Adams, Stephen S. v. Hinchman, James

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 12, 1998 Decided August 28, 1998

No. 97-5121 Stephen S. Adams, et al.,

Appellants v. James F. Hinchman,

Acting Comptroller General of the United States General

Accounting Office, et al.,

Appellees Appeal from the United States District Court for the District of Columbia

(95cv02015) Jules Bernstein argued the cause for appellants. With him on the briefs were Linda Lipsett and Edgar N. James.

Wendy M. Keats, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Frank W. Hunger, Assistant Attorney General, Wilma A. Lewis, U.S. Attorney, and Barbara C. Biddle, Assistant Di- rector, U.S. Department of Justice.

Edgar N. James was on the brief for amicus curiae Federal Law Enforcement Officers Association. Martha L. Walfoort entered an appearance.

Before: Randolph, Rogers, and Tatel, Circuit Judges. Opinion for the Court filed Per Curiam.

Per Curiam: This is an appeal from the district court's judgment rejecting the claims of 14,122 current and former federal criminal investigators or other law enforcement offi- cers. The plaintiffs were employed between 1984 and 1995 in federal agencies such as the Customs Service, the Secret Service, the Internal Revenue Service, the Drug Enforcement Agency and the Bureau of Alcohol, Tobacco and Firearms.1 Between February 16, 1990, and December 13, 1995, they filed civil actions in the Court of Federal Claims alleging that they had been wrongfully classified as exempt from the overtime provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. s 201 et seq. During the same period, each employee also filed an administrative claim at the Gov- ernment Accounting Office. Of the 14,122 employees, 11,247 brought suit before June 30, 1994.

In a consolidated case, the Court of Federal Claims held that certain grades of employees--namely, GS-9 and GS-11 investigators at BATF, DEA, IRS, and Secret Service, and GS-9 investigators at Customs Service--were not exempt from FLSA, and thus had been entitled to overtime pay. Adams v. United States, 27 Fed. Cl. 5 (1992). On March 16, 1994, these plaintiffs entered into settlement agreements with between home and work travel while driving a government vehicle. Atkinson's employing agency denied his claim after the GAO decided Ford; he based his administrative appeal on the original s 640. The GAO held that "the November 19, 1995 amendment to section 640 effectively reestablishes the two-year statute of limitations for any claim where the em- ployee has received overtime pay under any other law or any claim for time spent commuting. We see no basis for the assertion that this amendment does not apply to Mr. Atkin- son's claim." Id.

On October 27, 1995--before passage of the amendment to s 640 or the GAO's decision in Atkinson--plaintiffs brought this action in district court seeking "mandamus and injunctive and declaratory relief." The complaint challenged Ford's adoption of a shortened, retroactive statute of limitation; the GAO's insistence that plaintiffs bring their claims before their respective agencies; the refusal of those agencies to grant the claims; and the GAO's refusal to pass on their appeals. In Supplemental Complaints dated December 13, 1995, and Jan- uary 29, 1996, plaintiffs added the amendment to s 640 and the GAO's decision in Atkinson to their list of requests for declaratory relief.

Plaintiffs alleged that the GAO's decision in Ford and the amendment to s 640 had offended due process. They assert- ed property interests in their back pay claims before the GAO and in their earned but unpaid compensation.6 On October 10, 1996, the district court (Judge June L. Green) granted defendants' motion for summary judgment. The court later denied plaintiffs' motion for reconsideration. Our review of a grant of summary judgment is de novo. With one exception, we shall affirm the district court's judgment substantially for __________

6 On appeal, plaintiffs also maintain that they have a property interest in the statute of limitations itself. Brief for Appellants at 45. They cite no support for the assertion of such an interest and we are aware of none. As explained earlier, the amount of overtime that plaintiffs can claim is limited by the governing statute of limitations. Thus the two are essentially the same and the same analysis applies. the reasons stated in the court's thorough and well-reasoned opinion.7

The district court held that the GAO's prior application of a six-year statute of limitations had been an error. Adams v. Bowsher, 946 F. Supp. 37, 42 (D.D.C. 1996). It decided that plaintiffs had no property interest in their pending adminis- trative claims because "a cause of action ... affords no definite or enforceable property right until reduced to a final judgment." Id. at 41 (quoting Austin v. City of Bisbee, Arizona, 855 F.2d 1429, 1436 (9th Cir. 1988)). See also Sowell v. American Cyanamid Co., 888 F.2d 802, 805 (11th Cir. 1989); Hammond v. United States, 786 F.2d 8 (1st Cir. 1986). Without reaching the issue whether enactment of the original s 640 gave certain plaintiffs property rights in their unpaid overtime, we agree with the district court that any such property interest could be extinguished so long as the retroactive economic legislation met the guarantees of due process. See General Motors Corp. v. Romein, 503 U.S. 181, 191 (1992). Analyzing the legislative history of the amend- ment to s 640, the district court found that the statute had a "legitimate legislative purpose which was furthered by ration- al means." 946 F. Supp. at 44 (relying on Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 730 (1984) and Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976)). The court emphasized that Representative Light- foot's statement indicated a desire to promote fairness and to equate "the rights enjoyed by federal employees to those of private sector employees." 946 F. Supp. at 43. __________

7 Appellees have moved to strike section III of plaintiff- appellants' reply brief on the ground that it raised issues not advanced in their opening brief. Plaintiffs there contended for the first time that the Back Pay Act, 5 U.S.C. s 5596, and the Civil Service Reform Act, 5 U.S.C. s 7121(a), display congressional intent to treat federal and private sector employees differently. See Reply Brief for Appellants at 10-13. It is our practice not to consider any issue "raised for the first time in a reply brief," a point at which the opposing side has no opportunity to respond. See Rollins Environmental Servs., Inc. v. EPA, 937 F.2d 649, 652 n.2 (D.C. Cir. 1991). We grant the motion to strike.

