Adair v. United States ( 2021 )

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
______________________________________
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JAMES A. ADAIR, et al., )
)
Plaintiffs, ) No. 20-1148C
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v. ) Filed: December 30, 2021
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THE UNITED STATES, )
)
Defendant. )
______________________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiffs, 230 current and former employees at the United States Penitentiary (“USP”) Lee
near Pennington Gap, Virginia, filed their Complaint seeking “declaratory judgment, backpay, and
other relief” for allegedly uncompensated work performed for the U.S. Department of Justice,
Bureau of Prisons. Pls.’ Compl. ¶ 1, ECF No. 1. Before the Court is the Government’s Motion to
Dismiss Plaintiffs’ action under Rule 12(b)(6) of the Rules of the United States Court of Federal
Claims (“RCFC”) for failure to state a claim upon which relief can be granted, or, in the alternative,
for a more definite statement under RCFC 12(e). Also before the Court are Plaintiffs’ Motions for
Leave to File Notices of Supplemental Authority.
For the reasons discussed below, Plaintiffs’ Complaint alleges facts sufficient to survive
the Government’s Motion, but the Court lacks jurisdiction to entertain any claims or requests for
relief under the Declaratory Judgment Act (“DJA”), 28 U.S.C. §§ 2201–2202, and 28 U.S.C. §
1331. Consequently, the Government’s Motion to Dismiss is GRANTED IN PART AND
DENIED IN PART. Because the Court has made this determination without consideration of
Plaintiffs’ first Notice of Supplemental Authority, the Court DENIES AS MOOT Plaintiffs’ first
motion for leave to file the same. The Court has considered Plaintiffs’ second Notice of
Supplemental Authority, attaching recent decisions in analogous suits pending in this court, and
thus it GRANTS Plaintiffs’ second uncontested motion for leave to file the same.
I. BACKGROUND
A. Statutory and Regulatory Background
The Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq., as amended by
the Portal-to-Portal Act of 1947, 29 U.S.C. § 251 et seq., requires qualifying employers to
compensate non-exempt employees for hours worked in excess of 40 hours per week at one and
one-half times the employees’ regular rate. 29 U.S.C. § 207; see 5 C.F.R. § 551.501. Employers
who violate this provision of the FLSA are liable to their effected employees in the amount of their
unpaid overtime wages. 29 U.S.C. § 216.
“Activities performed either before or after the regular work shift . . . are compensable
under the portal-to-portal provisions of the [FLSA] if those activities are an integral and
indispensable part of the principal activities for which covered workmen are employed and are not
specifically excluded . . . .” Steiner v. Mitchell, 350 U.S. 247, 256 (1956). The United States
Supreme Court has held that “any activity that is integral and indispensable to a principal activity
is itself a principal activity” under the FLSA. IBP, Inc. v. Alvarez, 546 U.S. 21, 37 (2005) (internal
quotation marks omitted). On the other hand, activities that are merely “preliminary to or
postliminary to said principal activity or activities” are not compensable. 29 U.S.C. § 254(a)(2).
Additionally, de minimis work is not compensable. See Bobo v. United States, 136 F.3d
1465, 1468 (Fed. Cir. 1998) (“When the matter in issue concerns only a few seconds or minutes
of work beyond the scheduled working hours, such trifles may be disregarded.” (quoting Anderson
v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946))). Regulations promulgated by the Office
of Personnel Management provide that an employee’s preparatory or concluding activities that
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exceed 10 minutes per workday are not de minimis so long as they are “closely related to an
employee’s principal activities” and are “indispensable to the performance of the principal
activities.” 5 C.F.R. § 551.412(a)(1).
B. Factual Background
USP Lee is a high-security federal prison housing over 1,300 inmates. ECF No. 1 ¶ 8.
Plaintiffs are current and former correctional workers at USP Lee, including both correctional
officers and non-custody workers assigned to food services, unit counselors, and correctional
services officers. Id. ¶ 4. The Complaint alleges that Plaintiffs regularly work 15–30 minutes each
shift without pay. Id. ¶ 13. They assert that this unpaid work occurs in part because there are three
non-overlapping, eight-hour shifts for correctional officers that run 24 hours per day at USP Lee,
and their compensable responsibilities cause them to work beyond their shift times. Id. ¶ 15.
