In the United States Court of Federal Claims

No. 19-213C

(E-Filed: December 4, 2020)

QUENTIN BACA, et al.,

Plaintiffs,

v.

THE UNITED STATES,

Defendant.

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Motion to Dismiss; RCFC 12(b)(6); 

Fair Labor Standards Act (FLSA), 29 

U.S.C. §§ 201-19; Anti-Deficiency Act 

(ADA), 31 U.S.C. §§ 1341-42; 

Government Employees Fair 

Treatment Act of 2019 (GEFTA); Pub. 

L. No. 116-1, 133 Stat. 3 (2019); 28 

U.S.C. § 1500.

Molly Ann Elkin, Washington, DC, for plaintiff. Gregory K. McGillivary, Sarah M. 

Block, John W. Stewart, of counsel.

Erin K. Murdock-Park, Trial Attorney, with whom were Joseph H. Hunt, Assistant 

Attorney General, Robert E. Kirschman, Jr., Director, Reginald T. Blades, Jr., Assistant 

Director, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, Washington, DC, for defendant. Ann C. Motto, of counsel.

OPINION AND ORDER

CAMPBELL-SMITH, Judge.

Plaintiffs in this putative collective action allege that the government, through 

several agencies, violated the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19, by 

failing to timely pay their earned overtime and regular wages during the partial 

government shutdown and lapse of appropriations that began on December 22, 2018. See

ECF No. 1 at 3 (complaint, filed on February 6, 2019); ECF No. 32 at 338-39 (third

amended complaint, filed on April 19, 2019). On May 3, 2019, defendant moved to 

dismiss the complaint for lack of jurisdiction, pursuant to Rule 12(b)(1) of the Rules of 

the United States Court of Federal Claims (RCFC); and in the alternative, for failure to 

state a claim on which relief may be granted, pursuant to RCFC 12(b)(6) on the basis that 

the Anti-Deficiency Act (ADA), 31 U.S.C. §§ 1341-42, prohibited the government from 

paying employees. See ECF No. 33. 
2

In analyzing defendant’s motion, the court has considered: (1) plaintiffs’ 

complaint, ECF No. 1; (2) plaintiffs’ third amended complaint (hereinafter referred to as 

the complaint, unless otherwise stated), ECF No. 32; (3) defendant’s motion to dismiss, 

ECF No. 33; (4) plaintiffs’ response to defendant’s motion, ECF No. 34; (5) defendant’s 

reply in support of its motion, ECF No. 38; (6) defendant’s first supplemental brief in 

support of its motion, ECF No. 40; (7) plaintiffs’ response to defendant’s first 

supplemental brief, ECF No. 41; (8) defendant’s second supplemental brief in support of 

its motion, ECF No. 50; (9) plaintiffs’ response to defendant’s second supplemental brief, 

ECF No. 54; (10) defendant’s third supplemental brief in support of its motion, ECF No. 

59; and (11) plaintiffs’ response to defendant’s third supplemental brief, ECF No. 60. 

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

 The court has considered all of the 

arguments presented by the parties, and addresses the issues that are pertinent to the 

court’s ruling in this opinion. For the following reasons, defendant’s motion is DENIED.

I. Background

Beginning at midnight on December 22, 2018, the federal government partially 

shut down due to a lack of appropriations. See ECF No. 32 at 339. The named plaintiffs 

in this case were, at the time of the shutdown, employees of the United States working as 

air traffic controllers for the Federal Aviation Administration (FAA). See id. at 338. 

Although the lapse in appropriations began on December 22, 2018, the FAA did not 

exhaust its appropriated funds until 12:01 a.m. on December 24, 2020. See id. at 342. 

In their complaint, plaintiffs allege that they were categorized as excepted 

employees, and “compelled to continue to work through the shutdown.” Id. at 339. 

Plaintiffs did not receive timely minimum or overtime wages for work performed during 

the shutdown. See id. at 344-45. Plaintiffs also allege that some air traffic controllers did 

not receive timely minimum or overtime wages for work performed between December 

19 and December 23, 2018, even though the FAA had not yet exhausted its appropriated 

1 In one of its supplemental briefs, defendant suggests that a recent decision issued by the 

Supreme Court of the United States, Maine Community Health Options v. United States, 140 S. 

