In the United States Court of Federal Claims

No. 13-834C

(E-Filed February ___, 2017)

DONALD MARTIN, JR., et al,

Plaintiffs,

v.

THE UNITED STATES,

Defendant.

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Cross-Motions for Summary 

Judgment; RCFC 56(a); Fair Labor 

Standards Act, 29 U.S.C. §§ 201-219

(2012); Award of Liquidated Damages 

for Violation of the Fair Labor 

Standards Act

Heidi R. Burakiewicz, Washington, DC, for plaintiffs. 

Joseph E. Ashman, Trial Attorney, with whom were Benjamin C. Mizer, Principal 

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

Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, Washington, DC, for defendant. 

OPINION AND ORDER 

CAMPBELL-SMITH, Chief Judge 

From October 1, 2013, through October 16, 2013, a Congressional budget impasse 

resulted in a partial shutdown of the federal government (“2013 shutdown”). See ECF 

No. 151 at 3. Plaintiffs in this case are current or former government employees who 

allege that they were not timely compensated for work performed during the shutdown, in 

violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. (2012). See 

ECF No. 29-1. The court certified plaintiffs as a class on October 16, 2014. See ECF 

No. 46. 

Plaintiffs have amended their complaint twice in this case. See ECF Nos. 1, 13, 

and 29-1. Defendant filed a motion to dismiss the first amended complaint, see ECF No. 

23, and before the court ruled on the motion, plaintiffs filed a second amended complaint. 

In their second amendment, plaintiffs added more plaintiffs and deleted the claim that 

defendant had violated the Back Pay Act, but did not “add any new claims or legal 
2 

theories for the Government to address.” ECF No. 29 at 3. See also ECF No. 37 (order 

granting leave to file second amended complaint and explaining points of amendment). 

As such, the claims set forth in the first amended complaint and analyzed in defendant’s 

motion to dismiss were the same as those remaining claims in the second amended 

complaint. 

In its opinion on defendant’s motion to dismiss, the court concluded that the first 

two claims were viable, and dismissed the third. See ECF No. 38 at 23. Accordingly, the 

following two claims were left before the court: (1) failure to pay minimum wages 

timely as required under the FLSA, and (2) failure to pay overtime to members classified 

as non-exempt from the FLSA overtime provisions as required under the FLSA. See 

ECF No. 29-1 at 13-15. 

 The parties now have filed cross motions for summary judgment. Plaintiffs, in 

their motion for partial summary judgment, ask the court to determine: (1) whether the 

government owes liquidated damages to certain employees for violating the FLSA during 

the 2013 shutdown, and (2) whether the government was legally unable to determine 

overtime pay during the 2013 shutdown for certain employees by their regularly 

scheduled paydays. See ECF No. 153-1 at 19-21. In its motion for summary judgment, 

defendant asks the court to determine: (1) whether the government violated the FLSA by 

not paying certain employees on their regularly scheduled paydays during the 2013 

shutdown, (2) whether the government owes liquidated damages to certain employees for 

failing to pay regular wages in violation the FLSA, and (3) whether the government owes 

liquidated damages to certain employees for failing to pay overtime wages in violation of 

the FLSA. See ECF No. 154 at 8-9. For the reasons stated below, plaintiff’s motion for 

partial summary judgment is granted and defendant’s cross-motion for summary 

judgment is denied. 

I. Background 

During the 2013 shutdown, the federal government “ceased certain non-essential 

operations and services” due to a lapse in appropriations. See ECF No. 151 at 3. The 

Anti-Deficiency Act (“ADA”) prohibits the government from spending money when 

specific appropriations are not in place. See 31 U.S.C. § 1341(a)(1)(A) (2012) (stating 

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”). In such a scenario, however, employees who provide services 

involving “the safety of human life or the protection of property” are deemed “excepted” 

and are required to continue work despite the lack of funds. 31 U.S.C. § 1342 (2012); 

ECF No. 151 at 3. Plaintiffs in this case were all excepted employees during the 2013 

shutdown. See ECF No. 46 at 2 (defining class of plaintiffs as excepted employees). 
3 

The conflict in this case arises from the intersection of these ADA provisions with 

the FLSA. The FLSA governs minimum wage and overtime compensation.1

 See 29 

U.S.C. §§ 201-219. Although the Act applied only to the private sector when Congress 

enacted it in 1938, Congress extended the Act to cover public employees in 1974. See

FLSA of 1974, Pub. L. No. 93-259, § 6, 88 Stat. 55. 

