JACOB ROLLINGS, ESQ. (JR- 9247) 

Attorney for Plaintiffs 

57 Gramatan Avenue 

Mount Vernon, NY 10550 

(914) 699-5220 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

---------------------------------------------------X 

STEPHEN J. FEIN, on behalf of himself 

and all others similarly situated, 

 

 Plaintiffs, 

 

 -againstELAINE CHAO, Secretary, United States 

Department of Labor and the UNITED 

STATES OF AMERICA, 

 Defendants. 

---------------------------------------------------X 

07 Civ. 3312 (PAC) 

AMENDED 

CLASS ACTION 

COMPLAINT 

Jury trial requested 

 Plaintiff STEPHEN J. FEIN, by his attorney, JACOB ROLLINGS, ESQ., complaining of 

the defendants, alleges as follows: 

JURISDICTION 

1. This Court has subject matter jurisdiction under the Administrative Procedure 

Act, 5 U.S.C. § 704 and 28 U.S.C. § 1331, federal question jurisdiction, for review of this action 

pursuant to the Kyne doctrine1

 giving it the power to review clear violations of statutory 

mandate. The Kyne doctrine allows for judicial review of an agency action when the agency 

exceeds its statutory authority or violates a clear statutory mandate, even if Congress precluded 

judicial review in the Act. 

VENUE 

 

1 Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180 (1958) 

Case 1:07-cv-03312-PAC Document 8 Filed 09/13/2007 Page 1 of 6
2. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) in that the events or 

omissions that gave rise to this action occurred in the U.S. Department of Labor, Employment 

Standards Administration, Office of Workers’ Compensation Programs, 201 Varick Street, 

Room 704, New York, NY 10014 in the Southern District of New York. 

PARTIES 

3. Plaintiff STEPHEN J. FEIN (“Mr. Fein”) is an employee of the United States 

under the definitions of these terms in 5 U.S.C. §§ 5102 and 8101(1). He is a recipient of federal 

employees compensation under the Federal Employees Compensation Act (“FECA”), 5 U.S.C. § 

8101, et seq. In particular, Mr. Fein was and is a civilian employee of the United States Navy 

who was injured on the job. 

4. Defendant ELAINE CHAO is sued in her official capacity as the United States 

Secretary of Labor. 

5. Defendant UNITED STATES OF AMERICA, through its Office of Personnel 

Management or other offices therein, is responsible for setting and administering the rate of pay 

of federal employees. 

ADMINISTRATIVE PROCEEDINGS 

6. On October 25, 2006, Mr. Fein, through this office, made an application to 

defendant, through Hon. Shelby Hallmark, Director, Office of Workers’ Compensation 

Programs, United States Department of Labor, for review of his Federal Employees’ 

Compensation award pursuant to 5 U.S.C. § 8128(a) for a locality-based comparability payment, 

pursuant to 5 U.S.C. § 5304, retroactive from the time he began receiving employees 

compensation. Specifically, Mr. Fein, as a resident of Long Island, New York is entitled to an 

increase due to the higher cost of living there vis-a-vis the national average. 

Case 1:07-cv-03312-PAC Document 8 Filed 09/13/2007 Page 2 of 6
7. On November 17, 2006, defendants, through Zev C. Sapir, District Director, 

Employment Standards Administration, Office of Workers’ Compensation Programs in New 

York, NY, in the Southern District of New York, responded to Mr. Fein’s letter. Mr. Sapir stated 

that Mr. Fein’s case file was protected under the Privacy Act and that Mr. Fein must provide a 

signed release in order to respond to his application. 

8. On December 19, 2006, Mr. Fein, again through this office, mailed to defendants’ 

representative Mr. Sapir, a signed release. 

9. On February 8, 2007, Mr. Sapir responded directly to Mr. Fein. Mr. Sapir stated 

that compensation recipients do not receive “locality pay” based on the state they reside like 

working federal employees. 

CLASS ACTION ALLEGATIONS 

10. Mr. Fein brings this action on his own behalf and behalf of all others similarly 

situated, pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. 

11. The class so represented by plaintiff in this action, of which he is a member, 

consists of all United States federal compensation recipients, under 5 U.S.C. § 8101, et seq. 

