Smith v. United States

Opinion

In the United States Court of Federal Claims

PETRINA SMITH,

Plaintiff, No. 19-cv-1348 v. Filed: November 19, 2021 THE UNITED STATES,

Defendant.

Walt Pennington, Pennington Law Firm, San Diego, California. With him on the briefs are David R. Markham, Maggie Realin, and Lisa Brevard, The Markham Law Firm, San Diego, California; Stephen B. Morris, The Law Offices of Stephen B. Morris, San Diego, California.

Rafique O. Anderson, United States Department of Justice, Civil Division, Washington, D.C. for Defendant. With him on the briefs are Brian M. Boynton, Acting Assistant Attorney General, Civil Division; Martin A. Hockey, Jr., Acting Director, Commercial Litigation; Reginald T. Blades, Jr., Assistant Director, Commercial Litigation, Washington, D.C.

ORDER

On October 15, 2021, the parties filed a Joint Status Report (ECF No. 32) (JSR or Report)

consistent with the Court’s September 28, 2021 Order (ECF No. 29) (Order) directing the parties

to meet and confer and provide a status report including: “a revised proposed notice limited to the

Palo Alto and Menlo Park canteen locations, a schedule for future proceedings, and an indication

of whether this case is suitable for resolution through the procedures for Alternative Dispute

Resolution (ADR) set forth in Addendum H of the Rules of the United States Court of Federal

Claims.”

After considering the parties’ arguments in the Report, and as reflected below, the Court

DENIES Plaintiff’s request for appointment of a class administrator, APPROVES the attached

“Legal Notice of Collective Action and Opportunity to Join” (notice) to potential plaintiffs, and ORDERS a schedule for future proceedings in this matter. The parties’ Report addressed several

issues: (1) discovery related to potential nationwide collective action members,1 (2) appointment

of a class administrator, (3) the form of notice to send to potential collective action members, and

(4) a schedule for future proceedings. While the parties submitted separate proposed notices, JSR

at Exhibit A (Pl.’s Proposed Notice); Exhibit B (Def.’s Proposed Notice), and separate proposed

scheduling timelines, JSR at 3-4 (Pl.’s Proposed Timeline); JSR at 6-7 (Def.’s Proposed Timeline),

only minor differences exist. The Court addresses those differences and attaches the Court’s

approved notice form to this Order. See infra Attachment (Attach.).

DISCUSSION

I. Appointment of Class Administrator

Plaintiff requests the appointment of a class administrator to handle the notice mailing

process, while the Defendant opposes such appointment. JSR at 1, 5. Currently, there are

estimated to be eight potential opt-in plaintiffs in the Menlo Park and Palo Alto, California

Canteens who may be eligible to receive a notice via mail. A class administrator is typically

unnecessary where a case involves small pools of potential opt-in plaintiffs. C.f., Gallimore v.

United States, No. 11-715C, 2021 WL 2661421 at *1 (Fed. Cl. June 29, 2021) (appointing class

administrator in class action on behalf of 3,487 plaintiffs); Athey v. United States, 115 Fed. Cl.

739, 740-42 (2014) (appointing class administrator in class action on behalf of 3,691 plaintiffs).

Given the small number of potential plaintiffs from the Menlo Park and Palo Alto, California

Canteens, the Court — exercising its “broad discretion” over the issuing of notices to potential

1 In the Report, Plaintiff also requested a deadline by which to file a motion to compel a reasonable sampling of nationwide contact information from what she considers to be other potential plaintiffs. JSR at 2. Plaintiff filed such a Motion to Compel on November 12, 2021, and accordingly the request is moot. (ECF No. 34.)

2 opt-in plaintiffs, Wolfchild v. United States, 68 Fed. Cl. 779, 797 (2005) — finds that a class

administrator is unnecessary here. The Court appreciates Plaintiff’s willingness to confer “with

Defendant regarding completing the notice mailing without engaging a settlement administrator.”

JSR at 1-2.

II. Form of Notice

This Court may “supervise the collective action notice process through approval of the

notice and notice procedures.” Plaintiff No. 1 v. United States, No. 20-454C, 2021 WL 1328609

at *2 (Fed. Cl. Apr. 9, 2021) (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170-71

(1989)). Here, the parties’ proposed notices are identical aside from five discrete distinctions:

• Plaintiff’s proposed notice would include the following second paragraph appended to

section two: “On September 28, 2021, the Court conditionally certified Plaintiff’s FLSA

claim as to the Palo Alto/Mento Park Canteens.” Pl.’s Proposed Notice at 1;

• Plaintiff’s proposed notice would include an additional sentence at the end of section six:

