1 v. United States ( 2021 )

NOT FOR PUBLICATION
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
______________________________________
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PLAINTIFF NO. 1, et al., )
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Plaintiffs, ) No. 20-454C
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v. ) Filed: April 9, 2021
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THE UNITED STATES, )
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Defendant. )
______________________________________ )
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs’ Unopposed Motion for Conditional Certification and Notice.
See Pls.’ Unopposed Mot. Conditional Cert. & Notice, ECF No. 39 (public version). Plaintiffs are
two Supervisory Investigative Specialists (“SIS”) employed by the Federal Bureau of Investigation
(“FBI”) at the GS-12 paygrade level who are bringing this suit on behalf of at least 185 similarly
situated employees. Id. at 1. Plaintiffs allege that the FBI misclassified them as “exempt” under
the Fair Labor Standards Act (“FLSA”) and did “not pa[y] for their overtime hours at the FLSA-
required rate.” Id. at 2. They further allege that they “were expected to work outside of their
assigned shifts for the week and not compensated for all overtime hours worked.” Id.
Pursuant to § 216(b) of the FLSA, Plaintiffs seek “conditional certification for all past or
present FBI employees who occupied the [SIS] position at a GS-12 paygrade between December
15, 2017, and the present, and who worked in excess of forty hours per week while so employed.”
Id. at 1. Additionally, Plaintiffs seek the Court’s authorization of the notice to be sent to potential
class members. Id.
For the reasons set forth below, the motion is GRANTED.
I. LEGAL STANDARD
Section 216(b) of the FLSA allows “one or more employees for and in behalf of himself
or themselves and other employees similarly situated” to “maintain[] [a collective action] against
any employer (including a public agency) in any Federal or State court of competent jurisdiction.”
29 U.S.C. § 216(b). “No employee[, however,] shall be a party plaintiff to any such action unless
he gives his consent in writing to become such a party and such consent is filed in the court in
which such action is brought.” 1 Id. “The threshold requirements governing an FLSA collective
action are those described above, viz., plaintiffs must be similarly situated, and they must opt in to
the proposed action through the filing of consent.” Boggs v. United States, 139 Fed. Cl. 375, 377
(2018) (citing Hunter v. Sprint Corp., 346 F. Supp. 2d 113, 117 (D.D.C. 2004)).
Although § 216(b) is silent on the specific process of certifying a collective action, see
Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170–72 (1989), this court along with most
other courts have now adopted a two-step approach in deciding the propriety of certification, see
Boggs, 139 Fed Cl. at 378 (collecting cases); Whalen v. United States, 85 Fed. Cl. 380, 383 (2009)
(same). “The two-step approach to certification involves a preliminary determination of whether
the plaintiffs were subject to a common employment policy or plan, and then, after discovery, an
opportunity for the defendant to decertify the collective action on the ground that the plaintiffs are
not in fact similarly situated.” Whalen, 85 Fed. Cl. at 383 (citing Cameron-Grant v. Maxim
Healthcare Servs., 347 F.3d 1240, 1243 n.2 (11th Cir. 2003); Heckler v. DK Funding, 502 F. Supp.
1Collective actions under the FLSA are unlike class actions subject to the requirements of
Rule 23 of the Rules of the United States Court of Federal Claims (or the counterpart provision of
the Federal Rules of Civil Procedure), i.e., numerosity, commonality, typicality, and
representativeness. Whalen v. United States, 85 Fed. Cl. 380, 383 (2009); see also Genesis
HealthCare Corp. v. Symczyk, 569 U.S. 66, 74 (2013) (“Rule 23 actions are fundamentally
different from collective actions under the FLSA” (citing Hoffmann-La Roche Inc. v. Sperling, 493
U.S. 165, 177–78 (1989) (Scalia, J., dissenting))).
2
2d 777, 779 (N.D. Ill. 2007)). At this preliminary stage, Plaintiffs’ burden is low. Barry v. United
States, 117 Fed. Cl. 518, 521 (2014). They “need only ‘make a “modest factual showing,”’ based
on ‘the pleadings, affidavits, and other available evidence,’ that potential class members are
‘similarly situated.’” Id. (quoting Gayle v. United States, 85 Fed. Cl. 72, 77 (2008)). As the
Supreme Court has explained, “similarly situated” potential class members “share ‘common issues
of law and fact arising from the same alleged [prohibited] activity.’” Id. (alteration in original)
(quoting Hoffmann-La Roche, 493 U.S. at 170). In resolving a conditional certification request,
however, “the court does not resolve factual disputes, decide substantive issues going to the
ultimate merits, or make credibility determinations.” Gayle, 85 Fed. Cl. at 77 (quoting Lynch v.
