Braswell v. United States ( 2021 )


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  •       In the United States Court of Federal Claims
    No. 20-359C
    (Filed August 20, 2021)
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    BRENDA BRASWELL, et al.,          *
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    Plaintiffs,      *
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    v.                          *
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    THE UNITED STATES,                *
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    Defendant.       *
    *
    * * * * * * * * * * * * * * * * * *
    Heidi R. Burakiewicz, Kalijarvi, Chuzi, Newman & Fitch, P.C., of
    Washington, D.C., for plaintiff.
    Eric E. Laufgraben, Commercial Litigation Branch, Civil Division,
    Department of Justice, with whom was Allison Kidd-Miller, Assistant Director, both
    of Washington, D.C., for defendant.
    ORDER
    WOLSKI, Senior Judge.
    This case was brought as a class action by twenty-two employees of seven
    different federal departments and one independent agency, seeking extra pay due to
    workplace exposure to the virus that causes COVID-19. See Am. Compl., ECF No.
    11, ¶¶ 1–3, 5–26. They allege entitlement to a hazardous duty pay differential
    under 
    5 U.S.C. § 5545
    (d), and to an environmental pay differential under 
    5 U.S.C. § 5343
    (c)(4) and 
    5 C.F.R. § 532.511
    . Am. Compl. ¶¶ 62–64, 88–119. A sub-group
    consisting of eighteen plaintiffs seeks to bring a collective action under the Fair
    Labor Standards Act (FLSA), 
    29 U.S.C. § 201
     et seq., for additional overtime pay
    allegedly owed due to the failure to account for the hazardous duty or
    environmental pay differentials. Am. Compl. ¶¶ 65–66, 77–87, 120–23.
    The same day that the plaintiffs filed their opposition to the government’s
    motion to dismiss this case, see ECF No. 21, an opinion was issued by a judge of our
    court dismissing a case brought by other current and former federal employees
    alleging the same violations of the same pay statutes. See Adams v. United States,
    
    152 Fed. Cl. 350
    , 357 (2021). Because that case is now on appeal before the Federal
    Circuit, the government has moved for a stay of proceedings in this matter, until
    thirty days after the Federal Circuit’s opinion in the other case becomes final. Def.’s
    Mot. to Stay (Def.’s Mot.), ECF No. 22, at 1. Defendant stresses the indisputable
    judicial economies that are achieved by not devoting resources to issues that are
    about to be resolved or clarified by a higher court. See 
    id.
     at 5–9.
    Plaintiffs for the most part agree, but oppose a stay to the extent it would
    interfere with the ability of similarly-situated federal employees to file the consent
    forms necessary to commence their individual actions under FLSA. See Pls.’ Opp’n
    to Def.’s Mot. (Pls.’ Opp’n), ECF No. 23, at 1. Thus, plaintiffs wish to move forward
    with a class certification motion, unless the statute of limitations can be tolled
    during the stay period. 
    Id.
     at 3–5. The Court notes that the filing of a class
    certification motion would trigger class action tolling under Bright v. United States,
    
    603 F.3d 1273
    , 1290 (Fed. Cir. 2010), only regarding the non-FLSA claims asserted.
    For claims under FLSA, Congress has provided that “an action is commenced for
    purposes of” the statute of limitations “in the case of a collective or class action” on
    the date each individual participant’s written consent is filed with the court. 
    29 U.S.C. § 256
    .
    In considering a motion to stay proceedings, a court must “weigh competing
    interests and maintain an even balance.” Landis v. N. Am. Co., 
    299 U.S. 248
    , 254
    (1936). The Court must consider judicial efficiency and economy, determining
    whether a stay will resolve relevant issues and simplify the case. See Miccosukee
    Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist., 
    559 F.3d 1191
    , 1196 (11th Cir.
    2009). And the Court must consider both prejudice to the moving party if required
    to proceed without a stay, Landis, 
    299 U.S. at 255
    , and to the non-moving party if
    the case is stayed, see Cherokee Nation of Okla. v. United States, 
    124 F.3d 1413
    ,
    1418 (Fed. Cir. 1997). Only rarely will this full consideration result in a decision to
    grant a stay, see Landis, 
    299 U.S. at 256
     (noting that stays are extraordinary relief),
    especially in light of the burden resting on the proponent to establish the need for a
    stay, see Clinton v. Jones, 
    520 U.S. 681
    , 708 (1997).
    Without question, the cause of judicial economy is served by a stay of
    consideration of the motion to dismiss the case, given that the very issues presented
    will be resolved shortly by the Federal Circuit. A stay of discovery would also
    conserve the litigants’ resources from being wasted were the Circuit to affirm the
    dismissal of Adams, or even if it were to reverse the dismissal but interpret the
    relevant laws in a manner that narrows their potential scope. And resources
    dedicated to resolving a class certification motion, including possible discovery, and
    identifying and notifying potential class members if the class is certified, would all
    be for naught were the dismissal to be affirmed.
    -2-
    Unlike the first two efficiencies detailed, in which both sides of the case
    benefit and thus can be called “Pareto superior,” 1 the third efficiency comes with a
    cost to plaintiffs. Due to the relatively short limitations periods for FLSA claims---
    two years generally, and three years if a violation is willful, 
    29 U.S.C. § 255
    (a)---and
    to the written consent requirement to commence a claim, 
    29 U.S.C. § 256
    , a stay
    that persists beyond January 27, 2022, could begin to exclude a portion of the
    potential damages of putative class members, as plaintiffs allege their workplace
    exposure to SARS-CoV-2 began on January 27, 2020, see Am. Compl. ¶¶ 2, 32, 40,
    64, 101, 113. In partial mitigation, the government proposes that plaintiffs be
    allowed to file amended complaints with additional written consent forms to add to
    the case new plaintiffs who wish to join while matters are stayed. Def.’s Reply in
    Supp. Mot. to Stay (Def.’s Reply), ECF No. 24, at 6. 2 But while this will
    accommodate the claims of similarly-situated federal employees who are aware of
    the existence of this case, it does nothing for putative class members who might join
    were a class to be certified and notice received by them.
    The government opposes allowing plaintiffs to proceed with a class
    certification motion while a stay is pending, arguing that much of the benefits of a
    stay are undermined if significant resources are committed to such a motion, Def.’s
    Reply at 7; that potential class members have no right to notice concerning a case
    before its viability is settled, 
    id.
     at 7–9; and that the prejudice asserted by plaintiffs
    is negligibly contingent, “concern[ing] only the abilities of potential members of a
    putative class to assert a derivative FLSA claim,” 
    id. at 6
    .
    While it might seem unusual to proceed on a class certification motion under
    these circumstances, plaintiffs have identified a source of potential prejudice. Even
    if the Federal Circuit were to issue an opinion within the median time of 10.2
    months from the date of docketing, see Def.’s Mot. at 8 n.5, this would bring us to
    December 23, 2021. If another ninety days for the filing of a petition for writ of
    certiorari is added, see S. Ct. Rule 13, assuming no request for rehearing is filed, see
    Fed. R. App. P. 40, the stay at the earliest would be expiring April 22, 2022
    (including the thirty days until the proposed status report is filed). Given the
    periods of alleged exposure and the ensuing pay periods, potential class members
    who file written consents after this date could be too late to the case to recover all
    overtime underpayments alleged, unless plaintiffs prevail on their allegation of
    willfulness. See Am. Compl. ¶ 84.
    1 See GEOFFREY BRENNAN & JAMES M. BUCHANAN, THE REASON OF RULES 151
    (Liberty Fund, Inc. 2000) (1985).
    2Written consent forms have already been filed for all plaintiffs except Aubrey
    Melder. See Am. Compl., App. A.
    -3-
    Although these potential class members are not yet participants in this case,
    at some point in the litigation their interests should factor into the stay equation.
    The claims for hazardous duty and environmental pay differentials are not brought
    under FLSA, and thus the filing of a class certification motion would, under Bright,
    
