United States Court of Appeals 

for the Federal Circuit ______________________ 

JOSEPH ABRANTES, NEFTALI ACEVEDO, 

HECTOR ACOSTA, JOSE ACOSTA, DAVID ADAMS, 

SEAN ADARME, JOSE AGUILAR, DANIEL ALBA, 

MICHELLE ALBERTSON, KENIE ACEVEDOCORREA, AND ALL PLAINTIFFS REPRESENTED 

BY ALAN LESCHT AND ASSOCIATES, PC WITH 

JACK JARRETT AS LEAD COUNSEL,

Plaintiffs-Appellees

v.

UNITED STATES,

Defendant-Appellant

______________________ 

2021-2021

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:19-cv-00129-PEC, Judge Patricia E. CampbellSmith.

______________________ 

Decided: November 30, 2022

______________________ 

LEON DAYAN, Bredhoff & Kaiser, PLLC, Washington, 

DC, argued for plaintiffs-appellees. Also represented by 

GARY E. MASON, DANIELLE LYNN PERRY, Mason LLP, 

Washington, DC; CONOR DANIEL AHERN, Alan Lescht and 

Associates, PC, Washington, DC. 

Case: 21-2021 Document: 49 Page: 1 Filed: 11/30/2022
2 ABRANTES v. US

 MARK B. STERN, Appellate Staff, Civil Division, United 

States Department of Justice, Washington, DC, argued for 

defendant-appellant. Also represented by BRIAN M.

BOYNTON, SEAN JANDA, MICHAEL SHIH. 

______________________ 

Before REYNA, LINN, and HUGHES, Circuit Judges. 

Opinion for the court filed by Circuit Judge HUGHES. 

Dissenting opinion filed by Circuit Judge REYNA. 

HUGHES, Circuit Judge.

The government appeals a decision of the United 

States Court of Federal Claims denying the government’s 

motion to dismiss for failure to state a claim. The government delayed payment to border patrol agents until the 

end of a partial government shutdown, as dictated by the 

Anti-Deficiency Act. The Court of Federal Claims ruled 

that the delay established a prima facie violation of the 

Border Patrol Agent Pay Reform Act and an unjustified or 

unwarranted personnel action entitling employees to interest and attorney fees under the Back Pay Act. Because we 

hold that the Border Patrol Agent Pay Reform Act and 

Back Pay Act do not require the government to make payments during a lapse in appropriations, we reverse.

I 

The facts and procedural history of this case mirror 

those laid out in our opinion issued today in Avalos v. 

United States, No. 21-2008 (Fed. Cir. Nov. 30, 2022). In Avalos, federal employees who worked during the 2018–2019 

partial government shutdown alleged that the government 

violated the Fair Labor Standards Act (FLSA) by delaying 

payments until after the shutdown ended. This case concerns border patrol agents who also worked during the 

shutdown but are exempt from the FLSA under 29 U.S.C. 

§ 213(a)(18). 

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ABRANTES v. US 3

From December 22, 2018, to January 25, 2019, the federal government partially shut down due to a lapse in appropriations. Plaintiffs-Appellees, border patrol agents

working for U.S. Customs and Border Protection, were “excepted employees” required to keep working during the 

shutdown. 31 U.S.C. §§ 1341(c)(2), 1342. The government 

did not pay Plaintiffs-Appellees during the shutdown, instead adhering to the Anti-Deficiency Act’s prohibition on 

“authoriz[ing] an expenditure or obligation exceeding an 

amount available in an appropriation or fund for the expenditure or obligation.” Id. § 1341(a)(1)(A). The parties do 

not dispute that the government paid Plaintiffs-Appellees 

their accrued wages after the partial shutdown ended, and 

Plaintiffs-Appellees do not allege that the government 

failed to pay them at the earliest possible date after the 

shutdown ended, as the Anti-Deficiency Act requires. See 

id. § 1341(c)(2). 

