Whalen v. United States

85 Fed. Cl. 380, 2009 U.S. Claims LEXIS 3, 2009 WL 105693
CourtUnited States Court of Federal Claims
DecidedJanuary 13, 2009
DocketNo. 07-707C
StatusPublished
Cited by24 cases

This text of 85 Fed. Cl. 380 (Whalen 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
Whalen v. United States, 85 Fed. Cl. 380, 2009 U.S. Claims LEXIS 3, 2009 WL 105693 (uscfc 2009).

Opinion

OPINION AND ORDER

LETTOW, Judge.

Plaintiffs, Mr. David Whalen and Mr. Gregory Turner, are Air Traffic Control Specialists (“ATCSs”) employed by the Federal Aviation Administration (“FAA”) at the High Desert Terminal Radar Approach Control (“TRACON”), Edwards Air Force Base, California (“Edwards AFB”). Plaintiffs seek damages in the form of compensation for overtime labor under the Fair Labor Standards Act, as amended, 29 U.S.C. §§ 201-219 (the “Act” or “FLSA”). They have filed a motion requesting that the court conditionally certify a collective action encompassing themselves and all other similarly situated ATCSs and authorize notice to all such similarly situated persons. See Pis.’ Mot. for Conditional Certification and Notice to Putative Collective Action Members at 1 (“Pis.’ Mot.”). Defendant (“the government”) has opposed these requests, arguing that both conditional certification and notice are unnecessary in this case. See Def.’s Resp. to Pis.’ Mot. at 1-2 (“Def.’s Resp.”). Plaintiffs reply that the evidence they have put forth is sufficient to demonstrate that plaintiffs and members of the putative collective action are similarly situated because they were subject to a common policy or plan regarding compensation on the part of the FAA, and thus conditional certification and notice are appropriate. See Pis.’ Reply in Support of Pis.’ Mot. at 2 (“Pis.’ Reply”). This dispute was argued at a hearing before the court on November 21, 2008.

In earlier proceedings before the court, the government’s motion for partial dismissal of this action was granted in part and denied in part. See Whalen v. United States, 80 Fed. Cl. 685 (2008) (“Whalen I”). Dismissal was granted insofar as one plaintiff, Mr. Greg Morgan, was concerned, without prejudice. Id. at 690. The government’s motion for a more definite statement was denied. Id. at 694. Additionally, the court requested that plaintiffs provide within thirty days the actual names and consent forms of plaintiffs designated anonymously as ATC1 through ATC50. Id. at 693. Subsequently, plaintiffs failed to provide such names and consent forms and never made any evidentiary showing of cause to maintain the anonymity of these plaintiffs. Accordingly, the action was dismissed as to anonymously described plaintiffs ATC1 through ATC50. See Order, May 30, 2008, Docket No. 18. In other respects, Mr. Whalen filed an election to continue as a named plaintiff in this action, see Docket No. [382]*38213, and Mr. Turner filed an election to join the action, see Docket No. 14.

BACKGROUND1

Plaintiffs claim that they and all putative collective action members were or are ATCSs employe^ by the FAA at Edwards AFB. Pis.’ Mot. at 5. Plaintiffs claim that they were entitled to receive compensation for overtime work pursuant to the FLSA, but the FAA improperly treated them as being exempt from the provisions of that Act. Compl. 11117-11.

The FLSA provides that “no employer shall employ any of his employees who in any workweek is engaged in commerce ... for a workweek longer than forty hours unless such employee receives compensation for his [or her] employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he [or she] is employed.” 29 U.S.C. § 207(a)(1) (emphasis added). The FLSA establishes a right of action by aggrieved employees to hold liable then- employers “in the amount of their unpaid minimum wages, or their unpaid overtime compensation.” 29 U.S.C. § 216(b).