Plaintiffs allege that their workdays begin by clearing a COVID-19 health screening and
then a daily security screening, which is conducted to assure no outside contraband enters USP
Lee. Id. ¶ 17; see Pls.’ Opp’n to Def.’s Mot. to Dismiss Or, In the Alternative, for a More Definite
Statement at 9, ECF No. 11. Plaintiffs allege that they next don duty belts, vests, and other required
equipment before clearing the control center sally port and walking to their respective posts in the
prison. ECF No. 1 ¶ 17. On their way there, they allegedly “observe and correct inmate behavior,
respond to inmate questions, check for security breaches in the perimeter fence and elsewhere[,]
check for contraband, run to locations where body alarms sound, and respond to other emergencies
as they arise.” Id. ¶ 19. Once they arrive at their posts, Plaintiffs allege that they continue to
perform unpaid work by exchanging information and equipment with the outgoing workers whose
shifts are ending. Id. ¶ 20. At the end of their shifts, Plaintiffs then partake in this procedure in
reverse. Id. ¶ 22.
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Further, although not all Plaintiffs are correctional officers, they allege that the non-custody
workers are “augmented and assigned” to correctional officers’ posts and take on the same unpaid
work subject to the same non-overlapping, eight-hour shifts. Id. ¶ 25. Plaintiffs allege that both
correctional officers and non-custody workers are wrongfully uncompensated for the time they
spend performing the duties described above. Id.C. Procedural History
Plaintiffs filed suit in this Court on September 4, 2020, seeking declaratory judgment, an
accounting of the compensation to which they are entitled, monetary damages for unpaid
compensation, along with attorneys’ fees and any other just relief. Id. at 19–20 (Prayer for Relief).
Plaintiffs claim they are owed overtime backpay for the time they spend completing their pre- and
post-shift activities. Id. ¶¶ 30–31.
On February 1, 2021, the Government moved to dismiss Plaintiffs’ claims pursuant to
RCFC 12(b)(6). In its Motion, the Government avers that Plaintiffs’ Complaint lacks sufficient
detail to state a claim under the FLSA. Def.’s Mot. to Dismiss at 6, ECF No. 10. The Government
argues that Plaintiffs’ allegations are inappropriately generalized to all Plaintiffs despite it being
“clear that not every generalized allegation applies to each plaintiff.” Id. at 9. Further, the
Government argues that Plaintiffs’ description of their activities at USP Lee fails to inform whether
those activities are compensable under the FLSA. Id. at 13. According to the Government, the
various forms of “work” identified by Plaintiffs may be non-compensable either categorically or
as a consequence of their short duration. Id. at 15. Without sufficient “factual enhancements,” the
Government argues that Plaintiffs’ Complaint must be dismissed. Id. at 16.
Plaintiffs disagree, arguing that their Complaint sufficiently alleges facts that demonstrate
plausible claims for relief. ECF No. 11 at 8. They contend that although their Complaint was
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generalized and did not elaborate on the facts particular to each individual plaintiff, the FLSA and
relevant case law does not require allegations beyond this type of generalized pleading. Id. at 12.
II. STANDARD OF REVIEW
The Government moves to dismiss Plaintiffs’ action under RCFC 12(b)(6) for failure to
state a claim. 1 Dismissal under RCFC 12(b)(6) “is appropriate when the facts asserted by the
claimant do not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257
(Fed. Cir. 2002). To survive dismissal, Plaintiffs’ Complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see
Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009). For a complaint to be “plausible,” it
“does not need detailed factual allegations” but requires enough detail “to raise a right of relief
above the speculative level.” Twombly, 550 U.S. at 555. In the context of an FLSA claim, this
court has held that to state a claim for relief plaintiffs must allege facts supporting an allegation
that “they have worked in excess of their applicable workweek under the statute, and that they
have not been compensated at least one and one-half times their regular rate for those hours.” Fed.
Air Marshals v. United States, 84 Fed. Cl. 585, 592 (2008); see Whalen v. United States, 80 Fed.
Cl. 685, 688 (2008) (denying the Government’s motion to dismiss where “[p]laintiffs’ allegations
fit comfortably within this template” set by the FLSA).
