required that the limit on overtime pay shall be $35,000 “notwithstanding any other
provision of law.” Id. (emphasis supplied). The DHS Cap also requires that none of the funds
appropriated shall be available to compensate for overtime “from whatever source.” Id.
(emphasis supplied). Congress’ use of this language is compelling evidence that the Congress
was both well-aware that CBP employees may receive overtime pay pursuant to other pre-
existing statutes and that Congress intended to limit the annual amount of overtime pay,




4
  In Grover v. OPM, 828 F.3d 1378 (Fed. Cir. 2016), the Federal Circuit recognized that a similar
statutory limit on annual overtime pay prescribed in COPRA established a “statutory maximum” for
annual overtime pay that could not be exceeded. Grover, 828 F.3d at 1380 (quoting 5 U.S.C. § 8331(4)).


                                                                                                    14
notwithstanding these other laws.5 And so, the Court reads the plain language of the DHS Cap to
express the intent of Congress to impose an annual cap on the amount of plaintiffs’ overtime pay,
regardless of whether the FLSA or other statutory authorities would otherwise permit plaintiffs
to earn or receive additional overtime compensation.

                2.      The Legislative History Reflects Congress’
                        Intent To Limit The Amount Of Plaintiffs’ Pay

        The legislative history relevant to overtime compensation for CBP employees also
demonstrates that Congress clearly intended to limit the amount of plaintiffs’ overtime pay,
regardless of the source of that pay. As the Federal Circuit observed in Bull v. United States, 479
F.3d 1365 (Fed. Cir. 2007), there is a long history of Congress imposing a cap on overtime pay
for CBP employees. Bull, 479 F.3d at 1370-75. The legislative history shows that Congress
imposed a cap on overtime pay for customs inspectors to address specific concerns about the
increasing amount of overtime pay being earned by customs inspectors and the growing number
of hours worked by these employees. Id. As the Federal Circuit observed in Bull:

        According to a report by the House Committee on Appropriations, in fiscal year
        1979, 2,045 Customs inspectors received over $10,000 in overtime pay, 277
        Customs inspectors received over $20,000 in overtime pay, and three Customs
        inspectors received over $39,000 in overtime pay. H. R. Rep. No. 96-248, at 11
        (1979). The Committee expressed concern not only about the high dollar amounts,
        but also about the “well known fact that such excessive overtime is injurious to a
        person's health as well as being the cause of serious family disruptions.”

Id. at 1372.

        The legislative history also makes clear that Congress has consistently imposed a cap on
the amount of annual overtime pay for border patrol agents for decades. See, e.g., DOJ Approp.
Act, 1985, Tit. II, Pub. L. No. 98-411, 98 Stat. 1545, 1556 (1984). Congress has also adjusted
the amount of this cap periodically. Def. Mot. at 8-10. Notably, Congress increased the amount

5
  During oral argument, plaintiffs argued that the references to “overtime” in the DHS Cap show that
Congress intended for the DHS Cap to limit the number of overtime hours worked by plaintiffs and other
border patrol agents. Oral Arg. Tr. at 11:6-11:21. But, the text of the DHS Cap neither mentions hours
worked, nor limits the number of hours that a CBP employee may work. DHS Approp. Act, 2014,
Pub. L. No. 113-76, Div. F., Tit. II, 128 Stat. 5, 249 (2014). In addition, while plaintiffs correctly
note that the legislative history includes references to Congress’ concerns about excessive overtime hours,
the legislative history also makes clear that Congress was significantly concerned about the amount of
overtime pay that CBP employees were earning and receiving each year. Bull v. United States, 479 F.3d
1365, 1372 (Fed. Cir. 2007).


