In the United States Court of Federal Claims

No. 19-59C

(E-Filed: December 9, 2020)

L. KEVIN ARNOLD, et al.,

Plaintiffs,

v.

THE UNITED STATES,

Defendant.

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Motion to Dismiss; RCFC 12(b)(6); 

Fair Labor Standards Act (FLSA), 29 

U.S.C. §§ 201-19; Anti-Deficiency Act 

(ADA), 31 U.S.C. §§ 1341-42; 

Government Employees Fair 

Treatment Act of 2019 (GEFTA); Pub. 

L. No. 116-1, 133 Stat. 3 (2019).

Jacob Y. Statman, Baltimore, MD, for plaintiff. Michael J. Snider, Keith A. Kauffman, 

Jason I. Weisbrot, Jefferson Friday, Richard J. Hirn, Mark Schneider, Sarah Suszczyk, 

Dennie Rose, Sefan P. Sutich, of counsel.

Erin K. Murdock-Park, Trial Attorney, with whom were Joseph H. Hunt, Assistant 

Attorney General, Robert E. Kirschman, Jr., Director, Reginald T. Blades, Jr., Assistant 

Director, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, Washington, DC, for defendant. Ann C. Motto, of counsel.

OPINION AND ORDER

CAMPBELL-SMITH, Judge.

Plaintiffs in this putative collective action allege that the government, through 

several agencies, violated the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19, by 

failing to timely pay their earned overtime and regular wages during the partial 

government shutdown and lapse of appropriations that began on December 22, 2018. See

ECF No. 6 at 6 (amended complaint, hereinafter referred to as the complaint). On May 3, 

2019, defendant moved to dismiss the complaint for failure to state a claim on which 

relief may be granted, pursuant to Rule 12(b)(6) of the Rules of the United States Court 

of Federal Claims (RCFC), on the basis that the Anti-Deficiency Act (ADA), 31 U.S.C. 

§§ 1341-42, prohibited the government from paying employees. See ECF No. 25. 
2

In analyzing defendant’s motion, the court has considered: (1) plaintiffs’ 

complaint, ECF No. 6; (2) defendant’s motion to dismiss, ECF No. 25; (3) plaintiffs’ 

response to defendant’s motion, ECF No. 30; (4) defendant’s reply in support of its 

motion, ECF No. 34; (5) defendant’s first supplemental brief in support of its motion, 

ECF No. 36; (6) plaintiffs’ response to defendant’s first supplemental brief, ECF No. 39; 

(7) defendant’s second supplemental brief in support of its motion, ECF No. 47; (8)

plaintiffs’ response to defendant’s second supplemental brief, ECF No. 48; (9) 

defendant’s third supplemental brief in support of its motion, ECF No. 55; and (10) 

plaintiffs’ response to defendant’s third supplemental brief, ECF No. 59. The motion is 

now fully briefed and ripe for ruling.1

 The court has considered all of the arguments 

presented by the parties, and addresses the issues that are pertinent to the court’s ruling in 

this opinion. For the following reasons, defendant’s motion is DENIED.

I. Background

On December 22, 2018, the federal government partially shut down due to a lack 

of appropriations. See ECF No. 6 at 6. The named plaintiffs in this case were, at the 

time of the lapse in appropriations, employees of various agencies affected by the 

shutdown.2

 See id. at 2-5. Plaintiffs further allege that they were classified as FLSA 

non-exempt, see id., and “designated as ‘excepted employees’” who were “required to 

perform their duties without receiving their appropriate overtime and minimum wage 

1 Defendant moves for dismissal of plaintiffs’ complaint for only one reason—“for failure 

to state a claim upon which relief may be granted.” ECF No. 25 at 6. In one of its supplemental 

briefs, defendant suggests that a recent decision issued by the Supreme Court of the United 

States, Maine Community Health Options v. United States, 140 S. Ct. 1308 (2020), a case that 

does not involve FLSA claims, indicates that this court lacks jurisdiction to hear this case 

because the FLSA “contains its own provision for judicial review.” ECF No. 55 at 2. In the 

same brief, defendant acknowledges binding precedent from the United States Court of Appeals 

for the Federal Circuit to the contrary. See id. (citing Abbey v. United States, 745 F.3d 1363 

(Fed. Cir. 2014)). The court will not review this entirely new basis for dismissal, which was 

made for the first time in defendant’s third supplemental brief, and which defendant 

acknowledges contradicts binding precedent. If defendant believes this court lacks jurisdiction 

to continue exercising its authority in this case, it may file a motion properly raising the issue. 