Ct. 1308 (2020), a case that does not involve FLSA claims, indicates that this court lacks 

jurisdiction to hear this case because the FLSA “contains its own provision for judicial review.” 

ECF No. 59 at 2. In the same brief, defendant acknowledges binding precedent from the United 

States Court of Appeals for the Federal Circuit to the contrary. See id. (citing Abbey v. United 

States, 745 F.3d 1363 (Fed. Cir. 2014)). The court will not review this entirely new basis for 

dismissal, which was argued for the first time in defendant’s third supplemental brief, and which 

defendant acknowledges contradicts binding precedent. If defendant believes this court lacks 

jurisdiction to continue exercising its authority in this case under the authority of Maine 

Community Health, it may file a motion properly raising the issue. See Rule 12(h)(3) of the 

Rules of the United States Court of Federal Claims (RCFC) (“If the court determines at any time 

that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
3

funds. See id. at 345-48. In addition, plaintiffs claim that defendant’s “violations of the 

FLSA as alleged herein have been done in an intentional, willful, and bad faith manner.” 

Id. at 349, 353, 354; see also id. at 350, 351. Plaintiffs now seek “backpay as well as 

monetary liquidated damages equal to any unpaid or untimely paid minimum wage and 

overtime compensation earned since December 19, 2018, as well as interest thereon,” and 

attorneys’ fees and costs. See id. at 355.

II. Legal Standards

A. Dismissal for Lack of Jurisdiction

Pursuant to the Tucker Act, the court has jurisdiction to consider “any claim 

against the United States founded either upon the Constitution, or any Act of Congress or 

any regulation of an executive department, or upon any express or implied contract with 

the United States, or for liquidated or unliquidated damages in cases not sounding in 

tort.” 28 U.S.C. § 1491(a)(1). To invoke the court’s jurisdiction, plaintiffs must show 

that their claims are based upon the Constitution, a statute, or a regulation that “‘can 

fairly be interpreted as mandating compensation by the Federal Government for the 

damages sustained.’” United States v. Mitchell, 463 U.S. 206, 217 (1983) (quoting 

United States v. Testan, 424 U.S. 392, 400 (1976)). 

Plaintiffs bear the burden of establishing this court’s subject matter jurisdiction by 

a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 

F.2d 746, 748 (Fed. Cir. 1988). In reviewing plaintiffs’ allegations in support of 

jurisdiction, the court must presume all undisputed facts are true and construe all 

reasonable inferences in plaintiffs’ favor. See Scheuer v. Rhodes, 416 U.S. 232, 236 

(1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15 

(1982); Reynolds, 846 F.2d at 747 (citations omitted). If, however, a motion to dismiss 

“challenges the truth of the jurisdictional facts alleged in the complaint, the . . . court may 

consider relevant evidence in order to resolve the factual dispute.” Reynolds, 846 F.2d at

747. If the court determines that it lacks subject matter jurisdiction, it must dismiss the 

complaint. See RCFC 12(h)(3). 

B. Dismissal for Failure to State a Claim

When considering a motion to dismiss brought under RCFC 12(b)(6), the court

“must presume that the facts are as alleged in the complaint, and make all reasonable 

inferences in favor of the plaintiff.” Cary v. United States, 552 F.3d 1373, 1376 (Fed. 

Cir. 2009) (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991)). It 

is well-settled that a complaint should be dismissed under RCFC 12(b)(6) “when the facts 

asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United States, 

295 F.3d 1252, 1257 (Fed. Cir. 2002). “To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 
4

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

III. Analysis

A. The Court Has Jurisdiction over Plaintiffs’ Claims

At the end of its motion to dismiss, defendant includes a short argument in which 

it takes the position that the court lacks jurisdiction to hear plaintiffs’ claims pursuant to 

28 U.S.C. § 1500. See ECF No. 33 at 24-25. Section 1500 states, in its entirety, as 

follows:

The United States Court of Federal Claims shall not have jurisdiction of any 

claim for or in respect to which the plaintiff or his assignee has pending in 

any other court any suit or process against the United States or any person 

who, at the time when the cause of action alleged in such suit or process 

arose, was, in respect thereto, acting or professing to act, directly or indirectly 

under the authority of the United States.

