                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


THOMAS B. DEVLIN,

                       Plaintiff,
                                                     Civil Action No. 13-408 (BJR)
               v.
                                                     MEMORANDUM OPINION
JOHN BERRY, Director,
Office of Personnel Management, et al.,

                       Defendants.



   This case is before the Court on a motion to dismiss by Defendants John Berry, the Office of

Personnel Management, and the United States of America (hereinafter “OPM”). See

Defendant’s Motion to Dismiss (“Defs’ Mot.”), Dkt. #14. Plaintiff Thomas Devlin challenges

OPM’s denial of an administrative claim he filed in 1995. Devlin’s claim alleged unpaid

overtime under the Fair Labor Standards Act (FLSA). He brings this suit under the

Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq. OPM moved to dismiss under

Federal Rule of Civil Procedure 12(b)(6), arguing that Devlin has failed to state a claim for relief

because his 1995 administrative filing was time-barred. Defs’ Mot. at 2. Devlin filed a cross-

motion for summary judgment. See Plaintiff’s Cross Motion for Summary Judgment (“Pl’s

Mot.”), Dkt. #18. Having reviewed the parties’ briefs together with all relevant materials, the

Court denies both OPM’s motion to dismiss and Devlin’s summary judgment motion, for the

reasons discussed below.

   I.      BACKGROUND

   During the period of time relevant to this action, January of 1993 through October 1994,

Devlin worked as a criminal investigator for the Federal Bureau of Investigation (FBI).

                                                 1
Plaintiff’s Statement of Material Facts (“Pl’s SUF”), Dkt. #17, ¶ 1. 1 On January 6, 1995,

Devlin’s counsel filed an administrative claim with the General Accounting Office (GAO), now

the Government Accountability Office, on behalf of Devlin and over 200 other criminal

investigators. Id. ¶ 2. The administrative claim alleged violations of the FLSA, specifically that

the FBI had improperly classified Devlin and the other criminal investigators as exempt

employees. Id. They asserted a right to unpaid overtime. Id.

        Also on January 6, Devlin’s counsel filed a complaint in the Court of Federal Claims on

behalf of Devlin and the other investigators, alleging the same FLSA violations. Id. ¶ 6.

However, Devlin did not remain a party to that suit. On November 18, 1996, upon a motion by

Devlin’s counsel, the court dismissed Devlin’s claim without prejudice. Id. ¶ 7.

        On June 17, 2011, Devlin’s counsel wrote OPM to request a meeting. Id. ¶ 11. Counsel

enclosed a copy of the 1995 administrative claim filed with the GAO, and explained that the

federal court action on behalf of other criminal investigators, which had recently settled, did not

include Devlin as a party. Id. Devlin’s counsel repeated the request in September. Id. ¶ 12.

OPM then responded, asking for documentation, which Devlin’s counsel supplied. Id. ¶¶ 13-14.

        On November 12, 2012, OPM denied Devlin’s claims. Id. ¶ 15. In the denial letter,

OPM stated:

        Because determination of exemption status is necessary to determine FLSA
        overtime pay entitlement, disputes regarding FLSA exemption status must be
        resolved prior to making any determinations regarding the amount of FLSA
        overtime pay due or the applicable statute of limitations. OPM is authorized to
        make such determinations under the provisions of 29 U.S.C. § 204(f). A review of
        guidance provided in claims decisions issued by GAO, the agency formerly
        charged with settling compensation and leave claims under 31 U.S.c. § 3702 and
        the agency which was responsible for settling such claims at the time the
        claimant’s representative submitted their January 6, 1995 letter to GAO, is
        instructive. GAO decisions make clear GAO did not view its claims settlement

1
  The facts contained in this section were all admitted by OPM. See Defendants’ Statement of Facts in Dispute
(“Defs’ SFD”), Dkt. #22.

                                                        2
         authority as encompassing FLSA exemption status determinations.

Complaint, Ex. 1, p. 4. OPM quoted the following passage from a 1976 GAO decision, Matter

of Claims Representatives and Examiners – Exemption from Fair Labor Standards Act Overtime

Coverage:

         We consider that the role granted to the Commission [the former Civil Service
         Commission, now OPM] to administer the FLSA with respect to Federal
         employees, [sic] necessarily carries with it the authority to make final
         determinations as to whether employees are covered by the various provisions of
         the [FLSA]. Accordingly, this Office will not review the Commission’s
         determinations as to an employee’s exemption status.

