On March 5, 2015, Art Mindlin, USPIS Agency President, FLEOA, distributed an e-mail in response to Robert Nigg’s solicitation for contributions toward payment of certain Bills of Costs assessed against the Inspectors in 2014 following the trial in 2012. On behalf of my law firm, Osborn Law, I feel compelled to respond to Mr. Mindlin’s uninformed and inaccurate e-mail. For those of you who may not have received Mr. Nigg's letter or seen Mr. Mindlin's response, they are attached.
Before I address Mr. Mindlin’s e-mail, I need to inform all of you that the United States Supreme Court denied our petition for a writ of certiorari filed in April, 2014. This means the Supreme Court refused to hear our case. This ruling was not altogether unexpected, as the Supreme Court grants less than 1% of the petitions presented. However, because the Supreme Court did not issue a formal ruling on the merits of our claims, we have the opportunity to pursue the Inspectors’ claim for overtime eligibility in other jurisdictions where courts interpreting the relevant labor statute have ruled favorably for other groups of law enforcement officers. We are currently planning to file a new FLSA overtime lawsuit in New York and any Inspectors (active or retired within the last two years) wishing to play a role in that litigation are encouraged to contact us.
With respect to Mr. Mindlin’s e-mail, I have several comments. First, while Mr. Mindlin claims that he has no “firsthand documentation” about the Bills of Costs or the circumstances leading up to Bob Nigg’s letter, that is because he did not bother to try and gather that information. It is readily available on the court’s website and Mr. Mindlin could have had it in a matter of minutes. Or, he could simply have called someone for the information, like me or Mr. Nigg. Instead, Mr. Mindlin called “FLEOA legal services,” whoever that is, to ask them some questions. Had Mr. Mindlin taken just a few minutes to talk to me, he would have learned all about the Bills of Costs, how they came to be, and that the Postal Service is retaliating against Bob Nigg by pursuing him, and only him, for payment of those costs. I can assure you that the Bills of Costs are real; that it takes real money to pay them; and that they were the result of Bob Nigg and other Inspectors putting their names and reputations on the line to try and achieve justice for all Inspectors as it relates to overtime pay. Instead of implying that something nefarious was going on or that Bob Nigg’s solicitation was not legitimate, Mr. Mindlin should have made some inquiry into the situation. And Mr. Mindlin knows how to reach me; he and I have spoken before.
Second, Mr. Mindlin states that representations made by Mr. Nigg and my law firm somehow “impeded” FLEOA’s efforts in 2010 to achieve Criminal Investigator 1811 status for Inspectors through Congressional legislation, H.R. 5368. But this is deceptive because FLEOA was never lobbying for 1811 status. FLEOA supported the legislation because it purported to protect certain retirement benefits. In reality, the Postal Service was the party behind the legislation and the real purpose of the legislation was to extinguish our lawsuit, not convert Inspectors to 1811s. Even if H.R. 5368 had become law, Postal Inspectors would not have been provided full Merit Systems Protection Board (MSPB) rights, nor would Inspectors have been retroactively paid the scheduled overtime legally required to be paid to 1811s under Title 5 USC § 5542(d). Nor would they have been entitled to be paid premium pay for scheduled night duty, Sunday duty and holiday duty that they had worked since 1996.
Mr. Mindlin’s comments about our FLSA lawsuit demonstrate his ignorance about the case and what Robert Nigg has been trying to achieve for the last 10 years. It was Robert Nigg who sought full MSPB protections rights for Postal Inspectors, not FLEOA. It was Robert Nigg who fought for Postal Inspectors to receive the same premium-pay benefits paid to 1811s, not FLEOA. It was Robert Nigg who fought for Postal Inspectors to have a portion of their professional liability insurance paid for like 1811s, not FLEOA. On several occasions during the litigation, we offered to settle the case if the Postal Service would work with Congress to have Inspectors designated as 1811 Criminal Investigators. FLEOA never offered its support.
For nearly 10 years, Bob Nigg put his career at risk to protect Postal Inspectors and to try and obtain the pay and benefits offered to other federal criminal investigators. Keith Lewis joined the fight in 2003, and many others followed after that. A select few volunteered to testify at trial. These Inspectors should be applauded and thanked for their time and for their sacrifice. Their efforts should not be denigrated by Mr. Mindlin. Inspectors should ask themselves, “Where was Mr. Mindlin and ‘FLEOA legal services’" when the Postal Service argued that the primary duty of Postal Inspectors was desk work?
The decision to contribute, or not, toward the payment of the Bills of Costs, lies with each Inspector. There is no pressure to contribute. The purpose of this posting is simply to respond to Mr. Mindlin’s e-mail and to provide you with the facts – facts you feel may be important in your decision making process.
Finally, please know that the letter distributed by Mr. Nigg was reviewed and okayed by my office. The Bills of Costs are real obligations and there is no doubt that the Postal Service is punishing Bob for filing and pursuing the lawsuit on behalf of the Inspectors. Whether you decide to contribute or not, please be assured the solicitation is legitimate.
POSTED APRIL 2, 2014
Today, we filed a Petition for Certiorari to the Supreme Court of the United States asking the Court to review the decisions of Judge Selna and the Ninth Circuit Court of Appeal. The primary argument is that Postal Inspectors are entitled to federal overtime pay under the express language of the Fair Labor Standards Act and by virtue of the fact that none of the exceptions to federal overtime pay apply to Postal Inspectors. A copy of the Petition is attached.
POSTED DECEMBER 7, 2013
On November 27, 2013, we filed a Petition for Panel Rehearing with the Ninth Circuit Court (the same three judges who issued the cursory November 13, 2013 Opinion) to reconsider their ruling on the ground that they overlooked persuasive case authority from the Second Circuit and the Tenth Circuit.
The Postal Service only gets to submt a response if it is requested by the Ninth Circuit. I do not know how long it will be before we get a response. Click here to see the Petition.
POSTED NOVEMBER 22, 2013
On November 13, 2013, the Ninth Circuit Court of Appeal affirmed the decision of the trial court in favor of the Postal Service. Unfortunately, the opinion merely adopted the reasoning of the trial court and did not contain any discussion of the issues we raised on appeal. [Cick here to see the Opinion]
We intend to file a petition for rehearing, which is due November 29, 2013.
