1 v. United States

Federal Claims

1 v. United States

CourtUnited States Court of Federal Claims

DecidedMarch 1, 2022

Docket19-1019

StatusUnpublished

This text of 1 v. United States (1 v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

1 v. United States, (uscfc 2022).

Pincite

Opinion

In the Guited States Court of Federal Claims

No. 19-1019C (Filed Under Seal: February 10, 2022) (Reissued: March 1, 2022)* NOT FOR PUBLICATION

RRRERRERRRERRRRERERRRERERRRERRRRRRRERRRREERE

PLAINTIFF NO. 1, Plaintiff,

Vv.

THE UNITED STATES,

Defendant.

e+ + % F HF F HF HF H H

OPINION AND ORDER

Plaintiff! claims that the Department of Defense (“DOD”) violated the Fair Labor Standards Act (“FLSA”) by failing to compensate him for time he spent outside working hours completing the DOD Counterintelligence Agent Course (“DCAC’) from January 4 to March 2, 2018. Plaintiff asks the Court to issue notice concerning the case to members of his DOD “component” who attended the DCAC up to three years ago. Although this Court previously denied notice,* Plaintiffs renewed motion now shows that notice is appropriate.? The motion is GRANTED.

Section 16(b) of FLSA entitles employees to bring claims on behalf of themselves and those who are “similarly situated.” 29 U.S.C. § 216(b). Similarly situated individuals can choose to opt in to a FLSA case by submitting joinder notices. The statute also authorizes courts to facilitate joinder by issuing notice to similarly situated third parties. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170-71

* Pursuant to the protective order in this case, the Court initially filed this opinion under seal on February 10, 2022, for the parties to propose redactions of confidential or proprietary information. The parties were directed to propose redactions by February 24, 2022. The parties notified the court via email on February 28 that there were no proposed redactions. The Court hereby releases publicly the opinion and order of February 10 in full.

! This case is subject to a protective order to ensure that classified information is protected from unauthorized disclosure. Protective Order for Use and Handling of Secret/Top Secret/Sensitive Compartmented Information (ECF 94) (‘Protective Order’).

2 See Order (ECF 81).

3 Pl’s Mot. for Notice (ACF 97) (PI's Mot.”); Def.’s Resp. to Pl’s Mot. for Notice (ECF 100) (“Def.’s Resp.”); Pl.’s Reply in Supp. of Notice (ECF 101) (PL’s Reply”). I held a hearing on February 4, 2022. (1989). But as this Court explained in Valte v. United States, the standards for determining whether to issue notice are unsettled. 155 Fed. Cl. 561, 566—73 (2021). Contrary to cases that have approached FLSA notice with inaccurate analogies to class action procedures, see, e.g., Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), mandamus granted on other grounds sub nom. Lusardi v. Lechner, 855 F.2d 1062 (3d Cir. 1988), notice is acase-management device for ensuring orderly, voluntary joinder of individuals likely to be “similarly situated” to the original plaintiff. Valte, 155 Fed. Cl. at 573. “When a similarly situated group exists, early notice is likely to be consistent with FLSA and good case management practices — subject of course to the Court’s discretion.” Id. at 574 (citing RCFC 83(b) & 16(b)).

For the Court to issue notice, Plaintiff must first show that he is likely to be “similarly situated” to the people who would receive the proposed notice. Jd. at 574— 75. In other words, it must be likely that Plaintiffs experience with the DCAC between January 4 and March 2, 2018, was similar to that of individuals in his DOD component who participated more recently.

The parties have reached several stipulations relevant to similarity. See Stipulations of Fact (ECF 91). First, the parties have provided the Court with a 2018 human resources policy memorandum regarding payment of overtime during the DCAC. See Exhibit (ECF 88-1). The parties stipulate that “[t]he policy set forth in this memorandum regarding overtime pay during DCAC has applied to all non- exempt DCAC attendees from the plaintiffs same [DOD] component ... since 2018.” See Stipulations of Fact § 2. Although the memorandum is dated after Plaintiff took the course, the parties agree that the same policy applied to him. Second, the parties stipulate that “[t]here were no material differences in the instructions given to later DCAC attendees from [P]laintiffs component regarding assignments or completion of coursework outside of scheduled hours.” Jd. { 3. Third, the parties stipulate that “t]he content of DCAC has not changed materially since 2018.” Id. § 4.

The net result is that — as to non—-FLSA-exempt participants employed in Plaintiffs component — the DCAC’s substantive content, expectations for work outside scheduled hours, and overtime payment policies have not materially changed since Plaintiff took the course. Given those stipulations, the parties do not disagree that Plaintiff is similarly situated to non—FLSA-exempt members of his component who took the course later. See Pl.’s Mot. at 1-2; Joint Status Report at 2 (ECF 88).4

I agree. The parties have not undertaken to define what it means to be “similarly situated” for purposes of FLSA notice. Valte, 155 Fed. Cl. at 571 (suggesting

4 Plaintiff does not. seek notice for employees of other DOD components or agencies. See Pl.’s Mot. at 2; Joint Status Report at 2.

-2- avenues for developing a test consistent with the statute’s text). But whatever the niceties of the standard might be, they are surely satisfied by stipulations (or evidentiary proof) establishing that a plaintiff and absent third parties were in a materially similar work environment and subject to the same time expectations and payment policies. See Hoffmann-La Roche Inc., 493 U.S. at 170 (explaining that notice enables “efficient resolution in one proceeding of common issues of law and fact arising from the same alleged ... activity”).

Plaintiff must also justify notice as an exercise of judicial discretion that furthers case management interests such as “timely opt-in by people entitled to proceed collectively, maintenance of orderly case deadlines, and supervision of communications about the case with potentially interested non-parties.” Valte at 573 (citing Hoffmann-La Roche Inc., 493 U.S. at 171-72, and Briggs v. United States, 54 Fed. Cl. 205, 206—07 (2002)). That standard is met here too.

The parties agreed that Plaintiff and the absent individuals who would receive notice have essentially identical claims against the United States. Their only disagreement was whether notice should be issued to DCAC participants from the last three years (per Plaintiff) or two years (per Defendant). Pl.’s Mot. at 2—4; Def.’s Resp. at 3-7. The dispute centered on whether Plaintiff can prove that Defendant violated FLSA willfully, which would extend the statute of limitations from two years to three years. See Am. Compl. 25, 37, 45, 47 (ECF 36); 29 U.S.C. § 255(a). If Plaintiff is unable to prove willfulness, any opt-in plaintiffs who took the DCAC between two and three years ago would have to be dismissed.

But on balance, that does not counsel against issuing notice. Individuals who took the DCAC between two and three years ago are free to sue in this Court, arguing — just as Plaintiff does — that the government’s conduct was willful and the longer statute of limitations applies. If they did so, the same issues might end up being litigated in parallel, just as the FLSA collective action procedure was supposed to avoid. See Hoffmann-La Roche Inc., 493 U.S. at 170.

Free access — add to your briefcase to read the full text and ask questions with AI