Id.; see B-51325, 1976 WL 9626 at *2 (Oct. 7, 1976). OPM also cited the FLSA

provision authorizing the Director of OPM to “administer the provisions of this chapter

with respect to any individual employed by the United States.” Compl., Ex. 1, p. 5; see

also 29 U.S.C. § 204(f). The denial letter referenced OPM’s own administrative claims

process, which the agency had established prior to the time that Devlin filed his claim

with the GAO. Compl., Ex. 1, p. 5. Therefore, according to OPM, “[Devlin’s] filing

with the GAO regarding [his] FLSA exemption status did not preserve [his] exemption

status claim.” Id. Because the 1995 administrative claim was not preserved, OPM

treated the June 2011 letter from Devlin’s counsel as a freshly filed administrative claim.

Id. OPM denied the claim as time-barred. Id. This action followed.

   II.      LEGAL STANDARD

   When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court “must

construe the allegations and facts in the complaint in the light most favorable to the

plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from

the facts alleged.” Bailey v. Verizon Commc’ns, Inc., 544 F. Supp. 2d 33, 36 (D.D.C.

2008). To survive a Rule 12(b)(6) motion, the complaint must plead sufficient facts,

                                                  3
taken as true, to provide “plausible grounds” that discovery will reveal evidence to

support the plaintiff’s allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

    Summary judgment under Rule 56 is granted when there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A party asserting that a

fact cannot be or is genuinely disputed must support the assertion by citing to particular

parts of materials in the record…or showing that the materials cited do not establish the

absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” Fed. R. Civ. P. 56(c).

    Under the APA, a court shall set aside agency actions found to be “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

§706(2)(A). The APA standard of review is “narrow,” and “a court is not to substitute its

judgment for that of the agency.” Motor Vehicle Manufacturers Ass'n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). However, the agency “must

examine the relevant data and articulate a satisfactory explanation for its action.” Id.

    III.      DISCUSSION

              a. OPM’s Motion to Dismiss

           The question at the heart of this dispute is whether Devlin was required to file his

administrative claim with OPM rather than with the GAO. OPM’s arguments rely entirely on the

proposition that Devlin filed his claim with the wrong agency in 1995, thereby failing to preserve

the claim such that OPM could adjudicate it in 2011. If Devlin and the other investigators chose

the correct path, or at least a permissible one, Devlin’s claim survives OPM’s motion to dismiss. 2


2
 The Court notes that, in addition to the facts set forth in Part I, supra, Devlin also alleged in his Complaint that
GAO acknowledged receipt of his claim, that he never withdrew the claim, and that GAO never returned the claim

                                                          4
It is undisputed that Devlin’s 1995 claim, if properly filed, would have fallen within the

applicable two-year statute of limitations for such claims. 3

        Before 1996, federal law required the Comptroller General (director of the GAO) to

“settle all claims of or against the United States Government.” See 31 U.S.C. § 3702 (1995). In

1996, the General Accounting Office Act transferred the authority to settle FLSA and other

claims to the Office of Personnel Management (OPM), where it remains. See General

Accounting Office Act of 1996, Pub. L. 104-316, § 202(n)(1)(B), 110 Stat. 3826, 3843-44

(October 19, 1996); 31 U.S.C. § 3702 (a)(2) (“The Director of the Office of Personnel

Management shall settle claims involving Federal civilian employees' compensation and

leave.”). The General Accounting Office Act included a “Savings Provision” applicable to

“pending matters and proceedings,” which read:

        This Act shall not affect any pending matters or proceedings, including notices of
        proposed rulemaking, relating to a function or authority transferred under this
        Act. Such matters or proceedings shall continue under the authority of the agency
        to which the function or authority is transferred until completed or terminated in
        accordance with law.

Id. § 101(d)(2). Devlin alleges, and the Court must accept, that GAO never returned his

claim. See Compl. ¶ 21. As such, Devlin’s claim was still “pending” when the transfer

took effect in 1996, and “continue[d] under the authority of the agency to which the

function or authority is transferred,” i.e., OPM, from the time of the transfer forward. See

id. The Court must also draw the reasonable inference that OPM never “completed or

terminated” Devlin’s claim. Therefore, for purposes of OPM’s motion to dismiss, the

Court assumes that Devlin’s claim was still before OPM when Devlin’s counsel



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

                                                        5
contacted the agency in 2011 requesting a meeting. That 2011 letter makes perfectly

clear that Devlin was not filing a new claim, but rather seeking resolution of the long-

pending claim he had filed in 1995. See Pl’s SUF ¶ 11 (“We are writing on behalf of our

client, Thomas Devlin, in connection with his claim against the United States under the

[FLSA]…Notwithstanding the withdrawal of Mr. Devlin’s claim in the United States

Court of Federal Claims, it is still pending before the [OPM], which succeeded GAO as

the repository for such claims”) (emphasis added).

