Adams v. United States

21 Cl. Ct. 795, 30 Wage & Hour Cas. (BNA) 70, 1990 U.S. Claims LEXIS 432, 1990 WL 176025
United States Court of Claims·Decided November 13, 1990·No. Nos. 90-162C, 90-183C, 90-195C, 90-207C, 90-226C, 90-251C, 90-274C, 90-281C, 90-313C, 90-319C, 90-332C, 90-342C, 90-365C, 90-366C, 90-396C, 90-397C, 90-404C, 90-405C, 90-448C, 90-457C, 90-458C, 90-510C, 90-525C, 90-526C, 90-533C, 90-632C to 90-636C and 90-638C·Published·Cited by 1 cases

Opinion

ORDER

BRUGGINK, Judge.

This action is pending on plaintiffs’ motion to compel discovery. Based on the written and oral argument, and for the reasons expressed herein, the motion is granted in part and denied in part. Plaintiffs in these consolidated actions are over 4,000 present or former Special Agents in Series 1811 positions. Because the issue of relevance surfaces in connection with the following discussion, the court notes that the complaint advances four grounds for liability. The first is that those plaintiffs holding positions at GS-9 or above were improperly treated as exempt from overtime pay under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201-219 (1988). The second is that some plaintiffs were denied FLSA overtime because time taken for annual, sick, court, holiday or military leave has not been included in “hours worked.” Third, when plaintiffs took such leave, they contend they were improperly denied pay and other benefits. Finally, they contend that because they have been denied access to overtime pay, they have been denied other benefits including pension contribution and insurance benefits. Interrogatory 1

In Interrogatory 1, plaintiffs ask defendant for the names and last known home addresses of every federal employee in each of six agencies who occupies or has since March 16, 1983 occupied any of the same positions as plaintiffs. Plaintiffs assert there are thousands of persons, living and dead, who fit this description. If the employee is deceased, the name of the legal representative is requested. The purpose of the request is to enable counsel to send notices of the pendency of this suit to those individuals. The request was modified somewhat during briefing and oral argument. Plaintiffs are willing to have notices (crafted cooperatively and with court approval) sent directly by the various agencies. This concession is in response to the Government’s concern about security breaches. Many employees at issue are in sensitive security or law enforcement positions.

As support for this request, plaintiffs point to the Supreme Court’s decision in Hoffman-La Roche Inc. v. Sperling, — U.S. -, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). The Court in that Age Discrimination in Employment (“ADE”) action was asked to review the decision of the district court authorizing and facilitating notice of the action. The ADE Act of 1967 incorporates certain provisions of the FLSA, most particularly 29 U.S.C. § 216(b). 29 U.S.C. § 626(b) (1988). That FLSA provision authorizes suits by “one or more employees for and in behalf of themselves and other employees similarly situated.” It further provides that “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” 29 U.S.C. § 216(b). It follows that an action pursuant to section 216(b), while not a traditional rule 23 class action, has elements of an opt-in class action.

The Court in Hoffman-La Roche held that trial courts “have discretion, in appropriate cases, to implement [section 216(b)] by facilitating notice to potential plaintiffs.” 110 S.Ct. at 486. The “facts and circumstances” of that case illustrated “the propriety, if not the necessity, for court intervention in the notice process.” Id. The Court pointed to Congress’ interest in permitting ADE employees to proceed collectively and thereby maximize efficient resolution of common issues of fact and law. Other than the general advantages inherent in class treatment, the only particular circumstance pointed to in that case was that the defendant had objected to the form of notice sent out by plaintiffs. Beside the Court’s limited holding that the district court’s order was within its discretion, the decision provides little assistance in distinguishing when that discretion [797]*797should be exercised. It is clear, in any event, that the suggestion by plaintiffs here that Hoffman-La Roche mandates notice is clearly incorrect.

Plaintiffs also point to the decision of the Federal Circuit in United States v. Cook, 795 F.2d 987 (Fed.Cir.1986). There the appellate court affirmed the decision of the district court in a FLSA action requiring disclosure of employee names and addresses. Court ordered notice was not directly at issue in that case, although the only purpose offered for the names was to facilitate plaintiffs’ contact with other potential class members. After holding that the discovery order was permissible, the court went on to consider whether it was an abuse of discretion. The court noted that the defendant provided no real argument in that regard. Nevertheless, the court notes that the degree of burden placed on the responding party is a relevant consideration although the relative burden on defendant in that case was light.

Defendant opposes either production of names or compelled notice. It correctly observes that neither Hoffman-La Roche nor Cook hold that plaintiffs in an action brought under section 216(b) have a right to bring in additional parties. This court draws from these decisions that, under the proper circumstances, it advances the Congressional intent expressed in the FLSA to facilitate joinder of non-parties.

Upon consideration of plaintiffs’ arguments in favor of court-ordered notice, the court declines to grant the motion to compel for a number of reasons. The first is that plaintiffs have provided no reason for the court to exercise its discretion. There is no presumption that the court ought to facilitate expansion of the plaintiff group. Further, they have not argued that extra-judicial notice is impossible or that the claims are so small as to discourage additional suits. Second, this case is dissimilar to Hoffman-La Roche and Cook in that there is not a relatively narrow, well-defined issue or pre-defined group of people involved. Recovery is sought under four distinct theories. Although all the present plaintiffs are Series 1811 Special Agents, their circumstances are different in relevant ways. Each theory of recovery applies only to its own subgroup. Subgroups overlap but they are not concentric. Each theory of recovery is employee-specific. As counsel for plaintiffs pointed out during oral argument, the issue of whether plaintiffs are exempt or non-exempt, for example, may turn on circumstances unique to a given individual.1 In addition, some plaintiffs are subject to collective bargaining agreements, thereby implicating Carter v. Gibbs, 909 F.2d 1452 (Fed.Cir. 1990), cert. denied, — U.S.-, 111 S.Ct. 46,112 L.Ed.2d 22 (October 1,1990) (collective bargaining agreement is exclusive means for addressing covered overtime pay disputes). The court is persuaded that the type of self-selection process envisioned by a mass notice is inappropriate in the circumstances of this case. Finally, as the court has indicated in connection with a request for class certification in similar circumstances, Armitage v. United States, 18 Cl.Ct.

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Adams v. United States, 21 Cl. Ct. 795, 30 Wage & Hour Cas. (BNA) 70, 1990 U.S. Claims LEXIS 432, 1990 WL 176025 (cc 1990).

21 Cl. Ct. 795 (Adams v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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