The FLSA states, in part, that the government “shall pay to each of [its] 

employees” a minimum wage. 29 U.S.C. § 206(a). See also 5 CFR § 551.301 (2016) 

(minimum wage regulation from the Office of Personnel Management). The FLSA also 

states 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). See also 5 C.F.R. § 551.501 (2016) (overtime regulation from the 

Office of Personnel Management). 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). The legislation applies to employees broadly, but contains specified exemptions, 

or specific categories of employees to whom the FLSA provisions do not apply. See 29 

U.S.C. § 213. Plaintiffs in this litigation are all public employees who do not fall within 

any of the categories of employees exempted from the FLSA. See ECF No. 46 at 2 

(defining class of plaintiffs as non-exempt employees). 

 

Plaintiffs, who were both excepted under the ADA and non-exempt under the 

FLSA, filed the instant litigation because defendant failed to pay the wages earned during 

the first week of the 2013 shutdown on the plaintiffs’ regularly scheduled paydays. See 

ECF No. 29-1 at 1-2; ECF No. 151 at 5. Plaintiffs maintained their claims for FLSA 

violations while acknowledging that defendant retroactively paid employees after the 

2013 shutdown ended. See ECF 151 at 5. 

The court certified this subset of affected employees as a class on October 16, 

2014. See ECF No. 46. Specifically, the class is defined as: 

 

1

 The court explained the background of the Fair Labor Standards Act at length in its 

opinion resolving defendant’s motion to dismiss. For brevity’s sake, only the details 

necessary for thorough consideration of the motions currently before the court are 

repeated here. See generally, ECF No. 38. 
4 

Federal employees (a) identified as of October 1, 2013 for purposes of the 

Fair Labor Standards Act (“FLSA”) as employees, pursuant to 29 U.S.C. § 

203(e)(2)(A); (b) classified as “non-exempt” under the FLSA as of October 

1, 2013; (c) declared “Excepted Employees” during the October 2013 partial 

government shutdown; (d) worked at some time between October 1 and 

October 5, 2013, other than to assist with the orderly shutdown of their office; 

and (e) not paid on their regularly scheduled payday for that work between 

October 1 and October 5, 2013. 

ECF No. 46 at 2. Plaintiffs purporting to meet this class definition include four of the 

plaintiffs who originally brought suit, and more than 24,000 others who consented to join 

the action. See ECF No. 137-1 (Second Am. Compl.); ECF No. 144-1 (Opt-In List). 

Going forward, references to plaintiffs or employees shall mean the excepted, nonexempt employees included within this class definition, unless otherwise specified. 

 Plaintiffs worked during the first week of the 2013 shutdown, specifically between 

October 1 and October 5, 2013, but were not paid for this work on their regularly 

scheduled paydays because the government understood the ADA to prohibit payment 

until funds were appropriated for that purpose. See ECF No. 151 at 3, 5. Plaintiffs take 

the position that despite prohibitions in the ADA, defendant was still obligated to pay 

employees pursuant to the FLSA. In defendant’s view, “the shutdown placed two 

seemingly irreconcilable requirements upon Federal agencies: pay excepted employees 

on their next regularly scheduled payday, and make no such expenditures in the absence 

of appropriations for that purpose.” ECF No. 154 at 15. 

On the parties’ motions for summary judgment, the court now evaluates 

defendant’s obligations to plaintiffs.

II. Legal Standard 

The United States Court of Federal Claims has jurisdiction over “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) (2012). The parties do not dispute the court’s jurisdiction to hear

plaintiffs’ claims, and the court is satisfied that it may do so.

Summary judgment is appropriate “if the movant shows that 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 also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); 

Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1283 (Fed. Cir. 2008). A 

genuine dispute is one that “may reasonably be resolved in favor of either party.” 

Anderson, 477 U.S. at 250. “A fact is material if it ‘might affect the outcome of the suit 
5 

under the governing law.’” Griffin & Griffin Exploration, LLC v. United States, 116 

Fed. Cl. 163, 172 (2014) (quoting Anderson, 477 U.S. at 248). 

