Avalos v. United States ( 2022 )

Case: 21-2008 Document: 98 Page: 1 Filed: 11/30/2022
United States Court of Appeals
for the Federal Circuit
______________________
ELEAZAR AVALOS, JAMES DAVIS,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2008
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00048-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
L. KEVIN ARNOLD, MARTIN LEE, MARK MUNOZ,
MATTHEW PERRY, AARON SAVAGE, JENNIFER
TAYLOR, RALPH FULVIO, DAVID KIRSH,
ROBERT RIGGS,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2009
______________________
Case: 21-2008 Document: 98 Page: 2 Filed: 11/30/2022
2 AVALOS v. US
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00059-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
ROBERTO HERNANDEZ, JOSEPH QUINTANAR,
INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2010
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00063-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
LORI ANELLO, KARL BLACK, GEORGE CLARY,
WILLIAM DENELL, JUSTIN GROSSNICKLE, ERIC
INKROTE, TIMOTHY MCGREW, MARK MILLER,
DAVID NALBORCZYK, MARTIN NEAL, JR., LUKE
PALMER, THOMAS RHINEHART, JR., IVAN TODD,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
Case: 21-2008 Document: 98 Page: 3 Filed: 11/30/2022
AVALOS v. US 3
______________________
2021-2011
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00118-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
BRIAN RICHMOND, ADAM SMITH, THOMAS
MOORE, CHRIS BARRETT, WILLIAM ADAMS,
KELLY BUTTERBAUGH, DAN ERZAL, BRIAN W.
KLINE, KEVIN J. SHEEHAN, JASON KARLHEIM,
CHARLES PINNIZZOTTO, JASON DIGNAN,
MATHEW BECK, STEPHEN SHRIFT, JAMES
BIANCONI, CHRISTOPHER GRAFTON, JESSE
CARTER, MICHAEL CRUZ, CARL WARNER, BRIAN
OWENS, BRIAN MUELLER, BRYAN BOWER,
COREY TRAMMEL, JAMES KIRKLAND,
KIMBERLY BUSH, BOBBY MARBURGER, RODNEY
ATKINS, LEONEL HERNANDEZ, JOSEPH
AUGUSTA, EDWARD WATT,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2012
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00161-PEC, Judge Patricia E. Campbell-
Smith.
Case: 21-2008 Document: 98 Page: 4 Filed: 11/30/2022
4 AVALOS v. US
-------------------------------------------------
JUSTIN TAROVISKY, GRAYSON SHARP, SANDRA
PARR, JUSTIN BIEGER, JAMES BRATTON,
WILLIAM FROST, STEVE GLASER, AARON
HARDIN, STUART HILLENBRAND, JOSEPH
KARWOSKI, PATRICK RICHOUX, DERRECK
ROOT, CARLOS SHANNON, SHANNON
SWAGGERTY, GEOFFRY WELLEIN, BECKY
WHITE, TAMMY WILSON,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2014
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00004-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
QUENTIN BACA, LEPHAS BAILEY,
CHRISTOPHER BALLESTER, KEVIN BEINE,
DAVID BELL, RICHARD BLAM, MAXIMILIAN
CRAWFORD, MATTHEW CRUMRINE, JOHN
DEWEY, JEFFREY DIAMOND,
Plaintiffs-Appellees
v.
Case: 21-2008 Document: 98 Page: 5 Filed: 11/30/2022
AVALOS v. US 5
UNITED STATES,
Defendant-Appellant
______________________
2021-2015
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00213-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
DAVID JONES, INDIVIDUALLY AND ON BEHALF
OF ALL OTHERS SIMILARLY SITUATED,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2016
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00257-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
TONY ROWE, ALIEU JALLOW, KARLETTA BAHE,
JOHNNY DURANT, JESSE A. MCKAY, III, GEORGE
DEMARCE, JACQUIE DEMARCE,
Plaintiffs-Appellees
v.
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6 AVALOS v. US
UNITED STATES,
Defendant-Appellant
______________________
2021-2017
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00067-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
D. P., T. S., J. V.,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2018
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00054-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
PLAINTIFF NO. 1, PLAINTIFF NO. 2, PLAINTIFF
NO. 3, PLAINTIFF NO. 4,
Plaintiffs-Appellees
v.
Case: 21-2008 Document: 98 Page: 7 Filed: 11/30/2022
AVALOS v. US 7
UNITED STATES,
Defendant-Appellant
______________________
2021-2019
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00094-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
I. P., A. C., S. W., D. W., P. V., M. R., R. C., K. W., B. G.,
R. H., INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs- Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2020
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00095-PEC, Judge Patricia E. Campbell-
Smith.
______________________
Decided: November 30, 2022
______________________
LEON DAYAN, Bredhoff & Kaiser, PLLC, Washington,
DC, argued for all plaintiffs-appellees. Plaintiffs-appellees
Eleazar Avalos, James Davis also represented by JOSHUA
Case: 21-2008 Document: 98 Page: 8 Filed: 11/30/2022
8 AVALOS v. US
A. SEGAL; ALLISON GILES, JULIE M. WILSON, National
Treasury Employees Union, Washington, DC.