Plaintiffs-Appellees sued in the Court of Federal 

Claims, alleging that the government “violated [the Border 

Patrol Agent Pay Reform Act (BPAPRA)] by not paying 

Plaintiffs[-Appellees] their wages on their regularly scheduled payday” for work they performed after the shutdown 

began. Complaint at ¶ 16, Abrantes v. United States, 151 

Fed. Cl. 551 (2020) (No. 19-129C), ECF No. 1. PlaintiffsAppellees further alleged that the late payments were unjustified personnel actions under the Back Pay Act and

therefore seek both interest on their back pay and attorney 

fees. See id. at 36–37 ¶¶ 17–18, 44 ¶¶ (f)–(g); Plaintiffs-Appellees’ Br. 8.

The government moved to dismiss Plaintiffs-Appellees’ 

complaint for failing to state a claim, under Court of Federal Claims Rule 12(b)(6). The government argued that, 

when Congress enacted provisions of the Anti-Deficiency 

Act that “criminalized payments during an appropriations 

lapse, Congress plainly precluded payments on the schedule plaintiffs assert is required by the BPAPRA and the 

[Back Pay Act].” Defendant’s Motion to Dismiss at 10–11, 

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4 ABRANTES v. US

Abrantes, 151 Fed. Cl. 551 (No. 19-129C), ECF No. 23.

“Federal officials who comply with that criminal prohibition do not violate the BPAPRA or the [Back Pay Act],” the 

government argued, because “Congress did not create a 

scheme under which compliance with the Anti-Deficiency 

Act would result in additional compensation as damages to 

federal employees.” Id. at 11. 

The Court of Federal Claims denied the government’s 

motion to dismiss, reasoning that the government’s “obligations under the [Anti-Deficiency Act] do not abrogate its 

obligations under” the BPAPRA and the Back Pay Act. 

Abrantes, 151 Fed. Cl. at 556–57. Although “[t]he text of 

the BPAPRA does not specify a date on which wages must 

be paid,” the Court of Federal Claims viewed Plaintiffs-Appellees’ claim as having accrued during the shutdown, “at 

the time the [g]overnment fail[ed] to make the payment alleged to be due.” Id. at 554–55 (quoting Burich v. United 

States, 366 F.2d 984, 986 (Ct. Cl. 1966)). 

The Court of Federal Claims then granted the government’s motion to certify an interlocutory appeal of “the legal reasoning underlying the government’s position” that it 

is not “liable for damages under the BPAPRA when it complies with the Anti-Deficiency Act’s command to defer payment of federal employees’ wages during a lapse in 

appropriations.” Order at 1–2, Abrantes, 151 Fed. Cl. 551 

(No. 19-129C), ECF No. 69 (cleaned up). The government 

appeals. We have jurisdiction under 28 U.S.C. § 1292(d).

II

We review the Court of Federal Claims’ legal conclusions de novo and its factual findings for clear error. Adams 

v. United States, 350 F.3d 1216, 1221 (Fed. Cir. 2003). Because the Court of Federal Claims certified for interlocutory appeal the “legal reasoning” of the parties’ positions 

on a motion to dismiss, we review the legal question de 

novo, “accept[ing] all well-pleaded factual allegations as 

true and draw[ing] all reasonable inferences in [PlaintiffsCase: 21-2021 Document: 49 Page: 4 Filed: 11/30/2022
ABRANTES v. US 5

Appellees’] favor.” Harris v. United States, 868 F.3d 1376, 

1379 (Fed. Cir. 2017).

As we detail in Avalos, the Anti-Deficiency Act dates 

back to 1870. The Act has long prohibited “an officer or employee” of the United States government from “mak[ing] or 

authoriz[ing] 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). An officer 

or employee who violates this provision is subject to “administrative discipline” and, for willful violations, criminal 

penalties. Id. §§ 1349(a), 1350. 

The BPAPRA, enacted in 2014, governs compensation 

for border patrol agents. Border Patrol Agent Pay Reform 

Act of 2014, Pub. L. No. 113-277, 128 Stat. 2995 (codified 

primarily at 5 U.S.C. § 5550). Under BPAPRA, each border 

patrol agent “shall receive pay” that corresponds with the 

agent’s assigned level of pay. 5 U.S.C. § 5550(b)(2)(B), 

(b)(3)(B); see also id. § 5550(b)(4)(A). And each “border patrol agent shall receive compensatory time off or pay at the 

overtime hourly rate of pay for hours of work in excess of” 

the regular number of hours set for each level. Id.