                                                                                                        15
of the cap in 1985, 1986, 1987, 1997, 2005 and 2017. See DOJ Approp. Act, 1985, Pub. L. No.
98-411, Tit. II, 98 Stat. 1545, 1556 (1984); DOJ Approp. Act, 1986, Pub. L. No. 99-180, Tit. II,
99 Stat. 1136, 1144 (1985); DOJ Approp. Act, 1987, Pub. L. No. 99-500, Tit. II, 100 Stat. 1783,
1783-48 (1986); DOJ Approp. Act, 1997, Pub. L. No. 104-208, Div. A, Tit. II, 110 Stat. 3009,
3009-10 (1996); DHS Approp. Act of 2005, Pub. L. No. 108-334, Tit. II, 118 Stat. 1298, 1300
(2004); DHS Approp. Act, 2017, Pub. L. No. 115-31, Div. F, Tit. II, 131 Stat. 244, 411 (2016).
In addition, in 2001, Congress briefly repealed the cap on overtime pay due to the events of
September 11, 2001. See USA PATRIOT Act of 2001, Pub. L. No. 107-56, Tit. IV, Subtit. A, §
404, 115 Stat. 272, 345 (2001) (striking cap ceiling in fiscal year 2001 appropriations); see also
H.R. Rep. No. 107-236, pt. 1, at 76 (2001) (“This section removes the limitation on overtime pay
that was included in DOJ Appropriations Act for 2001 for border patrol and other INS agents.”)
And so, the extensive legislative history regarding legislation enacted by the Congress to cap the
annual overtime pay of CBP employees provides additional evidence that Congress has
expressed its intent to limit the amount of overtime pay that plaintiffs may receive in this case.6

        B.      Federal Circuit Precedent Supports
                Applying The DHS Cap To Plaintiffs’ Claims

        The Court’s reading of the DHS Cap and the legislative history to limit plaintiffs’
overtime pay, regardless of the source of that pay, is also in line with Federal Circuit precedent
related to the compensation of CBP employees. While the Federal Circuit has not addressed the
specific question of whether the DHS Cap limits the amount of annual overtime pay for border
patrol agents, the Federal Circuit has addressed whether a similar cap on annual overtime pay set
forth in COPRA applies when a CBP employee is eligible to receive overtime pay under other
federal statutes. See Bull, 479 F.3d at 1378; Grover v. OPM, 828 F.3d 1378, 1380, 1383 (Fed.
Cir. 2016).

        Specifically, in Bull v. United States, the Federal Circuit held that the amount of overtime
pay that customs officers could earn or receive could not exceed the annual statutory cap on
annual overtime pay set forth in COPRA, notwithstanding the fact that certain CBP employees


6
 Congress’ intent to address concerns about excessive overtime pay is also reflected in other legislation
enacted by the Congress to address overtime pay for customs officers. See e.g., Consolidated Omnibus
Budget Reconciliation Act of 1985, Pub. L. No. 99-272, 100 Stat. 82, 310 (1986) (codified at 19 U.S.C. §
58c); Customs Officer Pay Reform Act, H.R. 3837, 103rd Cong., 107 Stat. 312, 668-672 (1993).


                                                                                                       16
were also eligible to receive overtime pay under the FLSA. Bull, 479 F.3d at 1378. Similarly, in
Grover v. United States, the Federal Circuit held that a customs officer could not receive
overtime pay in excess of the amount prescribed in COPRA, because the statutory maximum for
the years in question under the COPRA cap was $35,000. Grover, 828 F.3d at 1380, 1383. And
so, Bull and Grover generally recognize that Congress may limit the amount of annual overtime
pay that may be earned or received by CBP employees through legislation, notwithstanding the
fact that such employees may also be eligible to earn or receive overtime pay under other federal
laws.