1 Although the Government did not move to dismiss under RCFC 12(b)(1), it correctly
argues that Plaintiffs’ request for declaratory judgment under the DJA must fail as this Court does
not have jurisdiction to grant relief under that statute. See ECF No. 10 at 17; United States v. King,
395 U.S. 1, 5 (1969). The Court likewise lacks jurisdiction under 28 U.S.C. § 1331. See ECF No.
10 at 17; 28 U.S.C. § 1331 (defining federal question jurisdiction of district courts). Accordingly,
the Court dismisses any such claims or requests for relief pursuant to RCFC 12(h)(3) for lack of
jurisdiction. The Government does not contest that the Court maintains jurisdiction over the
remainder of Plaintiffs’ suit.
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When reviewing a Rule 12(b)(6) motion, the court “assume[s] all well-pled factual
allegations are true” and makes “all reasonable inferences in favor of the nonmovant.” United
Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327–28 (Fed. Cir. 2006). However, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice” to shield a complaint from dismissal. Iqbal, 556 U.S. at 678.
The Government alternatively requests that this Court order Plaintiffs to file a more definite
statement under RCFC 12(e). Under that rule, a party may move for a more definite statement of
a pleading that is “so vague or ambiguous that the party cannot reasonably prepare a response.”
RCFC 12(e). “In deciding whether a party is required to file a more definite statement of fact
under Rule 12(e), ‘the trial judge has full authority, in [her] discretion, to order a more definite
statement or to take such other action as [s]he deems appropriate to focus the issues more clearly
or definitely.” Quapaw Tribe v. United States, 111 Fed. Cl. 725, 729 (2013) (quoting Johns-
Manville Corp. v. United States, 12 Cl. Ct. 1, 16 (1987)). This court has recognized that RCFC
12(e) “is designed to remedy unintelligible pleadings, not to correct for lack of detail.” Id. at 730(quoting Kuklachev v. Gelfman, 600 F. Supp. 2d 437, 456 (E.D.N.Y. 2009)).
III. DISCUSSION
Plaintiffs have sufficiently pled facts in their Complaint to survive the Government’s
Motion to Dismiss. Further, the Complaint is not so vague or ambiguous that the Government
cannot reasonably prepare a response to the same.
A. Plaintiffs’ Complaint Contains Sufficient Facts to Allege that Each of the 230
Plaintiffs Performed Compensable Work.
The Government argues that Plaintiffs’ allegations are inappropriately generalized to all
Plaintiffs despite it being “clear that not every generalized allegation applies to each plaintiff.”
ECF No. 10 at 9. According to the Government, the pleading standard requires that “[e]ach
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plaintiff must allege with sufficient particularity facts regarding the nature of each plaintiff’s
employment.” Id. at 14. The Court disagrees that in the context of an FLSA suit more specific,
individual allegations are required.
Contrary to the Government’s argument, a plain reading of the Complaint shows that
Plaintiffs have alleged sufficient facts about their employment. Plaintiffs aver that each is a current
or former correctional worker employed at USP Lee. ECF No. 1 ¶ 4. The Complaint avers that
Plaintiffs have worked in excess of 40 hours per week without the full compensation to which they
claim they are entitled under the FLSA. Id. ¶ 7. Specifically, they allege that they have all worked
at least 15–30 minutes each shift without compensation. Id. ¶ 13. The Complaint includes factual
allegations describing the extra, uncompensated time spent by each Plaintiff, including time
“spen[t] clearing the required staff screening site, picking up and donning equipment, security
work performed while traversing the Institution, completing a shift exchange with an out-going
correctional officer[,]” id. ¶ 30, “completing a shift exchange with the on-coming correctional
officer following their shift, . . . and dropping off equipment at the Control Center,” id. ¶ 31. See
id. ¶¶ 17–23. Plaintiffs allege that these activities are part of or related to their primary duty at
USP Lee—i.e., ensuring the safety and security of the Institution. Id. ¶ 9. Moreover, Plaintiffs
allege facts regarding the operation of USP Lee and the organization of the shifts worked by
Plaintiffs, the location of the 24-hour posts worked by Plaintiffs, and how non-custody correctional
workers are augmented and assigned to correctional officer posts where they perform correctional
officer duties. Id. ¶¶ 9–11, 14–15, 24–25.
