PLAINTIFF NO. 1 v. USA, No. 1:2019cv01019 - Document 107 (Fed. Cl. 2022)
Court Description: UNREPORTED OPINION and ORDER (re-issuance of February 10, 2022 Sealed Opinion and Order ECF No. 105). Signed by Judge Stephen S. Schwartz. (cmc) Service on parties made.
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PLAINTIFF NO. 1 v. USA Doc. 107 In the United States Court of Federal Claims No. 19-1019C (Filed Under Seal: February 10, 2022) (Reissued: March 1, 2022) NOT FOR PUBLICATION *************************************** PLAINTIFF NO. 1, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * *************************************** OPINION AND ORDER Plaintiff1 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,2 Plaintiff’s renewed motion now shows that notice is appropriate.3 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. 1 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 (ECF 97) (“Pl.’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. Dockets.Justia.com (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 a case-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. Id. at 574– 75. In other words, it must be likely that Plaintiff’s 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 nonexempt DCAC attendees from the plaintiff’s 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]laintiff’s component regarding assignments or completion of coursework outside of scheduled hours.” Id. ¶ 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 Plaintiff’s 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 Plaintiff does not seek notice for employees of other DOD components or agencies. See Pl.’s Mot. at 2; Joint Status Report at 2. 4 -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. Issuing notice to those individuals would not prevent that result — they would be free to bring their own separate claims if they chose not to opt in — but notice would at least implement an orderly way to achieve FLSA’s aim of “efficient resolution in one proceeding of common issues of law and fact[.]” See id. At the hearing, the parties ultimately agreed on that score. There might be situations where the absent individuals are similarly situated to the named plaintiff, yet joining them would not assist the court in managing the case. But this is not such a case. Notice shall issue to individuals who attended the DCAC between two and three years ago, and Defendant will be free to contest willfulness as a factual matter. -3- CONCLUSION For the foregoing reasons, Plaintiff’s Motion for Notice is GRANTED. The parties have proposed a process for notice, which this Court adopts as follows. No later than February 22, 2022, DOD shall verify which DCAC attendees after March 2, 2019 from Plaintiff’s same component were non-exempt during their attendance. Within 10 days after DOD identifies the relevant employees, the agency shall send notice to these employees using the attached form. As provided in the form notice, any persons wishing to join the case can send joinder notices to Plaintiff’s counsel, who shall file them under seal. The parties have agreed that some individuals will receive notice via a specially designated DOD employee, walled off from the case, who shall receive communications from any of these persons who wish to join the case. The designated employee shall ensure that any such individuals can communicate with Plaintiff’s counsel and join the case if they so choose. The designated employee is not involved with litigating the case in any way, and the parties do not anticipate that communications relayed through the employee will affect the attorney-client privilege between noticed individuals and Plaintiff’s counsel, other than the decision to join. If privilege issues arise during the joinder process, the parties will confer and seek a status conference if need be. Defendant shall provide Plaintiff’s counsel with the number of non-exempt employees who received notice and an affidavit that notice has been sent. Plaintiff’s counsel may maintain a list of the email addresses of any such persons who provide written consent to join the case, in order to communicate with them about the case. After notice has been sent, Defendant will provide the Court-appointed Classified Information Security Officer, Mr. Harry Rucker, with a list of the names of all persons to whom notice was sent and a copy of the notices that were sent. Plaintiff’s counsel may view the list, upon appointment, at a Secure Compartmented Information Facility. Per the parties’ agreement, Plaintiff will not seek discovery related to notice, including discovery regarding DCAC attendees from other agencies or components, and will not seek a second round of FLSA notice to other individuals. The parties have also reached several agreements related to discovery, which this Court adopts. Phase One discovery shall consist of written discovery on the following topics: (1) the agency’s policy regarding completing coursework or assignments outside of scheduled hours during DCAC and any additional oral or written instructions regarding such work given to attendees at Plaintiff’s DCAC -4- session; (2) Plaintiff’s work history and job duties; (3) Plaintiff’s time, attendance, and pay records during DCAC; (4) Plaintiff’s experience attending DCAC, including general information regarding the assignments he received and when he completed them; and (5) the application and selection process for DCAC, including any prerequisites for attending. Phase One discovery shall close on June 10, 2022. Phase Two discovery shall consist of written discovery on the same topics as Phase One, except as to any other individuals who submit joinder notices. The parties have also proposed that a Phase Three, involving depositions and written discovery on additional topics, may be necessary. The parties shall submit a joint status report proposing a schedule for Phase Two and Three of discovery, dispositive motions, and for alternative dispute resolution, if appropriate, no later than June 24, 2022. Pursuant to the Court’s December 16, 2021 Protective Order (ECF 94), this Opinion has been issued under seal. The parties shall have two weeks to propose redactions and, accordingly, shall file notice of their proposed redactions no later than February 24, 2022. To aid the Court’s evaluation of the proposed redactions and in light of the “presumption of public access to judicial records,” Baystate Techs., Inc. v. Bowers, 283 F. App’x 808, 810 (Fed. Cir. 2008) (per curiam) (citing Siedle v. Putnam Invs., Inc., 147 F.3d 7, 9 (1st Cir. 1998), and Poliquin v. Garden Way, Inc., 989 F.2d 527, 533 (1st Cir. 1993)), each party shall file a memorandum explaining why redactions are necessary for each item of information for which a redaction is proposed. IT IS SO ORDERED. s/ Stephen S. Schwartz STEPHEN S. SCHWARTZ Judge -5- CONSENT TO JOIN 1. I attended the DOD Counterintelligence Agent Course (“DCAC”) at the Joint Counterintelligence Training Academy (“JCITA”) some time between [date] and the present. 2. I was classified as FLSA non-exempt at least some point during my participation in DCAC. Exempt or non-exempt classifications can be found on earnings and leave statements provided to you during the time that you participated in DCAC or on SF-50 forms. An “N” on Block 35 of your SF-50 form indicates that you are FLSA non-exempt. 3. While attending DCAC, I performed activities such as study or homework for which I was not compensated. 4. I consent to be a claimant in litigation under the Fair Labor Standards Act as part of the lawsuit Plaintiff No 1 v. United States of America, Case No. 19-1019C. I understand that I will be bound by any judgment by the Court or settlement of this action. 5. I designate the named Plaintiff in this action to make decisions regarding this lawsuit on my behalf, and I authorize the law firms of Bernstein & Lipsett, P.C. and James & Hoffman, P.C. to represent me in this matter. I consent to be bound by the retainer agreement signed by the named Plaintiff. Signature: Name: Date: Email: Phone number: _ Return this form by email to dmrosenthal@jamhoff.com or to the following address: Daniel Rosenthal James & Hoffman, P.C. 1629 K. St NW Suite 1050 Washington, DC 20006 5
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