28 U.S.C. § 1500. Of relevance here, the United States Court of Appeals for the Federal 

Circuit has held that the “question of whether another claim is ‘pending’ for purposes of 

§ 1500 is determined at the time at which the suit in the Court of Federal Claims is filed, 

not the time at which the Government moves to dismiss the action.” Loveladies Harbor, 

Inc. v. United States, 27 F.3d 1545, 1548 (Fed. Cir. 1994).

According to defendant, “Section 1500 bars plaintiffs from pursuing claims in the 

Court of Federal Claims because another claim in district court based on the same 

operative facts was pending on the date they filed their complaint in the Court of Federal 

Claims.” ECF No. 33 at 24. Defendant argues that plaintiffs’ claims are “based upon the 

same operative facts” as the claims asserted in National Air Traffic Controllers 

Association, AFL-CIO v. United States, Case No. 19-62 (D.D.C. 2019), which was filed 

in the United States District Court for the District of Columbia on January 11, 2019. Id. 

Defendant explains the operative facts of National Air Traffic Controllers, as follows: 

“NATCA filed its suit on behalf of ‘similarly situated employees at the FAA working in 

‘excepted’ status in accordance with the minimum wage and overtime provisions of the’ 

FLSA, who asserted untimely payment of wages for their work performed during the 

lapse in appropriations.” Id. Given the symmetry of claims and the fact that the district 

court case was filed first, defendant argues, this court must dismiss the present action. 

See id. at 25.

As plaintiffs note in response, however, defendant’s analysis elides a critical piece 

of the statutory text. See ECF No. 34 at 11-14. Section 1500 operates only when the 

same “plaintiff or his assignee” is involved with the two similar cases. 28 U.S.C. § 1500. 
5

As the Supreme Court of the United States has explained: “[Section 1500] is more 

straightforward than its complex wording suggests. The [Court of Federal Claims] has no 

jurisdiction over a claim if the plaintiff has another suit for or in respect to that claim 

pending against the United States or its agents.” United States v. Tohono O’Odham 

Nation, 563 U.S. 307, 311 (2011) (emphasis added). 

Here, according to plaintiffs, none of the named plaintiffs in the district court case

when it was filed on January 11, 2019, were named plaintiffs in this case when it was 

filed on February 6, 2019. See ECF No. 34 at 12 (stating that “at the time the original 

[c]omplaint was filed on February 6, 2019, none of the individual plaintiffs in the instant 

case were plaintiffs in the then-pending district court case”). Defendant has offered no 

evidence to the contrary, but argues in its reply that the court should deem plaintiffs in 

this case to be “encompassed by the first-filed district court action,” because the plaintiffs 

in the district court case “sought to represent all air traffic controllers.” ECF No. 38 at 

21-22. This position, however, is discordant with requirements for maintaining a claim 

under the FLSA. The FLSA requires individuals to consent in writing to become a party 

to a case. See 29 U.S.C. § 216(b) (stating that “[n]o employee shall be a party plaintiff 

to any such action unless he gives his consent in writing to become such a party and such 

consent is filed in the court in which such action is brought”). As such, the theoretically 

overlapping classes of plaintiffs between the two cases is not enough to establish an 

identity of plaintiffs for purposes of § 1500. 

Defendant also insists that plaintiffs’ reading of § 1500 “is based on a very narrow 

reading of § 1500’s statutory text, which contradicts the Federal Circuit’s determination 

that § 1500 is not to be interpreted narrowly,” and criticizes plaintiffs for urging the court 

to adopt a “literal” reading of the statute. ECF No. 38 at 19, 20. The court disagrees with 

defendant. As an initial matter, defendant’s reliance on Trusted Integration, Inc. v. 