POSTED OCTOBER 29, 2013
On October 17, 2013, the Ninth Circuit Court of Appeals issued an Order in which it stated that our appeal will be "submitted on the briefs and record, without oral argument". This means that there will be no oral argument in Pasadena on November 6, 2013. Instead, on that date, the appeal will be deemed submitted to the Court and a written decision likely will be issued within the next couple of months.
POSTED AUGUST 30, 2013
The Ninth Circuit Court of Appeals has now set November 6, 2013 for oral argument on our appeal of the trial court’s decision in favor of the Postal Service. The argument is scheduled to take place at the Ninth Circuit Courthouse in Pasadena, California beginning at 9:30 a.m. Each side has been allotted 15 minutes to present its position.
POSTED JULY 16, 2013
Our appeal to the Ninth Circuit Court of Appeal has been fully briefed by both parties and we are waiting for the Court to give us a date for oral argument. We will let you know when a date has been set.
POSTED JANUARY 15, 2013
On January 14, 2013, we filed our Reply Brief in support of our appeal from the District Court’s decision from January 2012. This means that the appeal is now fully briefed and we will await a date for oral argument to be set by the Ninth Circuit. Once we have that date, we will post it here. [Click here to see the Reply Brief.]
POSTED DECEMBER 26, 2012
On November 29, 2012, the Postal Service filed its brief in response to our appellate brief. A copy of the Postal Service's brief is attached.
The Postal Service requested a second extension of time to file its answering brief. Over our objection, the Court granted the Postal Service's request. Its answering brief is now due November 30, 2012.
POSTED AUGUST 27, 2012
The Postal Service has requested, and been granted, an extension until October 29, 2012 to respond to our appellate brief.
POSTED JULY 31, 2012
On July 30, 2012, we filed our appellate brief with the Ninth Circuit Court of Appeals. The brief asks the Court to reverse the judgment of the district court, Judge Selna, based on several grounds, most notably the district court’s failure to apply Section 541.3(b)(1) from the federal overtime regulations. That regulation excludes front-line law enforcement personnel from the various exemptions contained in the overtime law, meaning Postal Inspectors should be entitled to federal overtime pay. Click here to see the brief
The Postal Service has until August 29, 2012 to reply. We are permitted to file a reply brief of up to 15 pages. That brief is due September 13, 2012.
POSTED APRIL 25, 2012
On January 13, 2012, Judge James V. Selna ruled that United States Postal Inspectors are not entitled to federal overtime pay. Judge Selna concluded that the criminal investigations performed by Postal Inspectors are essentially done to ensure the safe delivery of the mail and to protect Postal Service employees. As such, the work of Postal Inspectors is considered “administrative” in nature and thus exempt from federal overtime pay. Judge Selna also concluded that Postal Inspectors are not covered by the “first responder” provision in the Fair Labor Standards Act, which entitles law enforcement officers and others to overtime pay if they perform certain activities. Despite the fact that Postal Inspectors perform many of the activities included in the regulations (carrying a weapon, effecting search warrants, arresting persons, etc.), Judge Selna concluded that the administrative aspect of their work trumped the law enforcement aspect.
On February 17, 2012, we filed a Notice of Appeal. Our opening brief is due July 30, 2012.
POSTED FEBRUARY 28, 2012
On February 17, 2012, we filed a Notice of Appeal from the district court’s decision in which Judge Selna concluded that (i) Postal Inspectors are not covered by the “public safety worker” provision of federal regulation 541.3(b) (which would entitle them to overtime pay under the Fair Labor Standards Act) and (ii) Postal Inspectors are “administrative” employees and thus not entitled to overtime pay under the federal Fair Labor Standards Act.
We do not have a briefing schedule but will update our site when we do.
POSTED JANUARY 13, 2012
As all of you know, we have been in trial on this case since January 6, 2012. The trial has been conducted as a bench trial by Judge Selna in the federal court in Santa Ana, California.
Unfortunately, Judge Selna ruled yesterday that Level 13 and below Postal Inspectors are "administrative" employees and thus not entitled to overtime under the Fair Labor Standards Act (FLSA). In short, Judge Selna concluded that Postal Inspectors are "white-collar detectives" whose primary duty is the performance of "office or non-manual work" related to the general business operations of the Postal Service. He also concluded that Postal Inspectors "exercise discretion and independent judgment on matters of significance" to the Postal Service (these are magic words from the FLSA regulations). In addition, Judge Selna ruled on Wednesday that Postal Inspectors have not proven that they are comparable to any other group of criminal investigators who receive FLSA overtime, so therefore Postal Inspectors are not entitled to FLSA overtime. We expect to have a written copy of either the judge's order or the transcript from his ruling shortly and will post it here.
Obviously, we plan to appeal the Court's ruling to the Ninth Circuit Court of Appeal. As you all know, this process will take probably a year or longer. The first step will be the filing of a Notice of Appeal, which we will do after a final judgment has been entered. This should all be accomplished within the next two to three weeks. We will post the Notice of Appeal once we file it.
Thank you all for your support as we have gone through this litigation. We will keep you apprised of the appeal process as briefs are filed and oral argument is scheduled.
POSTED JANUARY 5, 2012
Trial beings tomorrow, January 6, 2012.
POSTED OCTOBER 27, 2011
A pretrial conference was held on October 24, 2011. At the hearing, Judge Selna granted the Postal Service's motion to strike the jury, meaning the case will be tried in front of Judge Selna only, with no jury. We anticipated this ruling but are nonetheless disappointed. The most immediate consequence of the judge's decision is that the trial has been continued until January 3, 2012 in order to allow the parties to comply with all of the Court's requirements for judge (or "bench") trials.
POSTED OCTOBER 6, 2011
We have three pieces of news to report.
First, the settlement conference scheduled for September 22, 2011 did not take place. The Magistrate Judge concluded that it would be a waste of time given the gap between the Postal Service's offer and the Postal Inspectors' demand. A copy of the Order is attached.
Second, and more significantly, Judge Selna granted the Postal Service's motion to dismiss the Level 14 Inspectors from the lawsuit. This ruling is very disappointing for a number of reasons, but primarily because Judge Selna concluded that Level 14 Inspectors were never part of the case based on the language in the First Amended Complaint (FAC). According to Judge Selna, despite the broad definition of who we sought to represent ("all current and former postal inspectors employed by the Postal Service between March 31, 2001 and the date of the resolution of the case who sign a consent to joint action," paragraph 3 of FAC), other language in the document excluded Level 14 Inspectors.
