Terry Gerton There’s a recent Court of Federal Claims case regarding the U.S. Secret Service. Why is this such an important moment in that case?

Nicholas Wieczorek  Well, to give it some perspective, we have to go back 10 years. So, in 2016, the law firm I was working for at the time was contacted by a Secret Service agent who felt he was being improperly paid under federal law. We investigated that and determined that his concerns had merit. We filed a lawsuit in the United States Court of Federal Claims, where money actions against the federal government are handled, alleging various improper pay practices, one of which was unpaid overtime due to special agents in the Secret Service for work they had performed. That was the genesis of the lawsuit. It traveled its way up to the United States Court of Appeal for the Federal Circuit in 2018. And in that case, the circuit court said that one of the pay practices the agency had, which we can discuss, was illegal. And the rest of the case since then has been about trying to get these agents paid for overtime they worked that they were not paid for.

Terry Gerton And what was the decision, then, recently in the Court of Federal Claims that moves this case to the next step?

Nicholas Wieczorek  After the pay regulation was struck down by the court of appeal in 2018, the case continued. The agency did not want to settle the case; they wanted to litigate the case. And that continued for another seven years. In 2024, the current judge on the case issued an order denying the agency the Secret Services’ motion essentially to dismiss the case, a motion for summary judgment, finding there were valid actions that should go to trial. One of the judge’s other orders was that the agency had improperly destroyed pay records, timesheets and other records that could be used to help establish how much over time the agents in the case were entitled to. That, I think, led the agency to perhaps reconsider its position. And last year, the court ordered the case into a mediation posture, where we have now tentatively struck a settlement deal — again, 10 years after the issue first arose.

Terry Gerton Secret Service overtime is a perpetual problem. They are understaffed, overworked, and anybody who watches what happens with the Secret Service workforce knows that those agents pull a lot of overtime. Have the policies changed so that they are at least recording pay properly today?

Nicholas Wieczorek  Like any other federal agency, the regulations are sometimes complicated and can lead to differing results. Secret Service agents are identified under federal law as special investigators, criminal investigators. And under the federal statutes, they are entitled to what’s called a 25% pay enhancement of their base pay. It’s called law enforcement availability pay; shorthand for it is LEAP. And that basically allows them to work an additional two hours every day of unscheduled duty, meaning things come up, they have to stay late, they have to go to a different site, they have to handle something that was not anticipated. The Secret Service has, since LEAP was applied to agent pay, scheduled their overtime under LEAP, so most agents now have 10-hour workday schedules. In addition to that, if an agent works additional unscheduled duty, they should be getting paid overtime. And the issue in the case was the regulation called for any unscheduled duty hours to have to have been worked consecutively — two or more consecutive hours between, for example, 7 p.m. and 9 p.m., whereas many agents would come in at 7 a.m. and work until 8 a.m. and then stay late and work from 7 p.m. until 8 p.m. And they were not getting paid for that. So the issue in the case was, how do we pay these agents now that the court has said that that consecutive hours requirement is no good? The agency still has their employees record their time, but the issues now are a little clearer because of the court’s rulings in this case and others.

Terry Gerton Nicholas Wieczorek is a member at Clark Hill. One thing that stands out about this case is how long it has taken to get even this far. What does this tell you about the difference between winning a legal ruling and actually getting the remedy?

Nicholas Wieczorek  The legal side of the case is just part of it. The other is the party’s position in the case. What I’ve observed over the last 10 years of dealing with the Secret Service as an agency is that it takes a very aggressive position on its litigation and aggressive position on its policies. I had believed in 2018, when that Court of Appeal spoke on the case, that it would be a matter of quick negotiation, settlement and payment. But the agency didn’t believe that and continued to litigate the case for a long time. I think part of that is a reflection of just agency culture. I think part of it is a reflection of agency attitude toward its workforce. And as we’ve seen in recent news events and the 2024 campaign for president, Secret Service has issues, one of which is morale of the workforce, which we don’t believe is especially good.

Terry Gerton Federal employees really across the government are watching a number of disputes play out right now involving terminations, bargaining obligations, and other workforce actions from the administration over the last 18 months or so. Are there broader lessons that folks should learn from this case about what happens after a court or an administrative body maybe determines that the government got something wrong?

Nicholas Wieczorek  Well, I think any lawsuit involving the federal government, you have to be prepared for a long haul. There are forces in play in the government. There are agency positions and people whose job it is to mind these types of things. And it just takes a long time to get a case set up in a position to work a resolution. In this particular case, after seven or eight years, we were able to posture it for resolution. Now our challenge is trying to communicate the fact of this settlement to the members of the workforce who are entitled to the settlement that has been tentatively agreed to. So, there are over 5,000 current and former Secret Service agents who are entitled to share in this settlement. We’re dealing with a time period between 2015 to 2018, and many people move and change addresses. The agency has sent out notice to the last known addresses of all of these agents; over 500 letters have come back. So, we need to figure out in the next 30 to 60 days how to spread the word about this case among those who are entitled to share in it and hopefully give them the ability to choose to participate.

Terry Gerton And if one of those people might be listening right now and hasn’t heard otherwise, where can they reach out for more information?

Nicholas Wieczorek  Our law firm has set up an email that you can access or send an inquiry to. We’re happy to respond to it: ussslawsuit at clarkhill.com. There we can field your inquiry, we can ensure that you’re qualified, we could walk you through the registration process — which is challenging and difficult in its own way because we’re dealing with a settlement website created by the Secret Service, so there is security involved with it. But our goal is to make sure that all 5,000-plus eligible employees are certainly entitled to share in the proceeds of an overtime settlement that they earned.

Terry Gerton It sounds like just reaching the people who are involved, potentially, in a case is one of the biggest challenges. But when you look across the federal workforce landscape, are there other major obstacles that make it difficult to translate these legal victories into practical outcomes for the affected employees?

Nicholas Wieczorek  Well, in this case, as in the case of other litigation we’re involved in involving other federal law enforcement officers, many of the identities of these individuals is considered sensitive information. We cannot get our hands on a mailing list, an email list for all employees in a given agency to share information or communicate or inquire as to whether improprieties are going on. So it is very kind of happenstance that we get contacted from time to time by a federal employee who says, something is not going right in my agency. Once a case is set up as a class action, then you have full access to your class members, but between the filing and the class certification date, it is sometimes extremely difficult to communicate the fact that there’s even a lawsuit going on involving the workforce of a particular agency that people may be interested in.