See Rule 12(h)(3) of the Rules of the United States Court of Federal Claims (RCFC) (“If the 

court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the 

action.”).

2 Defendant argues, in a footnote, that claims made by FLSA-exempt employees and

employees who have asserted the same claims in another court should be dismissed from this 

action. See ECF No. 25 at 15-16 n.3. The court does not evaluate these assertions in this 

opinion because defendant neither identifies any such plaintiffs in this case, nor sufficiently 

briefs the issues to the court.
3

pursuant to [the FLSA].” Id. at 6. Defendant’s failure to timely pay plaintiffs, they 

allege, is a violation of the FLSA. See id. at 7.

Plaintiffs assert that defendant “cannot demonstrate good faith and reasonable 

grounds for believing its failure to pay minimum wage did not violate the FLSA,” 

because “[d]efendant has knowledge that it has been held liable for similar violations of 

the FLSA based on its past actions and/or omissions that are identical to the violations, 

actions and/or omissions alleged herein.” Id. at 9, 10. Plaintiffs also state that “[t]he 

potential class is comprised of [p]laintiffs and all similarly situated employees who are 

FLSA non-exempt and were designated as excepted service who have performed work 

for [d]efendant at some time [during the shutdown] without receiving timely payment of 

minimum wage and/or overtime[] wages for such work.” Id. at 5. Plaintiffs seek the 

payment of minimum and overtime wages due, liquidated damages, and attorneys’ fees 

and costs incurred in this litigation. Id. at 11. 

II. Legal Standards

When considering a motion to dismiss brought under RCFC 12(b)(6), the court

“must presume that the facts are as alleged in the complaint, and make all reasonable 

inferences in favor of the plaintiff.” Cary v. United States, 552 F.3d 1373, 1376 (Fed. 

Cir. 2009) (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991)). It 

is well-settled that a complaint should be dismissed under RCFC 12(b)(6) “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 a motion to dismiss, a 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)).

III. Analysis

A. Relevant Statutes

This case fundamentally concerns the intersection of two statutes, the ADA and 

the FLSA. The ADA states that “an officer or employee” of the federal government 

“may not . . . make or authorize an expenditure or obligation exceeding an amount 

available in an appropriation or fund for the expenditure or obligation.” 31 U.S.C. 

§ 1341(a)(1)(A). In addition, the ADA dictates that “[a]n officer or employee of the 

United States Government or of the District of Columbia government may not accept 

voluntary services for either government or employ personal services exceeding that 

authorized by law except for emergencies involving the safety of human life or the 

protection of property.” 31 U.S.C. § 1342. In 2019, Congress amended the ADA, 

adding, in relevant part, the following: 
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[E]ach excepted employee who is required to perform work during a covered 

lapse in appropriations[3] shall be paid for such work, at the employee’s 

standard rate of pay, at the earliest date possible after the lapse in 

appropriations ends, regardless of scheduled pay dates, and subject to the 

enactment of appropriations Acts ending the lapse.

31 U.S.C. § 1341(c)(2) (footnote added). The amendment is commonly referred to as the 

Government Employees Fair Treatment Act of 2019 (GEFTA), Pub. L. No. 116-1, 133 

Stat. 3 (2019). The knowing or willful violation of the ADA is punishable by a fine of 

“not more than $5,000” or imprisonment “for not more than 2 years, or both.” 31 U.S.C. 

§ 1350. And federal employees who violate the ADA “shall be subject to appropriate 

administrative discipline including, when circumstances warrant, suspension from duty 

without pay or removal from office.” 31 U.S.C. § 1349(a).

Defendant separately has obligations to its employees pursuant to the FLSA, 

which governs minimum wage and overtime wage compensation for certain employees.4

 

See 29 U.S.C. § 213 (identifying categories of exempt employees). The FLSA requires 

that the government “pay to each of [its] employees” a minimum wage. 29 U.S.C. 