United States, 659 F.3d. 1159, 1164 (Fed. Cir. 2011), in arguing against a narrow 

construction of Section 1500 is misleading. See id. at 20. While the Federal Circuit did 

indeed counsel against a narrow view of the statute, that admonition was clearly made in

reference to determining whether two cases involved the same set of operative facts. See

Trusted Integration, 659 F.3d at 1164. The court did not address the identity of plaintiffs 

in Trusted Integration, because Trusted Integration, Inc. was clearly the named plaintiff 

in both cases at issue. See id. at 1162. And, even assuming that the proper construction 

of all parts of the statute is broad, defendant asks the court to read the term “plaintiff or 

his assignee” so broadly that it would lose all meaning. 28 U.S.C. § 1500. The court 

declines to do so.

Moreover, applying the statutory text as written cannot fairly be viewed as overlyrestrictive. In the words of the Supreme Court, under § 1500, this court “has no 

jurisdiction over a claim if the plaintiff has another suit for or in respect to that claim 

pending against the United States or its agents.” Tohono, 563 U.S. at 311 (emphasis 

added). Because defendant has not demonstrated any overlap of plaintiffs between this 
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case and National Air Traffic Controllers Association, Case No. 19-62 (D.D.C. 2019), §

1500 does not abrogate this court’s jurisdiction. As plaintiffs state: “[p]ut simply, 28 

U.S.C. § 1500 is not implicated here because the two cases at issue were brought by 

different plaintiffs; whether this case involves the same operative facts as the thenpending district court case is entirely irrelevant.” ECF No. 34 at 12.

B. Plaintiffs Have Stated a Claim on which Relief Can Be Granted

1. Relevant Statutes

This case fundamentally concerns the intersection of two statutes, the ADA and 

the FLSA. The ADA states that “an officer or employee” of the federal government 

“may not . . . make or authorize an expenditure or obligation exceeding an amount 

available in an appropriation or fund for the expenditure or obligation.” 31 U.S.C. 

§ 1341(a)(1)(A). In addition, the ADA dictates that “[a]n officer or employee of the 

United States Government or of the District of Columbia government may not accept 

voluntary services for either government or employ personal services exceeding that 

authorized by law except for emergencies involving the safety of human life or the

protection of property.” 31 U.S.C. § 1342. In 2019, Congress amended the ADA, 

adding, in relevant part, the following: 

[E]ach excepted employee who is required to perform work during a covered 

lapse in appropriations[2] shall be paid for such work, at the employee’s 

standard rate of pay, at the earliest date possible after the lapse in 

appropriations ends, regardless of scheduled pay dates, and subject to the 

enactment of appropriations Acts ending the lapse.

31 U.S.C. § 1341(c)(2) (footnote added). The amendment is commonly referred to as the 

Government Employees Fair Treatment Act of 2019 (GEFTA), Pub. L. No. 116-1, 133 

Stat. 3 (2019). The knowing or willful violation of the ADA is punishable by a fine of 

“not more than $5,000” or imprisonment “for not more than 2 years, or both.” 31 U.S.C. 

§ 1350. And federal employees who violate the ADA “shall be subject to appropriate 

administrative discipline including, when circumstances warrant, suspension from duty 

without pay or removal from office.” 31 U.S.C. § 1349(a).

2 The statute defines “covered lapse in appropriations” to mean “any lapse in 

appropriations that begins on or after December 22, 2018.” 31 U.S.C. § 1341(c)(1)(A).
7

Defendant separately has obligations to its employees pursuant to the FLSA, 

which governs minimum wage and overtime wage compensation for certain employees.3

 

See 29 U.S.C. § 213 (identifying categories of exempt employees). The FLSA requires 

that the government “pay to each of [its] employees” a minimum wage. 29 U.S.C. 