JACOB Y. STATMAN, Snider & Associates, LLC, Balti-
more, MD, for plaintiffs-appellees L. Kevin Arnold, Ralph
Fulvio, David Kirsh, Martin Lee, Mark Munoz, Matthew
Perry, Robert Riggs, Aaron Savage, Jennifer Taylor. Also
represented by JASON IAN WEISBROT.
WILLIAM CLIFTON ALEXANDER, Anderson Alexander,
PLLC, Corpus Christi, TX, for plaintiffs-appellees Roberto
Hernandez, Joseph Quintanar. Also represented by ALAN
CLIFTON GORDON.
THEODORE REID COPLOFF, McGillivary Steele Elkin
LLP, Washington, DC, for plaintiffs-appellees Lori Anello,
Karl Black, George Clary, William Denell, Justin Gross-
nickle, Eric Inkrote, Timothy McGrew, Mark Miller, David
Nalborczyk, Martin Neal, Jr., Luke Palmer, Thomas
Rhinehart, Jr., Ivan Todd. Also represented by SARAH
BLOCK, GREGORY K. MCGILLIVARY.
JACK K. WHITEHEAD, JR., Whitehead Law Firm, Baton
Rouge, LA, for plaintiffs-appellees William Adams, Rodney
Atkins, Joseph Augusta, Chris Barrett, Mathew Beck,
James Bianconi, Bryan Bower, Kimberly Bush, Kelly But-
terbaugh, Jesse Carter, Michael Cruz, Jason Dignan, Dan
Erzal, Christopher Grafton, Leonel Hernandez, Jason
Karlheim, James Kirkland, Brian W. Kline, Bobby Mar-
burger, Thomas Moore, Brian Mueller, Brian Owens,
Charles Pinnizzotto, Brian Richmond, Kevin J. Sheehan,
Stephen Shrift, Adam Smith, Corey Trammel, Carl
Warner, Edward Watt.
HEIDI R. BURAKIEWICZ, Kalijarvi, Chuzi, Newman &
Fitch, PC, Washington, DC, for plaintiffs-appellees Justin
Bieger, James Bratton, William Frost, Steve Glaser, Aaron
Hardin, Stuart Hillenbrand, Joseph Karwoski, Sandra
Case: 21-2008 Document: 98 Page: 9 Filed: 11/30/2022
AVALOS v. US 9
Parr, Patrick Richoux, Derreck Root, Carlos Shannon,
Grayson Sharp, Shannon Swaggerty, Justin Tarovisky,
Geoffry Wellein, Becky White, Tammy Wilson. Also repre-
sented by DONALD ROBERT DEPRIEST; DENISE DUARTE
ALVES, American Federation of Government Employees,
Washington, DC.
MOLLY A. ELKIN, McGillivary Steele Elkin LLP, Wash-
ington, DC, for plaintiffs-appellees Quentin Baca, Lephas
Bailey, Christopher Ballester, Kevin Beine, David Bell,
Richard Blam, Maximilian Crawford, Matthew Crumrine,
John Dewey, Jeffrey Diamond. Also represented by
GREGORY K. MCGILLIVARY.
JOSH SANFORD, Sanford Law Firm, PLLC, Little Rock,
AR, for plaintiff-appellee David Jones.
MARSHALL RAY, Law Offices of Marshall J. Ray, LLC,
Albuquerque, NM, for plaintiffs-appellees Karletta Bahe,
George Demarce, Jacquie Demarce, Johnny Durant, Alieu
Jallow, Jesse A. McKay, III, Tony Rowe. Also represented
by JASON JON LEWIS, Law Office of Jason J. Lewis LLC, Al-
buquerque, NM.
NICHOLAS WIECZOREK, Clark Hill PLLC, Las Vegas,
NV, for plaintiffs-appellees D. P., T. S., J. V.
JULES BERNSTEIN, Bernstein & Lipsett PC, Washing-
ton, DC, for plaintiffs-appellees Plaintiff No. 1, Plaintiff
No. 2, Plaintiff No. 3, Plaintiff No. 4. Also represented by
LINDA LIPSETT; DANIEL M. ROSENTHAL, BRITA C. ZACEK,
James & Hoffman, P.C., Washington, DC.
LAUREN REZNICK, Borrelli & Associates, PLLC, Garden
City, NY, for plaintiffs-appellees A. C., R. C., B. G., R. H.,
I. P., M. R., D. W., K. W., S. W., P. V.
MARK B. STERN, Appellate Staff, Civil Division, United
Case: 21-2008 Document: 98 Page: 10 Filed: 11/30/2022
10 AVALOS v. US
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.
This interlocutory appeal addresses whether the gov-
ernment violates the Fair Labor Standards Act by not pay-
ing federal employees who work during a government
shutdown until after the lapse in appropriations has been
resolved. The Court of Federal Claims determined that the
employees had established a prima facie case of an FLSA
violation even though the Anti-Deficiency Act legally
barred the government from making payments during the
shutdown. Because we determine that the government did
not violate the FLSA’s timely payment obligation as a mat-
ter of law, we reverse.