§ 206(a). Pursuant to the FLSA, the government also must compensate employees for 

hours worked in excess of a forty-hour workweek “at a rate not less than one and one-half 

times the regular rate at which [they are] employed.” 29 U.S.C. § 207(a)(1). Although 

the text of the statute does not specify the date on which wages must be paid, courts have 

held that employers are required to pay these wages on the employee’s next regularly 

scheduled payday. See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 (1945); Biggs 

v. Wilson, 1 F.3d 1537, 1540 (9th Cir. 1993). If an employer violates the FLSA’s pay 

provisions, the employer is “liable to the . . . employees affected in the amount of their 

unpaid minimum wages, or their unpaid overtime compensation, as the case may be.” 29 

U.S.C. § 216(b). The employer may also be liable “in an additional equal amount as 

liquidated damages,” id., unless “the employer shows to the satisfaction of the court that 

the act or omission . . . was in good faith, and that [the employer] had reasonable grounds 

for believing that his act or omission was not a violation of the [FLSA],” 29 U.S.C. 

§ 260.

3 The statute defines “covered lapse in appropriations” to mean “any lapse in 

appropriations that begins on or after December 22, 2018.” 31 U.S.C. § 1341(c)(1)(A).

4 The FLSA initially applied only to the private sector when enacted in 1938, but was 

amended to cover public employees in 1974. See Fair Labor Standards Amendments of 1974, 

Pub. L. No. 93-259, 88 Stat. 55 (1974).
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B. The Court’s Reasoning in Martin Applies

In its motion to dismiss, defendant first argues that plaintiffs’ complaint should be 

dismissed for failure to state a claim because the agencies for which appropriations 

lapsed on December 22, 2018, were prohibited by the ADA from paying their 

employees—even excepted employees who were required to work. See ECF No. 25 at 

12-14. This mandate, in defendant’s view, means that defendant cannot be held liable for 

violating its obligations under the FLSA. See id. Defendant argues:

When Congress criminalized payments during an appropriations lapse, it 

plainly precluded payments on the schedule plaintiffs assert is required by 

the FLSA. Federal officials who comply with that criminal prohibition do 

not violate the FLSA, and Congress did not create a scheme under which 

compliance with the [ADA] would result in additional compensation as 

damages to federal employees.

Id. at 13. 

The court has previously ruled on the intersection of the ADA and the FLSA in the 

context of a lapse in appropriations. See Martin v. United States, 130 Fed. Cl. 578 

(2017). In Martin, plaintiffs were “current or former government employees who 

allege[d] that they were not timely compensated for work performed during the 

shutdown, in violation of the [FLSA].” Id. at 580 (citing 29 U.S.C. § 201 et seq.). The 

plaintiffs in Martin alleged the right to liquidated damages with regard to both the 

government’s failure to timely pay minimum wages and its failure to pay overtime 

wages. See id. In its motion for summary judgment, the government argued that “it

should avoid liability under the FLSA for its failure to [pay plaintiffs on their regularly 

scheduled pay days during the shutdown] because it was barred from making such 

payments pursuant to the ADA.” See id. at 582. The government summarized its 

argument in Martin as follows:

The FLSA and the Anti-Deficiency Act appear to impose two conflicting 

obligations upon Federal agencies: the FLSA mandates that the agencies 

“shall pay to each of [its] employees” a minimum wage, 29 U.S.C. § 206(a) 

(emphasis added), which has been interpreted by the courts to include a 

requirement that the minimum wage be paid on the employees’ next regularly 

scheduled pay day, see Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 707 

n.20 [65 S. Ct. 895, 89 L. Ed. 1296] (1945); Biggs v. Wilson, 1 F.3d 1537, 

1540 (9th Cir. 1993), and the [ADA] mandates that “[a]n officer or employee 

of the United States Government . . . may not . . . make or authorize an 

expenditure . . . exceeding an amount available in an appropriation or fund

for the expenditure . . . .” 31 U.S.C. § 1341(A)(1)(A) (emphasis added). 

Thus, when Federal agencies are faced with a lapse in appropriations and 
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cannot pay excepted employees on their next regularly scheduled payday, the 

question arises of which statutory mandate controls.

Id. at 582-83 (quoting defendant’s motion for summary judgment) (alterations in 

original).