United Servs. Auto. Ass’n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007)).
II. DISCUSSION
A. Conditional Certification
The Court finds that Plaintiffs have met their low evidentiary burden and made the “modest
factual showing” that the proposed collective action members are similarly situated. Barry, 117
Fed. Cl. at 521. Conditional certification is thus appropriate in this matter. The proposed class of
plaintiffs occupy the same job position (SIS), sharing the same paygrade (GS-12), at the same
agency (FBI) during the same period (December 15, 2017 to present). See Doe No. 1 v. United
States, 143 Fed. Cl. 113, 116 (2019) (certifying conditionally a collective action of current and
former FBI employees who occupied the same position and job series under the General Schedule,
i.e., Staff Operations Specialist); Plaintiff No. 1 v. United States, 139 Fed. Cl. 440, 442 (2018)
(certifying conditionally a collective action of current and former FBI employees who occupied
the Investigative Specialist position at the GS-11 paygrade). Plaintiff has submitted the FBI
position description form applicable to all Grade 12 SIS, which indicates FBI’s classification of
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such position as FLSA-exempt. See, e.g., Decl. Pl. No. 1, Ex. A at 9, ECF No. 36 (redacted public
version). Additionally, Plaintiffs, who have held SIS positions since March 2010 and March 2017,
respectively, assert based on their experience with and observations of SIS assigned to other FBI
field offices that “an SIS’s job duties, and how they differ—or really, that they hardly differ—is
generally uniform throughout every FBI field office in the country,” ECF No. 36 ¶ 15. See id. ¶¶
4–5; see also Decl. Pl. No. 2 ¶¶ 4–5, 14, ECF No. 37 (redacted public version). These job duties
allegedly include SIS performing tasks identical to non-supervisory Investigative Specialists and
“off the clock” work (such as responding to emails and drafting reports) outside of normal business
hours. See ECF No. 36 ¶¶ 9–12, 16; ECF No. 37 ¶¶ 9–11, 15.
Given the occupational uniformity, Plaintiffs have adequately shown, for purposes of
conditional certification at this preliminary stage, that proposed plaintiffs are “subject to a common
employment policy or plan,” Whalen, 85 Fed. Cl. at 383, and “share common issues of law and
fact arising” from their alleged misclassification as FLSA-exempt and inadequate compensation
for overtime hours worked, Barry, 117 Fed. Cl. at 521 (citation and internal quotation marks
omitted). Moreover, while Defendant disputes the facts alleged by Plaintiffs and denies liability,
Defendant does not oppose conditional certification “in light of the minimal factual showing
required solely of [P]laintiffs at this stage of proceedings.” 2 ECF No. 39 at 13. Accordingly, the
Court will conditionally certify this collective action.
2
Defendant would argue for a shorter limitation period than December 15, 2017 to
present based on its view of the law and facts, but the parties propose to address this “dispute in
separate motions practice that need not delay this motion for conditional certification.” ECF No.
39 at 1 n.1.
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B. Notice
The Supreme Court has recognized that a court may supervise the collective action notice
process through approval of the notice and notice procedures. See Hoffmann-La Roche, 493 U.S.
at 170–71 (“[T]he court has a managerial responsibility to oversee the joinder of additional parties
to assure that the task is accomplished in an efficient and proper way.”). Indeed, under the FLSA,
“[t]he sole consequence of conditional certification is the sending of court-approved written notice
to employees” in order to facilitate the opt-in process. Genesis HealthCare Corp. v. Symczyk, 569
U.S. 66, 75 (2013) (citing Hoffman-La Roche, 493 U.S. at 171–72). A court’s supervision of the
notice process, however, must not impugn its “judicial neutrality” in the action. Hoffman-La
Roche, 493 U.S. at 174 (instructing that “trial courts must take care to avoid even the appearance
of judicial endorsement of the merits of the action”).