I
From December 22, 2018 to January 25, 2019, the fed-
eral government partially shut down because of a lapse in
appropriations. Plaintiffs-Appellees continued to work de-
spite the shutdown because of their status as “excepted em-
ployees”—employees who work on “emergencies involving
the safety of human life or the protection of property” and
whom the government can “require[] to perform work dur-
ing a covered lapse in appropriations.” 31 U.S.C.
§§ 1341(c)(2), 1342. During this shutdown period, the gov-
ernment was barred from paying wages to excepted em-
ployees by the Anti-Deficiency Act, which prohibits the
government from “authoriz[ing] an expenditure or obliga-
tion exceeding an amount available in an appropriation or
fund for the expenditure or obligation.” 31 U.S.C.
Case: 21-2008 Document: 98 Page: 11 Filed: 11/30/2022
AVALOS v. US 11
§ 1341(a)(1)(A). The parties do not dispute that the govern-
ment paid Plaintiffs-Appellees their accrued wages after
the partial shutdown ended.
Plaintiffs-Appellees sued the government in the United
States Court of Federal Claims, alleging that the govern-
ment violated the Fair Labor Standards Act (FLSA) “by
failing to timely pay their earned overtime and regular
wages during the partial government shutdown.” Appx12.
Plaintiffs-Appellees sought liquidated damages under the
FLSA, asserting that the government failed to make timely
payments when it missed three scheduled pay dates during
the partial shutdown: December 28, 2018; January 10,
2019; and January 24, 2019. Plaintiffs-Appellees’ Br. 8; see
29 U.S.C. § 260. Under the FLSA, any employer who does
not timely pay minimum or overtime wages is liable for liq-
uidated damages equal to the amount of the untimely paid
wages. See 29 U.S.C. § 216(b). But the Court of Federal
Claims has the discretion to award no liquidated damages
“if the employer shows . . . that the act or omission giving
rise to [the FLSA] action was in good faith” and was based
on “reasonable grounds for believing that [the] act was not
a violation of the” Act. Id. § 260.
The government moved to dismiss Plaintiffs-Appellees’
complaint under Court of Federal Claims Rule 12(b)(6) for
failing to state a claim. The government argued that it
“cannot be held liable for violating its obligations under the
FLSA” because the Anti-Deficiency Act prohibited the gov-
ernment from paying Plaintiffs-Appellees during the par-
tial shutdown. Appx21. The Court of Federal Claims
denied the government’s motion to dismiss, reasoning that
Plaintiffs-Appellees “had ‘alleged that [the government]
had failed to pay wages’ on [Plaintiffs-Appellees’] ‘next reg-
ularly scheduled payday’” and therefore stated a claim for
relief under the FLSA. Avalos v. United States, 151 Fed. Cl.
380, 388 (2020) (quoting Martin v. United States, 130 Fed.
Cl. 578, 584 (2017)). The trial court relied on its decision in
Martin, in which it determined that “the appropriate way
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12 AVALOS v. US
to reconcile [the Anti-Deficiency Act and the FLSA] is not
to cancel the defendant’s obligation to pay its employees”
under the FLSA, but to “require that [the] defendant
demonstrate a good faith belief, based on reasonable
grounds, that its actions were appropriate” per 29 U.S.C.
§ 260. Martin, 130 Fed. Cl. at 584. The trial court then
granted the government’s motion to stay proceedings and
certify an interlocutory appeal to address the question of
“whether [the] defendant is liable for liquidated damages
under the FLSA when [the] defendant complies with the
Anti-Deficiency Act’s command to defer payment of Federal
employees’ wages during a lapse in appropriations.”
Appx297 (cleaned up). The government appeals. We have
jurisdiction under 28 U.S.C. § 1292(d)(2).
II
We review the Court of Federal Claims’ legal conclu-
sions de novo and its factual findings for clear error. Adams
v. United States, 350 F.3d 1216, 1221 (Fed. Cir. 2003).
A
Congress passed an early version of the Anti-Deficiency
Act in 1870, making it unlawful “for any department of the
government to expend in any one fiscal year any sum in
excess of appropriations made by Congress for that fiscal
year, or to involve the government in any contract for the
future payment of money in excess of such appropriations.”
Act of July 12, 1870, ch. 251, § 7, 16 Stat. 230, 251. In 1884,
Congress developed this prohibition further, mandating
that “no Department or officer of the United States shall
accept voluntary service for the Government or employ per-
sonal service in excess of that authorized by law except in
cases of sudden emergency involving the loss of human life
or the destruction of property.” Act of May 1, 1884, ch. 37,
23 Stat. 15, 17.
These provisions took on more life over the subsequent
years: In 1905, Congress required appropriations to be
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AVALOS v. US 13
apportioned monthly “to prevent undue expenditures in
one portion of the year that may require deficiency or addi-
tional appropriations to complete the service of the fiscal
year.” Act of Mar. 3, 1905, ch. 1484, § 4, 33 Stat. 1214,
1257–58. And in 1906, Congress mandated that “all such
apportionments shall be adhered to and shall not be waived
or modified except upon the happening of some extraordi-
nary emergency or unusual circumstance which could not
be anticipated at the time of making such apportionment”
and subjected any person who violated the provision to re-
moval from office and a potential fine, imprisonment, or
both. Act of Feb. 27, 1906, ch. 510, § 3, 34 Stat. 27, 49.