§ 5550(b)(2)(D), (b)(3)(D), (b)(4)(B). The BPAPRA does not 

specify a date on which the government must pay wages. 

The BPAPRA includes no provision authorizing monetary relief for violations, so employees seeking such relief 

must proceed under some other remedial statute. Plaintiffs-Appellees proceed under the Back Pay Act. Passed in 

1966, the Back Pay Act provides that an agency employee 

“affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of 

all or part of the [employee’s] pay” is “entitled, on correction 

of the personnel action, to receive” back pay. Back Pay Act

of 1966, Pub. L. No. 89-380, 80 Stat. 94 (codified at 5 U.S.C. 

§ 5596(b)). Congress amended the Back Pay Act in 1978 to 

provide for attorney fees, Civil Service Reform Act of 1978, 

Pub. L. No. 95-454 § 702, 92 Stat. 1111, 1216 (codified at 5 

Case: 21-2021 Document: 49 Page: 5 Filed: 11/30/2022
6 ABRANTES v. US

U.S.C. § 5596(b)(1)(A)(ii)), and again in 1987 to provide for 

interest computed from “the effective date of the withdrawal or reduction involved.” Joint Resolution Making 

Further Continuing Appropriations for the Fiscal Year 

1988, and for Other Purposes, Pub. L. No. 100-202, tit. VI

§ 623(a), 101 Stat. 1329, 1329-428–29 (1987) (codified at 5 

U.S.C. § 5596(b)(2)).

III

This appeal turns on whether the BPAPRA and the 

Back Pay Act require payment on an employee’s regular 

pay date during a lapse in appropriations, even though the 

Anti-Deficiency Act prohibits the government from making 

such payments until after the lapse ends. Plaintiffs-Appellees argue that delayed payment violates the BPAPRA and 

is an unwarranted or unjustified personnel action actionable under the Back Pay Act, notwithstanding the Anti-Deficiency Act. The government may thus be liable for 

interest and attorney fees even after paying the wages due. 

The government responds that Congress did not intend for 

the BPAPRA to impose any implicit obligation to pay wages 

on a particular date that “would penalize compliance with 

the existing provisions of the Anti-Deficiency Act.” Defendant-Appellant’s Reply Br. 17.

For reasons similar to those in Avalos, we hold that the 

government does not violate any implicit timely payment 

obligation in the BPAPRA and Back Pay Act when, as required by the Anti-Deficiency Act, it defers payments to excepted employees until after a lapse in appropriations 

ends. 

A 

Our opinion today in Avalos addresses the analogous 

question of whether the FLSA, which implicitly imposes a 

timely payment obligation, requires payment during a 

shutdown and thus imposes liability for liquidated 

Case: 21-2021 Document: 49 Page: 6 Filed: 11/30/2022
ABRANTES v. US 7

damages for the government’s failure to pay wages until 

after the shutdown ends.

The FLSA imposes a firmly established, implicit timely 

payment obligation. Rogers v. City of Troy, 148 F.3d 52, 55 

(2d Cir. 1998); Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 

707 (1945) (reasoning that the FLSA’s liquidated damages 

provision “constitutes a Congressional recognition that 

failure to pay the statutory minimum on time may be so 

detrimental . . . that double payment must be made in the 

event of delay”). Relying in part on the principle that claims 

for nonpayment of wages accrue on the employee’s regular 

pay date, courts have held that FLSA’s implicit timely payment obligation ordinarily requires employers to pay wages 

by “the employee’s regular payday.” Biggs v. Wilson, 1 F.3d 

1537, 1541 (9th Cir. 1993). 

We hold in Avalos that “the FLSA’s timely payment obligation considers the circumstances of payment and that, 

as a matter of law, the government does not violate this 

obligation when it complies with the Anti-Deficiency Act by 

withholding payment during a lapse in appropriations.” 

Avalos, No. 21-2008, slip op. 15. Under this interpretation, 

we reason, the FLSA’s timely payment obligation neither 

conflicts with nor implicitly overrules the Anti-Deficiency 

Act. Id. 