The moving party carries the burden of establishing that summary judgment in its 

favor is appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “Once 

that burden is met, the onus shifts to the non-movant to identify evidence demonstrating a 

dispute over a material fact that would allow a reasonable finder of fact to rule in its 

favor.” Quapaw Tribe of Oklahoma v. United States, 120 Fed. Cl. 612, 615 (2015) 

(citing Anderson, 477 U.S. at 256). 

In considering a motion for summary judgment, a court must draw all inferences 

in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. 

Zenith Radio Corp., 475 U.S. 574, 587–88 (1986). “With respect to cross-motions for 

summary judgment, each motion is evaluated on its own merits and reasonable inferences 

are resolved against the party whose motion is being considered.” Marriott Int’l Resorts, 

L.P. v. United States, 586 F.3d 962, 968–69 (Fed. Cir. 2009). 

III. Discussion 

A. The Anti-Deficiency Act Does Not Operate to Cancel Defendant’s 

Obligations under the Fair Labor Standards Act 

 As an initial matter, defendant admits that it did not pay plaintiffs on their 

regularly scheduled pay days for work performed between October 1 and October 5, 

2013. See ECF No. 151 at 3. It claims, however, that it should avoid liability under the 

FLSA for its failure to do so because it was barred from making such payments pursuant 

to the ADA. See ECF No. 154 at 14-15. Defendant neatly summarizes its view of the 

conflict 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 (1945); Biggs v. Wilson, 1 F.3d 1537, 1540 (9th Cir.1993), and the AntiDeficiency Act 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 schedule payday, the question arises of which statutory 

mandate controls. 
6 

Id. at 15-16.

 While the court understands why defendant frames the problem in this way, the 

court believes the issue is more complex than simply a choice between whether the FLSA 

or the ADA controls. As the court observed in its previous ruling, the Supreme Court has 

held that the ADA’s requirements “apply to the official, but they do not affect the rights 

in this court of the citizen honestly contracting with the [g]overnment.” Salazar v. Ramah 

Navajo Chapter, 132 S. Ct. 2181, 2193 (2012) (quoting Dougherty v. United States, 18 

Ct. Cl. 496, 503 (1882)). In addition, the Court of Claims has stated that “[a]n 

appropriation per se merely imposes limitations upon the Government’s own agents; . . . 

but its insufficiency does not pay the Government’s debts, nor cancel its obligations, nor 

defeat the rights of other parties.” Ferris v. United States, 27 Ct. Cl. 542, 546 (1892). 

 Plaintiffs cite to a number of cases that are in accord with the holdings in Salazar 

and Ferris. See New York Airways, Inc. v. United States, 177 Ct. Cl. 800, 810 (1966) 

(stating that “the mere failure of Congress to appropriate funds, without further words 

modifying or repealing, expressly or by clear implication, the substantive law, does not in 

and of itself defeat a Government obligation created by statute . . . The failure to 

appropriate funds to meet statutory obligations prevents the accounting officers of the 

Government from making disbursements, but such rights are enforceable in the Court of 

Claims”); Lovett v. United States, 104 Ct. Cl. 557, 582 (1945) (explaining that “[i]n a 

long line of cases it has been held that lapse of appropriation, failure of appropriation, 

exhaustion of appropriation, do not of themselves preclude recovery for compensation 

otherwise due”). See also Ford Motor Co. v. United States, 378 F.3d 1314, 1320 (Fed. 

Cir. 2004) (“[T]he Anti-Deficiency Act does not bar recovery” of costs arising from 

performance of a contract”); Wetsel-Oviatt Lumber Co. v. United States, 38 Fed. Cl. 563, 

570 (Fed. Cl. 1997) (stating that “neither the Appropriations Clause of the Constitution, 

nor the Anti-Deficiency Act, shield the government from liability where the government 

has lawfully entered into a contract with another party”). 

Defendant’s counter-argument to this line of cases relies on the premise that the 

judicially established requirement of prompt payment, see Brooklyn Savings Bank v. 

O’Neil, 324 U.S. 697, 707 (1945), Biggs v. Wilson, 1 F.3d 1537, 1540 (9th Cir. 1993), 

does not operate in the present circumstances, when the FLSA and the ADA are 

apparently in conflict. It argues that, instead, the court should look only to the bare 

statutory language in resolving question of its liability. See ECF Nos. 154 at 15-20, 156 

at 9 (arguing that “[r]econciliation of this apparent conflict requires the Court to give 

effect to express language over implied rules”). 