We believe the judge's opinion is an extremely narrow, improper reading of the FAC and that his statement, that his reading is "the only plausible reading," is wrong. We intend to appeal the judge's decision at the appropriate time and we are in the process of determining when we can do that. We also are contemplating filing a new Complaint on behalf of Level 14 Postal Inspectors. While we have not yet decided whether we will do that, please let us know if you would be interested in serving as a named or lead plaintiff (meaning your name appears on the caption of the lawsuit and you have responsibilities to the other Inspectors who join the suit).
We have attached both the FAC and Judge Selna's opinion.
Finally, this past Monday, October 3, the Court heard oral arguments on the parties' motions for summary judgment. We argued that because Inspectors are expressly covered by the Fair Labor Standards Act, our motion should be granted. The Postal Service contends that although the FLSA may apply, Postal Inspectors are exempt as "administrative" employees. Last Friday, Judge Selna issued a 25-page "tentative" ruling, suggesting how he might decide the motions. Monday's hearing lasted nearly 2 1/2 hours and we expect the judge's final ruling to look quite a bit different than his tentative ruling, for both sides. When that decision is issued, we will post it here. Judge Selna did state that the parties should continue preparing for trial, a sign that he is not going to give either party everything it asked for. If summary judgment is not granted in full to either party, the case will proceed to trial. The Court informed us that the first day of trial will be either November 3 or November 8.
POSTED MARCH 16, 2011
Let me begin by apologizing for the delay between posts. We will try to update you more regularly.
We have two significant developments to report. First, as you may recall, on August 5, 2010, Judge Selna denied the Postal Service's motion for summary judgment on the issue of "comparability." The Postal Service had argued, essentially, that because GS-1811s do not receive FLSA overtime, Postal Inspectors should not receive FLSA overtime. The details of that ruling are set forth in our August 5, 2010 posting below. The Postal Service, of course, was not satisfied with that ruling and moved for "reconsideration." Following a hearing on November 22, 2010, Judge Selna denied the Postal Service's motion. We had simultaneously asked the Court to grant summary judgment in our favor on the issue of comparability but our application also was denied, a ruling we anticipated.
The second development to report is that Judge Selna has set a trial date of NOVEMBER 1, 2011, just over seven months from now. Judge Selna issued a formal Order For Jury Trial and approved a detailed pre-trial schedule. For those of you that are interested, you will see that the Court has set a number of interim deadlines and that we have a lot of work to do to prepare for trial.
The trial will take place in federal court in Santa Ana, California and is anticipated to last seven days.
POSTED SEPTEMBER 27, 2010
On September 23, 2010, an amendment was added to H.R. 5368, the "United States Postal Service Postal Inspectors and Special Agents Equity Act". The amendment at section (c) reads:
(c) EFFECTIVE DATE --The amendments made by this section shall be effective as of September 30, 1996, except that nothing in this Act shall be considered to require the United States Postal Service to provide any additional compensation to any postal employee (within the meaning of section 5545a(1) of title 5, United States Code, as amended by this Act) with respect to any service performed by such employee prior to the date of the enactment of this Act.
This amendment effectively relieves the Postal Service of liability for 14 years of Fair Labor Standards Act violations and its failure to fulfill the requirements of the Law Enforcement Availability Pay Act. Requiring retroactivity as a condition of support for the bill is a deceitful and malicious act that we strenuously oppose.
Postal Inspectors can still prevent this bill from becoming law. Current and retired Inspectors that joined our lawsuit must take immediate action. We ask that each class member contact their senator and local congressional representative by telephone or email to express their opposition to the Postal Service’s backdoor attempt to nullify our lawsuit. Each class member can find the contact information for their representatives on the following website:
We also recommend that class members advise fellow Inspectors of the Postal Service’s attempt to avoid its legal obligations stemming from its failure to abide by the requirements set forth in the FLSA and LEAP Act. Because some Inspectors do not follow the postings on this website, it would be beneficial for all involved to spread the word and mobilize as many Inspectors as possible. Without your participation, the Postal Service may succeed in getting this bill passed with a retroactive clause and avoid paying its Inspectors damages for years of willful disregard of the federal labor laws. It is imperative that the Postal Inspectors act now. If the bill is passed as written, the rights of all Inspectors will be permanently impacted.
POSTED SEPTEMBER 23, 2010
In our last couple of postings, we have expressed to you our opposition to the Postal Services’ demand that H.R. 5368 be modified to include a provision making the law retroactive. As we have stated, we are not opposed to H.R. 5368 generally, but only as it might be applied retroactively. If applied prospectively, H.R. 5368 would classify Postal Inspectors as being exempt from FLSA overtime pay. This would have the effect of putting an end date on our accumulation of damages, which is acceptable to us. If applied retroactively however, the exemption would go back to 1996. For those of you who are in our lawsuit, this likely would mean that your claim would be wiped out.
To complicate matters, we just learned this week that FLEOA is supporting retroactivity. FLEOA is concerned that if it does not support retroactive application of H.R. 5368, the Postal Service will reduce pay and benefits if we prevail in our FLSA lawsuit. This fear stems from the Postal Service’s unfounded and unlawful threat, first expressed in former Chief Lazaroff’s letter dated June 13, 2008, to cut Inspectors’ pay if the agency is forced to pay FLSA overtime by virtue of our lawsuit.
Of course, if the bill is passed and applied prospectively only, the Postal Service will not have to pay FLSA overtime in the future and thus there would be no need to carry out its threat to cut pay. The Postal Service, however, is not satisfied with this outcome. Instead, the Postal Service seeks retroactive application of the statute for the sole purpose of scuttling our seven year-old lawsuit. While FLEOA does not really want retroactive application of the statute, it is willing to agree to it if that is the only way to get the bill passed. For its part, the Postal Service continues to threaten FLEOA that a reduction in pay and benefits will occur if we prevail in our FLSA lawsuit.
We believe that FLEOA is not acting in the best interest of its members because it is operating under the false impression that the Postal Service can reduce pay and benefits if our lawsuit is successful. It cannot. Postal Inspectors are entitled, by virtue of Title 39 U.S.C. 1003(c), to pay and benefits comparable to those provided to executive branch law enforcement officers. This law protects you. Moreover, the repeated threats by the Postal Service to reduce pay and benefits constitutes a discriminatory act and a violation of the FLSA, specifically 29 U.S.C. Section 215(a)(3), which subjects the Postal Service to additional penalties and damages.
