Tarovisky v. United States

In the United States Court of Federal Claims No. 19-04C (E-Filed: December 1, 2020) ) JUSTIN TAROVISKY, et al., ) ) Motion to Dismiss; RCFC 12(b)(6); Plaintiffs, ) Fair Labor Standards Act (FLSA), 29 ) U.S.C. §§ 201-19; Anti-Deficiency Act v. ) (ADA), 31 U.S.C. §§ 1341-42; ) Government Employees Fair THE UNITED STATES, ) Treatment Act of 2019 (GEFTA); Pub. ) L. No. 116-1, 133 Stat. 3 (2019). Defendant. ) ) Heidi R. Burakiewicz, Washington, DC, for plaintiff. Robert Depriest, Michael Robinson, and Judith Galat, of counsel. Erin K. Murdock-Park, Trial Attorney, with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. Ann C. Motto, of counsel. OPINION AND ORDER CAMPBELL-SMITH, Judge. Plaintiffs in this putative collective action allege that the government, through several agencies, violated the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19, by failing to timely pay their earned overtime and regular wages during the partial government shutdown and lapse of appropriations that began on December 22, 2018. See ECF No. 17 at 2-3 (second amended complaint, hereinafter referred to as the complaint). On May 3, 2019, defendant moved to dismiss the complaint for failure to state a claim on which relief can be granted, pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC), on the basis that the Anti-Deficiency Act (ADA), 31 U.S.C. §§ 1341-42, prohibited the government from paying employees. See ECF No. 28. In analyzing defendant’s motion, the court has considered: (1) plaintiffs’ complaint, ECF No. 17; (2) defendant’s motion to dismiss, ECF No. 28; (3) plaintiffs’ response to defendant’s motion, ECF No. 31; (4) defendant’s reply in support of its motion, ECF No. 35; (5) defendant’s first supplemental brief in support of its motion, ECF No. 37; (6) plaintiffs’ response to defendant’s first supplemental brief, ECF No. 38; (7) defendant’s second supplemental brief in support of its motion, ECF No. 46; (8) plaintiffs’ response to defendant’s second supplemental brief, ECF No. 54; (9) defendant’s third supplemental brief in support of its motion, ECF No. 56; and (10) plaintiffs’ response to defendant’s third supplemental brief, ECF No. 57. The motion is now fully briefed and ripe for ruling. 1 The court has considered all of the arguments presented by the parties, and addresses the issues that are pertinent to the court’s ruling in this opinion. For the following reasons, defendant’s motion is DENIED. I. Background Beginning at 12:01 a.m. on December 22, 2018, the federal government partially shut down due to a lack of appropriations. See ECF No. 17 at 2, 8. The named plaintiffs in this case were, at the time of the shutdown, employees of one of the following fourteen agencies: (1) the Bureau of Prisons; (2) the Federal Emergency Management Agency; (3) the United States Immigration and Customs Enforcement; (4) Voice of America; (5) the National Park Service; ...

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