After careful consideration of defendant’s arguments in support of its motion for 

summary judgment, the court remains unpersuaded that it can entirely avoid liability 

based only on the superficial conflict between these statutes. The statutes at issue can be 

harmonized in a manner that neither party fully explains. 
7 

As the court held in its previous opinion, the first two counts of plaintiffs’ 

complaint state legally sufficient claims for relief against defendant for its alleged 

violation of the Fair Labor Standards Act. See ECF No. 38 at 13. This legal conclusion 

does not ignore the ADA, as defendant’s reasoning suggests. In addition to the sections 

of the FLSA that mandate the payment of certain wages, see 29 U.S.C.§§ 206-207, the 

statute also includes both a section on recoverable damages and a section establishing 

circumstances in which the employer can avoid liability for damages beyond the amount 

of wages earned. Section 216 states, in relevant part, that “[a]ny employer who violates 

the provisions of section 206 or section 207 of this title shall be liable to the employee . . . 

affected in the amount of their unpaid minimum wages, or their unpaid overtime 

compensation, . . . and in an additional equal amount as liquidated damages.” 29 U.S.C. § 

216(b) (2012). 

The employer, however, may be relieved of liability for the liquidated damages if 

it can demonstrate: “to the satisfaction of the court that the act or omission giving rise to 

such action was in good faith and that he had reasonable grounds for believing that his act 

or omission was not a violation of the [FLSA].” 29 U.S.C. § 260 (2012). In such 

circumstances, “the court may, in its sound discretion, award no liquidated damages or 

award any amount thereof.” See id. 

Considering this more complete view of the FLSA, it is the court’s opinion that 

the appropriate way to reconcile the two statutes 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. 

B. Defendant’s Failure to Timely Pay Plaintiffs Violated the FLSA

As noted above, the FLSA states, in part, that the government “shall pay to each of 

[its] employees” a minimum wage. 29 U.S.C. § 206(a). The FLSA also requires that the 

government pay overtime wages to its employees for time worked in excess of forty 

hours per week “at a rate not less than one and one-half the regular rate at which he is 

employed.” 29 U.S.C. § 207(a)(1). 

As this court noted in evaluating the legal sufficiency of plaintiffs’ claims, courts 

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

regularly scheduled payday. See ECF No. 38 at 12 (citing, inter alia, Brooklyn Sav. Bank 

v. O’Neil, 324 U.S. 697, 707 (1945); Biggs v. Wilson, 1 F.3d 1537, 1540 (9th Cir. 

1993)). See also 29 C.F.R. § 778.106 (2016) (stating the general rule “that overtime 

compensation earned in a particular workweek must be paid on the regular pay day for 
8 

the period in which such workweek ends”). Because plaintiffs alleged that defendant 

failed to pay wages in accordance with this rule, their claims survived defendant’s motion 

to dismiss. See ECF No. 38 at 13. 

Prior to filing the instant motions, the parties filed a document entitled Stipulation 

of Facts Not in Dispute. See ECF No. 151 at 3. Paragraph 7 reads as follows: “The 

Government did not pay employees who were designated as ‘non-exempt’ under the 

FLSA and as ‘excepted’ for purposes of the 2013 Government shutdown for work 

performed between October 1 and October 5, 2013, on their regularly scheduled paydays 

for that work.” Id. at 5. The parties also agree that the plaintiffs were retroactively paid 

their earned wages. See id. But, eventual payment is not what the FLSA requires. 

Thus, under the legal framework previously established by the court, together with 

the undisputed and material facts agreed to by the parties, defendant’s failure to timely 

pay plaintiffs’ wages is a violation of the FLSA. 

C. Defendant is Liable for Liquidated Damages 

Because the court has concluded that defendant violated the FLSA, it is liable for 

liquidated damages. Section 216 states, in relevant part, that “[a]ny employer who 

violates the provisions of section 206 or section 207 of this title shall be liable to the 

employee . . . affected in the amount of their unpaid minimum wages, or their unpaid 

overtime compensation, . . . and in an additional equal amount as liquidated damages.” 29 

U.S.C. § 216(b). The defendant argues it should be relieved of this liability, or a portion 

thereof, in one of two ways. 

First, defendant claims it can demonstrate that it acted “in good faith and that [it] 

had reasonable grounds for believing that [its] act or omission was not a violation of the 

[FLSA].” 29 U.S.C. § 260. In such circumstances, “the court may, in its sound 

discretion, award no liquidated damages or award any amount thereof not to exceed the 

amount specified in section 216 of this title.” See id. 