Any Postal Inspectors opposed to the retroactive application of H.R. 5368 should immediately contact FLEOA to express your opposition. The contact numbers we have are:
John Adler, FLEOA President: 917-715-8465 (mobile)
Larry Berger, FLEOA General Counsel: 516-671-2688 (office)
Art Mindlin, FLEOA Agency President (USPIS): 973-725-7936 (mobile)
FLEOA General Office: 717-938-2300
POSTED SEPTEMBER 17, 2010
A couple of weeks ago, we advised you about proposed legislation that would amend Title 5 Section 5545a to include Postal Inspectors. As discussed in that posting (below), the amendment provides some benefit to Inspectors but does not give them all of the benefits afforded criminal investigators, like night pay, holiday pay and Sunday pay.
While we have no objection to the bill, the Postal Service is lobbying Congress to have it enacted retroactively. This we do object to, as it is a blatant attempt to impact the lawsuit by seeking relief from Congress that the Postal Service has not been able to get from the Court.
On September 16, we sent a letter to Congressman Lynch's office urging him to oppose any effort to have H.R. 5368 enacted retroactively. We enclosed copies of the letter many of you sent to us. We would like to send additional letters, so if you have not already done so, please print out the letter to Rep. Lynch, sign it and return it to us by email (email@example.com), facsimile (212-725-9808) or regular mail. A copy of the letter sent by my office to Rep. Lynch's office is attached.
Finally, if you would like to receive these communications, and others, via e-mail, please send us your personal e-mail address and we will add it to our group list.
As most of you know by now, Congressman Stephen Lynch from Massachusetts has proposed legislation, H.R. 5368, that would amend Section 5545a of the United States Code to make Postal Inspectors eligible for the same availability pay given to criminal investigators. Although this is a positive development for Postal Inspectors, there are other comparability standards relating to premium pay provisions in Title 5 that are not included in the proposed bill, such as night pay, holiday pay and Sunday pay. Also, Postal Inspectors need to be aware that if the bill is passed, they would be formally exempt from overtime pay under the Fair Labor Standards Act without the Postal Service being mandated to fulfill all the premium pay provisions that GS-1811s are required to be paid under Title 5.
Our litigation involves the issue of whether Postal Inspectors are currently eligible for FLSA overtime. We have recently learned that the Postal Service is lobbying to have H.R. 5368 applied retroactively. This means that if the bill is passed, it would be deemed to have been in effect since the original enactment of Section 5545a in 1994, meaning the exemption from FLSA overtime also would go back to 1994. This could result in a significant reduction in the dollar value of the damages we are seeking to recover in our litigation.
It is extremely important that we oppose the Postal Service’s effort to have the bill enacted retroactively. Below is a form letter we would like you to print, sign and return by email (firstname.lastname@example.org), facsimile (212-725-9808) or regular mail to our office by September 9, 2010 to show your opposition to the Postal Service’s efforts.
On August 2, we appeared before Judge James V. Selna on the Postal Service’s motion for summary judgment. In short, Judge Selna denied the Postal Service’s motion, meaning that the case will move forward.
You will recall that the Postal Service filed an application with the Court seeking to have the case dismissed, arguing that because no other law enforcement officials in the executive branch receive availability pay and overtime pay under the Fair Labor Standards Act, Postal Inspectors should not receive both forms of pay. The Postal Service further argued that if Inspectors received both forms of compensation, their pay would improperly exceed the pay of other federal law enforcement officers.
We responded by identifying another group of law enforcement officers (Federal Air Marshals) who perform comparable work to that of Postal Inspectors and who receive FLSA overtime. We further argued that even if no other such group existed, Postal Inspectors are still entitled to FLSA overtime because no specific exemption exists within the FLSA and the pay comparability law (39 U.S.C. Section 1003(c)) has not repealed or replaced the FLSA.
On July 30, the Court issued a tentative ruling in our favor, concluding that because Postal Inspectors and Federal Air Marshals shared several common duties, the Court could not grant the Postal Service’s motion. The Court rejected our argument that we should prevail even if no comparable group of law enforcement officers exists that also receive FLSA overtime.
At the hearing on August 2, the Postal Service did not try to argue that the duties for the two jobs were dissimilar; rather, the Postal Service told Judge Selna that the parties should litigate this single issue and put the rest of the case on hold. We strenuously opposed this request and further argued that even if the issue was resolved against us, the case should proceed for the reason identified above: Postal Inspectors’ entitlement to FLSA overtime pay is not dependent on whether another group of executive branch law enforcement officers who do similar work also receive overtime pay.
On August 5, Judge Selna affirmed his tentative ruling in all respects. This means that our case goes forward. I expect the Postal Service to appeal Judge Selna’s ruling and to try and persuade Judge Selna to allow the Postal Service to challenge the comparability issue (do Air Marshals perform comparable levels of work to Postal Inspectors?) before allowing the rest of the case to proceed. We will oppose any such challenge.
For now, we have a favorable ruling and we can move to the next phase of the case, which is determining whether Inspectors are subject to the “administrative exemption” in the FLSA. If we prevail on this issue, the case will proceed to trial. Click here to view a copy ofJudge Selna's Order
Posted July 23, 2010
As all of you know by now, on May 24, 2010, Rep. Stephen Lynch introduced H.R. 5368, the “United States Postal Service Postal Inspectors Equity Act.” Postal Inspectors currently receive pay and benefits that can be impacted by discretionary decision making by the Postal Service. The proposed bill is designed to ensure that Postal Inspectors are paid like their counterparts in the executive branch.
With respect to the litigation, a hearing is set for August 2, 2010 in federal court in Santa Ana, California, at which time Judge Selna will hear oral argument on the Postal Service’s motion for summary judgment.
In short, the Postal Service claims that it is excused from complying with the FLSA overtime statute because (i) it complies with the pay comparability statute (Section 1003(c)) and (ii) that Section 1003(c) impliedly repealed the FLSA. On the issue of repeal, the Postal Service contends that there is an irreconcilable conflict between the FLSA and Section 1003(c) because plaintiffs have not shown that there are other employees in the executive branch of government who perform comparable work to that of the Postal Inspectors. We have opposed the application, arguing that there are employees in the executive branch of government who perform comparable work and whose primary work duties are comparable to those of the Postal Inspectors, and that Section 1003(c) does not explicitly or implicitly repeal the FLSA. On July 19, 2010, the Postal Service filed its reply brief.