Congress continued to amend the Anti-Deficiency Act
over the next 100 years. In its current form, the Act prohib-
its “an officer or employee” of the United States govern-
ment from “mak[ing] or authoriz[ing] an expenditure or
obligation exceeding an amount available in an appropria-
tion or fund for the expenditure or obligation.” 31 U.S.C.
§ 1341(a)(1). The Act further prohibits officers and employ-
ees from “accept[ing] voluntary services . . . or employ[ing]
personal services exceeding that authorized by law except
for emergencies involving the safety of human life or the
protection of property.” Id. § 1342. The Anti-Deficiency Act
clarifies that “each excepted employee who is required to
perform work during a covered lapse in appropriations
shall be paid for such work . . . at the earliest date possible
after the lapse in appropriations ends, regardless of sched-
uled pay dates, and subject to the enactment of appropria-
tions Acts ending the lapse.” Id. § 1341(c)(2).
An officer or employee that violates these prohibitions
receives “appropriate administrative discipline,” which
could include “suspension from duty without pay or re-
moval from office.” Id. § 1349. Further, if the violation is
knowing and willful, the offending officer or employee is
subject to a criminal fine “not more than $5,000,” impris-
onment “for not more than 2 years,” or both. Id. § 1350.
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14 AVALOS v. US
B
Congress passed the FLSA in 1938 after finding “that
the existence . . . of labor conditions detrimental to the
maintenance of the minimum standard of living necessary
for health, efficiency, and general well-being of workers”
causes certain undesirable outcomes. Fair Labor Stand-
ards Act of 1938, Pub. L. No. 75-718, § 2, 52 Stat. 1060,
1060. Relevant to this appeal, the 1938 version of the FLSA
required “[e]very employer [to] pay to each of his employees
who is engaged in commerce or in the production of goods
for commerce” a minimum wage. Id. § 6, 52 Stat. 1062. It
also required employers to pay employees one-and-a-half
times the employees’ regular rate “for a workweek longer
than forty hours.” Id. § 7, 52 Stat. 1063. The current ver-
sion of the FLSA contains substantially identical require-
ments. See 29 U.S.C. §§ 206, 207.
Initially, the FLSA excluded the United States from its
definition of “employer,” Pub. L. No. 75-718, § 2, 52 Stat.
1060, and excluded individuals “employed in a bona fide
executive, administrative, professional, or local retailing
capacity” from the minimum wage and overtime require-
ments, id. § 13, 52 Stat. 1067. But in 1974, Congress
amended the FLSA’s definition of “employer” to remove the
language excluding the United States, and it amended the
FLSA’s definition of “employee” to expressly include “an in-
dividual employed by a public agency” of “the Government
of the United States,” subject to certain conditions. Fair La-
bor Standards Amendments of 1974, Pub. L. No. 93-259,
§ 6, 88 Stat. 55, 58–60.
III
The central question in this appeal is how the Anti-De-
ficiency Act’s prohibition on government spending during a
partial shutdown coexists with the FLSA’s seemingly con-
tradictory timely payment obligation. The government ar-
gues that the FLSA’s timely payment obligation “does not
require the impossible” and considers what is “convenient
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AVALOS v. US 15
or practicable under the circumstances.” Defendant-Appel-
lant’s Br. 16 (quoting Walling v. Harnischfeger Corp., 325
U.S. 427, 432–33 (1945)). The government therefore as-
serts that it did not violate the FLSA’s timely payment ob-
ligation because it paid excepted employees as soon as
possible and practicable under the circumstances—when
the Anti-Deficiency Act legally allowed the government to
make those payments. Id. at 15.
Plaintiffs-Appellees argue that the FLSA’s timely pay-
ment obligation is more rigid, requiring “employers to pay
statutorily mandated wages promptly—that is, on the first
regular, recurring payday after the amount due is ascer-
tainable.” Plaintiffs-Appellees’ Br. 14–15. Plaintiffs-Appel-
lees argue that the government should pay employees both
wages and liquidated damages when a partial shutdown
ends in recognition of “the government’s own delay in meet-
ing its obligations” under the FLSA. Id. at 12.
We hold that the FLSA’s timely payment obligation
considers the circumstances of payment and that, as a mat-
ter of law, the government does not violate this obligation
when it complies with the Anti-Deficiency Act by withhold-
ing payment during a lapse in appropriations.
We begin with the text of the FLSA. United States v.
Gonzales, 520 U.S. 1, 4 (1997). The FLSA does not address
whether the government violates the law by not paying em-
ployees on their regularly scheduled pay date during a par-
tial shutdown. In fact, the FLSA does not specify at all
when an employer must pay wages to its employees. It
merely requires that “[e]very employer shall pay to each of
his employees who in any workweek is engaged in com-
merce” a minimum wage, with no explicit mention of when
the employer must make this payment. See 29 U.S.C. § 206(emphasis added).