Second, the government argues that it should avoid liability for liquidated 

damages resulting from the late payment of overtime wages based on an interpretive 

bulletin issued by the Department of Labor (“DOL”) affording employers some leniency 

in this regard “[w]hen the correct amount of overtime compensation cannot be 

determined until some time after the regular pay period.” 29 C.F.R. § 778.106.

For the following reasons, the court finds neither argument persuasive. 
9 

1. Defendant has not demonstrated good faith and reasonable grounds 

for believing its failure to pay did not violate the FLSA 

The employer bears the burden of establishing good faith and reasonable grounds 

for its actions. See Adams v. United States, 350 F.3d 1216, 1226 (Fed. Cir. 2003). The 

burden is a substantial one, consisting of both a subjective good faith showing and an 

objective demonstration of reasonable grounds. Bull v. United States, 68 Fed. Cl. 212, 

229 (2005), clarified by 68 Fed. Cl. 276, aff’d, 479 F.3d 1365 (Fed. Cir. 2007) (citations 

omitted). “If . . . the employer does not show to the satisfaction of the court that he has 

met the two conditions mentioned above, the court is given no discretion by the statute, 

and it continues to be the duty of the court to award liquidated damages.” 29 C.F.R. § 

790.22(b). 

The initial good faith inquiry is subjective in nature and requires an employer to 

demonstrate “an honest intention to ascertain what the [FLSA] requires and to act in 

accordance with it.” Bull, 68 Fed. Cl. at 229 (quoting Beebe v. United States, 640 F.2d 

1283, 1295 (1981)). Here, the government argues that it believed, in good faith, that the 

ADA precluded timely payment of wages to plaintiffs because, in the absence of 

appropriations, there was no avenue for federal agencies to comply with the FLSA. See 

ECF No. 154 at 21. The government adds that it was precluded from complying with the 

FLSA, because “[i]t is a federal crime, punishable by fine and imprisonment, for any 

Government officer or employee to knowingly spend money in excess of that 

appropriated by Congress.” Id. at 22 (quoting Office of Pers. Mgmt. v. Richmond, 496 

U.S. 414, 430 (1990)). It also notes that an officer of the government who “knowingly 

and willfully [violates] section 1341(a) or 1342 of [the ADA] shall be fined not more 

than $5,000, imprisoned for not more than 2 years, or both.” Id. (quoting 31 U.S.C. § 

1350). 

The government’s effort to establish good faith, however, elides the requirement 

that it “take active steps to ascertain the dictates of the FLSA and then act to comply with 

them.” Angelo v. United States, 57 Fed. Cl. 100, 105 (2003) (quoting Herman v. RSR 

Sec. Services, 172 F.3d 132, 142 (2d Cir. 1999)). In Angelo v. United States, the court 

considered claims for overtime wages brought by federal employees. 57 Fed. Cl. at 101. 

In support of its good faith defense in that case, the government argued that the official, 

who erroneously had classified employees as exempt from overtime compensation, 

conducted a cursory review of the employees’ job descriptions and applicable 

regulations. Id. at 106. The official admitted in her deposition, however, that she had not 

considered, or even inquired, about the specific requirements for an exemption. Id. The 

court concluded “that [the official’s] admittedly limited inquiry [did] not . . . meet the 

good faith test.” Id. at 107. 

Defendant attempts to distinguish this case from Angelo, which it characterizes as 

a “typical” FLSA case in which adherence to the law “is within the employer’s control.” 
10

ECF No. 154 at 21. Here, defendant argues, “no course of compliance was available to 

Federal agencies; it was impossible for Federal agency officials to comply with both the 

FLSA and Anti-Deficiency Act during the shutdown.” Id. On this basis, the government 

asks the court to find that it acted in good faith by honoring the ADA’s express 

prohibition against making payments in the absence of an appropriation. Id. at 26. 

Contrary to the government’s suggestion, its burden under the FLSA is not met so 

easily. In Angelo, this court was not satisfied that good faith was established by even the 

limited inquiry conducted by the government into whether its actions were compliant. 

See 57 Fed. Cl. at 107. Here, defendant made no inquiry into how to comply with the 

FLSA, instead relying entirely on of the primacy of the ADA. By its own admission, the 

government did not consider—either prior to or during the government shutdown—

whether requiring essential, non-exempt employees to work during the government 

shutdown without timely payment of wages would constitute a violation of the FLSA. 