B 

Plaintiffs-Appellees urge that a timely payment obligation is implicit in the BPAPRA and Back Pay Act for the 

same reasons that one is implicit in the FLSA. We need not 

decide today whether the BPAPRA and Back Pay Act contain any type of implicit timely payment requirement. It is 

enough to note that the BPAPRA and Back Pay Act do not 

impose any more rigid a timely payment than the FLSA. 

Plaintiffs-Appellees acknowledge that, like the FLSA, 

the BPAPRA and Back Pay Act do not explicitly address 

when payment generally is due or whether payment is due 

Case: 21-2021 Document: 49 Page: 7 Filed: 11/30/2022
8 ABRANTES v. US

during a lapse in appropriations. Plaintiffs-Appellees note 

that both the FLSA and BPAPRA include similar mandatory language: the FLSA states that each employer “shall 

pay” certain wages, 29 U.S.C. § 206(a), and the BPAPRA 

mandates that each border patrol agent “shall receive pay” 

at a certain rate. 5 U.S.C. § 5550(b)(2)(B), (b)(3)(B). But 

even if the BPAPRA together with the Back Pay Act generally require timely payment on regular pay dates, a lapse 

in appropriations is a circumstance that justifies later payment. As we found in Avalos, this interpretation of the 

BPAPRA and Back Pay Act avoids conflict with or implicit 

overruling of the Anti-Deficiency Act.

“[W]here two statutes are capable of co-existence, it is 

the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 

(1984) (internal quotation omitted). Plaintiffs-Appellees 

propose giving effect to both statutes by holding that delayed payment due to a lapse in appropriations violates the 

BPAPRA and the Back Pay Act. But this would create an 

unnecessary conflict with the Anti-Deficiency Act. The 

BPAPRA and the Back Pay Act would require payment 

during a lapse in appropriations, while the Anti-Deficiency 

Act would prohibit it. This is an absurd result that we 

should avoid, if possible. See Haggar Co. v. Helvering, 308 

U.S. 389, 394 (1940).

Interpreting the Back Pay Act and BPAPRA to abrogate the Anti-Deficiency Act’s prohibition on making payments during a lapse in appropriations would be even more 

untenable. We disfavor repeals by implication, “particularly . . . when, as here, we are urged to find that a specific 

statute . . . has been superseded by a more general one.” 

Sw. Marine of S.F., Inc. v. United States, 896 F.2d 532, 533 

(Fed. Cir. 1990). “A party seeking to suggest that two statutes cannot be harmonized, and that one displaces the 

other, bears the heavy burden of showing ‘a clearly expressed congressional intention’ that such a result should 

Case: 21-2021 Document: 49 Page: 8 Filed: 11/30/2022
ABRANTES v. US 9

follow.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 

(2018) (cleaned up). The Anti-Deficiency Act lays out with 

specificity that the government may not pay workers during a shutdown. The later-enacted BPAPRA, although specific about who must be paid and how much, is more 

general with respect to when payments must be made. The

Back Pay Act is likewise non-specific as to timing. If Congress intended to upend or modify the Anti-Deficiency Act’s 

long-standing prohibition on making expenditures for 

which Congress has not appropriated funds, it could have 

done so with a specific and express statement. PlaintiffsAppellees have not shown that providing a remedy for “unjustified or unwarranted personnel actions” was a clear 

statement of Congressional intent to overturn the specific 

prohibitions of the Anti-Deficiency Act. 

The government’s position gives full effect to the AntiDeficiency Act, BPAPRA, and Back Pay Act and avoids the 

implicit repeal of any provision of the Anti-Deficiency Act: 

A lapse in appropriations justifies the government paying 

wages after an employee’s regularly scheduled pay date. 

Payment at the earliest possible date after a shutdown is

not an “unjustified or unwarranted” personnel action creating liability for interest or attorney fees under the Back 

Pay Act.

* * * 

Because the government, as a matter of law, did not 

violate the BPAPRA and the Back Pay Act when it paid 

border patrol agents “at the earliest date possible after the 

lapse in appropriations end[ed],” 31 U.S.C. § 1341(c)(2), we 

reverse the Court of Federal Claims’ decision denying the 

government’s motion to dismiss for failure to state a claim

and remand for entry of judgment consistent with this 

opinion. 