        C.     Plaintiffs Have Not Shown That They May Avoid
               The DHS Cap Through The Settlement Of This Litigation

               1.      Plaintiffs Cannot Circumvent The DHS Cap Because
                       They Are Eligible To Receive Overtime Pay Under The FLSA

        The Court is also not persuaded by plaintiffs’ argument that they may receive overtime
pay in excess of the DHS Cap in connection with the settlement of this litigation, because this
cap does not waive their rights under the FLSA or permit the government to require them to
work without compensation. Pl. Mot. at 13-18. As discussed above, the plain language of the
DHS Cap expresses Congress’ clear intent to limit the amount of plaintiffs’ annual overtime pay
from whatever source—including the FLSA. DHS Approp. Act, 2014, Pub. L. No. 113-76, Div.
F., Tit. II, 128 Stat. 5, 249 (2014). And so, plaintiffs’ eligibility to earn or receive overtime pay
under the FLSA cannot circumvent the limit on the amount of annual overtime pay that plaintiffs
may earn or receive imposed by Congress. Cf. Bull, 479 F.3d at 1378.

        Plaintiffs’ argument that the overtime pay provisions in the DHS Cap should be read in
pari materia with the FLSA—and construed to limit the number of overtime hours, rather than
the amount of overtime pay—is equally unavailing. Pl. Mot. at 12-13. There can be no dispute
that Congress enacted the FLSA to provide for overtime pay for various categories of federal
employees—including employees of the CBP. See 29 U.S.C. §§ 201-219. But, as the
government persuasively argues in its corrected motion for partial summary judgment, Congress
has enacted specific legislation to limit the amount of such pay for CBP employees. Def. Mot. at
26; see also DHS Approp. Act, 2014, Pub. L. No. 113-76, Div. F., Tit. II, 128 Stat. 5, 249
(2014). The Federal Circuit has long recognized that the specific terms of a statute will prevail
over more general terms in another statute which otherwise might be controlling, regardless of


                                                                                                    17
the priority of enactment of the two statutes. Thiess v. Witt, 100 F.3d 915, 919 (Fed. Cir. 1996)
(citations omitted). And so, here, the specific provisions in the DHS Cap, which limit the
amount of annual overtime pay for CBP employees, control the general statutory authority to pay
plaintiffs overtime pay under the FLSA.7

                2.      Plaintiffs’ Reliance Upon COPRA And
                        Its Implementing Regulations Is Misplaced

        Plaintiffs also improperly rely upon COPRA and its implementing regulations to support
their argument that they may receive overtime pay in excess of the DHS Cap in connection with
the settlement of this case. In their cross-motion, plaintiffs argue that the regulation
implementing COPRA’s premium pay cap explicitly excludes back-pay settlements from the
COPRA pay cap calculations. Pl. Mot. at 19-21. And so, plaintiffs contend that their back-pay
settlement payments should similarly be excluded from the calculation of the DHS Cap. Id.

        Plaintiffs’ reliance upon COPRA and its implementing regulations is misplaced for two
reasons. First, the COPRA premium pay regulation does not apply to plaintiffs because they are
not customs officers. Indeed, a careful reading of COPRA and this regulation makes clear that
these authorities only apply to customs officers. In this regard, COPRA provides that:

        A customs officer who receives overtime pay under subsection (a) or premium pay
        under subsection (b) for time worked may not receive pay or other compensation
        for that work under any other provision of law.

19 U.S.C. § 267(c)(2) (emphasis supplied).

        COPRA’s premium pay regulation also provides, in relevant part, that:

        (e) Overtime pay.
            (1) A Customs Officer who is officially assigned to perform work in excess of
            the 40 hours in the officer's regularly-scheduled administrative workweek or in
            excess of 8 hours in a day shall be compensated for such overtime work
            performed at 2 times the hourly rate of the officer's base pay, including any
            locality pay, but not including any premium pay differentials for holiday,
            Sunday, or night work.




7
  Plaintiffs also cite no support for their argument that Congress must seek a waiver of the FLSA in order
to limit their overtime pay. Pl. Mot. at 12-13.


                                                                                                        18
19 C.F.R. § 24.16(e)(1) (emphasis supplied). The regulation also makes clear that border patrol
agents that are canine handlers—like the plaintiffs in this case—are not customs officers.
19 C.F.R. § 24.16(b)(7). Notably, the regulation provides that:

        Customs Officer means only those individuals assigned to position descriptions
        entitled “Customs Inspector,” “Supervisory Customs Inspector,” “Canine
        Enforcement Officer,” “Supervisory Canine Enforcement Officer,” “Customs and
        Border Protection Officer,” “Supervisory Customs and Border Protection Officer,”
        “Customs and Border Protection Agriculture Specialist,” or “Supervisory Customs
        and Border Protection Agriculture Specialist.”