See ECF No. 151 at 4. Defendant further admits that it did not seek a legal opinion 

regarding how to meet the obligations of both the ADA and FLSA during the government 

shutdown, see id., an action it now claims would have been futile, see ECF No. 154 at 22. 

Defendant’s argument, essentially, asks the court to modify the standard for 

establishing good faith from a requirement that the employer demonstrate “an honest 

intention to ascertain” its legal obligations, to the much less stringent requirement that the 

employer demonstrate merely an honest belief that it could not comply with the 

requirements of the law. The defendant’s proposed inquiry contravenes the spirit of the 

FLSA by effectively reading out the requirement that an employer taking any action at all 

to determine its legal obligations. The court declines to adopt defendant’s test for 

establishing good faith. Because the government admittedly took no steps to determine 

its obligations under the FLSA during the 2013 shutdown, no disputed and material facts 

exist, and the court cannot find that it acted in good faith. 

Defendant claims that it had reasonable grounds for believing that the ADA 

precluded its compliance with the FLSA during the 2013 shutdown because this is an 

issue of first impression. See ECF No. 154 at 29. The court doubts the viability of such 

an argument, but will not indulge in a lengthy discussion of it in this case. The exception 

to liability for liquidated damages is a two-part test. Because defendant has failed to 

establish the first requirement of subjective good faith, the court need not determine 

whether it had objectively reasonable grounds for its inaction. 

As such, the exception that would permit the court to award a reduced amount of 

liquidated damages, or no liquidated damages at all, does not apply.2 

 

2

 The court appreciates that the parties diligently presented evidence of factors that may 

have affected a discretionary award of liquidated damages, such as actions and 

communications surrounding passage of the Pay Our Military Act, guidance documents 
11

2. Defendant has not satisfied the conditions under which late payment 

of overtime wages is permissible 

Despite the general rule “that overtime compensation earned in a particular 

workweek must be paid on the regular pay day for the period in which such workweek 

ends,” the DOL has afforded employers some leniency from the Act’s liquidated 

damages requirement with regard to overtime wages “[w]hen the correct amount of 

overtime compensation cannot be determined until some time after the regular pay 

period.” 29 C.F.R. § 778.106. This provision is an interpretive bulletin from the DOL, 

and as such, does not rise to the authoritative level of a regulation, but courts have 

regarded it as “a reasonable construction of the FLSA.” Brooks v. Vill. of Ridgefield 

Park, 185 F.3d 130, 135-36 (3rd Cir. 1999).

Defendant argues that it should be excused from liability for liquidated damages as 

to overtime wages because “an event wholly beyond the control of Federal agencies,” 

namely the 2013 shutdown, prevented it from complying with the FLSA timely payment 

rules. ECF No. 154 at 31. Before examining the substance of this claim, the court notes 

that this assertion rings hollow given certain of defendant’s responses in discovery.

By way of interrogatory no. 14, plaintiffs asked defendant to: 

Identify each agency of the Government that could not determine, 

compute, or arrange for the payment of overtime compensation during the

October 2013 partial shutdown because personnel involved in the process 

of determining, computing or arranging for the payment of overtime 

compensation were not classified as excepted employees and therefore 

were on furlough. 

ECF 153-16 at 3. In response, the government identified the Broadcasting Board of 

Governors (“BBG”), the National Aeronautics and Space Administration (“NASA”), and 

the Peace Corps. Id at 5. These three agencies employed only thirty-eight of the more 

than 24,000 plaintiffs in this case. The BBG employed twenty-nine, NASA employed 

three, and the Peace Corps employed six. See ECF No. 153-2 at 3. By defendant’s own 

admission, the agencies employing the vast majority of class members had staff in place 

during the 2013 shutdown who were capable of calculating overtime wages due to their 

employees. Thus, the DOL bulletin’s exception clearly does not apply to those many 

agencies. 

 

issued by the United States Office of Personnel Management relating to suggestions for 

mitigating hardships during furloughs, and the specific injuries suffered by plaintiffs in 

this case. Because the court has determined that it does not have discretion in the award 

or amount of liquidated damages, an extended discussion of this evidence is unnecessary. 
12

 The only remaining issue, then, is to determine whether defendant can avoid 

liability as to the thirty-eight individuals employed by the BBG, NSA, and the Peace 

Corps. As noted above, defendant argues that because the 2013 shutdown was “an event 

wholly beyond [its] control,” it should have triggered the DOL bulletin’s exception. See 

Dominici v. Bd. of Educ. of City of Chicago, 881 F. Supp. 315, 320 (N.D. Ill. 1995). 