After reviewing applicable precedent and persuasive authority, the court 

concluded that “the issue is more complex than simply a choice between whether the 

FLSA or the ADA controls.” Id. at 583. In the court’s view: 

the appropriate way to reconcile the [ADA and the FLSA] is not to cancel 

defendant’s obligation to pay its employees in accordance with the manner 

in which the FLSA is commonly applied. Rather, the court would require 

that defendant demonstrate a good faith belief, based on reasonable grounds, 

that its actions were appropriate. As such, the court will proceed to analyze 

this case under the construct of the FLSA, and evaluate the existence and 

operation of the ADA as part of determining whether defendant met the 

statutory requirements to avoid liability for liquidated damages.

Id. at 584. 

The court noted that plaintiffs’ claims survived a motion to dismiss because they 

had “alleged that defendant had failed to pay wages” on plaintiffs’ “next regularly 

scheduled payday.” Id. at 584. On summary judgment, the court concluded that 

plaintiffs had proven this claim. See id. The court then concluded that the evidence 

supported an award of liquidated damages because the government failed to satisfy the 

court that it acted in good faith and on reasonable grounds when it failed to make the 

payments required under the FLSA.5

 See id. at 585-86. 

Both parties acknowledge that the plaintiffs in Martin were “situated similarly to 

plaintiffs here.” ECF No. 25 at 14 (defendant’s motion to dismiss); see also ECF No. 30

at 5, 6 (plaintiffs claiming that “[d]efendant’s motion is nothing more than an attempt to 

re-litigate its unsuccessful arguments to dismiss identical claims in Martin,” and stating 

that “this case is factually and legally indistinguishable from Martin”). 

5 In Martin, the defendant also argued that it should avoid liability for liquidated damages 

with regard to overtime wages due to its inability to calculate the correct amounts due. See

Martin v. United States, 130 Fed. Cl. 578, 586-87 (2017). This argument was based on a bulletin 

from the Department of Labor, and involves an issue that has not been raised in the present case. 

The absence of this argument, however, has no bearing on the application of the court’s 

reasoning in Martin with regard to the structure of the proper analysis in this case.
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In its motion to dismiss, defendant does not dispute plaintiffs’ allegations that they 

were required to work during the shutdown, or that the plaintiffs were not paid during 

that time due to the lapse in appropriations. See ECF No. 25. Defendant characterizes 

the issue now before the court as “whether plaintiffs have stated a claim for liquidated 

damages under the [FLSA] notwithstanding the provisions of the [ADA].” Id. at 7. In

arguing its position, defendant reiterates the arguments advanced in Martin, but does not 

present any meaningful distinction between the posture of the Martin plaintiffs and the 

plaintiffs here. Instead, it acknowledges that “[t]his Court in Martin v. United States

concluded that plaintiffs situated similarly to plaintiffs here could recover liquidated 

damages under the FLSA,” but states that it “respectfully disagree[s] with that holding.” 

Id. at 14. 

Notwithstanding defendant’s disagreement, the court continues to believe that the 

framework it set out in Martin is appropriate and applies here.6

 As it did in Martin, “the 

court will proceed to analyze this case under the construct of the FLSA, and evaluate the 

existence and operation of the ADA as part of determining whether defendant met the 

statutory requirements to avoid liability for liquidated damages.”7

 Martin, 130 Fed. Cl. at 

6 Defendant also argues that its obligations under the FLSA are limited by the ADA 

because “a congressional payment instruction to an agency must be read in light of the [ADA].” 

ECF No. 25 at 16. In support of this argument, defendant cites to Highland Falls-Fort 

Montgomery Cent. Sch. Dist. v. United States, 48 F.3d 1166, 1171 (Fed. Cir. 1995). See id. at 

16-17. In Highland-Falls, plaintiffs challenged the Department of Education’s (DOE) method 

for allocating funds under the Impact Aid Act. Highland-Falls, 48 F.3d at 1171. The United 

States Court of Appeals for the Federal Circuit found, however, that the DOE’s “approach was 

consistent with statutory requirements.” Id. The case did not address FLSA claims, and found 

that the DOE’s approach “harmonized the requirements of the Impact Aid Act and the [ADA].” 