Relying primarily on Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000),
the Government claims that these common allegations are insufficient. ECF No. 10 at 13. As
Plaintiffs correctly note, Bautista is distinguishable because it did not involve an FLSA collective
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action. See ECF No. 11 at 16. In Bautista, several former employees of a restaurant brought an
employment discrimination suit against the restaurant’s new owner, alleging that they were each
denied employment on account of their age, race, and/or physical disability while less qualified
individuals who were not in these protected classes were employed. Bautista, 216 F.3d at 840.
The Ninth Circuit found that the complaint included only “stray allegations of discriminatory
policies or practices” and raised “hybrid[]” allegations “that qualify neither as class action
allegations nor as statements of individual claims.” Id. It held that to comply with Rule 8 of the
Federal Rules of Civil Procedure each plaintiff in Bautista was required to separately allege facts,
in separate counts, giving rise to their individual claims. Id.The FLSA, however, specifically contemplates that claims for recovery of unpaid overtime
compensation can be brought collectively by one or more employees on behalf of themselves and
similarly situated employees. 29 U.S.C. § 216(b). The collective nature of a FLSA claim is
premised on the notion that an employer may be liable to a group of employees through the
application of a “common employment policy or plan.” Whalen v. United States, 85 Fed. Cl. 380,
383 (2009); see Barry v. United States, 117 Fed. Cl. 518, 521 (2014) (holding that “similarly
situated” FLSA plaintiffs “share ‘common issues of law and fact arising from the same alleged
[prohibited] activity.’”) (alteration in original) (quoting Hoffmann-La Roche v. Sperling, 493 U.S.
165, 170 (1989))). The issue of collective action certification is of course separate and not before
the Court at this time, but the point remains that the statute itself contemplates that a claim for
relief under the FLSA may be grounded on a common set of alleged facts rather than on individual
factual allegations pertaining to each individual plaintiff. As Plaintiffs point out, requiring the
level of factual detail that the Government suggests is necessary—for each of the 230 plaintiffs in
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this matter—would produce a painfully long, redundant, and unwieldy Complaint. See ECF No.
11 at 17.
Accordingly, while each Plaintiff will ultimately need to prove at the merits stage his or
her entitlement to compensation for any compensable overtime hours worked, Plaintiffs need not
at the pleading stage allege every detail of their individual employment circumstances. See
Adegbite v. United States, No. 20-1183 C, 2021 WL 5045268, at *6 (Fed. Cl. Oct. 29, 2021)
(rejecting the same generalized-allegation argument raised by the Government in a FLSA case);
Whalen, 80 Fed. Cl. at 688, 693–94 (denying motion to dismiss and for more definite statement in
a FLSA case where the plaintiffs pled similar generalized allegations); see also RCFC 8(a)(2)
(requiring that a pleading contain “a short and plain statement of the claim showing that the pleader
is entitled to relief”). Plaintiffs’ Complaint pleads facts sufficient to “give the [Government] fair
notice of what the . . . claim is and the grounds upon which it rests” and, when taken as true, “to
raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal quotation
marks and citations omitted). That is all the pleading standard requires.
B. Plaintiffs Plausibly Allege That They Have Performed Compensable Work That
May Entitle Them to Relief under the FLSA.
Plaintiffs claim that they are entitled to compensation for pre- and post-shift activities under
the FLSA. These allegedly compensable activities begin with Plaintiffs undergoing security
screenings upon their arrival at USP Lee. 2 ECF No. 1 ¶ 17. The Government relies on Integrity
2 Although Plaintiffs’ Complaint contended that new protocols relating to COVID-19
required additional health screenings before Plaintiffs begin their workday, Plaintiffs failed to
respond to the Government’s argument that any time spent undergoing such health screenings is
not compensable under the FLSA. See Def.’s Reply to Pls.’ Resp. to Def.’s Mot. to Dismiss at 8–
9, ECF No. 18. As such, Plaintiffs have conceded that aspect of their claim. See Cardiosom, LLC
v. United States, 91 Fed. Cl. 659, 664 (2010), rev’d on other grounds, 656 F.3d 1322 (2011). Even
if not conceded, this court has found in another FLSA case that similar allegations fail to state a
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Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014), and Whalen v. United States, 93 Fed. Cl. 579(2010), to argue that Plaintiffs fail to state a claim because time spent undergoing such security
screenings is ineligible for compensation under the FLSA as a matter of law. ECF No. 10 at 12.