Plaintiffs claim that they “were not paid for all hours they were required by [defendant to work, including overtime compensation for time worked in excess of 40 hours per week.” Pis.’ Mot. at 5 (citing Compl. 11117, 9-10, 19-20). Plaintiffs aver that this overtime work consisted of “administrative, exercise, medical, inspection and other duties which [could] have been reasonably known, anticipated, ordered, and required by [the FAA] at the time of making work schedules.” Compl. 119. They assert that the FAA’s actions in faking appropriately to compensate them were “willful.” Compl. H1122-23. Plaintiffs claim that the FAA employed them at all relevant times during the three year's prior to the filing of the complaint in October 2007. Compl. 116.

To support then- motion for conditional certification of a collective action, plaintiffs have submitted declarations, consent forms, and opt-in forms from four putative class action members. See Pis.’ Mot., Ex. A (Deck and consent form of David Schmidt (“Schmidt Deck”)) 11111-2; Pis.’ Mot., Ex. B (Deck and consent form of Dennis Hambrick (“Hambrick Deck”)) HH1-2; Pis.’ Mot., Ex. C (Deck and consent form of Philip Delgado (“Delgado Deck”)) 1(111-2; Pis.’ Mot., Ex. D (Deck and consent form of Joel Ortiz (“Ortiz Deck”)) HH1-2. The submitted declarations describe the grounds for prospective plaintiffs’ claims under the FLSA. Each declaration contains the identical recitation that:

I and my fellow ATCSs share the same job duties and responsibilities. My job duties consist mainly of the following: using [r]adar information and radio communications to direct and monitor air traffic so it flows, smoothly, efficiently and safely through the designated airspace. Give clearance to pilots for altitude and course changes within the airspace. Hand-off flights to other facilities for descent procedures that lead to landing. Provide weather updates and relay current weather information. Approximately 30-50 ATCSs have worked at High Desert TRACON over the last 3-years [sic ].

Schmidt Deck 112; Hambrick Deck 112; Delgado Deck H 2; Ortiz Deck H2. Declarants additionally testify to their personal knowledge regarding the policies by which the FAA compensated employees at Edwards AFB, along with their knowledge that all other ATCSs “are and were also subject to the same decisions, policies, procedures, plans[,] and/or requirements of compensation by FAA.” Schmidt Deck H 3; Hambrick Deck If 3; Delgado Deck H 3; Ortiz Deck 113.

STANDARDS FOR DECISION

An action under the FLSA “may be maintained against any employer ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). All plaintiffs in a FLSA collective action must “give[ ] [their] consent in writing to become such a party,” and this consent must be “filed [383]*383in the court in which such action is brought.” 29 U.S.C. § 216(b). A collective action differs from a class action in that, among other things, it is not subject to the numerosity, commonality, typicality, and representativeness requirements set forth in Fed.R.Civ.P. 23, see Vengurlekar v. Silverline Techs., Ltd,., 220 F.R.D. 222, 229 (S.D.N.Y.2003), and its counterpart in this court, Rule 23 of the Rules of the Court of Federal Claims (“RCFC”).

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

Related

Newson-Pace v. United States
Federal Claims, 2025
Ardon v. United States
Federal Claims, 2024
Adair v. United States
Federal Claims, 2021
Smith v. United States
Federal Claims, 2021
Valte v. United States
Federal Claims, 2021
Doe v. United States
Federal Claims, 2020
Doe No. 1 v. United States
Federal Claims, 2020
Doe No.1 v. United States
Federal Claims, 2019
1 v. United States
Federal Claims, 2018
Boggs v. United States
Federal Claims, 2018
Dominick v. United States
Federal Claims, 2017
Barry v. United States
117 Fed. Cl. 518 (Federal Claims, 2014)
Jesiek v. Fire Pros, Inc.
275 F.R.D. 242 (W.D. Michigan, 2011)
Shockey v. Huhtamaki, Inc.
730 F. Supp. 2d 1298 (D. Kansas, 2010)
Whalen v. United States
93 Fed. Cl. 579 (Federal Claims, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
85 Fed. Cl. 380, 2009 U.S. Claims LEXIS 3, 2009 WL 105693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whalen-v-united-states-uscfc-2009.