The hearing on August 2 is set for 1:30p.m. We do not expect a decision from the Court for several weeks after the hearing. The website will be updated as soon as there is a decision. Attached are copies of the Postal Service’s opening brief, the Postal Inspector’s opposition brief, and the Postal Service’s reply brief.
On February 22, 2010, plaintiffs Robert Nigg and Keith Lewis filed a motion seeking an order to re-open the opt-in period to allow eligible Postal Inspectors to join the lawsuit. The Postal Service did not oppose the motion.
On March 19, 2010, the Court granted plaintiffs' motion. The Court not only deemed defendant's failure to oppose the motion as consent to the relief requested, but also granted the motion on its merits, finding that due to the length of the litigation, many potential plaintiffs have not had the opportunity to join the suit, and that re-opening the consent to join period was in the interest of judicial efficiency.
The Court ordered the Postal Service to provide plaintiffs with the known names, addresses, telephone numbers, and e-mail addresses of all Postal Inspectors employed as of April 1, 2010. You may be eligible to join if you (i) have worked as a Postal Inspector on or after April 1, 2007 or (ii) worked as a Postal Inspector prior to September 18, 2004, did not join by the original September 18, 2004 deadline, but continued to work as a Postal Inspector after April 1, 2007.
Eligible Postal Inspectors will have until May 31, 2010 to provide written consent to join this lawsuit. If you think you are eligible to join the lawsuit, you need not wait for us to notify you. A copy of the Consent to Join form is attached. Print it out, complete it and return it to us via e-mail (email@example.com ), facsimile (212-725-9808) or regular mail to our office address. We will then file the forms with the Court.
Judge Selna's March 19, 2010 Order also is attached.
POSTED JANUARY 22, 2010
The parties spent a considerable amount of time in November and December 2009 attempting to complete discovery and resolve outstanding discovery disputes. With discovery still not completed on January 8, 2010, the parties filed a stipulation to continue the filing deadlines and hearing on defendant’s renewed motion for summary judgment.
On January 11, 2010, the Court granted the joint stipulation. The briefing schedule has been revised as follows:
Defendant USPS will file its motion for summary judgment no later than March 15;
Plaintiff will file his opposition to defendant’s motion no later than March 29, 2010; and
Defendant will file its reply brief no later than April 5, 2010.
Accordingly, the hearing on defendant's motion for summary judgment, originally scheduled for February 8, has been continued to April 19, 2010.
POSTED AUGUST 14, 2009
On August 3, 2009, we attended a pre-trial conference before Judge Selna in federal court in Santa Ana. The principle purpose of the conference was to set a schedule for discovery (depositions, requests for documents, etc.) and other deadlines as we try to move the case forward. Over the next several months, we will be asking the Postal Service to produce documents and make witnesses available for deposition. During this process, we expect to obtain evidence to help us establish that Postal Inspectors are entitled to FLSA overtime. The Ninth Circuit opinion was clearly a victory for the Inspectors, as the Court held that the Postal Service cannot use Section 1003(c), the comparable pay statute, to avoid paying overtime under the Fair Labor Standards Act. The Postal Service believes, however, that the decision suggests that Inspectors get FLSA overtime only if we can show that there are GS-1811s who receive FLSA overtime. We do not agree with that reading of the Ninth Circuit's opinion.
Within the next two weeks, we intend to file an application with the Court to re-open the "Consent to Join" period. The original opt-in period expired September 18, 2004. We will be asking the Court to allow two groups of Inspectors to join the suit: (i) those who did not opt-in originally but who still work for the Postal Service, and (ii) those who have worked for the Postal Service any time within the last three years. We can only go back three years because that is the statute of limitations for claims under the FLSA.
To determine your eligibility to join the lawsuit (if the court grants our application), please review the timeline below:
In short, if you joined the suit between the time the Complaint was filed September 23, 2003 and September 18, 2004, you are in the case and there is nothing you need to do. If you joined the Inspection Service after September 18, 2004 and left the Inspection Service before approximately December 1, 2006, you cannot join the suit (see red box above). If you joined the Inspection Service after September 18, 2004 and worked there after December 1, 2006, you may be able to join the lawsuit if the Court grants our application. The longer you worked for the Inspection Service after December 1, 2006, the greater your damages will be if we prevail.
The discovery period will end on December 31, 2009. After that, the Postal Service will renew its motion for summary judgment, arguing that no GS-1811s get FLSA overtime so Postal Inspectors should not get FLSA overtime. Briefing is expected to be completed on February 1, 2010, with oral argument before the Court on February 8, 2010.
We will keep you updated as to any interesting developments that occur during the discovery process so be sure to check the website from time to time.
POSTED JULY 10, 2009
A scheduling conference has been set by Judge Selna for August 3, 2009.This is the first conference with the Court since the decision from the Ninth Circuit Court of Appeals. The purpose of the conference will be to discuss a schedule for discovery (document production and depositions) leading up to a possible trial. We also intend to ask the Court for permission to file a motion to add new Inspectors to the suit.
POSTED APRIL 16, 2009
On April 14, 2009, the case was reassigned to Judge James V. Selna. I expect a status conference to be scheduled within the next 30 days, at which time the attorneys will meet with Judge Selna, describe the litigation, and discuss how to proceed. Click HERE to see a copy of the assignment.
POSTED FEBRUARY 6, 2009
I am happy to report that the Ninth Circuit Court of Appeals has finally ruled on the Postal Service's motion for rehearing. In short, the new opinion is nearly identical to the August 27, 2007 opinion, in which the Court of Appeal reversed the decision of the District Court and reinstated your overtime lawsuit.The Court of Appeal concluded that the overtime provisions of the Fair Labor Standards Act are not irreconcilable with the comparable pay provisions in 39 U.S.C. § 1003(c), meaning that Postal Inspectors may be entitled to FLSA overtime pay. The Court of Appeal remanded the case back to the District Court, directing the court to determine (1) whether any employees of the executive branch who are eligible to receive FLSA over-time perform work comparable to that of the inspectors, and (2) whether the inspectors satisfy any FLSA exemption or are entitled to FLSA overtime.This process cannot begin until a judge is assigned to the case, which could take anywhere from 30 to 60 days.Once a judge is assigned to our case, we intend to ask the court to open the "opt-in" period so that Postal Inspectors who want to join the suit will have an opportunity to do so.