The Government’s argument is unpersuasive.
Integrity Staffing and Whalen are factually and procedurally distinguishable from the case
at hand. In Integrity Staffing, the United States Supreme Court held that the time spent by Amazon
warehouse workers waiting to undergo and undergoing security screenings at the end of their shifts
was not compensable under the FLSA. Integrity Staffing, 574 U.S. at 35. The Court held that the
security screenings were neither a principal activity of Amazon warehouse employees nor integral
and indispensable to those employees’ principal activities, which involved retrieving products
from warehouse shelves to fulfill online shopping orders placed by Amazon customers. Id. at 35–
36 (noting that a 1951 Opinion Letter from the Department of Labor “drew no distinction between
[] searches conducted for the safety of [] employees and those conducted for the purpose of
preventing theft—neither were compensable under the Portal-to-Portal Act,” id. at 36). The Court
therefore reversed the Ninth Circuit and upheld the trial court’s order dismissing the warehouse
workers’ FLSA complaint for failure to state a claim upon which relief can be granted. Id. at 30–
31.
The plaintiffs in Whalen were air traffic control specialists seeking compensation in part
for the time they spent undergoing mandatory security screenings before entering Edwards Air
claim for relief. See Adegbite, 2021 WL 5045268, at *8. The Court finds Adegbite’s analysis
persuasive. Plaintiffs’ alleged primary duties do not include preventing the spread of COVID-19
or responsibility for inmate health in general. See ECF No. 1 ¶¶ 17, 18. Therefore, such health
screenings are not integral to Plaintiffs’ alleged principal activity of maintaining safety and
security at USP Lee, and, consequently, are non-compensable. Adegbite, 2021 WL 5045268, at
*8.
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Force Base. Whalen, 93 Fed. Cl. at 600. The Court of Federal Claims held that the principal
activity of the air traffic controllers was directing and monitoring live air traffic from a control
room. Id. at 583. As such, the security screenings in Whalen were not compensable because they
did not have “some relation to plaintiffs’ principal activities.” Id. at 600. In so holding, however,
the court specifically acknowledged the possibility that “security procedures may be integral to the
duties of other types of employees [such as] those responsible for the security procedures
themselves.” Id. Notably, Whalen did not dispose of this issue on the Government’s motion to
dismiss, and instead found it appropriate to make a finding on the issue only after receiving the
parties’ respective motions for summary judgment. Id. at 582; see Whalen, 80 Fed. Cl. at 688.
Here, the security screenings in question are not as far removed from Plaintiffs’ alleged
principal activities as was the case in Integrity Staffing and Whalen. Plaintiffs state that their
“primary job duty is to maintain the safety and security of the Institution.” ECF No. 1 ¶ 9 (alleging
that “plaintiffs achieve [safety and security] by maintaining constant vigilance to ensure that
nothing out of the ordinary is occurring, immediately addressing any issues that they see no matter
the location and time of day that it occurs”). They allege they are “charged with performing this
job duty every moment that they are within [USP Lee],” beginning when they undergo the initial
security screenings. Id.; see id. ¶ 17. According to Plaintiffs, “[t]his is the location where the
plaintiffs perform their primary duty of safety and security and assist in assuring no contraband
enters the Institution.” Id. ¶ 17. Other courts have found that similar allegations are sufficient to
survive a motion to dismiss. See Alexander v. United States, No. 21-1143 C, 2021 WL 5045270,
at *10 (Fed. Cl. Oct. 30, 2021); Adegbite, 2021 WL 5045268, at *9; see also Aguilar v. Mgmt. &
Training Corp., 948 F.3d 1270, 1277 (10th Cir. 2020) (holding on the merits that undergoing
security screenings were integral and indispensable to the principal activities of detention officers
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in a county prison). Taken as true, Plaintiffs’ Complaint sufficiently alleges facts to state a
plausible claim for relief under the FLSA.