“Please note, under the FLSA, the statute of limitations continues to run until you file with

the court a written consent to join the lawsuit, or initiate your own lawsuit.” Id. at 3;

• Plaintiff’s proposed notice would include a clause on the consent form indicating that the

signee consents to Plaintiff and her counsel representing the added party’s interests in the

case and consents to be bound by Plaintiff’s signed retainer agreement. Id. at 5;

• Plaintiff’s proposed notice would require potential opt-in plaintiffs to return the notice

within 90 days, rather than the 60 days proposed by Defendant. Compare Pl.’s Proposed

Notice (90 days noted in section four of the proposed notice and in the consent form to be

completed by the potential opt-in plaintiff), with Def.’s Proposed Notice (60 days noted in

3 section four of the proposed notice and in the consent form to be completed by the potential

opt-in plaintiff); and

• Defendant’s proposed notice would include language in section two indicating that the

allegedly misclassified Assistant Canteen Chiefs (ACCs) work or worked “at the Palo

Alto/Menlo Park Canteen.” Def’s Proposed Notice 1.

The Court addresses each distinction in turn.

i. “Conditionally Certifies” & “Statute of Limitations” Language

The Court declines to adopt Plaintiff’s suggested addition to the notice concerning

conditional certification and her request to include language concerning a “statute of limitations”

(i.e., Plaintiff’s first and second distinctions). The Court must ensure that the proposed notice is

“neutral in its terms and avoids even the appearance of judicial endorsement . . . of the action.”

Boggs v. United States, 139 Fed. Cl. 375, 379 (2018) (internal quotation omitted). “In exercising

the discretionary authority to oversee the notice-giving process, courts must be scrupulous to

respect judicial neutrality.” Hoffmann-La Roche, 493 U.S. at 174 (emphasis added). Potential

opt-in plaintiffs should not be led to believe that the Court takes a position on the litigation just

because the Court authorizes the notice. Boggs, 139 Fed. Cl. at 379.

Plaintiff’s proposed language poses several problems. First, any language in the notice

that the Court is “conditionally certifying” Plaintiff’s claim could be misconstrued by potential

plaintiffs as the Court taking a position on the merits of the litigation, which the Court must avoid.

See Hoffman-La Roche, 493 U.S. at 174 (“[C]ourts must take care to avoid even the appearance of

judicial endorsement of the merits of the action.”). Second, potential plaintiffs could misinterpret

Plaintiff’s proposed language concerning a statute of limitations as legal advice from the Court

concerning whether a potential plaintiff could or should proceed with a claim. Id. Accordingly,

4 as reflected in the approved notice, the Court declines to include in the notice legal terms of art,

such as “conditionally certifying” and “statute of limitations.”

ii. Consent to Representation

The Court further declines to adopt Plaintiff’s proposed third distinction requesting

potential opt-in plaintiffs to (i) consent to Plaintiff and her counsel representing their interests in

the case and (ii) agree to be bound by Plaintiff’s signed retainer agreement. Unlike in Rule 23

class actions, where “the representative plaintiff(s) and class counsel act for the class,” in FLSA

collective actions, plaintiffs “may have different counsel, make different pre-trial decisions, may

settle on different terms or some may settle and others go to trial.” Oldershaw v. DaVita

Healthcare Partners, Inc., 255 F. Supp. 3d 1110, 1114 (D. Colo. 2017); see also Almanzar v. C &

I Assocs., Inc., 175 F. Supp. 3d 270, 279 n.3 (S.D.N.Y. 2016); Snively v. Peak Pressure Control,

LLC, 174 F. Supp. 3d 953, 962 (W.D. Tex. 2016); Rosario v. Valentine Ave. Disc. Store, Co., 828

F. Supp. 2d 508, 520 (E.D.N.Y. 2011). To the contrary, adopting Plaintiff’s proposed language is

likely to suggest that opt-in plaintiffs are automatically (or should be) bound by Ms. Smith or her

counsel’s legal decisions. Because such language could potentially cause doubt concerning

whether opt-in plaintiffs are free to hire their own counsel and make their own legal decisions, the

Court respectfully declines to adopt such language in the notice.

This risk is compounded by language contained in both Plaintiff’s and Defendant’s

proposed notices concerning the right of opt-in plaintiffs to appoint their own counsel. Pl.’s

Proposed Notice at 3; Def.’s Proposed Notice at 3. As they are currently written, each of the

parties’ proposed notices appear to indicate that the default is that “plaintiff’s lawyers will

represent [opt-in plaintiffs] in this lawsuit.” Pl.’s Proposed Notice at 3; Def.’s Proposed Notice at

3. The proposed notices further state that a potential plaintiff “may also” seek his own counsel.

5 Pl.’s Proposed Notice at 3; Def.’s Proposed Notice at 3. However, as discussed, an opt-in plaintiff

in a collective action has a right to appoint his own counsel. See Snively, 174 F. Supp. 3d at 962

(holding the proposed notice “must advise putative class members of their right to retain separate

counsel and pursue their rights independently from the class”); see also Oldershaw, 255 F. Supp.

