B-216640.7, Sep 15, 1989, 68 Comp.Gen. 681

B-216640.7: Sep 15, 1989

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Federal firefighters' request for additional retroactive FLSA compensation on the basis of a 1984 letter submitted to our Office is denied since the letter was not accompanied by a signed representation authorization or claim over the signature of the claimants so as to toll the 6-year Barring Act. Our Office will follow the decision in Lanehart v. When eligible employees are on authorized leave. We will allow claims for overtime compensation for all periods of paid leave. Are overruled. Federal Firefighters - Overtime Pay - Application of Barring Act - Authorized Leave: This decision is in response to a request from the Department of Justice. The issue presented by Justice is whether a 1984 letter submitted to our Office by a local union president on behalf of firefighters.

B-216640.7, Sep 15, 1989, 68 Comp.Gen. 681

CIVILIAN PERSONNEL - Compensation - Overtime - Claims - Statutes of limitation 1. Federal firefighters' request for additional retroactive FLSA compensation on the basis of a 1984 letter submitted to our Office is denied since the letter was not accompanied by a signed representation authorization or claim over the signature of the claimants so as to toll the 6-year Barring Act, 31 U.S.C. Sec. 3702(b) (1982). CIVILIAN PERSONNEL - Compensation - Overtime - Eligibility - Court decisions CIVILIAN PERSONNEL - Leaves of Absence - Overtime - Eligibility 2. Our Office will follow the decision in Lanehart v. Horner, 818 F.2d 1574 (Fed. Cir. 1987), which held that the leave with pay statutes prevent any reduction in firefighters' regular and customary pay, including overtime pay under the Fair Labor Standards Act, 29 U.S.C. Secs. 201 et seq., when eligible employees are on authorized leave. Therefore, we will allow claims for overtime compensation for all periods of paid leave, subject to the 6-year limitation period in 31 U.S.C. Sec. 3702(b). Our contrary decisions, B-216640, Mar. 13, 1985, B-216640, Sept. 18, 1985, 60 Comp.Gen. 493 (1981), 55 Comp.Gen. 1035 (1976), are overruled.

Federal Firefighters - Overtime Pay - Application of Barring Act - Authorized Leave:

This decision is in response to a request from the Department of Justice. The issue presented by Justice is whether a 1984 letter submitted to our Office by a local union president on behalf of firefighters, who were members of the local at that time, constituted a filing of an administrative claim for purposes of tolling the Barring Act. /1/For the reasons that follow, we hold that it did not.

BACKGROUND

The Justice Department is in the process of settling numerous claims for payment of backpay and interest under the Fair Labor Standards Act (FLSA), 29 U.S.C. Secs. 201 et seq. (1982). The plaintiffs are federal firefighters who initially filed suit in the Claims Court, in Davila v. United States, Claims Court No. 50-88C, for reimbursement of overtime for periods of paid leave. This suit is one of numerous similar suits that were brought and are part of a consolidated settlement as the result of a decision by the United States Court of Appeals, Federal Circuit, in Lanehart v. Horner, 818 F.2d 1574 (Fed. Cir. 1987). The Lanehart decision held that the leave with pay statutes prevent any reduction in regular overtime pay under the FLSA when eligible employees are on authorized leave under the provisions of 5 U.S.C. Secs. 6303, 6307, 6322, or 6323.

The legal issues raised in Lanehart were previously considered by our Office. We concluded that federal firefighters could be allowed overtime compensation during periods of court and military leave under 5 U.S.C. Secs. 6322 and 6323, but that this entitlement did not extend to periods of annual and sick leave under 5 U.S.C. Secs. 6303 and 6307. Overtime Compensation for Firefighters, 62 Comp.Gen. 216 (1983); David L. Gipson, B-208831, April 15, 1983; Frederick Evans, Jr., B-216640, Mar. 13 1985, affirmed on reconsideration, B-216640, Sept. 18, 1985.

Counsel for the union in the present case maintains that the original 1984 letter requesting our decision in the Evans case, which involved an issue similar to the one in Lanehart, was sufficient notice of a claim so as to toll the 6-year statute of limitations as to those employees who were members of the union local at the time the letter was received in our Office. The request letter was received in our Office on October 1, 1984, and, if sufficient to toll the statute of limitations, would extend the overtime claims back to 1978 for purposes of the settlements now being effected by the Justice Department. /2/

OPINION

Barring Act

The 6-year Barring Act in 31 U.S.C. Sec. 3702(b)(1) (1982) provides that a claim against the government presented under this section must contain the signature and address of the claimant or an authorized representative. Our regulations relating to this statutory provision are set out in title 4, Code of Federal Regulations. Thus, 4 C.F.R. Sec. 31.2 (1988) provides that claims will be considered only when presented in writing over the signature and address of the claimant or over the signature of the claimant's authorized agent or attorney. Also, under 4 C.F.R. Secs. 11.3 and 31.3 claims filed by an agent or attorney must be supported by a power of attorney or other appropriate documentary evidence of the agent's or attorney's authority to act for the claimant.

Based on these provisions, we held in a case involving application of a Court of Claims judgment and retroactive backpay under the FLSA that a simple written declaration signed by a claimant authorizing the agent to act for him and submitted to this Office with the filed claim was acceptable. Civilian Aircraft Pilots, 66 Comp.Gen. 501 (1987). However, since we did not receive a signed representation authorization or claim over the signature of two of the individuals involved, we held that the Barring Act continued to run against them. Id. at 504.

In the present case, the President of Local F-100, IAFF submitted a request for a decision which, as previously stated, was received in this Office on October 1, 1984. Except for the signature of the president of the local, Frederick Evans, Jr., who is also a claimant, the submission was not accompanied by a signed authorization or claim over the signature of any of the members of the local at that time. Accordingly, the request letter did not toll the Barring Act for purposes of retroactive payment of FLSA claims, except as to Mr. Evans individually. However, we note that other members of the union local have subsequently filed claims with this Office, some as early as March 1985.

Lanehart Decision

While not raised by the Justice Department submission, we have reconsidered our prior decisions in view of the Court of Appeals decision in Lanehart. We believe that the Lanehart decision is a reasonable interpretation of the statutory language pertaining to firefighters' entitlement to overtime compensation for periods of annual and sick leave under the provisions of 5 U.S.C. Secs. 6303, 6307. /3/ Cf. Turner Caldwell-- Reconsideration in view of Wilson v. United States, 61 Comp.Gen. 408 (1982). Therefore, we will follow the Lanehart decision and allow firefighters claims for overtime compensation during periods of annual and sick leave as well as periods of court and military leave. Accordingly, our decisions in Frederick Evans, Jr., B-216640, supra, Louis Pohopek, 60 Comp.Gen. 493 (1981); and R. Elizabeth Rew, 55 Comp.Gen. 1035 (1976), are overruled in that regard.

/1/ September 29, 1984, letter from Frederick Evans, Jr., President of Local F-100, International Association of Firefighters (IAFF), to the General Accounting Office (received here October 1, 1984).

/2/ The settlement agreement states that an employee would be reimbursed for a 6-year period prior to commencement of an action in the District Court, Claims Court, or filing with the General Accounting Office, whichever occurs first.

/3/ The Lanehart court agreed with our statutory interpretation of 5 U.S.C. Secs. 6322 (court leave) and 6323 (military leave).