REVERSED AND REMANDED

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10 ABRANTES v. US

COSTS

No costs.

Case: 21-2021 Document: 49 Page: 10 Filed: 11/30/2022
United States Court of Appeals 

for the Federal Circuit ______________________ 

JOSEPH ABRANTES, NEFTALI ACEVEDO, 

HECTOR ACOSTA, JOSE ACOSTA, DAVID ADAMS, 

SEAN ADARME, JOSE AGUILAR, DANIEL ALBA, 

MICHELLE ALBERTSON, KENIE ACEVEDOCORREA, AND ALL PLAINTIFFS REPRESENTED 

BY ALAN LESCHT AND ASSOCIATES, PC WITH 

JACK JARRETT AS LEAD COUNSEL,

Plaintiffs-Appellees

v.

UNITED STATES,

Defendant-Appellant

______________________ 

2021-2021

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:19-cv-00129-PEC, Judge Patricia E. CampbellSmith.

______________________ 

REYNA, Circuit Judge, dissenting.

The United States Court of Federal Claims denied the 

government’s motion to dismiss for failure to state a cause 

of action. It determined that Plaintiffs-Appellees sufficiently stated a claim for relief under the Back Pay Act and 

the Border Patrol Agent Pay Reform Act (“BPAPRA”). 

Abrantes v. United States, 151 Fed. Cl. 551, 552–53 (2020). 

Case: 21-2021 Document: 49 Page: 11 Filed: 11/30/2022
2 ABRANTES v. US

The majority reverses and remands, holding that the 

Anti-Deficiency Act renders null the relevant provisions of 

the BPAPRA and Back Pay Act when the failure to pay 

timely wages is a result of a government shutdown. 

Maj. Op. 7–9. I disagree. 

Briefly, the BPAPRA governs compensation for border 

patrol agents and outlines three “levels” of pay. See

5 U.S.C. § 5550. It provides that each “border patrol agent 

shall receive pay” corresponding to their assigned level and 

“shall receive compensatory time off or pay at the overtime 

hourly rate of pay for hours of work in excess of” the number of hours set for each level. 5 U.S.C. § 5550(b)(2)(B), 

(b)(2)(D), (b)(3)(B), (b)(3)(D), (b)(4)(B). The Back Pay Act 

provides:

An employee of an agency who . . . is found by appropriate authority under applicable law . . . to 

have been affected by an unjustified or unwarranted personnel action which has resulted in the 

withdrawal or reduction of all or part of the pay, 

allowances, or differentials of the employee— 

(A) is entitled, on correction of the personnel action, to receive for the period for 

which the personnel action was in effect— 

(i) an amount equal to all or any 

part of the pay, allowances, or differentials, as applicable which the 

employee normally would have 

earned or received during the period if the personnel action had not 

occurred, less any amounts earned 

by the employee through other employment during that period.

5 U.S.C. § 5596(b)(1). 

Plaintiffs-Appellees allege that they were required to

work during a government shutdown and were not paid on 

Case: 21-2021 Document: 49 Page: 12 Filed: 11/30/2022
ABRANTES v. US 3

their scheduled pay day. They allege that failure to timely 

pay wages constitutes an unjustified and unwarranted personnel action under the Back Pay Act. Appellee’s Br. 13–

14.

The majority does not reach the question raised on appeal noting that “even if the BPAPRA together with the 

Back Pay Act generally require timely payment on regular 

pay dates, a lapse in appropriations is a circumstance that 

justifies later payment.” Maj. Op. 8. 

I disagree with my colleagues for the reasons I set out 

in my dissent in Avalos v. United States, No. 21-2008 (Fed. 

Cir. Nov. 30, 2022) which, for purposes of economy, I incorporate and submit in this appeal. See infra. I determine 

that the Plaintiffs-Appellees are not barred as a matter of 

law from pursuing their claim for relief under the Back Pay 

Act and the BPAPRA. As such, I would affirm the Court of 

Federal Claims’ denial of the government’s motion to dismiss for failure to state a cause of action. Abrantes, 151 

Fed. Cl. at 552–53. 