§ 206(a). Pursuant to the FLSA, the government also must compensate employees for 

hours worked in excess of a forty-hour workweek “at a rate not less than one and one-half 

times the regular rate at which [they are] employed.” 29 U.S.C. § 207(a)(1). Although 

the text of the statute does not specify the date on which wages must be paid, courts have 

held that employers are required to pay these wages on the employee’s next regularly 

scheduled payday. See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 (1945); Biggs 

v. Wilson, 1 F.3d 1537, 1540 (9th Cir. 1993). If an employer violates the FLSA’s pay 

provisions, the employer is “liable to the . . . employees affected in the amount of their 

unpaid minimum wages, or their unpaid overtime compensation, as the case may be.” 29 

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

liquidated damages,” id., unless “the employer shows to the satisfaction of the court that 

the act or omission . . . was in good faith, and that [the employer] had reasonable grounds 

for believing that his act or omission was not a violation of the [FLSA],” 29 U.S.C. 

§ 260.

2. The Court’s Reasoning in Martin Applies

In its motion to dismiss, defendant first argues that plaintiffs’ complaint should be 

dismissed for failure to state a claim because the agencies for which appropriations 

lapsed on December 22, 2018, were prohibited by the ADA from paying their 

employees—even excepted employees who were required to work. See ECF No. 33 at 

14-16. This mandate, in defendant’s view, means that defendant cannot be held liable for 

violating its obligations under the FLSA. See id. Defendant argues:

When Congress criminalized payments during an appropriations lapse, it 

plainly precluded payments on the schedule plaintiffs assert is required by 

the FLSA. Federal officials who comply with that criminal prohibition do 

not violate the FLSA, and Congress did not create a scheme under which 

compliance with the [ADA] would result in additional compensation as 

damages to federal employees.

Id. at 14-15. 

3 The FLSA initially applied only to the private sector when enacted in 1938, but was 

amended to cover public employees in 1974. See Fair Labor Standards Amendments of 1974, 

Pub. L. No. 93-259, 88 Stat. 55 (1974).
8

The court has previously ruled on the intersection of the ADA and the FLSA in the 

context of a lapse in appropriations. See Martin, 130 Fed. Cl. 578 (2017). In Martin, 

plaintiffs were “current or former government employees who allege[d] that they were 

not timely compensated for work performed during the shutdown, in violation of the 

[FLSA].” Id. at 580 (citing 29 U.S.C. § 201 et seq.). The plaintiffs in Martin alleged the 

right to liquidated damages with regard to both the government’s failure to timely pay 

minimum wages and its failure to pay overtime wages. See id. In its motion for 

summary judgment, the government argued that “it should avoid liability under the FLSA 

for its failure to [pay plaintiffs on their regularly scheduled pay days during the 

shutdown] because it was barred from making such payments pursuant to the ADA.” See

id. at 582. The government summarized its argument in Martin as follows:

The FLSA and the Anti-Deficiency Act appear to impose two conflicting 

obligations upon Federal agencies: the FLSA mandates that the agencies 

“shall pay to each of [its] employees” a minimum wage, 29 U.S.C. § 206(a) 

(emphasis added), which has been interpreted by the courts to include a 

requirement that the minimum wage be paid on the employees’ next regularly 

scheduled pay day, see Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 707 

n.20 [65 S. Ct. 895, 89 L. Ed. 1296] (1945); Biggs v. Wilson, 1 F.3d 1537, 

1540 (9th Cir. 1993), and the [ADA] mandates that “[a]n officer or employee 

of the United States Government . . . may not . . . make or authorize an 

expenditure . . . exceeding an amount available in an appropriation or fund 

for the expenditure . . . .” 31 U.S.C. § 1341(A)(1)(A) (emphasis added). 

Thus, when Federal agencies are faced with a lapse in appropriations and 

cannot pay excepted employees on their next regularly scheduled payday, the 

question arises of which statutory mandate controls.

Id. at 582-83 (quoting defendant’s motion for summary judgment) (alterations in 

original).

After reviewing applicable precedent and persuasive authority, the court 

concluded that “the issue is more complex than simply a choice between whether the 

FLSA or the ADA controls.” Id. at 583. In the court’s view: 

the appropriate way to reconcile the [ADA and the FLSA] is not to cancel 

defendant’s obligation to pay its employees in accordance with the manner 

in which the FLSA is commonly applied. Rather, the court would require 

that defendant demonstrate a good faith belief, based on reasonable grounds, 

that its actions were appropriate. As such, the court will proceed to analyze 

this case under the construct of the FLSA, and evaluate the existence and 

operation of the ADA as part of determining whether defendant met the 

statutory requirements to avoid liability for liquidated damages.
9

Id. at 584. 