See id. In the court’s view, the Federal Circuit’s decision in Highland-Falls does not alter the 

analysis in this case. The United States District Court for the District of Columbia’s combined 

decision in National Treasury Employees Union v. Trump, Case No. 19-cv-50 and Hardy v. 

Trump, Case No. 19-cv-51, 444 F. Supp. 3d 108 (2020), discussed by defendant in one of its 

supplemental filings, see ECF No. 47, is likewise unhelpful. Although it involved facts that 

arose from the same 2018 lapse in appropriations, the decision focuses almost exclusively on an 

analysis of whether plaintiffs’ claims were moot, rather than on the operation of the ADA.

7 The parties both claim that the Supreme Court of the United States’ decision in Maine 

Community Health, 140 S. Ct. 1308, supports their position in this case. See ECF No. 55, ECF 

No. 59. Maine Community Health does not address the FLSA, and only includes a limited 

discussion of the ADA. See Maine Cmty. Health, 140 S. Ct. at 1321-22. Accordingly, the 

decision does not dictate the outcome here. To the extent that the case informs the present 

discussion, however, it tends to support plaintiffs. In the opinion, the Supreme Court held that 

“the [ADA] confirms that Congress can create obligations without contemporaneous funding 

sources,” and concludes that “the plain terms of the [statute at issue] created an obligation neither 

contingent on nor limited by the availability of appropriations or other funds.” Id. at 1322, 1323. 
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584. The court will, of course, consider the GEFTA amendment to the ADA as part of its 

analysis.

C. Waiver of Sovereign Immunity

Before analyzing the sufficiency of plaintiffs’ allegations, the court must address 

defendant’s contention that plaintiffs’ claims are barred by the doctrine of sovereign 

immunity. In its motion to dismiss, defendant correctly notes that “‘[a] waiver of the 

Federal Government’s sovereign immunity must be unequivocally expressed in statutory 

text, and will not be implied.’” ECF No. 25 at 19 (quoting Lane v. Pena, 518 U.S. 187, 

192 (1996)). And that waiver “‘will be strictly construed, in terms of its scope, in favor 

of the sovereign.’” Id. (quoting Lane, 518 U.S. at 192). Defendant concedes that the 

FLSA includes a waiver of sovereign immunity, but argues that the claims made by 

plaintiffs in this case fall outside the scope of that waiver. See id.; see also King v. 

United States, 112 Fed. Cl. 396, 399 (2013) (stating that “there is no question that 

sovereign immunity has been waived under the FLSA”).

Defendant argues that the FLSA “does not require that employees be paid on their 

regularly scheduled pay date or make damages available when compensation is not 

received on a pay date.” ECF No. 25 at 19. As a result, defendant contends, the scope of 

the FLSA’s waiver of sovereign immunity does not extend to the category of claims 

alleging a FLSA violation because wages were not paid as scheduled, such as plaintiffs’ 

claims in this case. See id. at 19-21. According to defendant, the GEFTA confirms its 

long-standing belief that the government’s payment obligations under the FLSA are 

abrogated by a lack of appropriations:

The [GEFTA] provides that “each excepted employee who is required to 

perform work during a . . . lapse in appropriations shall be paid for such 

work, at the employee’s standard rate of pay, at the earliest date possible after 

the lapse in appropriations ends, regardless of scheduled pay dates.” Pub. L. 

No. 116-1, 133 Stat. 3. Congress has thus spoken directly to the question of 

when compensation should be paid. There can be no basis for inferring that 

compensation made in accordance with that explicit directive subjects the 

United States to liquidated damages.

Id. at 21.

Defendant also asserts, without citation to any authority, as follows: 

Applied here, this conclusion suggests that the defendant can incur an obligation to pay plaintiffs 

pursuant to the normal operation of the FLSA even when funding is not available. 
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Given that the [ADA] not only prohibits federal agencies from paying 

excepted employees on their regularly scheduled paydays during a lapse in 

appropriations, but also specifically addresses when and at what rate wages 

are to be paid following a lapse in appropriations, the government’s waiver 

of sovereign immunity under the FLSA must be strictly construed against 

liability for the delayed (but always forthcoming) payment of wages because 

of a lapse in appropriations.

ECF No. 34 at 13.