POSTED JANUARY 9, 2009
We continue to await a ruling from the Ninth Circuit Court of Appeal. I had expected to receive a decision by the end of 2008, but it is always dangerous to predict when a court will render its decisions.
POSTED OCTOBER 31, 2008
We are still awaiting a decision from the Ninth Circuit Court of Appeal relating to the Postal Service's application for rehearing. I had expected a decision by now, so I suspect it will not be much longer.In the meantime, I can tell you that any rumors about settlement are in fact only rumors. There have been no settlement offers, no settlement demands and no settlement discussions.The mediation sessions from February and May, 2008 failed because the Postal Service refused to pay any money for past overtime.As far as I know, that position has not changed. I will let you know if any settlement overtures are made.
POSTED AUGUST 27, 2008
On August 15, 2008, the Inspectors filed their opposition to the Postal Service's petition for rehearing by the Ninth Circuit. That opposition is available for you to read [Postal Service Petition for Rehearing]. While some of you have had access to the Postal Service's brief, we want to ensure that it is available to all of you. You may read that brief by clicking the link [Postal Service Petition for Rehearing].We have not yet heard from the Ninth Circuit and expect that it will be several more weeks before a decision is rendered.
POSTED AUGUST 15, 2008
Today we filed our response to the Postal Service's petition seeking reversal or clarification of the Ninth Circuit's August 27, 2007 decision restoring our case.The Court has a 15-page limit, so if you would like to read our response, it will not take you too long.
I would expect a decision from the Court within the next month or so. Shortly, we will post an update describing what we expect to happen in this case over the next few months.
POSTED JUNE 23, 2008
As most of you know by now, on June 13, 2008, the United States Postal Service sent a letter to all of the Postal Inspectors who have not joined the overtime lawsuit, purportedly to "discuss" the impact of the Ninth Circuit opinion, which held that Postal Inspectors may be entitled to overtime pay. In fact, the letter's real purpose was to scare and intimidate Postal Inspectors by telling them that their pay and benefits would be reduced if the Ninth Circuit opinion is not modified or withdrawn.
While the June 13, 2008 letter was not supposed to be sent to any of the 1300 Postal Inspectors who are in the lawsuit, we know that many have received it, either from the Postal Service directly or from other Inspectors. The purpose of this letter is to set forth, for all Postal Inspectors, the numerous misstatements of fact and law contained in the Postal Service's letter and to explain why the Postal Service does not have the right to cut pay or benefits.I apologize in advance for the length of this letter.However, as you will see, the Postal Service letter omitted a great deal of information necessary to understand the lawsuit and the Ninth Circuit's decision. I encourage you to read the entirety of this letter. For those of you who do not have the time or the inclination, I have set forth some of the highlights below.
In 2004, the Postal Service filed a motion for summary judgment (asking to have the case dismissed) on the ground that the Postal Service did not have to comply with federal overtime laws (the Fair Labor Standards Act or "FLSA") because it complied with Title 39 Section 1003(c), which requires the Postal Service to pay Inspectors "on a standard of comparability to the compensation and benefits paid for comparable levels of work in the executive branch of the Government outside of the Postal Service." In its brief, the Postal Service argued:
1. That Postal Inspectors are "comparable" to GS-1811s;
2. That Postal Inspectors are compensated "comparably" to 1811s; and
3. That because the Postal Service has complied with Section 1003(c) by paying Postal Inspectors comparably to GS-1811s, it does not need to comply with the FLSA overtime laws.
Contrary to the June 13 letter, we did not argue that Postal Inspectors are not comparable to 1811s. We have never made such an argument and we did not need to make it in this case in order to respond to the Postal Service's motion. Instead, we made a technical legal argument that the Postal Service was not free to pick and choose which federal laws it would follow, and that as a matter of law, it had to follow both (FLSA overtime and Section 1003(c) comparability). We also argued that there were criminal investigators who received overtime, so the concept was not novel.
The District Court agreed with the Postal Service. We appealed to the Ninth Circuit, who reversed the District Court. In its opinion, the Ninth Circuit ruled that merely complying with Section 1003(c) did not excuse the Postal Service from complying with the overtime laws and that Postal Inspectors may be entitled to overtime. Specifically, the Court stated:
For these reasons, under the rule against implied repeals, the Postal Service's construction of § 1003(c) as implicitly repealing or amending any portion of the FLSA that otherwise applies to postal inspectors runs afoul of Supreme Court precedent and is unreasonable.
The Postal Service has misstated the Inspectors' argument. We have not argued that Postal Inspectors are entitled to either availability pay or overtime. Rather, we have argued that Postal Inspectors are entitled to both (a pay system comparable to availability pay and overtime pay) because, unlike most GS-1811s, who are specifically exempt from receiving overtime under the Law Enforcement Availability Pay Act passed by Congress in 1994, Postal Inspectors are not included in the law.
The Ninth Circuit opinion does not order, direct or require the Postal Service to reduce pay or benefits. The Postal Service has taken the position that one sentence in the opinion allows the Postal Service to cut pay and benefits. While we strongly disagree with the Postal Service's position, it is imperative that you know that if pay and benefits are reduced, it will be because the Postal Service wants to reduce them, not because the Ninth Circuit opinion requires it.
The Ninth Circuit specifically stated that the issue of comparability was not before the Court. In other words, neither the District Court nor the Circuit Court has ever made a ruling or offered an opinion as to whether Postal Inspectors are comparable to GS-1811s. We believe that they are for purposes of Section 1003(c); as discussed below, the Postal Service, after more than15 years of comparing Inspectors to 1811s, has now taken the position that Inspectors are comparable to GS-1896s.
These are some of the more important points. PLEASE NOTE THAT IF THE POSTAL SERVICE MAKES ANY ATTEMPT TO REDUCE PAY OR BENEFITS, WE WILL IMMEDIATELY FILE A MOTION SEEKING TO RESTRAIN THE POSTAL SERVICE FROM IMPLEMENTING ANY SUCH REDUCTIONS.