But an employer must still pay its employees in a
timely manner. The Supreme Court has explained that the
FLSA’s liquidated-damages provision, 29 U.S.C. § 216(b),
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16 AVALOS v. US
“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 . . . that
double payment must be made in the event of delay . . . .”
Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 (1945).
Courts have interpreted the FLSA’s implicit timely
payment obligation to ordinarily require employers to pay
wages by “the employee’s regular payday.” Biggs v. Wilson,
1 F.3d 1537, 1541 (9th Cir. 1993); see also, e.g., Roland Elec.
Co. v. Black, 163 F.2d 417, 421 (4th Cir. 1947) (“[I]f [an em-
ployer] fails to pay overtime compensation promptly and
when due on any regular payment date, the statutory ac-
tion for the unpaid minimum and liquidated damages
given under Section 16(b) immediately arises in favor of the
aggrieved employee.”); Atl. Co. v. Broughton, 146 F.2d 480,
482 (5th Cir. 1944) (“[I]f an employer on any regular pay-
ment date fails to pay the full amount of the minimum
wages and overtime compensation due an employee, there
immediately arises an obligation upon the employer to pay
the employee . . . liquidated damages.”).
But there are exceptions to this general rule. The Su-
preme Court has recognized that—at least for the overtime
provision, 29 U.S.C. § 207(a)—failing to pay on a regular
pay date is not a per se violation of the FLSA. Walling, 325
U.S. at 432–33. For example, the employer in Walling did
not violate the FLSA when it did not pay overtime wages
on its employees’ regular pay date because “the correct
overtime compensation [could not] be determined until
some time after the regular pay period.” Id. at 432. The Su-
preme Court clarified that the FLSA “does not require the
impossible” but requires payment only “as soon as conven-
ient or practicable under the circumstances.” Id. at 432–33.
The Second Circuit has also suggested that, while con-
tractual pay dates can be relevant and probative to this in-
quiry, “what constitutes timely payment must be
determined by objective standards—and not solely by
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AVALOS v. US 17
reference to the parties’ contractual arrangements.” Rogers
v. City of Troy, 148 F.3d 52, 57 & n.4 (2d Cir. 1998). Agency
interpretation of the statute arrives at the same conclu-
sion: The Department of Labor advises employers that
“compensation due [to] an employee must ordinarily be
made at the regular payday for the workweek.” U.S. Dep’t
of Labor, Wage and Hour Div., Field Operations Handbook
§ 30b04 (2016) (emphasis added). 1
Because the FLSA does not explicitly address whether
paying excepted employees immediately after a lapse in ap-
propriations ends is timely, we turn to canons of statutory
construction to aid our interpretation. See Timex V.I., Inc.
v. United States, 157 F.3d 879, 882 (Fed. Cir. 1998) (citing
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 843 n.9 (1984)). “When confronted with two Acts
of Congress allegedly touching on the same topic, [courts
are] not at ‘liberty to pick and choose among congressional
enactments’ and must instead strive ‘to give effect to both.’”
Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018) (cita-
tion omitted). Plaintiffs-Appellees suggest that we can give
effect to both the Anti-Deficiency Act and the FLSA be-
cause they “do not conflict.” Plaintiffs-Appellees’ Br. 12. Ac-
cording to Plaintiffs-Appellees, “once a shutdown ends, the
1 As the government notes, “Department of Labor
guidance is not directly applicable to federal employees like
[the] plaintiffs, for whom the FLSA is implemented by the
Office of Personnel Management.” Defendant-Appellant’s
Br. 4 n.1 (citing 5 U.S.C. 204(f); 5 C.F.R. pt. 551). But, in
general, Congress has advised the Office of Personnel Man-
agement to “administer the provisions of law in such a
manner as to assure consistency with the meaning, scope,
and application [of] rulings, regulations, interpretations,
and opinions of the Secretary of Labor which are applicable
in other sectors of the economy.” H.R. Rep. No. 93-913, at
28 (1974), as reprinted in 1974 U.S.C.C.A.N. 2811, 2837.
Case: 21-2008 Document: 98 Page: 18 Filed: 11/30/2022
18 AVALOS v. US
government can act in a way that effectuates the purposes
of both the FLSA and the [Anti-Deficiency Act] by compen-
sating its employees, pursuant to the FLSA’s liquidated
damages provision, for the government’s own delay in
meeting its obligations to them.” Plaintiffs-Appellees’
Br. 12. But this interpretation would have us create a con-
flict between the two statutes by holding that the Anti-De-
ficiency Act forbids, but the FLSA simultaneously requires,
payment during a lapse in appropriations. If we were to
adopt Plaintiffs-Appellees’ proposed interpretation, we
would be forcing the government to choose between a vio-
lation of the Anti-Deficiency Act or the FLSA. This is an
absurd result that we should avoid, if possible. See Haggar
Co. v. Helvering, 308 U.S. 389, 394 (1940).