As for plaintiffs' equal protection claim, the district court determined that plaintiffs and the Kinsley claimants, whose claims had been subject to a six-year statute of limitations, were not similarly situated. Id. at 45. Unlike the claimants in Kinsley, plaintiffs did not have a sufficiently developed factual record for their claims to be processed by the GAO prior to the enactment of the amendment. In addition, plaintiffs charged that the GAO violated the Administrative Procedure Act in deciding Ford and in failing to handle their cases in a timely fashion--i.e., before s 640 was amended. Such claims were moot, the district court concluded, because Congress "had impliedly adopted the two or three-year limi- tation period" and the amendment "passe[d] constitutional muster." 946 F. Supp. at 45. Thus the Ford and Atkinson decisions were valid and it was beyond the power of the court to compel the GAO to apply a longer statute of limitations.

While we therefore are in general agreement with the district court, we cannot affirm the portion of the court's decision holding that plaintiffs' "property" had not been taken without just compensation, in violation of the Fifth Amend- ment to the Constitution. See Adams, 946 F. Supp. at 44. Applying the test for a compensable taking set forth in Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 224-25 (1986), the district court concluded that any economic impact on individual plaintiffs was slight, that the amended s 640 did not "unduly interfere with a distinct investment- backed expectation," and that "the nature of the action taken by Congress is not inconsistent with the purpose behind the takings clause." 946 F. Supp. at 44.

Repeating the argument they made below, plaintiffs argue that "deprivation of [their] previously earned FLSA wages constitutes an unlawful taking of [their] labor without just compensation under the Fifth Amendment." Brief for Appel- lants at 19. We are without jurisdiction to decide this claim. The usual remedy for unconstitutional takings is "a suit for money damage (i.e., the 'just compensation' that the Constitu- tion assures) under the Tucker Act in the Court of Federal Claims, 28 U.S.C. s 1491...." 8 Student Loan Marketing Ass'n v. Riley, 104 F.3d 397, 401 (D.C. Cir. 1997). "Except in cases in which the amount in controversy is less than $10,000, in which event jurisdiction is concurrent with the federal district courts, see 29 U.S.C. s 1346(a)(2), the Federal Claims Court's jurisdiction in such actions is exclusive." Railway Labor Executives' Ass'n v. United States, 987 F.2d 806, 816 (D.C. Cir. 1993). While there may be certain exceptions "involv[ing] mandates of direct transfers of money to the government," see Student Loan Marketing Ass'n, 104 F.3d at 401 (quoting In re Chateaugay Corp., 53 F.3d 478, 493 (2d Cir. 1995)), they are not applicable here. At oral argument, counsel for the plaintiffs represented that each of their indi- vidual claims amounted to more than $10,000. If that were true, the district court would not have had jurisdiction to hear the taking claim in the first place. Even if each back pay claim were less than $10,000 and jurisdiction was based on the "Little Tucker Act" (28 U.S.C. s 1346(a)(2)), the United States Court of Appeals for the Federal Circuit--not us-- would have exclusive jurisdiction over the appeal. See 28 U.S.C. s 1295(a)(2). Either way then, plaintiffs' taking claim is not properly before us.9 We therefore remand the takings __________

8 In relevant part 28 U.S.C. s 1491(a)(1) provides:

The United States Court of Federal Claims shall have juris- diction to render judgment upon 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.

9 After oral argument, the parties called our attention to two recently decided cases--National Treas. Employees Union & Fed- eral Deposit Ins. Corp., 53 F.L.R.A. No. 134 (Feb. 27, 1998); and Eastern Enterprises v. Apfel, 118 S. Ct. 2131 (June 25, 1998) (plurality opinion). Neither decision affects the outcome of this case. National Treasury Employees Union appears to support the reasoning of the district court. In Eastern Enterprises, four Jus- tices concluded that it was within the district court's power to award equitable relief for a claim arising under the Takings Clause. See 118 S. Ct. at 2145 (quoting In re Chateaugay Corp., 53 F.3d at issue to the district court for a determination of whether jurisdiction was proper under the Little Tucker Act, 28 U.S.C. s 1346(a)(2).

For the reasons stated above, the district court's grant of summary judgment is affirmed in part and reversed and remanded in part.

So ordered. __________ 493). Unlike Eastern Enterprises, plaintiffs here are not threat- ened with a taking by a "challenged statute" that "requires a direct transfer of funds" from them to the government. See id. Rather, they seek compensation from the government for unpaid overtime. The only effect of a longer statute of limitations would be to grant plaintiffs more money. Thus the circumstances found to support district court jurisdiction in Eastern Enterprises do not exist in this case.