Id. And so, plaintiffs cannot rely upon COPRA, or the premium pay cap regulation, to support
their claim.

        The Federal Labor Relations Authority (“FLRA”) cases cited by plaintiffs similarly fail
to support their argument that any back-pay settlement in this case should be excluded from the
calculation of their overtime pay under the DHS Cap. Pl. Mot. at 20. Plaintiffs argue that the
FLRA has recognized that back-pay settlements “do not count toward the otherwise applicable
[overtime pay] cap.” Id. (emphasis omitted). But, the cases cited by plaintiffs to support this
view pertain to the treatment of back-pay settlements within the context of the annual overtime
pay cap set forth in COPRA, rather than the DHS Cap. Because, as discussed above, COPRA
and its implementing regulations do not apply to plaintiffs, the Court does not read the FLRA
cases cited by plaintiffs to bolster their claim. 19 U.S.C. § 267(c)(1).8

                3.      Alternative Sources Of Funding Are Not
                        Available For Overtime Pay In Excess Of The DHS Cap

        Plaintiffs’ arguments that they may receive overtime pay in excess of the DHS Cap,
because the government will use the Judgment Fund to pay any back-pay settlement and such a
back-pay settlement payment would not violate the Anti-Deficiency Act, are equally unavailing.
Pl. Mot. at 21-26.




8
 The Court does not read the FLRA cases cited by plaintiffs to hold that the COPRA statute and its
implementing regulations would apply to border patrol agents, as plaintiffs suggest. Pl. Mot. at 20; see
also U.S. Dep’t of Homeland Sec. U.S. Customs & Border Protect. Border Patrol San Diego Sector San
Diego, Cal. and AFGE Nat’l Border Patrol Council Local 1613, 68 F.L.R.A. 128, 132 (2014); U.S. Dep’t
of the Treasury, U.S. Customs Serv., El Paso, Tex. and Nat’l Treasury Emps. Union Chapter 143, 55
F.L.R.A. 553, 560 (1999).


                                                                                                     19
          First, plaintiffs’ reliance upon the Judgment Fund to show that they may earn or receive
overtime pay in excess of the DHS Cap is misplaced. It is well-established that Congress
enacted the Judgment Fund to pay final judgments upon a finding of liability in connection with
litigation against the government. 31 U.S.C. § 1304(a); Moda, 892 F.3d at 1326. But, as the
Federal Circuit recently recognized in Moda, the Judgment Fund is not an all-purpose fund for
the disbursement of government funds. Moda, 892 F.3d at 1326.

          As discussed above, the plain language of the DHS Cap and the legislative history make
clear that Congress intended to limit the amount of plaintiffs’ annual overtime pay, from
whatever source, absent a waiver of this cap. See DHS Approp. Act, 2014, Pub. L. No. 113-76,
Div. F., Tit. II, 128 Stat. 5, 249 (2014). Given the clear intent of Congress, permitting plaintiffs
to circumvent the DHS Cap because they have entered into a back-pay settlement with the
government would create the absurd result of allowing plaintiffs to receive more overtime pay
than they would otherwise be entitled simply because plaintiffs commenced this litigation.9 The
Court views such a result to be contrary to what Congress plainly intended by consistently
enacting legislation to cap the amount of annual overtime pay that border patrol agents may earn
or receive.