* * * 

This appeal involves two statutes. The Fair Labor 

Standards Act (“FLSA”) requires employers, including the 

U.S. government, to pay workers earned wages on a regularly scheduled pay period basis. Employers that fail to 

pay their workers on a timely scheduled basis are subject 

to certain penalties, including liquidated damages. The 

other statute, the Anti-Deficiency Act (“ADA”), applies to 

government officials. It prohibits government officials 

from making expenditures, where the expenditure is not 

funded by duly passed appropriations. In other words, the 

government lacks authority to spend money it does not 

have.

The majority interprets the relevant provisions of the 

ADA and FLSA to mean that the ADA renders null the liquated damages provision of the FLSA. I disagree. I 

Case: 21-2021 Document: 49 Page: 13 Filed: 11/30/2022
4 ABRANTES v. US

believe that each statute stands alone and that the relevant provisions of the two statutes are not inconsistent 

with each other. 

From December 22, 2018, to January 25, 2019, the federal government partially shutdown due to lack of appropriations (funding). Avalos v. United States, 151 Fed. Cl. 

380, 382 (2020); J.A. 274. To keep key parts of the government functioning, the government created two categories 

of federal employee: “excepted” and “non-excepted.” Nonexcepted employees were instructed to not show-up for 

work and received no compensation for the period of time 

they did not report for work. This appeal does not involve 

non-excepted employees.

The “excepted” employees were required to report for 

work during the shutdown, to continue working and to perform normal duties. Despite working and earning wages 

during the shutdown, the excepted employees were not 

paid for their work until the first payday after the shutdown ended. Avalos, 151 Fed. Cl. at 382–83. This means 

that excepted employees received no pay on their regularly 

scheduled paydays during the shutdown. 

At the time of the shutdown, Plaintiffs-Appellees were 

employed as Customs and Border Protection Officers for 

the U.S. Department of Homeland Security. These officers 

(“CBP Officers”) were designated as excepted employees 

and were required to report for work. Id. at 382. They received no pay during the shutdown but were paid on the 

first regularly scheduled payday that came after January 

25, 2019, the day the shutdown ended. Id.; J.A. 280–83. 

On January 29, 2019, the CBP Officers filed their 

amended complaint in the United States Court of Federal 

Claims (“Court of Claims”) seeking liquidated damages for 

the time they worked without pay during the shutdown. 

J.A. 288. The CBP Officers alleged that, under the FLSA, 

the government was liable for liquidated damages because 

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ABRANTES v. US 5

during the shutdown it failed to pay wages on their regularly scheduled payday(s).

The government moved to dismiss the suit for failure 

to state a claim. The government did not dispute that the 

CBP Officers were not timely paid during the shutdown. 

The government asserted that the government shutdown 

was caused by a lack of general appropriation and, therefore, it was prohibited from paying the CBP Officers. According to the government, it cannot, as a matter of law, be 

held liable for liquidated damages that are based on wages 

not paid during the shutdown because the ADA prohibited 

it from paying the wages for which there was no funding 

during a shutdown. The Court of Claims denied the government’s motion based largely on its decision in Martin, 

which involved issues identical to the issues in this case. 

Avalos, 151 Fed. Cl. at 387–91 (discussing Martin v. United 

States, 130 Fed. Cl. 578 (2017)). The government appeals 

the judgment of the Court of Claims.

According to the majority, the “central question in this 

appeal is how the Anti-Deficiency Act’s prohibition on government spending during a partial shutdown coexists with 

the FLSA’s seemingly contradictory timely payment obligation.” Maj. Op. 14. The majority reverses and remands

to the Court of Claims, holding that the government cannot, as a matter of law, be held liable for liquidated damages under the FLSA where the failure to pay employee 

wages was due to a government shutdown. I disagree with 

my colleagues on several fronts.

First, the majority errs that as a matter of law, there is 

no FLSA violation in this case. The law is well-settled on 

the question of whether federal employees are entitled to 

liquidated damages under the FLSA when they are not 

paid on their regular payday. The FLSA makes clear that 

failure to pay wages on regularly scheduled paydays constitutes a FLSA violation. 