In addition to clearing security screenings, Plaintiffs allege that they perform other
activities that are compensable work, including donning duty belts and equipment, traveling to and
from their duty posts while remaining alert, and exchanging information with the outgoing and
oncoming corrections officers at the change of shifts. 3 ECF No 1. ¶¶ 17–20. Similar to Plaintiffs’
contention that security screenings are part of their primary job duties of maintaining safety and
security at USP Lee, Plaintiffs also allege that these other activities are integral and indispensable
to the performance of their duties. Id. Other courts have held that similar allegations are sufficient
to state a plausible claim for relief under the FLSA. See Alexander, 2021 WL 5045270, at *11,
*14–15; Adegbite, 2021 WL 5045268, at *10–12; see also Steiner, 350 U.S. at 249 (holding on
the merits that showering and changing clothes was integral and indispensable to the work of
battery-plant employees who were exposed to dangerous materials in the course of their duties);
Aguilar, 948 F.3d at 1283 (holding on the merits that receiving pre-shift briefings, picking up and
returning keys and equipment, and walking to and from their duty posts were compensable work
of prison officers).
Whether an activity is compensable under the FLSA often comes down to the particular
job at issue and the particular facts of each case. See Mitchell v. King Packing Co., 350 U.S. 260,
263 (1956) (performing fact-specific analysis and concluding that “knife-sharpening activities of
3 Each of these activities may amount to “compensable work” independent of the Court’s
determination with respect to the security screenings; however, finding as much would be
unnecessary if the screenings are Plaintiffs’ first principal activity of the workday. The Supreme
Court has held that “during a continuous workday, any walking time that occurs after the beginning
of the employee’s first principal activity and before the end of the employee’s last principal activity
is excluded from the scope of [the Portal-to-Portal Act], and as a result is covered by the FLSA.”
IBP, 546 U.S. at 37.
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[knifemen at a meat packing plant] [were] an integral part of and indispensable to the various
butchering activities for which they were principally employed”); see also Aguilar, 948 F.3d at
1277 (“whether an activity is compensable depends on ‘the productive work that the employee is
employed to perform.’” (emphasis in original) (quoting Busk, 574 U.S. at 36)). Discovery is
warranted before this Court can conclusively determine whether the security screenings, donning
of equipment, traveling to and from duty posts, and change-of-shift briefings alleged in this matter
are in fact an integral and indispensable part of Plaintiffs’ principal activities as correctional
officers (and non-custody workers performing correctional officer duties) at USP Lee such that the
activities are compensable work under the FLSA. See Adegbite, 2021 WL 5045268, at *10. All
that is required at this early stage of litigation is sufficient factual allegations that, taken as true,
plausibly state a claim. Plaintiffs have cleared that hurdle; thus, dismissal is inappropriate.
C. Plaintiffs Plausibly Allege Non-De Minimis Activities That May Entitle Them to
Relief under the FLSA.
The Government further argues that Plaintiffs have insufficiently alleged facts that can
support a finding that their uncompensated activities, as pled, surpass the de minimis threshold.
ECF No. 10 at 15; see Def.’s Reply to Pls.’ Resp. to Def.’s Mot. to Dismiss at 17, ECF No. 18. In
their Complaint, Plaintiffs state that they regularly work in excess of 15 minutes, at a minimum,
each shift doing uncompensated tasks. ECF No. 1 ¶¶ 12–13. The Government argues that if some
of these tasks are not compensable work and the remaining activities take less than 10 minutes per
shift, Plaintiffs could be without recourse under the FLSA. ECF No. 10 at 20 (citing Abbey v.
United States, 99 Fed. Cl. 430, 436 (2011)).
The Government has not shown, however, that Plaintiffs’ allegations fail under the de
minimis doctrine as a matter of law. First, contrary to the Government’s argument, a breakdown
of “how long each of the alleged work activities takes” is not the focus of the de minimis rule.
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ECF No. 10 at 19. Rather, Plaintiffs correctly note that the de minimis standard for compensability
considers the time spent performing uncompensated activities in the aggregate. See ECF No. 11
at 20 (collecting cases). Second, as Plaintiffs note, under the continuous workday rule, the de
minimis nature of individual activities performed after the workday has begun is legally irrelevant
because all subsequent activities performed after the start of the workday are compensable. Id. at
22 (citing 29 C.F.R. § 790.6(a) and Aguilar, 948 F.3d at 1277–81).