“[I]n approaching a claimed conflict, we come armed
with the ‘strong[] presum[ption]’ . . . that ‘Congress will
specifically address’ preexisting law when it wishes to sus-
pend its normal operations in a later statute.” Epic, 138
S. Ct. at 1624 (quoting United States v. Fausto, 484 U.S.
439, 453 (1988)). We disfavor repeals by implication, “par-
ticularly . . . when, as here, we are urged to find that a spe-
cific 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). Normally, “a specific statute con-
trols over a general one.” Bulova Watch Co. v. United
States, 365 U.S. 753, 758 (1961).
The Anti-Deficiency Act is more specific than the
FLSA. The Anti-Deficiency Act explicitly forbids the gov-
ernment from making expenditures during a lapse in ap-
propriations and further specifies when the government
must pay excepted employees for work performed during a
partial shutdown, 31 U.S.C. § 1341(a)(1), (c)(2), whereas
the FLSA discusses the much broader topic of general pay-
ment requirements for all employers, 29 U.S.C. §§ 206,
207. And the FLSA does not explicitly discuss when an em-
ployer must make these payments; it merely implies that
payment must be timely under the circumstances. See
Case: 21-2008 Document: 98 Page: 19 Filed: 11/30/2022
AVALOS v. US 19
Brooklyn Sav. Bank, 324 U.S. at 707; Walling, 325 U.S. at
433.
Further, some form of the Anti-Deficiency Act had ex-
isted for nearly 70 years before Congress passed the FLSA,
and for over 100 years by the time Congress extended the
FLSA’s protections to federal government employees. See
supra Section II. If Congress intended to upend or modify
the Anti-Deficiency Act’s long-standing prohibition on
making expenditures for which Congress has not appor-
tioned funds, it would have done so explicitly. “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 follow.” Epic, 138 S. Ct. at 1624(cleaned up). Plaintiffs-Appellees have not shown a clearly
expressed intention; instead, they rely on judicial opinions
that interpret an implicit obligation in the context of dis-
tinct fact patterns. See Plaintiffs-Appellees’ Br. 16–17 (col-
lecting and discussing cases). Plaintiffs-Appellees have not
otherwise shown why a later-enacted, more general statute
should supersede a long-standing, specific one.
“[W]here two statutes are capable of co-existence, it is
the duty of the courts, absent a clearly expressed congres-
sional intention to the contrary, to regard each as effec-
tive.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018
(1984) (internal quotation marks omitted). We conclude
that Congress did not intend for the FLSA to overturn, con-
flict with, or supersede the Anti-Deficiency Act’s prohibi-
tion on making expenditures during a lapse in
appropriations. Rather, Congress intended for the two stat-
utes to coexist in the following manner: The FLSA requires
employers to pay their employees as soon as practicable un-
der the circumstances. Walling, 325 U.S. at 433. Paying
federal government wages during a lapse in appropriations
is not practicable because the government would violate
the Anti-Deficiency Act and could incur civil and criminal
liability by making those expenditures. Therefore, the
Case: 21-2008 Document: 98 Page: 20 Filed: 11/30/2022
20 AVALOS v. US
federal government timely pays wages, per the FLSA,
when it pays its employees at the earliest date possible af-
ter the lapse in appropriations ends.
Our holding does not create a “moving target” as to
“when the employee actually gets paid.” Biggs, 1 F.3d at
1540. Indeed, the Anti-Deficiency Act expressly addresses
when payment should be made following a lapse in appro-
priations: “the earliest date possible after the lapse in ap-
propriations ends.” 31 U.S.C. § 1341(c)(2). This effectuates
the implicit timely payment requirement of the FLSA and
relieves “employees, employers, and courts alike [from]
guess[ing] when ‘late payment’ becomes ‘nonpayment’ in
order to determine whether the statute of limitations has
begun to run, the amount of unpaid wages and liquidated
damages to be awarded, and how much prejudgment inter-
est has been accrued.” Biggs, 1 F.3d at 1540.
Finally, we note that the cases on which Plaintiffs-Ap-
pellees rely are distinguishable. Many of these cases “in-
volved substantial delays in payment, and—more
important[ly]—the practices disapproved of resulted in
evasions of the minimum wage and overtime provisions of
the FLSA.” Rogers, 148 F.3d at 56 (discussing Brooklyn
Sav. Bank, 324 U.S. 697, which involved a two-year delay;
Calderon v. Witvoet, 999 F.2d 1101 (7th Cir. 1993), which
involved a five-year delay; and United States v. Klinghoffer
Brothers Realty Corp., 285 F.2d 487 (2d Cir. 1960), which
involved a one-year delay); see Plaintiffs-Appellees’
Br. 16–17, 29 (discussing the same cases). Here, the gov-
ernment paid Plaintiffs-Appellees immediately after the
one-month shutdown ended.
Brooklyn Savings Bank v. O’Neil is particularly distin-
guishable, even beyond the substantial delays and at-
tempts to evade the FLSA’s requirements that are present
in that case. The employees in Brooklyn Savings accepted
overdue minimum and overtime wages from their employ-
ers and signed contracts releasing their employers from
Case: 21-2008 Document: 98 Page: 21 Filed: 11/30/2022
AVALOS v. US 21
liability for FLSA claims. 324 U.S. at 699–702. The Su-
preme Court held that employees cannot waive their right
to minimum wages, overtime wages, or liquidated damages
under the FLSA. Id. at 706–07. The Court found support in
the “Congressional recognition that failure to pay the stat-
utory minimum on time may be so detrimental to mainte-
nance of the minimum standard of living . . . that double
payment must be made in the event of delay in order to
insure restoration of the worker to that minimum standard
of well-being.” Id. at 707.