    603 F.3d at 1290
    , toll the statute of limitations for those claims. If a class is
    certified, any putative member who subsequently opts-in would have a claim which
    relates back at least to that date, if not to the initial filing of the complaint. See,
    e.g., Haas v. Pittsburgh Nat’l Bank, 
    526 F.2d 1083
    , 1098 (3d Cir. 1975) (relating
    back to initial filing). In a sense, then, putative class members have a concrete
    interest in proceedings once the class certification motion is filed, and a stay that
    prevents such a filing would prejudice their interests in their FLSA claims.
    For this reason, the Court will not extend the requested stay to preclude the
    filing of a motion for class certification. It is not apparent whether plaintiffs still
    intend to file such a motion, which more than five months ago they characterized as
    to be filed “shortly” and “promptly.” Pls.’ Opp’n at 1, 5. Perhaps they are counting
    on the strength of their willfulness allegations, and do not view January 27, 2022,
    as a noteworthy milestone. Or they might have decided that the conservation of
    potentially wasted resources outweighs the potential loss of a portion of putative
    class members’ FLSA claims. But in any event, the Court will not prevent plaintiffs
    from filing a class certification motion if that is their wish.
    This does not mean, however, that the motion, if filed, need be fully litigated.
    After it is filed, the government will be allowed to move for a stay of consideration,
    and plaintiffs may reassert their equitable tolling argument, which the Court finds
    premature at this point. While it is far from clear, from the limited briefing on the
    topic, that equitable tolling is warranted when a stay is imposed pending an
    appellate decision, it appears to the Court that the FLSA statute of limitations is
    not jurisdictional and thus may be tolled. This has been the judgment of several
    judges of our court, see Moreno v. United States, 
    82 Fed. Cl. 387
    , 401–02 (2008)
    (collecting and discussing cases), and “[t]he Supreme Court has ‘made plain that
    most time bars are nonjurisdictional,’” Walby v. United States, 
    957 F.3d 1295
    , 1300
    (Fed. Cir. 2020) (quoting United States v. Kwai Fun Wong, 
    575 U.S. 402
    , 410
    (2015)). Indeed, the Supreme Court has noted that all Courts of Appeals
    considering the matter have found the FLSA provision to be nonjurisdictional and
    has cited its language in discussing why similar language did not make another
    statute of limitations jurisdictional. Kwai Fun, 575 U.S. at 413–14 & nn. 7–8. In
    any event, because 
    29 U.S.C. § 255
     is not jurisdictional, the matter of the timeliness
    of written consent forms may be a topic of compromise among the parties. If the
    government wants to achieve the economies of a stay of all proceedings, and
    discounts greatly the value of any FLSA claims which might otherwise be excluded
    were a class to be certified and members to opt in at a much later date, it can
    assume that risk and waive any objection to lateness due to the stay.
    -4-
    For the reasons stated above, the government’s motion to stay proceedings,
    ECF No. 22, is GRANTED-IN-PART and DENIED-IN-PART. During the
    requested stay period, plaintiffs will be allowed to file amended complaints with
    additional consent forms, and a motion for class certification. Within thirty days of
    the Federal Circuit’s decision in Adams v. United States, No. 21-1662, becoming
    final and unappealable, the parties shall file a joint status report proposing further
    proceedings in this case.
    IT IS SO ORDERED.
    s/ Victor J. Wolski
    VICTOR J. WOLSKI
    Senior Judge
    -5-