Cook v. United States

109 F.R.D. 81, 1985 U.S. Dist. LEXIS 13546, 104 Lab. Cas. (CCH) 34,778
CourtDistrict Court, E.D. New York
DecidedNovember 25, 1985
DocketNo. 85 CV 1467
StatusPublished
Cited by4 cases

This text of 109 F.R.D. 81 (Cook v. United States) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. United States, 109 F.R.D. 81, 1985 U.S. Dist. LEXIS 13546, 104 Lab. Cas. (CCH) 34,778 (E.D.N.Y. 1985).

Opinion

SHIRA A. SCHEINDLIN, United States Magistrate.

Each of seven named plaintiffs in this action has brought a claim against his employer, the United States of America, for liquidated damages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b) (1982). Plaintiffs have served an interrogatory on the federal government requesting the names and addresses of similarly situated employees for the purpose of sending them notice of this action.

I. STATEMENT OF FACTS

Plaintiffs, who are federal employees working at the Coast Guard Fire station on Governors Island, New York were among approximately 44,000 federal fire fighters and law enforcement personnel awarded overtime back pay as a result of the decision in Jones v. Donovan, 25 WH Cases 380 (D.D.C.1981), aff'd 675 F.2d 1340 (D.C.Cir.1982).

In 1974, Congress amended the FLSA to include federal employees and required the Department of Labor to conduct studies of fire protection and law enforcement personnel to determine a new overtime standard to be applied as of January 1, 1978. However, due to a misreading of National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), the study was based solely on data collected from federal employees, rather than including state and local law enforcement agents and firefighters. Thereafter the study was challenged in Jones and the court ordered the Department to recompute the overtime standards including all valid data. The court then ordered that the new standards be applied retroactively to all affected federal employees.

As a result, the Office of Personnel Management directed that “each affected agency shall compute the additional overtime pay due all employees as a result of the reduced overtime standards.” See Plaintiffs’ Exhibit E. Consequently, in December 1983 or January 1984, all affected federal firefighters and law enforcement personnel were paid overtime back pay accruing as of January 1, 1978.

Once the back pay was distributed, a number of federal employees, including the original Jones plaintiffs, moved for an award of liquidated damages arising from the six year delay in awarding back pay. Jones v. Donovan, 26 WH Cases 1602 (D.D.C.1984), Lanehart v. Marshall, 26 WH Cases 1654 (D.Md.1984). Both district courts agreed that plaintiffs were entitled to liquidated damages but limited their decision to the named plaintiffs in the two actions.

Subsequently, plaintiffs instituted an action in this District for liquidated damages on behalf of themselves and other federal employees not included in Jones and Lane-hart. Plaintiffs then served an interrogatory upon defendant requesting the names and addresses of other federal employees residing in this District who had received overtime back pay and were eligible for liquidated damages. Defendant has objected to plaintiff’s request on the grounds that the court lacks power to compel production of this information and that the production of such information would be unduly burdensome. Plaintiffs have moved to compel an answer to the interrogatory seeking the names and addresses.

II. DISCUSSION

A. The Power of the Court

There is a split in the circuits as to whether the district court has the power to authorize notice to prospective plaintiffs. The Eighth, Ninth and Tenth Circuit courts hold that the district court has no power to authorize notice, because due process does not require it and because no express grant of power to authorize notice is contained in [83]*83the FLSA, 29 U.S.C. § 216(b). McKenna v. Champion International Corp., 747 F.2d 1211 (8th Cir.1984), Kinney Shoe Corp. v. Vorhes, 564 F.2d 859 (9th Cir.1977), Dolan v. Project Construction Corp., 725 F.2d 1263, 1266, 1268 (10th Cir.1984). By contrast, the Seventh Circuit holds that the court does have the power to authorize notice and may order the production of the names and addresses of potential class members in an appropriate case. Woods v. New York Life Insurance Co., 686 F.2d 578 (7th Cir.1982). Finally, the Second Circuit holds that the court is empowered with discretionary authority to permit notice because such notice is required to implement the broad remedial purpose of the FLSA. Braunstein v. Eastern Photographic Laboratories, 600 F.2d 335, 336 (2d Cir.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1046 (1979). After considering the arguments of the parties, this court is persuaded that the district court has the power to authorize notice under § 216(b).1

Section 216(b) provides for a private, representative right of action against any employer to recover unpaid overtime compensation and liquidated damages “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” FLSA § 216(b). In addition, “[no] 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 the action is brought.” Consequently, no one can become a member of a § 216(b) class action or benefit by or be bound by a judgment unless they “opt-in” to the class by an affirmative act. Lusardi v. Xerox Corp., 99 F.R.D. 89, 92 (D.N.J.1983).

Beyond this simple requirement, § 216(b) does not specify any procedural mechanism for reaching potential plaintiffs. An express notice requirement, similar to the mandatory notice requirement of a class action pursuant to Rule 23 of Federal Rules of Civil Procedure, is missing from the statute. Dolan, 725 F.2d at 1266. However, such an omission does not mean that the district court is powerless to authorize notice. Braunstein, 600 F.2d at 336. It simply means that notice is not mandatory and in light of the remedial purpose of the FLSA, “it makes more sense to read the statute as permitting, rather than prohibiting, notice in an appropriate case.” Id. Thus the omission is not dispositive and the court is left, in its discretion, “to regulate [its] practice in any manner not inconsistent” with the Federal Rules of Civil Procedure. Fed.R.Civ.P. 83, Woods, 686 F.2d at 580.

The power to authorize notice can also be inferred from the very nature of a representative action. Id.

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109 F.R.D. 81, 1985 U.S. Dist. LEXIS 13546, 104 Lab. Cas. (CCH) 34,778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-united-states-nyed-1985.