The Court in Brooklyn Savings analyzed whether “a
statutory right conferred on a private party, but affecting
the public interest, may . . . be waived or released if such
waiver or release contravenes the statutory policy.” Id. at
704. That issue is not relevant here; this appeal does not
involve contractual waiver or other similar circumstances.
In fact, the hierarchy of competing legal interests in this
appeal is entirely different than that in Brooklyn Savings.
There, the Court interpreted private contracts in light of a
superior federal statute: the FLSA. In contrast, this appeal
turns on how we interpret the FLSA in light of an even
more established and more specific federal statute: the
Anti-Deficiency Act. Our interpretation relies on well-es-
tablished canons of construction to avoid a conflict between
these two statutes. And we find no indication that Congress
intended to create such a conflict—much less the “clearly
expressed congressional intent[]” that caselaw requires,
Epic, 138 S. Ct. at 1624.
IV
Because the government does not violate the FLSA
when it pays excepted employees for work performed dur-
ing a government shutdown at the earliest date possible
after a lapse in appropriations ends, we reverse the Court
of Federal Claims’ decision denying the government’s mo-
tion to dismiss for failure to state a claim, and we remand
Case: 21-2008 Document: 98 Page: 22 Filed: 11/30/2022
22 AVALOS v. US
for the court to enter judgment consistent with this opin-
ion.
REVERSED AND REMANDED
COSTS
No costs.
Case: 21-2008 Document: 98 Page: 23 Filed: 11/30/2022
United States Court of Appeals
for the Federal Circuit
______________________
ELEAZAR AVALOS, JAMES DAVIS,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2008
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00048-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
L. KEVIN ARNOLD, MARTIN LEE, MARK MUNOZ,
MATTHEW PERRY, AARON SAVAGE, JENNIFER
TAYLOR, RALPH FULVIO, DAVID KIRSH,
ROBERT RIGGS,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2009
______________________
Case: 21-2008 Document: 98 Page: 24 Filed: 11/30/2022
2 AVALOS v. US
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00059-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
ROBERTO HERNANDEZ, JOSEPH QUINTANAR,
INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2010
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00063-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
LORI ANELLO, KARL BLACK, GEORGE CLARY,
WILLIAM DENELL, JUSTIN GROSSNICKLE, ERIC
INKROTE, TIMOTHY MCGREW, MARK MILLER,
DAVID NALBORCZYK, MARTIN NEAL, JR., LUKE
PALMER, THOMAS RHINEHART, JR., IVAN TODD,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
Case: 21-2008 Document: 98 Page: 25 Filed: 11/30/2022
AVALOS v. US 3
______________________
2021-2011
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00118-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
BRIAN RICHMOND, ADAM SMITH, THOMAS
MOORE, CHRIS BARRETT, WILLIAM ADAMS,
KELLY BUTTERBAUGH, DAN ERZAL, BRIAN W.
KLINE, KEVIN J. SHEEHAN, JASON KARLHEIM,
CHARLES PINNIZZOTTO, JASON DIGNAN,
MATHEW BECK, STEPHEN SHRIFT, JAMES
BIANCONI, CHRISTOPHER GRAFTON, JESSE
CARTER, MICHAEL CRUZ, CARL WARNER, BRIAN
OWENS, BRIAN MUELLER, BRYAN BOWER,
COREY TRAMMEL, JAMES KIRKLAND,
KIMBERLY BUSH, BOBBY MARBURGER, RODNEY
ATKINS, LEONEL HERNANDEZ, JOSEPH
AUGUSTA, EDWARD WATT,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2012
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00161-PEC, Judge Patricia E. Campbell-
Smith.
Case: 21-2008 Document: 98 Page: 26 Filed: 11/30/2022
4 AVALOS v. US
-------------------------------------------------
JUSTIN TAROVISKY, GRAYSON SHARP, SANDRA
PARR, JUSTIN BIEGER, JAMES BRATTON,
WILLIAM FROST, STEVE GLASER, AARON
HARDIN, STUART HILLENBRAND, JOSEPH
KARWOSKI, PATRICK RICHOUX, DERRECK
ROOT, CARLOS SHANNON, SHANNON
SWAGGERTY, GEOFFRY WELLEIN, BECKY
WHITE, TAMMY WILSON,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2014
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00004-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
QUENTIN BACA, LEPHAS BAILEY,
CHRISTOPHER BALLESTER, KEVIN BEINE,
DAVID BELL, RICHARD BLAM, MAXIMILIAN
CRAWFORD, MATTHEW CRUMRINE, JOHN
DEWEY, JEFFREY DIAMOND,
Plaintiffs-Appellees
v.
