The question of jurisdiction is a recurring one in suits against the government. In Zumerling v. Devine, 769 F.2d 745 (Fed. Cir. 1985), federal firefighters challenged, in the district court, the government's method of calculating their overtime pay under the FLSA. The question was raised of whether the district court's jurisdiction was based on the Tucker Act or the FLSA, since that would determine whether claims in excess of $10,000 could be presented in the district court, as well as the path of appeal.
The appellants' suit is not the first court challenge to the method by which federal firefighters are compensated. The leading case is Zumerling v. Devine, 769 F.2d 745 (Fed. Cir. 1985), a case involving a challenge to the computation method of firefighters' FLSA pay in which this court decided several issues that provide a backdrop for the present case. We will not repeat the entire analysis contained in the Zumerling opinion; nevertheless, an understanding of the issues presented and decided in that case is crucial to the resolution of the present case.
On January 1, 1975, appellees also became entitled to overtime pay pursuant to the Fair Labor Standards Act (FLSA or Act). The FLSA and Title 5 were applied separately in determining overtime pay entitlements, with employees' pay reflecting the greater of the amounts computed by the separate laws. See Zumerling v. Devine, 769 F.2d 745, 747 (Fed. Cir. 1985). Under § 7(a) of the FLSA, 29 U.S.C. § 207(a), employees were entitled, in the absence of certain exceptions, to receive overtime compensation at a rate of one and one-half times their "regular rate."
Thus under the FLSA an employee has the right to recover unpaid overtime compensation from his employer, and this includes an employer who is a private company, a NAFI, or the Government itself. See Saraco v. United States, 61 F.3d 863, 865 (Fed. Cir. 1995) (noting that § 216(b) confers the right to recover money from the United States when it is the employer and serves as a waiver of sovereign immunity (citing Zumerling v. Devine, 769 F.2d 745, 749 (Fed. Cir. 1985))). The FLSA further provides that an "[a]ction to recover such liability may be maintained in any court of competent jurisdiction," 29 U.S.C. § 216(b) (1994).
However, in the case of firefighters employed by a public agency, a "tour of duty" standard for determining a firefighter's entitlement to overtime compensation was prescribed in 29 U.S.C. § 207(k).See Zumerling v. Devine, 769 F.2d 745, 747 (Fed. Cir. 1985). Under this provision, if a federal firefighter is regularly scheduled to work 144 hours biweekly, FLSA provides for overtime for hours worked over and above 106 hours.
The Federal Circuit has concluded that “the words ‘of competent jurisdiction' tell us that the words do not stand alone but require one to look elsewhere to find out what court, if any, has jurisdiction.” Zumerling v. Devine, 769 F.2d 745, 749 (Fed. Cir. 1985).
One important exclusion from the total remuneration referenced is contractual overtime. See 29 U.S.C. §§ 207(c)(5), (6), (7); 29 C.F.R. § 778.201; Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. at 424; Zumerling v. Devine, 769 F.2d 745, 751 (Fed. Cir. 1985) ("Among such excluded pay is that received for certain hours worked in excess of normal working hours."). It is not completely clear whether it is overtime pay, wages given to compensate for hours worked beyond the ordinary workweek, or overtime "premiums," the amount above and beyond the base amount of compensation that a worker receives for working overtime, that must be excluded from total compensation. If all overtime pay is excluded from the total remuneration, the "total number of hours actually worked . . . for which such compensation was paid" would be hours in the ordinary, non-overtime workweek.
e courts have held at the government's urging for three decades, since soon after the FLSA was extended to the federal government by the Fair Labor Standards Amendments Act of 1974, Pub.L. No. 93–259, § 6(a), 88 Stat. 55, 58 (1974), the Tucker Act applies to a claim against the government under the monetary-damages provision of the FLSA, 29 U.S.C. § 216(b). See Graham v. Henegar, 640 F.2d 732, 734 (5th Cir.1981) (noting that “[t]he Government ... argues that ... the Tucker Act is the sole basis of jurisdiction” over FLSA actions against the government for damages under 29 U.S.C. § 216(b), the court agrees and orders transfer to Court of Claims of claim for more than $10,000); Beebe v. United States, 226 Ct.Cl. 308, 640 F.2d 1283, 1288–89 (1981); see also Waters v. Rumsfeld, 320 F.3d 265, 270–72 (D.C.Cir.2003); El–Sheikh v. United States, 177 F.3d 1321, 1324 (Fed.Cir.1999); Saraco v. United States, 61 F.3d 863, 866 (Fed.Cir.1995); Parker v. King, 935 F.2d 1174, 1177–78 (11th Cir.1991); Zumerling v. Devine, 769 F.2d 745, 748–49 (Fed.Cir.1985). Under this straight-forward logic and 30–year–old, multi-circuit, apparently unbroken precedent, the Court of Federal Claims had jurisdiction here.
rts have held at the government's urging for three decades, since soon after the FLSA was extended to the federal government by the Fair Labor Standards Amendments Act of 1974, Pub. L. No. 93-259, § 6(a), 88 Stat. 55, 58 (1974), the Tucker Act applies to a claim against the government under the monetary-damages provision of the FLSA, 29 U.S.C. § 216(b). See Graham v. Henegar, 640 F.2d 732, 734 (5th Cir. 1981) (noting that "[t]he Government . . . argues that . . . the Tucker Act is the sole basis of jurisdiction" over FLSA actions against the government for damages under 29 U.S.C. § 216(b), the court agrees and orders transfer to Court of Claims of claim for more than $10,000); Beebe v. United States, 640 F.2d 1283, 1288-89 (Ct. Cl. 1981); see also Waters v. Rumsfeld, 320 F.3d 265, 270-72 (D.C. Cir. 2003); El-Sheikh v. United States, 177 F.3d 1321, 1324 (Fed. Cir. 1999); Saraco v. United States, 61 F.3d 863, 866 (Fed. Cir. 1995); Parker v. King, 935 F.2d 1174, 1177-78 (11th Cir. 1991); Zumerling v. Devine, 769 F.2d 745, 748-49 (Fed. Cir. 1985). Under this straight- forward logic and 30-year-old, multi-circuit, apparently unbroken precedent, the Court of Federal Claims had jurisdiction here.
The law existing at the time defendant formed the contracts requires the award of damages. Second, defendant cites Zumerling v. Devine, 769 F.2d 745, 753 (Fed. Cir. 1985). Zumerling held that plaintiffs were requesting a damages measure greater than their legal right — a true windfall.