The court noted that plaintiffs’ claims survived a motion to dismiss because they 

had “alleged that defendant had failed to pay wages” on plaintiffs’ “next regularly 

scheduled payday.” Id. at 584. On summary judgment, the court concluded that 

plaintiffs had proven this claim. See id. The court then concluded that the evidence 

supported an award of liquidated damages because the government failed to satisfy the 

court that it acted in good faith and on reasonable grounds when it failed to make the 

payments required under the FLSA.4

 See id. at 585-86. 

Both parties acknowledge that the plaintiffs in Martin were “situated similarly to 

plaintiffs here.” ECF No. 33 at 15 (defendant’s motion to dismiss); see also ECF No. 32

at 341 (plaintiffs citing Martin in their complaint); ECF No. 34 at 16 (plaintiffs noting 

that defendant makes the “exact same argument” here as it did in Martin with regard to 

the intersection of the FLSA and the ADA). In addition, plaintiffs here, like the plaintiffs 

in Martin, have alleged that defendant’s violations of the FLSA were willful. See ECF 

No. 32 at 349, 350, 351, 353, 354. 

In its motion to dismiss, defendant does not dispute plaintiffs’ allegations that they 

were required to work during the shutdown, or that the plaintiffs were not paid during 

that time due to the lapse in appropriations. See ECF No. 33. With regard to the 

sufficiency of plaintiffs’ allegations, defendant characterizes the issue now before the 

court as “whether plaintiffs have stated a claim for liquidated damages under the [FLSA] 

notwithstanding the provisions of the [ADA].” Id. at 8. In arguing its position, defendant 

reiterates the arguments advanced in Martin, but does not present any meaningful 

distinction between the posture of the Martin plaintiffs and the plaintiffs here. Instead, it 

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

situated similarly to plaintiffs here could recover liquidated damages under the FLSA,” 

but states that it “respectfully disagree[s] with that holding.” Id. at 15. 

Notwithstanding defendant’s disagreement, the court continues to believe that the 

framework it set out in Martin is appropriate and applies here.5

 As it did in Martin, “the 

4 In Martin, the defendant also argued that it should avoid liability for liquidated damages 

with regard to overtime wages due to its inability to calculate the correct amounts due. See

Martin v. United States, 130 Fed. Cl. 578, 586-87 (2017). This argument was based on a bulletin 

from the Department of Labor, and involves an issue that has not been raised in the present case. 

The absence of this argument, however, has no bearing on the application of the court’s 

reasoning in Martin with regard to the structure of the proper analysis in this case.

5 Defendant also argues that its obligations under the FLSA are limited by the ADA 

because “a congressional payment instruction to an agency must be read in light of the [ADA].” 

ECF No. 33 at 18. In support of this argument, defendant cites to Highland Falls-Fort 

Montgomery Cent. Sch. Dist. v. United States, 48 F.3d 1166, 1171 (Fed. Cir. 1995). See id. In 
10

court will proceed to analyze this case under the construct of the FLSA, and evaluate the 

existence and operation of the ADA as part of determining whether defendant met the 

statutory requirements to avoid liability for liquidated damages.”6

 Martin, 130 Fed. Cl. at 

584. The court will, of course, consider the GEFTA amendment to the ADA as part of its 

analysis.

3. Waiver of Sovereign Immunity

Before analyzing the sufficiency of plaintiffs’ allegations, the court must address 

defendant’s contention that plaintiffs’ claims are barred by the doctrine of sovereign 

immunity. In its motion to dismiss, defendant correctly notes that “‘[a] waiver of the 

Federal Government’s sovereign immunity must be unequivocally expressed in statutory 

text, and will not be implied.’” ECF No. 33 at 20-21 (quoting Lane v. Pena, 518 U.S. 