12. The exact number of members of the class, as hereinabove identified and 

described is not known, but the class is so numerous that joinder of individual members herein is 

impracticable. 

13. There are common questions of law and fact in the action the relate to and affect 

the rights of each member of the class and relief sought is common to the entire class, viz., a 

declaratory judgment that plaintiffs, federal compensation recipients, as federal employees are 

entitled to locality based pay adjustments, pursuant to 5 U.S.C. § 5304 and § 843 of Pub.L. 109-

Case 1:07-cv-03312-PAC Document 8 Filed 09/13/2007 Page 3 of 6
115 (under 5 U.S.C. § 5303) as set forth in Schedule 9 of 5 U.S.C. § 5332 (locality based areas 

are set forth in 5 C.F.R. § 531.603). 

14. The claims of Mr. Fein, as representative of the class herein, are typical of the 

claims of the class, in that the claims of all members of the class, including plaintiff, depend on a 

showing of the acts and omissions of defendant give rise to the right of plaintiffs to the relief 

sought herein. 

15. Mr. Fein is a representative party for the class and is able to, and will, fairly and 

adequately protect the interests of the class. The attorney for plaintiff is experienced and capable 

in litigation in the field of administrative and employment law and litigation, in general. The 

attorney for plaintiff will actively conduct and be responsible for plaintiffs herein. 

16. This action is properly maintained as a class action insasmuch as defendants who 

oppose the class has acted or refused to act on grounds applicable to the class and has, by reason 

of such conduct, made appropriate final injunctive relief or corresponding declaratory relief with 

respect to the entire class, as sought in this action. 

CAUSE OF ACTION 

17. Plaintiffs, federal compensation recipients, as federal employees under the 

definitions set forth in 5 U.S.C. §§ 5102 and 8101(1) are entitled to locality based pay increases, 

pursuant to 5 U.S.C. § 5304. 

18. Defendants refuse and continue to refuse to compensate plaintiffs as such. 

WHEREFORE, plaintiff prays, for himself and all other members of the class, for the 

following relief: (1) a declaratory judgment that all federal compensation recipients, as federal 

employees, are entitled to locality-based payment adjustments and raises.; (2) that said federal 

compensation recipients have their pay adjusted based on their localities from the time they first 

Case 1:07-cv-03312-PAC Document 8 Filed 09/13/2007 Page 4 of 6
received federal compensation, together with interest; (3) payment of plaintiffs’ reasonable 

attorney’s fees and costs of this action; and (4) such other relief that this Court may deem just 

and equitable. 

Dated: New York, NY 

 September 12, 2007 

Jacob Rollings, Esq. (JR- 9247) 

Attorney for Plaintiffs 

57 Gramatan Avenue 

Mount Vernon, NY 10550 

(914) 699-5220 

Case 1:07-cv-03312-PAC Document 8 Filed 09/13/2007 Page 5 of 6
JACOB ROLLINGS, ESQ. (JR- 9247) 

Attorney for Plaintiffs 

57 Gramatan Avenue 

Mount Vernon, NY 10550 

(914) 699-5220 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

---------------------------------------------------X 

STEPHEN J. FEIN, on behalf of himself 

and all others similarly situated, 

 

 Plaintiffs, 

 

 -againstELAINE CHAO, Secretary, United States 

Department of Labor and the UNITED 

STATES OF AMERICA, 

 Defendants. 

---------------------------------------------------X 

07 Civ. 3312 (PAC) 

CERTIFICATION OF SERVICE 

 JACOB ROLLINGS, an attorney admitted to practice in this Court, affirms that on 

September 13, 2007, I had served the Amended Complaint upon defendants by mailing a true 

copy thereof to Lawrence H. Fogelman, Esq., Asst. U.S. Attorney, 86 Chambers Street, New 

York, NY 1007-1826 by first class mail. 

Dated: Mt. Vernon, NY 

 September 13, 2007 

 ____________________________ 

 Jacob Rollings 

Case 1:07-cv-03312-PAC Document 8 Filed 09/13/2007 Page 6 of 6