For those of you who want to understand more about why the Postal Service has no legal right to reduce pay and benefits, please continue reading.
History of Relevant Legislation
In 1990, Congress passed Public Law 101-173, the Federal Law Enforcement Pay Reform Act (FLEPRA). It was the intent of Congress that the pay and benefits of Postal Inspectors be included in this law. However, in the last few days before the bill was passed, the Postal Service specifically requested that Postal Inspectors be removed from the Act. Congress deferred to the Postal Service’s request on the ground that the Postmaster General, based on the provisions of the Postal Reorganization Act (Title 39) had “ample authority and flexibility to make Postal Inspector positions attractive.” As a result, Postal Inspectors were excluded from the Act and not made part of the federal pay system by which all other federal law enforcement agents are now classified. Through the Postal Service's own actions, Postal Inspectors are not considered federal employees classified under the GS-1811 pay schedule.
FLEPRA, as part of the Federal Employees Pay Comparability Act of 1990 (FEPCA), included changes to the method used to calculate Administratively Uncontrollable Overtime (AUO; and provided for special pay adjustments for law enforcement officers in selected areas, effective January, 1992. The combination of FLEPRA and FEPCA allowed for journeyman level federal law enforcement agents to receive salary increases up to 24.8%, with additional increases of over 12% to become effective in subsequent years (see Postal Inspection Service Compensation Task Force, Pay Comparability for Postal Inspectors, dated June, 1991). Based upon these two new federal pay policies, the existing inequity between the salaries of Postal Inspectors and those of other federal criminal investigators became increasingly greater.
Congress recognized this disparity and reminded the Postal Service of the assurances it had given in 1990 to make Postal Inspectors' pay competitive. On July 3, 1991, Senator DeConcini, chairman of the Senate Committee on Appropriations, and sponsor of the “Federal Law Enforcement Pay Reform Act of 1990," attached the following language to H. R. 2622, the “Treasury, Postal Service, and General Government Appropriations Bill, 1992”:
The committee is aware of the efforts within the Postal Service to provide increased pay and benefits for Postal Inspectors. The Committee applauds these efforts as it believes the Inspectors deserve the pay and benefits which are comparable to those provided to other Federal law enforcement officers. The Committee urges the Chief Postal Inspector and the Postmaster General to work expeditiously to formulate and implement pay reform for postal Inspectors and keep the Committee advised of the progress being made.
Subsequently, effective November 30, 1991, the Postal Service formulated changes to the salary of Postal Inspectors to include a Law Enforcement Premium (LEP) and Special Pay Adjustments (SPA). Originally, the LEP for Postal Inspectors provided a 13.5% premium to all Postal Inspectors under the Postal Service EAS pay schedule. This premium pay was to be rolled into the salary of Postal Inspectors and is shown separately on the employee’s paycheck as “LEP.” Of critical importance is that the Postal Service defined LEP as being included in basic pay for purposes of calculating retirement, thrift saving plans, and life insurance contributions and benefits, as well as annual and sick leave.
Similarity, the “SPA” of 9% to 4 % was to be paid to Postal Inspectors who had as their official duty station, one of eight designated areas approved under the Federal Employees Pay Comparability Act of 1990. SPA was also to be included in basic pay for purposes of calculating retirement, thrift saving plans, and life insurance contributions and benefits, as well as annual and sick leave.
In 1994, Congress passed the Law Enforcement Availability Pay Act (LEAP) under Title 5, §5545a. This law applies to federal agents/criminal investigators who are in an 1811 position and paid on the GS schedule. Since Postal Inspectors, at the request of the Postal Service, had been excluded from the FLEPRA in 1990, Postal Inspectors were not included in LEAP. See 5 USC § 2105(e). The LEAP law replaced AUO with availability pay. LEAP provides a 25% premium to federal agents to ensure their availability beyond a 40-hour workweek. The law requires federal law enforcement agencies to pay availability pay whether or not additional hours above 40 per week are worked. It is up to agency management to determine whether the hours are worked. The LEAP law essentially changed the standard workweek from a 40-hour week to being required to work or be available to work an average 50 hour week.
Upon the enactment of LEAP, Congress also simultaneously amended the FLSA to prohibit criminal investigators who are paid LEAP from receiving overtime pay. See 29 USC § 216(a)(16). Because Postal Inspectors are not paid LEAP, Postal Inspectors are not included in this exemption. It is for this reason that Postal Inspectors are entitled to FLSA overtime.
It is important to understand, that when Congress enacted LEAP, the law included specific provisions for other forms of premium pay. Under Title 5, § 5545a(c), criminal investigators are also to be paid, in addition to availability pay, premium pay for regularly scheduled overtime work as provided under section 5542, night duty, Sunday duty, and holiday duty. Under the pay scheme implemented by the Postal Service, Inspectors do not receive this premium pay for regularly scheduled overtime, nor do Postal Inspectors receive premium pay for night duty, Sunday duty, or for holiday duty. The Inspection Service Law Enforcement (ISLE) pay policies are not the same as LEAP premiums paid to other federal criminal investigators.
Additionally, when Congress enacted LEAP, it created the prerequisite that criminal investigators were to be paid premium pay which was to include availability hours which are defined as unscheduled duty hours such investigator is available to work on each regular work day upon request of the employing agency. See 5 USC § 5545a(d)(2)(B). Within, §5545a(c), the specific language of LEAP makes clear that: “availability pay shall be paid to ensure the availability of the investigator for unscheduled duty. The investigator is generally responsible for recognizing, without supervision, circumstances which require the investigator to be on duty or be available for unscheduled duty based upon the needs of the agency.” Contrary to the intent of Congress, the Postal Service has implemented an ISLE policy that has effectively resulted in no availability hours (defined under § 5545a(d)(2)(B)) ever being credited to Postal Inspectors. Although no availability hours are allowed to be accrued by Postal Inspectors, the Postal Service (i) still requires Inspectors to be available 24 hours a day, 7 days a week for the entire year and (ii) still requires Inspectors to perform duty weeks, when the personal activities of Postal Inspectors are restricted and (iii) still requires Inspectors to be specifically available and subject to on-call, immediate response.