3d at 1114; Almanzar, 175 F. Supp. 3d at 279 n.3; Rosario, 828 F. Supp. 2d at 520. The Court’s

approved notice accurately and more clearly reflects that potential plaintiffs may retain their own

counsel if they so choose. See infra Attach.

For similar reasons, the Court declines to adopt any language in the parties’ proposed

notices indicating that an opt-in plaintiff is bound by Ms. Smith’s retainer agreement with her

lawyers or that such plaintiffs must designate Ms. Smith as their agent in the litigation. See Pl.’s

Proposed Notice at 3; Def.’s Proposed Notice at 3. While opt-in plaintiffs may choose to hire Ms.

Smith’s attorneys and designate Ms. Smith as their agent, they are not required to do so. See

Oldershaw, 255 F. Supp 3d at 1114 (noting that FLSA collective actions can proceed “much like

a civil suit with many plaintiffs who pursue their own claims”).

iii. Timing of Notices

The Court adopts Plaintiff’s suggestion that provides potential plaintiffs 90 days from the

date of mailing to file an opt-in notice. See JSR at 2-3 (proposing 90-day notice), 5-6 (proposing

60-day notice). Defendant notes that the case Plaintiff cites for the proposition that a longer

deadline is appropriate, Doe No. 1 et al. v. United States, 147 Fed. Cl. 421 (2020), involved 35

potential opt-in plaintiffs while the potential pool in this case is far fewer. JSR at 5. However,

Defendant cannot articulate how it would be harmed by providing potential opt-in plaintiffs an

additional 30 days in which to respond to the notice. Accordingly, without a showing of prejudice,

6 the Court opts to exercise its “broad discretion” in this arena and grant Plaintiff’s request for a 90-

day deadline. Wolfchild, 68 Fed. Cl. at 797.

iv. ACCs “at the Palo Alto/Menlo Park Canteen” Language

The Court declines to adopt Defendant’s proposed language indicating that the lawsuit

alleges that Veterans Canteen Services misclassified its Assistant Canteen Chiefs (ACCs) “at the

Palo Alto/Menlo Park Canteen.” Def.’s Proposed Notice at 1. Plaintiff’s lawsuit in fact alleges

misclassification of a far greater pool of ACCs. See generally Complaint (ECF No. 1). The Court

is satisfied that Plaintiff’s lawsuit is adequately described in paragraph two of the notice without

the need for Defendant’s proposed additional language. However, as the Court’s October 15, 2021

Order limited the pool of employees eligible to opt into the collective action at this time to the Palo

Alto and Menlo park canteens, the Court will add the requested “Palo Alto or Menlo Park,

California” language to the “Consent to Join Form.” Infra Attach. at 4.

III. Scheduling Order

The parties shall adhere to the following Scheduling Order:

Event Date Defendant shall provide Plaintiff’s counsel 20 days after the Court enters an Order the names and postal addresses of potential approving the notice. plaintiffs. Plaintiff’s counsel shall send the notice to Seven days after Defendant provides potential plaintiffs by first-class mail along Plaintiff’s counsel with the names and with an enclosed self-addressed stamped addresses of potential plaintiffs. envelope. Potential plaintiffs must submit all Consent to 90 days from notice mailing. Join forms to Plaintiff’s counsel. Any motion to decertify the conditionally 60 days from the date of the expiration of the certified collective action. potential plaintiff opt-in period. Plaintiff’s response to any motion to 45 days from the filing of a motion to decertify. decertify.

7 Defendant’s reply in support of any motion to 30 days from the filing of Plaintiff’s response decertify. to a motion to decertify. Joint Status Report on potential merits 14 days after the issuance of the Court’s discovery, including a proposed schedule for Order on a motion to decertify. future proceedings.

CONCLUSION

For the foregoing reasons, the Court APPROVES the notice appended to this Order as

Exhibit 1. Plaintiff’s request for a class administrator to oversee mailing of the Court-approved

notice is DENIED. The parties are ORDERED to:

1. Meet and confer about mailing the Court approved notice, attached herein, to potential opt-in plaintiffs; and

2. Comply with the schedule set forth in Section III of this Order.

IT IS SO ORDERED.

s/Eleni M. Roumel ELENI M. ROUMEL Judge

November 19, 2021 Washington, D.C.