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6 ABRANTES v. US

The majority is also incorrect that liquidated damages 

cannot attach because the government was prohibited by 

the ADA, and presumably not of its own choosing, from 

paying the CBP Officers.

My sense is that the FLSA and ADA are distinct statutes with distinct purposes whose operations in this case 

neither intersect nor are otherwise inconsistent. Stated 

differently, the ADA in this instance does not trump the 

FLSA and render its liquidated damages provision null. 

The FLSA provides in relevant part: 

Every employer shall pay to each of his employees 

who in any workweek is engaged in commerce or in 

the production of goods for commerce, or is employed in an enterprise engaged in commerce or in 

the production of goods for commerce, wages at the

following rates . . . not less than $7.25 an hour. 

29 U.S.C. § 206(a)(1)(C). The FLSA is administered to federal employees by the Office of Personnel Management 

(“OPM”). OPM has promulgated a regulation providing 

that employees must be paid “wages at rates not less than 

the minimum wage . . . for all hours of work.” 

5 CFR § 551.301(a)(1). The FLSA provides that employers 

who violate these provisions “shall be liable to the 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). 

Again, the undisputed facts are that the government 

required the CBP Officers to report to work during the 

shutdown; and that the CBP Officers were not paid wages 

on their regularly scheduled paydays. These circumstances clearly apply to § 216(b) of the FLSA, and on this 

basis, I would find that the government’s failure to pay the 

CBP Officers during the shutdown was a violation of the 

FLSA. 

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ABRANTES v. US 7

The majority appears to agree with the foregoing conclusion, but my colleagues take steps to avoid saying so. 

Namely, they engage in an unorthodox statutory interpretation that first examines whether the statutes are contradictory and whether the statutes can coexist. BedRoc Ltd., 

LLC v. United States, 541 U.S. 176, 183 (2004) (The statutory interpretation “inquiry begins with the statutory text, 

and ends there as well if the text is unambiguous.”); see 

also Me. Cmty. Health Options v. United States, 140 S. Ct. 

1308, 1321–22 (2020) (explaining that the ADA did not 

“qualify” the government’s obligation to pay an amount created by the “plain terms” of a statute). In so doing, the 

majority concludes that the government is shielded from 

liquidated damages if the failure to pay is due to a shutdown. In other words, the statutes can be said to coexist 

because the FLSA is rendered nugatory. 

There is no principled basis for the majority view. Indeed, the opposite is true. The FLSA is remedial in nature, 

and it acts as a shield to protect workers. Not so with the 

ADA. The ADA is meant to punish government officials for 

certain actions. The ADA neither references the FLSA nor 

the liquidated damages provision of § 216(b). Nothing in 

the statues, or applicable caselaw, supports an argument 

that the ADA applies to federal workers. 

The Supreme Court has recognized that the FLSA was 

enacted “to protect certain groups of the population from 

substandard wages and excessive hours which endangered 

the national health and well-being and the free flow of 

goods in interstate commerce.” Brooklyn Sav. Bank v. 

O’Neil, 324 U.S. 697, 706 (1945) (citing H. Rep. No. 2738, 

75th Cong., 3d Sess., pp. 1, 13, 21, and 28). The FLSA recognizes that employees do not have equal bargaining power 

and serves to protect them. Id. 

Similarly, the Supreme Court has explained that the 

FLSA liquidated damages provision is not meant as punishment for the employer, but rather, focuses on 

Case: 21-2021 Document: 49 Page: 17 Filed: 11/30/2022
8 ABRANTES v. US

compensating the employee. Id. at 707 (“[T]he liquidated 

damages provision is not penal in its nature but constitutes 

compensation for the retention of a workman’s pay which 

might result in damages too obscure and difficult of proof 

for estimate other than by liquidated damages.”). 

According to the Supreme Court, 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 

Government.” Salazar v. Ramah Navajo Chapter, 567 U.S. 

182, 197 (2012) (citation omitted). 