By 1996, the pay disparity between Postal Inspectors and other federal criminal investigators became increasingly more inequitable. Even though Congress had sought to diplomatically persuade the Postal Service in the bill, H.R. 2622 in 1992, to pay comparable compensation and benefits, the Postal Service failed to keep its commitment. Thus in 1996, Congress passed 39 USC § 1003(c) to raise the salaries and benefits paid to Postal Inspectors to correspond with the compensation of investigators from other federal agencies. Thus in 1997, the Postal Service again had to adjust the LEP and SPA paid to Postal Inspectors to be comparable to other criminal investigators. Again, it is important to understand that LEP and SPA are included in the salary and are considered part of the basic pay of Postal Inspectors to be included in calculating retirement benefits. The Chief Postal Inspector, in his June 13, 2008 letter, does not appear to understand the Postal Service’s own regulations and pay policies as implemented in 1997 by the Inspection Service to comply with § 1003(c).
Historically, the investigative duties of Postal Inspectors have been compared by OPM and the Postal Service to other criminal investigators within the GS-1811 series. The plaintiffs have never argued that, for purposes of comparability of compensation and benefits, Postal Inspectors should not be compared to GS-1811 criminal investigators. What we have argued is that the Postal Service has other methods to compensate Postal Inspectors on a "comparable" basis, regardless of the means by which comparability is administered. The evidence will demonstrate that the investigative knowledge, skills and abilities of Postal Inspectors is comparable to the duties of Federal Law Enforcement Officers (LEO) in the General Schedule, Grades GS-9 to GS-13 pay levels. Postal Inspectors perform significantly complex investigative case work, requiring full investigative knowledge, skills, techniques and methods which require several days, weeks, or even months of information collection, analysis and evaluation to complete. The National Advisory Commission on Law Enforcement described the position of Postal Inspector as being the example of a key federal job within the category of GS-1811 Criminal Investigator series.
History of the Litigation
The Nigg overtime lawsuit was commenced because although the Postal Service claimed that its pay system was essentially the same as that provided by LEAP, the Postal Service did not offer all of the benefits included in LEAP nor did the Postal Service treat the Inspectors as if they were covered by LEAP. For example, the Postal Service has required, and continues to require to this day, that Inspectors work 50 hours per week, when LEAP requires only that its criminal investigators work or be available to work 50 hours per week.
In the absence of availability hours or scheduled-in-advance-overtime, the Postal Service compensation scheme is inferior to LEAP. However, because Postal Inspectors are not exempt from the federal overtime laws like most GS-1811s, they are entitled to overtime pay.
The Postal Service originally took the position that because Postal Inspectors are comparable to GS-1811s, and most GS-1811s do not receive FLSA overtime, Postal Inspectors should not receive FLSA overtime. Now, however, based on the Ninth Circuit opinion, the Postal Service has stated that it will reduce pay and benefits to the level of GS-1896s, as if the opinion directs that it do so. As noted above, the Ninth Circuit opinion does not order or direct that any reductions be made. Any reductions in pay or benefits would be based on a decision by the Postal Service, not on a legal directive from a court.
As I have stated previously, any attempt to reduce pay or benefits would be met with legal action in the form of a request for a restraining order to prevent any such reductions. Our argument would be quite simple. For at least 15 years, including most recently in papers filed with the District Court and the Court of Appeal, the Postal Service has taken the position that Postal Inspectors are comparable to GS-1811s. It would be disingenuous for the Postal Service to now argue that one inconclusive sentence in the Ninth Circuit opinion, without any factual basis or analysis, means that Postal Inspectors are now comparable to GS-1896s.
POSTED JUNE 17, 2008
On June 13, 2008, the United States Postal Service sent a letter to those Postal Inspectors who are not part of the overtime lawsuit, purportedly to “discuss” the North Circuit opinion in Nigg, et al. v. United States Postal Service. In that opinion, the Court held that Postal Inspectors may be entitled to overtime pay.
The letter from the Postal Service does not “discuss” the Ninth Circuit opinion. Instead, it seeks to scare and intimidate Inspectors by stating that pay and benefits will be cut if the opinion is not modified. This simply is not true. The only way for pay and benefits to be reduced is if the legal department of the Postal Service tells the Postal Service Board of Governors that the opinion permits a reduction and then the Postal Service implements a reduction. The opinion itself is not self-executing – it does not order the Postal Service to alter Inspectors’ compensation or benefits in any way. In other words, if pay and benefits are reduced, it is because the Postal Service wants to reduce them, not because it has to reduce them. Please note that any effort to reduce pay and benefits will be met with legal action by us.
The letter is very misleading. For example, it states that the Postal Service has invited the Inspectors to join in the filing of a petition to “modify” the opinion and suggests that we have refused. What the letter does not say is that the Postal Service demanded that the Inspectors agree to request not just a modification of the opinion, but rather, to request to have it thrown out altogether. This would mean returning to the District Court, where the Postal Service would get a second opportunity to argue that the overtime laws do not apply to Inspectors.
The Postal Service also has greatly mischaracterized our position. We have never argued that Inspectors should be paid FLSA overtime instead of availability pay. We have argued that Inspectors are entitled to both overtime and availability pay because, unlike most GS-1811s, there is no statute (the LEAP statute) that exempts Inspectors from the overtime laws. The Postal Service's letter implies that the Ninth Circuit ruled that Inspectors must be paid overtime instead of availability pay. We never made that argument and the Ninth Circuit never made that ruling.
There are numerous other misstatements of fact and law, and the Postal Service has omitted several important facts. As we just received the Postal Service's letter today, June 16, 2008, we have not had sufficient time to analyze it and prepare a response. We expect to have a response prepared and posted by Friday, June 20, 2008. In the meantime, if you have questions or concerns, you should call Alexander Lazaroff, Chief Postal Inspector, at 202-268-5615.
Also, on Wednesday, June 4, 2008, we updated this website to inform our clients about the status of the litigation and the results of the mediations that had taken place with the Ninth Circuit Court of Appeal. On Thursday, June 5, the Postal Service complained to the mediator that the information on the website may have violated a court rule about disclosing confidential information discussed during the mediation. Without identifying any specific information, and without offering us the opportunity to correct any supposed violations, the Ninth Circuit has ordered us, under a threat of sanctions, to remove the entire status update that we posted on June 4. While we strongly disagree with the court’s order, we have complied with it.
If you are a member of the class and would like to receive a copy of the status report, please email us at firstname.lastname@example.org and we will forward you a written copy privately. If you have additional questions following your review of the status report, please call us at 212-725-9800.