This notion most comfortably fits with circumstances that involve a natural disaster, and 

cannot be used as an excuse for circumstances within the employer’s control. See id. 

(“Although this Court agrees that natural disasters or similar events wholly beyond the 

control of the employer may in proper circumstances allow an employer to make late 

payments without violating the FLSA, . . . [a]n employer may not set up an inefficient 

accounting procedure and then claim it is not responsible for timely payment of wages 

due to its own incompetence.”). 

Defendant argues that the agencies’ failure to timely pay overtime wages resulted 

from circumstances beyond the control of those agencies, inviting a distinction for 

purposes of liability in this case between the executive and legislative branches of the 

government. See ECF No. 154 at 30. The court declines to make such a distinction, and 

finds that application of the general rule requiring timely payment of overtime wages is 

appropriate in this case for two reasons. First, this argument is, essentially, another way 

of saying that defendant was unable to meet its obligations under the FLSA because of 

the ADA. The court has already found that the ADA does not excuse defendant’s FLSA 

violations, and to allow defendant to avoid liability under this exception would amount to 

an end run around that legal conclusion. 

 In addition, although neither the parties nor the court found a case involving the 

precise circumstances and context as the matter at bar, the Ninth Circuit’s decision in 

Biggs v. Wilson is again instructive. 1 F.3d 1537 (9th Cir. 1993). The dispute in Biggs 

involved the California Department of Transportation’s failure to timely pay overtime 

wages to certain employees during the 1990 state budget impasse. See id. at 1538. The 

Ninth Circuit upheld the district court’s conclusion that a fifteen-day delay in payment of 

overtime wages violated the FLSA. See id. at 1544. In reaching this conclusion, the 

Ninth Circuit cites the DOL bulletin, 29 U.S.C. § 778.106. See id. at 1543. Although the 

court did not discuss the specific portion of the bulletin that provides for an exception to 

timely payment, the court did look to the section as an authority for determining when 

payment is considered timely. See id. As such, this court considers it a fair inference 

that the Ninth Circuit was aware of the stated exception, and finds it notable that the court 

did not apply it in the circumstance of a budget impasse. While this inference does not 

alone provide the basis of this court’s decision, it certainly undercuts defendant’s position 

that an agency should be permitted to wield this exception to timely payment in the event 

of a budget impasse, like the one that resulted in the 2013 shutdown. 

Accordingly, the court holds that the DOL bulletin’s exception is unavailable in 

this case. 
13

D. Calculation of Liquidated Damages 

Because defendant has failed to establish the requirements for either exception to 

liability for liquidated damages, “it continues to be the duty of the court” to make an 

award. 29 C.F.R. § 790.22(b). In accordance with 29 U.S.C. § 216(b), the court finds 

that plaintiffs are entitled to liquidated damages in an amount equal to the minimum and 

overtime wages that defendant failed to timely pay. 

Consistent with the conclusions in this opinion, plaintiffs shall calculate the 

amount due from the defendant, delineated either by individual class member or by 

relevant categories of class members. On or before March 17, 2017, plaintiffs shall 

submit a draft of those calculations to defendant. On or before March 31, 2017, the 

parties shall confer and discuss any disagreements as to the calculations. Following this 

conference, on or before April 7, 2017, the parties shall jointly file a statement with the 

court reporting the results of both the conference and the calculations so that the court 

may proceed to entering a judgment in this case. 

IV. Conclusion 

Plaintiffs’ motion for partial summary judgment, see ECF No. 153, is 

GRANTED. Defendant’s cross-motion for summary judgment, see ECF No. 154, is 

DENIED. 

As indicated above, on or before March 17, 2017, plaintiffs shall submit a draft of 

their damages calculations to defendant. On or before March 31, 2017, the parties shall 

confer and discuss any disagreements as to the calculations. And, on or before April 7, 

2017, the parties shall jointly file a statement with the court reporting the results of both 

the conference and the calculations. 

IT IS SO ORDERED. 

s/ Patricia E. Campbell-Smith 

PATRICIA E. CAMPBELL-SMITH

Chief Judge