       Thus, the only question for this Court to resolve is whether GAO was a proper

recipient of the administrative claim filed by Devlin and the other criminal investigators.

This is a purely legal question upon which rides the fate of OPM’s motion to dismiss. If

GAO was a proper forum for Devlin’s administrative claim, taking all of Devlin’s

allegations as true and drawing all reasonable inferences in his favor, OPM’s denial of his

claim as time barred was not “in accordance with law” under the APA. See 5 U.S.C.

§706(a)(2).

       As noted above, when the criminal investigators filed their claim in 1995, the

Comptroller General was charged with “settl[ing] all claims of or against the United

States Government.” See 31 U.S.C. § 3702 (1995). OPM suggests that because Devlin’s

claim alleged misclassification, he was required to file with OPM. Defs’ Mot. at 5. The

authority cited by OPM establishes no such rule.

       OPM relied heavily upon the GAO’s decision in Claims Representatives, B-

51325, 1976 WL 9626, to support its contention that “at no time was GAO empowered to

adjudicate claims regarding FLSA exemption status determinations.” Defs’ Mot. at 5.

Claims Representatives actually demonstrates that GAO was empowered to adjudicate



                                                 6
such claims, and did so. The case arose when a union official filed an administrative

claim with the GAO seeking overtime pay for claims representatives and examiners, who

the Civil Service Commission (CSC) had deemed exempt under the administrative

exemption. See B-51325, 1976 WL 9626 at *1. The Comptroller General requested a

report from the CSC on the merits of the union official’s claims, and the CSC responded.

Id. Then, after reviewing the CSC’s rational and comparing it with Department of Labor

regulations, the Comptroller General explained that CSC had statutory authority “to make

final determinations as to whether employees are covered by the various provisions of the

[FLSA].” Id. at *2. In light of that statutory authority, the Comptroller General pledged

that GAO “will not review the [CSC’s] determinations as to an employee’s exemption

status.” Id.

       The case says nothing about a federal employee’s obligation to seek an exemption

status determination whenever he or she alleges misclassification. Nor does it suggest

that the union official, or the employees he spoke for, had chosen the wrong

administrative forum. If anything, the case confirms that the GAO was the proper

recipient of those and other federal employees’ overtime claims.

       Claims Representatives does make clear that the GAO would not carelessly usurp

the CSC’s statutory authority over FLSA administration. However, the Comptroller

General explained in later decisions that “[t]he authority to finally decide whether the

expenditure of public funds under the FLSA is appropriate or not is vested in [the

Comptroller General’s] Office.” Matter of Plum Island Animal Disease Center—Sleep

and Meal Periods Under Fair Labor Standards Act, B-213179, 1984 WL 46700 at *5

(Oct. 2, 1984). Where the Comptroller General found CSC’s determinations to be



                                                 7
“contrary to the law or without legal basis,” the Comptroller General would adjudicate

the claim under the correct standard. Id. at *5 (“Although we will accord great weight to

OPM's administrative determinations as to entitlements under the FLSA, we will not

accept a determination that is contrary to law or without legal basis”); see also Matter of

Dept. of Ag. Meat Graders—Travel Time Under Fair Labor Standards Act, B-163450,

1978 WL 11226 at *4 (Sep. 20, 1978) (“If, however, we find CSC’s factual conclusions

to be clearly erroneous, or the legal conclusions to be contrary to the law or regulations

set out thereunder, we would have no option but so rule”).

       This is consistent with the D.C. Circuit’s description of the GAO’s authority

during that period, which the court adopted from the GAO’s own manual. See Adams v.

Hinchman, 154 F.3d 420, 422 (D.C. Cir. 1998), cert. denied, 526 U.S. 1158 (1999)

(quoting General Accounting Office, Principles of Federal Appropriations Law 11–6

(1982) ) (“to settle a claim means to administratively determine the validity of that

claim.... Settlement includes the making of both factual and legal determinations”).