Plaintiffs represent that the parties have agreed to the notice attached as Exhibit A to their
motion. See ECF No. 39 at 11. The Court is satisfied that the proposed notice avoids the
appearance of judicial endorsement of the merits of the action by conspicuously representing
toward the beginning of the notice that “THE COURT HAS TAKEN NO POSITION IN THIS
CASE REGARDING THE MERITS OF EITHER PLAINTIFFS’ CLAIMS OR DEFENDANT’S
DEFENSES.” See ECF No. 39, Ex. A at 15; Hoffman-La Roche, 493 U.S. at 174. Moreover, the
proposed notice (1) informs potential plaintiffs that they may be deposed or required to testify in
court, (2) outlines the arrangements for attorneys’ fees and costs, and (3) advises potential
plaintiffs that they have the right to be represented by an attorney of their choice. See ECF No.
39, Ex. A at 17; Boggs, 139 Fed. Cl. at 379 (authorizing proposed notice that “informs potential
plaintiffs that they may be deposed or required to testify, sets out the arrangements for attorneys’
fees and costs, and notifies potential plaintiffs that they have the right to be represented by an
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attorney of their choice” (citing Salomon v. Adderley Indus., 847 F. Supp. 2d 561, 566–67
(S.D.N.Y. 2012))). The proposed notice also informs potential plaintiffs how to participate in the
litigation, if they so choose, and directs potential plaintiffs not to contact the Court with questions
about the litigation. See ECF No. 39, Ex. A at 17, 18; see Gayle, 85 Fed. Cl. at 81 (mandating
revisions to a proposed notice to include such information and direction); Whalen, 85 Fed. Cl. at
389 (same).
The Court also approves of the following notice procedure as devised and agreed upon by
the parties:
Subject to an agreed upon protective order, Defendant will provide plaintiffs’
counsel the names, external work email addresses, and postal home addresses of
potential plaintiffs within 20 days of the date the Court enters an order granting this
motion. Plaintiffs’ counsel - using a third-party administrator (“TPA”) - will then
promptly send the notice to potential plaintiffs, by email and first-class mail, within
fourteen days of receipt of the contact information from defendant. The notice will
require consents be returned by no later than 90 days from the date the notice is
mailed.
The mailings, both by first-class mail and by email, will contain only the Court-
approved notice and no other language. The subject line of the email will be “Legal
Notice of Collective Action and Opportunity to Join.” The envelope sending the
mailed notice to postal addresses (along with an enclosed stamped return envelope
addressed to the TPA) will have printed on the outside “Legal Notice of Collective
Action and Opportunity to Join.”
To the extent the notice is returned to sender as undeliverable to potential plaintiffs’
email or postal addresses, then if necessary, the parties will confer within no more
than five business days of Plaintiffs’ counsel so notifying Government counsel.
After this initial notice is sent once by email and first-class mail, Plaintiffs’ counsel,
through the TPA, may send a second notice by first-class mail to potential plaintiffs
from whom they have not received a consent form approximately one month before
the response date for receipt of consent forms. This second notice must be identical
to the first notice, except with respect to the number of plaintiffs who have filed
consent forms with the Court. Likewise, for potential plaintiffs whose mailed
notices were returned as undeliverable and who have not returned a consent form,
Plaintiffs’ counsel, through the TPA, may send a second identical notice via email
if efforts to obtain a correct mailing address are unsuccessful. However, both for
the purposes of settlement and potential recovery of costs, Plaintiffs will bear all
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the cost and expense of sending a second postal mailing or email, which will not be
reimbursed by the United States. Any second notice shall not extend the response
date, which shall remain the date set forth in the initial notice.
Plaintiffs’ counsel will file notices with the Court within 5 days of the first and
second mailings that advise the Court and Defendant when the notices were sent,
confirms the response date, and attaches copies of the as-sent notices. Plaintiffs
shall timely file consents to opt-in with the Court and, in any event, all consents to
opt-in must be filed no later than 10 days after the response date.
ECF No. 39 at 11–12.
III. CONCLUSION
Accordingly, for the foregoing reasons, the Court ORDERS that:
• Plaintiffs’ Unopposed Motion for Conditional Certification and Notice is
GRANTED;
• The proposed notice agreed upon by the parties and attached as Exhibit A to the
motion is APPROVED; and
• The proposed procedures by which that notice will be delivered to potential
plaintiffs, as agreed upon by the parties and reproduced in this Order, are
APPROVED.
SO ORDERED.
Dated: April 9, 2021 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge
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