187, 192 (1996)). And that waiver “‘will be strictly construed, in terms of its scope, in 

favor of the sovereign.’” Id. at 21 (quoting Lane, 518 U.S. at 192). Defendant concedes 

that the FLSA includes a waiver of sovereign immunity, but argues that the claims made 

by plaintiffs in this case fall outside the scope of that waiver. See id.; see also King v. 

United States, 112 Fed. Cl. 396, 399 (2013) (stating that “there is no question that 

sovereign immunity has been waived under the FLSA”).

Highland-Falls, plaintiffs challenged the Department of Education’s (DOE) method for 

allocating funds under the Impact Aid Act. Highland-Falls, 48 F.3d at 1171. The United States 

Court of Appeals for the Federal Circuit found, however, that the DOE’s “approach was 

consistent with statutory requirements.” Id. The case did not address FLSA claims, and found 

that the DOE’s approach “harmonized the requirements of the Impact Aid Act and the [ADA].” 

See id. In the court’s view, the Federal Circuit’s decision in Highland-Falls does not alter the

analysis in this case. The United States District Court for the District of Columbia’s combined 

decision in National Treasury Employees Union v. Trump, Case No. 19-cv-50 and Hardy v. 

Trump, Case No. 19-cv-51, 444 F. Supp. 3d 108 (2020), discussed by defendant in one of its 

supplemental filings, see ECF No. 50, is likewise unhelpful. Although it involved facts that 

arose from the same 2018 lapse in appropriations, the decision focuses almost exclusively on an 

analysis of whether plaintiffs’ claims were moot, rather than on the operation of the ADA. 

6 The parties both claim that the Supreme Court of the United States’ decision in Maine 

Community Health, 140 S. Ct. 1308, supports their position in this case. See ECF No. 59, ECF 

No. 60. Maine Community Health does not address the FLSA, and only includes a limited 

discussion of the ADA. See Maine Cmty. Health, 140 S. Ct. at 1321-22. Accordingly, the 

decision does not dictate the outcome here. To the extent that the case informs the present 

discussion, however, it tends to support plaintiffs. In the opinion, the Supreme Court held that 

“the [ADA] confirms that Congress can create obligations without contemporaneous funding 

sources,” and concludes that “the plain terms of the [statute at issue] created an obligation neither 

contingent on nor limited by the availability of appropriations or other funds.” Id. at 1322, 1323. 

Applied here, this conclusion suggests that the defendant can incur an obligation to pay plaintiffs 

pursuant to the normal operation of the FLSA even when funding is not available. 
11

Defendant argues that the FLSA “does not require that employees be paid on their 

regularly scheduled pay date or make damages available when compensation is not 

received on a pay date.” ECF No. 33 at 21. As a result, defendant contends, the scope of 

the FLSA’s waiver of sovereign immunity does not extend to the category of claims 

alleging a FLSA violation because wages were not paid as scheduled, such as plaintiffs’ 

claims in this case. See id. at 20-23. According to defendant, the GEFTA confirms its 

long-standing belief that the government’s payment obligations under the FLSA are 

abrogated by a lack of appropriations:

The [GEFTA] provides that “each excepted employee who is required to 

perform work during a . . . lapse in appropriations shall be paid for such 

work, at the employee’s standard rate of pay, at the earliest date possible after 

the lapse in appropriations ends, regardless of scheduled pay dates.” Pub. L. 

No. 116-1, 133 Stat. 3. Congress has thus spoken directly to the question of 

when compensation should be paid. There can be no basis for inferring that 

compensation made in accordance with that explicit directive subjects the 

United States to liquidated damages.

Id. at 22-23.

Defendant also asserts that the scope of its waiver of sovereign immunity for 

FLSA claims does not cover the claims asserted here. See ECF No. 38 at 14. It argues, 

without citation to any authority, that: 

a cause of action under the FLSA cannot per se accrue against the United 

States when federal agencies do not pay employees on their regularly 

scheduled paydays during a lapse in appropriations because a federal statute 

expressly provides for when and at what rate federal employees will be paid 

under those circumstances.

Id. at 14-15.