The Government acknowledges this legal framework and does not dispute that Plaintiffs
have alleged that the activities at issue take 15–30 minutes in the aggregate to perform each shift.
See ECF No. 18 at 12–13. It, however, argues that Plaintiffs must allege facts from which the
Court can now determine the particular activities that are compensable work or that are de minimis
because an adverse finding with respect to, for example, security screenings could change the
calculus of when the workday begins and whether the remaining activities fail to exceed the de
minimis threshold. Id. As the Court has already indicated, these questions are more appropriately
addressed at the merits after the parties conduct discovery, not on a motion to dismiss. See
Adegbite, 2021 WL 5045268, at *12; see ECF No. 11 at 23–24 (citing Freeman v. MedStar Health,
Inc., 87 F. Supp. 3d 249, 258 (D.D.C. 2015), and Sullivan v. PJ United, Inc., 362 F. Supp. 3d 1139,
1165 (N. D. Ala. 2019)).
At this stage, the Court looks to the well-pled factual allegations in the Complaint, assumes
the truth of those allegations, and makes all reasonable inferences in favor of Plaintiffs. United
Pac. Ins., 464 F.3d at 1327–28. Here, even excluding the health screening, the numerous pre- and
post-shift activities described in the Complaint plausibly support Plaintiffs’ allegation about the
duration of the time spent performing such activities, which as pled exceeds the 10-minute de
minimis benchmark. See ECF No. 1 ¶¶ 17–23. Accordingly, Plaintiffs have pled facts to support
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the allegations that their principal activity is to maintain safety and security at USP Lee, that the
alleged activities in question are integral and indispensable components of that principal activity,
that the time spent performing these activities exceeds the de minimis threshold, and that they have
not properly been compensated for this time. Id. ¶¶ 9, 13, 17–20, 30–32. These allegations are
sufficient to meet Plaintiffs’ burden at the pleadings stage. 4 See Alexander, 2021 WL 5045270, at
*17; Adegbite, 2021 WL 5045268, at *13.
D. Plaintiffs’ Complaint is Not So Vague as to Warrant a More Definite Statement.
The Court has authority in its discretion to order a more definite statement where pleadings
are unintelligible; however, such order is not intended as a remedy for lack of detail. Quapaw
Tribe, 111 Fed. Cl. at 729–30. Although Plaintiffs are numerous, their Complaint satisfactorily
provides “a short and plain statement of the claim showing that the pleader is entitled to relief.”
RCFC 8(a)(2). The Government’s own substantial briefing indicates that the Complaint is not “so
vague or ambiguous” that the Government cannot reasonably respond. RCFC 12(e). As other
courts have observed in similar FLSA cases, the detailed factual information that the Government
suggests should be pled in the Complaint “[is] either in its possession as the employer of the
Plaintiffs or [should] be readily produced in discovery.” Adams v. United States, 151 Fed. Cl. 522,
529 (2020); see Adegbite, 2021 WL 5045268, at *14. Accordingly, the Court sees no good cause
to exercise its discretion to order a more definite statement in this case.
Because the Court holds that Plaintiffs’ FLSA claim survives dismissal, the Government’s
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request to dismiss Plaintiffs’ claims under the Back Pay Act (“BPA”) also fail. See ECF No. 10
at 20–21. As the Government correctly explains, the BPA is derivative and applies only when a
separate “provision of law commands payment of money to the employee for the ‘unjustified or
unwarranted personnel action.’” Id. at 20 (quoting Spagnola v. Stockman, 732 F.2d 908, 912 (Fed.
Cir. 1984)). Here, Plaintiffs have adequately stated a claim for relief under the FLSA.
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IV. CONCLUSION
For these reasons, the Court GRANTS IN PART the Government’s Motion to Dismiss
(ECF No. 10) with respect to claims or requests for relief under the DJA and 28 U.S.C. § 1331 and
DENIES the Motion in all other respects. The Court DENIES AS MOOT Plaintiffs’ first Motion
for Leave to File Notice of Supplemental Authority (ECF No. 15) and GRANTS Plaintiffs’ second
Motion for Leave to File Notice of Supplemental Authority (ECF No. 19).
SO ORDERED.
Dated: December 30, 2021 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge
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