Case: 21-2008 Document: 98 Page: 27 Filed: 11/30/2022
AVALOS v. US 5
UNITED STATES,
Defendant-Appellant
______________________
2021-2015
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00213-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
DAVID JONES, INDIVIDUALLY AND ON BEHALF
OF ALL OTHERS SIMILARLY SITUATED,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2016
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00257-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
TONY ROWE, ALIEU JALLOW, KARLETTA BAHE,
JOHNNY DURANT, JESSE A. MCKAY, III, GEORGE
DEMARCE, JACQUIE DEMARCE,
Plaintiffs-Appellees
v.
Case: 21-2008 Document: 98 Page: 28 Filed: 11/30/2022
6 AVALOS v. US
UNITED STATES,
Defendant-Appellant
______________________
2021-2017
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00067-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
D. P., T. S., J. V.,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2018
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00054-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
PLAINTIFF NO. 1, PLAINTIFF NO. 2, PLAINTIFF
NO. 3, PLAINTIFF NO. 4,
Plaintiffs-Appellees
v.
Case: 21-2008 Document: 98 Page: 29 Filed: 11/30/2022
AVALOS v. US 7
UNITED STATES,
Defendant-Appellant
______________________
2021-2019
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00094-PEC, Judge Patricia E. Campbell-
Smith.
-------------------------------------------------
I. P., A. C., S. W., D. W., P. V., M. R., R. C., K. W., B. G.,
R. H., INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2021-2020
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00095-PEC, Judge Patricia E. Campbell-
Smith.
______________________
Case: 21-2008 Document: 98 Page: 30 Filed: 11/30/2022
8 AVALOS v. US
REYNA, Circuit Judge, dissenting.
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 regu-
larly 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 li-
quated damages provision of the FLSA. I disagree. I be-
lieve 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 fed-
eral government partially shutdown due to lack of appro-
priations (funding). Avalos v. United States, 151 Fed. Cl.
380, 382 (2020); J.A. 274. To keep key parts of the govern-
ment functioning, the government created two categories
of federal employee: “excepted” and “non-excepted.” Non-
excepted 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 per-
form 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 shut-
down ended. Avalos, 151 Fed. Cl. at 382–83. This means
Case: 21-2008 Document: 98 Page: 31 Filed: 11/30/2022
AVALOS v. US 9
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 re-
ceived 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
during the shutdown it failed to pay wages on their regu-
larly 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, there-
fore, it was prohibited from paying the CBP Officers. Ac-
cording 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 gov-
ernment’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
Case: 21-2008 Document: 98 Page: 32 Filed: 11/30/2022
10 AVALOS v. US
government spending during a partial shutdown coexists
with the FLSA’s seemingly contradictory timely payment
obligation.” Maj. Op. 14. The majority reverses and re-
mands 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 em-
ployee wages was due to a government shutdown. I disa-
gree 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 con-
stitutes a FLSA violation.
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 stat-
utes 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 em-
ployed 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 fed-
eral 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
Case: 21-2008 Document: 98 Page: 33 Filed: 11/30/2022
AVALOS v. US 11
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 em-
ployee . . . 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 circum-
stances 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.
The majority appears to agree with the foregoing con-
clusion, but my colleagues take steps to avoid saying so.
Namely, they engage in an unorthodox statutory interpre-
tation that first examines whether the statutes are contra-
dictory and whether the statutes can coexist. BedRoc Ltd.,
LLC v. United States, 541 U.S. 176, 183 (2004) (The statu-
tory 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 cre-
ated 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 shut-
down. 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. In-
deed, 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
Case: 21-2008 Document: 98 Page: 34 Filed: 11/30/2022
12 AVALOS v. US
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 rec-
ognizes 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 pun-
ishment for the employer, but rather, focuses on compen-
sating the employee. Id. at 707 (“[T]he liquidated damages
provision is not penal in its nature but constitutes compen-
sation for the retention of a workman’s pay which might
result in damages too obscure and difficult of proof for es-
timate other than by liquidated damages.”).
According to the Supreme Court, the ADA’s require-
ments “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 be-
lief 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 Gov-
ernment’s debts, nor cancel its obligations.” Me. Cmty., 140
S. Ct. at 1321–22 (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 some-
how defeat the obligations of the government.” Moda
Health Plan, Inc. v. United States, 892 F.3d 1311, 1322
Case: 21-2008 Document: 98 Page: 35 Filed: 11/30/2022
AVALOS v. US 13
(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 obliga-
tion 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 liq-
uidated 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, effi-
ciency, 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 (em-
phasis added) (citation omitted). And as this court has ex-
plained, 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]ver-
time compensation shall be paid in the course of employ-
ment 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 min-
imum wage is due, and wages are ordinarily paid—on pay-
day.”); Olsen v. Superior Pontiac-GMC, Inc., 765 F.2d 1570,
Case: 21-2008 Document: 98 Page: 36 Filed: 11/30/2022
14 AVALOS v. US
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 liqui-
dated 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 ques-
tions 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 coun-
sels against too easily finding irreconcilable conflicts in its
work . . . . Allowing judges to pick and choose between
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, ab-
sent a clearly expressed congressional intention to the con-
trary, 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 con-
sequences by extending the potential for liquidated dam-
ages. 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.