The court disagrees. The claims brought by plaintiffs in this case are 

straightforward FLSA minimum wage and overtime claims under the FLSA. See ECF 

No. 32 at 348-55. Because the FLSA does not specify when such claims arise, courts 

have interpreted the statute to include a requirement that employers make appropriate 

wage payments on the employee’s next regularly scheduled payday. See Brooklyn Sav. 

Bank, 324 U.S. at 707; Biggs, 1 F.3d at 1540. Contrary to defendant’s suggestion, the 

court is unpersuaded that this judicially-imposed timing requirement transforms ordinary 

FLSA claims into something analytically distinct, and beyond the scope of the statute’s 

waiver of sovereign immunity. 
12

Accordingly, the court finds that defendant has waived sovereign immunity as to 

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

sufficiency of plaintiffs’ allegations as it would in any other FLSA case.

4. Plaintiffs State a Claim for FLSA Violations

As noted above, the FLSA requires that the government “pay to each of [its] 

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

government also must compensate employees for hours worked in excess of a forty-hour 

workweek “at a rate not less than one and one-half times the regular rate at which [they 

are] employed.” 29 U.S.C. § 207(a)(1). And although the text of the statute does not 

specify the date on which wages must be paid, courts have held that employers are 

required to pay these wages on the employee’s next regularly scheduled payday. See

Brooklyn Sav. Bank, 324 U.S. at 707; Biggs, 1 F.3d at 1540. 

In their complaint, plaintiffs allege that during the lapse in appropriations, they 

were categorized as excepted employees, and “compelled to continue to work through the 

shutdown.” ECF No. 32 at 339. Plaintiffs also allege that they did not receive timely 

minimum or overtime wages for work performed during the shutdown. Id. at 344-48.

Defendant does not contest any of these allegations, and in fact, concedes that 

“plaintiffs, air traffic controllers, [were] employees of the [FAA], an agency that was

affected by the lapse in appropriations,” and that “plaintiffs were paid at the earliest 

possible date after the lapse in appropriations ended.” ECF No. 33 at 13, 14. Defendant 

also admits that “[p]laintiffs are federal employees who performed excepted work during 

the most recent lapse in appropriations.” Id. at 17. In short, defendant does not claim 

that plaintiffs are not entitled to payment under the FLSA, but instead argues that it “fully 

complied with its statutory obligations to plaintiffs.” Id. at 18.

The court finds that, presuming the facts as alleged in the complaint and drawing 

all reasonable inferences in their favor, plaintiffs have stated a claim for relief under the 

FLSA. See Cary, 552 F.3d at 1376 (citing Gould, 935 F.2d at 1274). 

5. Liquidated Damages

Defendant insists that its failure to pay plaintiffs was a decision made in good 

faith, in light of the ADA. See ECF No. 38 at 15. It further urges the court to find that its 

good faith is so clear that the recovery of liquidated damages should be barred at this 

stage in the litigation. See id. at 15-18. But as the court held in Martin:

[I]t would be inappropriate to determine, on motion to dismiss, whether the 

government had reasonable grounds and good faith. It may well be that the 

government can establish these defenses, but its opportunity to do so will 
13

come later on summary judgment or at trial. Moreover, even if the court 

were to decide that a liquidated damages award is warranted, additional 

factual determinations remain to be made as to which employees, if any, are 

entitled to recover, and damages, if any, to which those employees would be 

entitled.

Martin v. United States, 117 Fed. Cl. 611, 627 (2014). Accordingly, the court declines to 

rule at this time on the issue of whether defendant can establish a good faith defense 

against liability for liquidated damages in this case.

IV. Conclusion

Accordingly, for the foregoing reasons:

(1) Defendant’s motion to dismiss, ECF No. 33, is DENIED;

(2) On or before February 5, 2021, defendant is directed to FILE an answer

or otherwise respond to plaintiffs’ complaint; and

(3) On or before February 5, 2021, the parties are directed to CONFER and 

FILE a joint status report informing the court of their positions on the 

consolidation of this case with any other matters before the court.

IT IS SO ORDERED.

s/Patricia E. Campbell-Smith 

PATRICIA E. CAMPBELL-SMITH

Judge