          Second, the government persuasively argues that the Anti-Deficiency Act prohibits any
payment of overtime in an amount that would exceed the DHS Cap.10 Def. Mot. at 29-30. In



9
 Use of the Judgment Fund to pay plaintiffs more than would be permitted under the DHS Cap would
also appear to run afoul of the “from whatever source” language contained in the DHS Cap. DHS
Approp. Act, 2014, Pub. L. No. 113-76, Div. F., Tit. II, 128 Stat. 5, 249 (2014).
10
     The Anti-Deficiency Act provides that:
          (a) (1) An officer or employee of the United States Government or of the District of Columbia
          government may not—
                  (A) make or authorize an expenditure or obligation exceeding an amount available in an
                  appropriation or fund for the expenditure or obligation;

                  (B) involve either government in a contract or obligation for the payment of money before
                  an appropriation is made unless authorized by law;

                  (C) make or authorize an expenditure or obligation of funds required to be sequestered
                  under section 252 of the Balanced Budget and Emergency Deficit Control Act of 1985; or




                                                                                                        20
Prairie County, Montana v. United States, 782 F.3d 685 (Fed. Cir. 2015), the Federal Circuit
held that language in the Payment in Lieu of Taxes Act (“PILT”) that limited the payments
called for under that Act to those funds that had been appropriated by Congress for that purpose,
limited the government’s liability to make such payments to the amount appropriated by
Congress. Prairie Cty., 782 F.3d at 686. The Federal Circuit also recognized in Prairie County
that the government’s statutory obligation to make payments under the PILT was distinguishable
from the government’s obligation to make payments pursuant to a contract, under circumstances
where there had been a lapse in federal appropriations. Id.; cf. Salazar v. Ramah Navajo
Chapter, 567 U.S. 182 (2012); Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631 (2005)
(holding that the government had a contractual obligation to pay tribes contract supports costs).
And so, the Federal Circuit concluded that the government had no obligation to make payments
under the PILT if funds had not been appropriated by Congress for that purpose. Prairie Cty.,
782 F.3d at 690-91.

       Similarly, here, the government’s obligation to pay plaintiffs for overtime suffered or
performed arises under a statute—the FLSA—and Congress has limited this statutory obligation
with respect to CBP employees by enacting appropriations legislation that caps the annual
amount of their overtime pay. While plaintiffs certainly make a sympathetic argument that they
should not be required to work without compensation after reaching the limit of the DHS Cap,
Congress has made a policy decision to limit the amount of plaintiffs’ annual overtime pay under
such circumstances. Pl. Mot. at 9-10. And so, the wisdom of such policy judgments regarding
the DHS Cap is appropriately left to be determined by the legislative branch. Oral Arg. Tr. at
40:6-40:22.

       Because the plain language of the DHS Cap and the relevant legislative history show that
Congress has expressed its clear intent to limit the amount of annual overtime pay that plaintiffs
may earn or receive—from whatever source—the Court GRANTS the government’s corrected
motion for partial summary judgment on appropriations caps and DENIES plaintiff’s cross-
motion for partial summary judgment on appropriations caps. RCFC 56.


               (D) involve either government in a contract or obligation for the payment of money
               required to be sequestered under section 252 of the Balanced Budget and Emergency
               Deficit Control Act of 1985.
31 U.S.C. § 1341(a)(1).


                                                                                                 21
V.     CONCLUSION

       In sum, plaintiffs have not shown that they are entitled to receive overtime pay in
connection with the settlement of this litigation that is in excess of the applicable cap on annual
overtime pay set forth in DHS appropriations legislation. Rather, the plain language of the DHS
Cap and the legislative history make clear that Congress intended to limit the amount of overtime
pay that plaintiffs may earn or receive during each fiscal year, absent a waiver of that cap.
       And so, for the foregoing reasons, the Court:

       1. GRANTS the government’s corrected motion for partial summary judgment on
           appropriations caps;

       2. DENIES plaintiff’s cross-motion for partial summary judgment on appropriations
           caps; and

       3. DENIES AS MOOT the government’s motion for partial summary judgment on
           appropriations caps.

       IT IS SO ORDERED.



                                                   s/ Lydia Kay Griggsby
                                                   LYDIA KAY GRIGGSBY
                                                   Judge




                                                                                                  22