The court disagrees. The claims brought by plaintiffs in this case are 

straightforward minimum wage and overtime claims under the FLSA. See ECF No. 6 at 

8-10; ECF No. 30 at 8. Because the FLSA does not specify when such claims arise, 

courts have interpreted the statute to include a requirement that employers make 

appropriate wage payments on the employee’s next regularly scheduled payday. See

Brooklyn Sav. Bank, 324 U.S. at 707; Biggs, 1 F.3d at 1540. Contrary to defendant’s 

suggestion, the court is unpersuaded that this judicially-imposed timing requirement 

transforms ordinary FLSA claims into something analytically distinct, and beyond the 

scope of the statute’s waiver of sovereign immunity. 

Accordingly, the court finds that defendant has waived sovereign immunity as to 

plaintiffs’ claims, as it has with all FLSA claims, and the court will review the 

sufficiency of plaintiffs’ allegations as it would in any other FLSA case.

D. Plaintiffs State a Claim for FLSA Violations

As noted above, the FLSA requires that the government “pay to each of [its] 

employees” a minimum wage. 29 U.S.C. § 206(a). Pursuant to the FLSA, the 

government also must compensate employees for hours worked in excess of a forty-hour 

workweek “at a rate not less than one and one-half times the regular rate at which [they 

are] employed.” 29 U.S.C. § 207(a)(1). And although the text of the statute does not 

specify the date on which wages must be paid, courts have held that employers are 

required to pay these wages on the employee’s next regularly scheduled payday. See

Brooklyn Sav. Bank, 324 U.S. at 707; Biggs, 1 F.3d at 1540. 

In their complaint, plaintiffs allege that they were classified as FLSA non-exempt,

ECF No. 6 at 2-5, and “designated as ‘excepted’ employees” who were “required to 

perform their duties without receiving their appropriate overtime and minimum wage 

pursuant to [the FLSA].” Id. at 6. Plaintiffs allege specific facts demonstrating how the 

allegations apply to each plaintiff. See id. at 2-5.
10

Defendant does not contest any of these allegations, and in fact, concedes that 

“plaintiffs [were] employees of agencies affected by the lapse in appropriations,” and that 

“plaintiffs were paid at the earliest possible date after the lapse in appropriations ended.” 

ECF No. 25 at 12, 13. Defendant also admits that “[p]laintiffs are federal employees who 

performed excepted work during the most recent lapse in appropriations.” Id. at 15. In 

short, defendant does not claim that plaintiffs are not entitled to payment under the 

FLSA, but instead argues that it “fully complied with its statutory obligations to 

plaintiffs.” Id. at 16.

The court finds that, presuming the facts as alleged in the complaint and drawing 

all reasonable inferences in their favor, plaintiffs have stated a claim for relief under the 

FLSA. See Cary, 552 F.3d at 1376 (citing Gould, 935 F.2d at 1274). 

E. Liquidated Damages

Defendant insists that its failure to pay plaintiffs was a decision made in good 

faith, in light of the ADA. See ECF No. 34 at 15. It further urges the court to find that its 

good faith is so clear that the recovery of liquidated damages should be barred at this 

stage in the litigation. See id. at 15-18. But as the court held in Martin:

[I]t would be inappropriate to determine, on motion to dismiss, whether the 

government had reasonable grounds and good faith. It may well be that the 

government can establish these defenses, but its opportunity to do so will 

come later on summary judgment or at trial. Moreover, even if the court 

were to decide that a liquidated damages award is warranted, additional 

factual determinations remain to be made as to which employees, if any, are 

entitled to recover, and damages, if any, to which those employees would be 

entitled.

Martin v. United States, 117 Fed. Cl. 611, 627 (2014). Accordingly, the court declines to 

rule at this time on the issue of whether defendant can establish a good faith defense 

against liability for liquidated damages in this case.

IV. Conclusion

Accordingly, for the foregoing reasons:

(1) Defendant’s motion to dismiss, ECF No. 25, is DENIED;

(2) On or before February 8, 2021, defendant is directed to FILE an answer

or otherwise respond to plaintiffs’ complaint; and
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(3) On or before February 8, 2021, the parties are directed to CONFER and 

FILE a joint status report informing the court of their positions on the 

consolidation of this case with any other matters before the court.

IT IS SO ORDERED.

s/Patricia E. Campbell-Smith 

PATRICIA E. CAMPBELL-SMITH

Judge