Here, the CBP Officers were honestly “contracting” 

with the government. There is no legal support for the belief that government workers forfeit their FLSA protection 

at a time of shutdowns. As the Supreme Court has noted, 

the insufficiency of an appropriation “does not pay the Government’s debts, nor cancel its obligations.” Me. Cmty., 140 

S. Ct. at 1321–22 (2020) (quoting Ramah, 567 U.S. at 197). 

This court has recognized, “the Supreme Court has rejected 

the notion that the Anti-Deficiency Act’s requirements 

somehow defeat the obligations of the government.” Moda 

Health Plan, Inc. v. United States, 892 F.3d 1311, 1322 

(Fed. Cir. 2018) rev’d on other grounds, Me. Cmty., 140 S.

Ct. 1308. 

The majority fails to point to legal authority for the 

proposition that the ADA cancels the government’s obligation to protect the very federal employees that the FLSA 

was intended by Congress to protect. I see no congressional 

requirement or Supreme Court precedent that negates liquidated damages under the FLSA or the ADA. Rather, the 

liquated damages provision of the FLSA “constitutes a 

Congressional recognition that failure to pay the statutory 

minimum on time may be so detrimental to maintenance of 

the minimum standard of living ‘necessary for health, efficiency, and general well-being of workers’ and to the free 

flow of commerce, that double payment must be made in 

the event of delay.” Brooklyn Sav., 324 U.S. at 707 

Case: 21-2021 Document: 49 Page: 18 Filed: 11/30/2022
ABRANTES v. US 9

(emphasis added) (citation omitted). And as this court has 

explained, the “usual rule” is “that a claim for unpaid overtime under the FLSA accrues at the end of each pay period 

when it is not paid.” Cook v. United States, 855 F.2d 848, 

851 (Fed. Cir. 1988).

Other regional circuits have concluded that a FLSA 

claim accrues when an employer fails to pay employees on 

their regular payday, and that the FLSA violation occurs 

on that date. See Atl. Co. v. Broughton, 146 F.2d 480, 482 

(5th Cir. 1944) (“[I]f an employer on any regular payment 

date fails to pay the full amount . . . due an employee, there 

immediately arises an obligation upon the employer to pay 

the employee . . . liquidated damages.”); Birbalas v. Cuneo 

Printing Indus., 140 F.2d 826, 828 (7th Cir. 1944) (“[O]vertime compensation shall be paid in the course of employment and not accumulated beyond the regular pay 

day . . . . [T]he failure to pay it, when due, [is] a violation 

of [the FLSA].”); Biggs v. Wilson, 1 F.3d 1537, 1540 (9th 

Cir. 1993) (“The only logical point that wages become ‘unpaid’ is when they are not paid at the time work has been 

done, the minimum wage is due, and wages are ordinarily 

paid—on payday.”); Olsen v. Superior Pontiac-GMC, Inc., 

765 F.2d 1570, 1579 (11th Cir. 1985), modified, 776 F.2d 

265 (11th Cir. 1985) (“The employee must actually receive

the minimum wage each pay period.”).

The majority asserts a number of other conclusions: 

that the ADA trumps the FLSA because it was passed first 

and is more specific than the FLSA; that requiring liquidated damages in this situation would lead to an “absurd 

result”; and that the government would be forced to “choose 

between a violation of the Anti-Deficiency Act or the 

FLSA.” Maj. Op. 18–19. But we need not reach these questions because there is no justiciable conflict between the 

two laws. See, e.g., Epic Sys. Corp. v. Lewis, 138 S. Ct. 

1612, 1624 (2018) (“Respect for Congress as drafter counsels against too easily finding irreconcilable conflicts in its 

work . . . . Allowing judges to pick and choose between 

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10 ABRANTES v. US

statutes risks transforming them from expounders of what 

the law is into policymakers choosing what the law should 

be.”). I do agree with the majority that “where two statutes 

are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Maj. Op. 19 (quoting 

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 (1984)). 

Payday is important to the everyday worker. Missing 

a paycheck can have devasting consequences. That is what 

this case is about. Congress sought a remedy for such consequences by extending the potential for liquidated damages. Here, the employer should not be absolved of 

adherence to the FLSA, more so where the employer is the 

government that brought on the shutdown. 

The Court of Claims correctly analyzed the statute and 

binding Supreme Court precedent. I would affirm the 

Court of Claims’ decision and allow the case to continue.

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