       In sum, it is possible that if the GAO had considered Devlin’s claim in 1995, it

would have deferred to OPM’s determination that Devlin and the other criminal

investigators were exempt. But even then the GAO would still have been a proper forum

for the administrative claim at that time.

       OPM requests deference under Chevron v. Natural Resources Defense Council,

467 U.S. 837 (1984), for its decision to deny Devlin’s claim. Specifically, OPM argues

that this Court should defer to the agency’s conclusion that Devlin’s claim was time-

barred. Defs’ Mot. at 9. OPM also argues that its conclusion as to the “proper forum for

bringing federal employees’ FLSA claims” is also entitled to deference. Id. at 10.



                                                 8
       OPM ignores the first step of the Chevron inquiry, which is to “consider ‘the text,

structure, purpose, and history of an agency's authorizing statute’ to determine whether a

provision reveals congressional intent about the precise question at issue.” Adirondack

Med. Ctr. v. Sebelius, 740 F.3d 692, 696 (D.C. Cir. 2014) (quoting Hearth, Patio &

Barbecue Ass’n v. U.S. Dep’t of Energy, 706 F.3d 499, 503 (D.C. Cir. 2013). The statute

in question, 31 U.S.C. §3702, is unambiguous. At the time Devlin filed his

administrative claim, the Comptroller General had statutory authority to “settle all claims

of or against the United States Government.” 31 U.S.C. § 3702 (1995). 29 U.S.C. §

204(f), which gives OPM authority “to administer the provisions of [the FLSA] with

respect to any individual employed by the United States government,” does not contradict

or nullify the GAO’s claims settlement authority under 31 U.S.C. § 3702. Thus, OPM’s

conclusion concerning the proper forum for Devlin’s claims, and OPM’s resultant

conclusion concerning timeliness, were contrary to law. Such conclusions are not

entitled to deference.

       Because Devlin timely filed his administrative claim in a proper forum, and –

construing facts as required on a 12(b)(6) motion – the claim was not otherwise processed

or returned, the claim is not time-barred. The Court denies OPM’s motion to dismiss.

           b. Devlin’s Motion for Summary Judgment

       Devlin’s request that the Court grant summary judgment in his favor is denied.

While the Court has resolved the central legal question posed by the parties, there remain

disputes of material fact that preclude granting summary judgment. Specifically, OPM

disputes that the GAO never returned Devlin’s administrative claim. See Defs’ SFD, ¶ 5.

OPM also disputes that Devlin never withdrew his administrative claim. Id. ¶ 8. These



                                                 9
are material facts, in that if the GAO returned or terminated Devlin’s claim prior to the

1996 transfer of pending claims to OPM, Devlin would not have preserved his claim and

it would be time barred. Devlin also would have failed to preserve his claim if at some

point he withdrew it, either from the GAO or OPM.

       As Devlin observes, OPM phrased its denials in terms of what OPM “does not

admit,” without pointing to any contrary evidence in the record. See id. ¶¶ 5, 8. The

Court is mindful that under normal circumstances a party asserting a genuine issue of

material fact must support the assertion by identifying specific evidence in the record.

See Fed. R. Civ. P. 56(c)(1)(A). However, in cases involving review of an agency

decision, the defendant cannot necessarily point to contrary evidence until the

administrative record is filed. Though the full administrative record may contain no

additional evidence on either of the disputed factual issues, Rule 56 dictates that this

Court not grant summary judgment at this stage of the litigation.

       Devlin maintains that in fact there is no administrative record to be filed in this

case because he has already placed all relevant materials before the Court. Pl’s Reply,

Dkt. #25, at 16. However, OPM has not yet had an opportunity to muster any evidence

that would support the agency’s decision to dismiss Devlin’s administrative claim as

time-barred. The Court is loath to grant a motion for summary judgment in an APA

proceeding where the entire record has not yet been filed. For that reason, Devlin’s

motion for summary judgment is denied, with leave to renew. The Court orders OPM to

produce whatever remains of the administrative record within 30 days, at which point the

Court will set a schedule for briefing summary judgment motions. An Order consistent

with this Memorandum Opinion shall issue.



                                                 10
March 18, 2014



                      BARBARA J. ROTHSTEIN
                      UNITED STATES DISTRICT JUDGE




                 11
