# I n t h e U n i t e d S t a t e s C o u r t o f F e d e r a l C l a i m s

No. 12-81C (F iled: J anuar

y 24, 2013)

************************************* WARDEL L E McCL ENDON , on behalf of * himself and those similarly situated, *

* Plaintiff, *

* v. * * THE UNI TED STATES, * * Def endant. * *************************************
ORDER Plaintiff is an equal e mploy ment opportunity

counselor at the United States Depa rtment of Ve tera ns Affa irs (“VA”) . He a lleg es in his complaint that the VA improper ly classified him and other simil arly situated employ ees a s beingexempt from the require ments of the F air L abor Standards Ac t of 1938 (“F L SA”), a nd that as a r esult, the VA did not compensate them for time that they worke d beyond forty

hours per wee k. Plaintiff theref

ore se eks, on beha lf of himself and those similarly

situated, unpaid over

time compensation and othe r re lief ava ilable under the FL SA.
Severa l months after filinghis complaint, plaintiff moved the cour t to conditionally cer tify his suit as a collective a ction and fa cilitate notice to similarly situated individuals. The FL SA expressly

permits collective a ctions. Specifica lly , it provides:
An ac tion to recove r [unpaid overtime compe nsation] m ay be maintained a g ainst any employ er ( including a

public ag ency

) in any Fe dera l or State court of competent jurisdiction by any one or more employ ees f or and in be half of himself or themselves a

nd other e mploy ees similarly situated. No employee sha ll be a party plaintiff to any

such ac tion unless he g ives his consent in writing to become such a pa rty and such c onsent is filed in the court in which suc h action is broug ht. 29 U.S.C. § 216(b) (empha sis added). D efe ndant opposed the motion and the c ourt hea rd argument on J anuar

y 24, 2013. As the par

ties both recognize, it i s common prac tice in fe dera l courts for a plaintiff pursuing a collec tive action under the FL SA to request that the c ourt conditionally cer tify thecollective a ction as the fir st step of a two-ste p, ad hoc pr ocess. Howeve r, this approa ch is not 1 specifie d by

the plain text of the statute or binding pr ece dent. The F L SA does not require that a 2 plaintiff obtain conditional ce rtification of the collective a ction in order to pr ocee d. And, there 3 are only two decisions binding on this cour t that addre ss FL SA collective a ctions and neither decision sanc tions the certific ation of such a ctions, much less adopts the two-step, a d hoc

In the first step, a pla intiff must establish, under a lenie nt standard of proof, that other 1 employ ees a

re similarly

situated to him. Then, if a suit is conditionally cer tified as a c ollective action, the pa

rties eng ag e in discover

y . The sec ond step of the pr ocess oc curs a fter disc overy . At that time, the defe ndant may move for “ dece rtification” of the conditional collec tive action on the basis that the orig inal plaintiff and the pla intiffs who have consente d to join the suit are not simil arly situated. Althoug h it is not the basis for the court de clining to c onditionally cer tify this suit, the court notes that the two-ste p, ad hoc a pproac h has the potential to be ine fficie nt beca use it contemplates the pa

rties and the c ourt addre ssing whe ther other employ ees a

re similarly situated on two separ ate oc casions. See g ener ally

Scott A. Moss & Na

ntiy a Ruan, The Second-Class Class Action: How 2 Courts Thwart Wag e Rig hts by Misapplying Class Ac tion Rul es, 61 Am. U. L . Rev. 523 (2012); Allan G. King& Camille C. Oz umba, Strang e F iction: The “Class Certification” Dec ision in FL SA Coll ective A ctions, 24 L ab. L aw. 267 ( 2009). As the cour

t noted in Amendola v. B ristol-My ers Squibb Co.: 3 [P laintiff] has also moved for “ conditional cer tification” of this ca se as a collective a ction. In contra st to the procedur al re quirements set for th in Rul e 23 of the F eder al Rules of Civil P roce dure f or cla ss actions, howeve r, neither the FL SA nor the F eder al Rules of Civil P roce dure pr ovide for the cer tification of an FL SA collective a ction. Actions broug ht under the F L SA often also alleg e re lated state labor la

w claims for

which cla ss action ce rtification may be sought. I t is perha ps for this rea son that district courts have imported the term “ cer tification” to describe the authorization of notice of the collec tive action to potential plaintiffs. This Opinion will t reat [ plaintiff’s] moti on as a r equest for authorization of notice and w ill not further re fer to the motion as one for cer tification. 558 F. Supp. 2d 459, 462 n.1 (S.D.N.Y. 2008) ; acc ord Kim v. Kim, No. 10-CV-2515 ( FB )(JO), 2010 WL2854463, at *1 (E.D.N .Y. J uly 19, 2010) (“ Ideny

as moot [pl aintiff’s] reque st for ‘conditional ce rtification’ of a collec tive action. . . . To the e x tent [pl aintiff] seeks such conditional cer

tification as a pe rce ived pre requisite for circ ulating a

notice to potential opt-in plaintiffs, he see ks that which he doe s not need. I approve (and or der) the circ ulation of such a notice bec ause it will avoid delay in the litigation of this case and prote ct the rig hts of persons whose rig hts may

be implicated in this liti g ation without unduly impairing the intere sts of the defe ndants.”). -2-approa ch used by other c ourts. I n Hoffma n-L a Roche Inc. v. Sperling , 493 U.S. 165 (1989), the 4 United States Supreme Court wa s conce rned only with the propriety

of cour t-fac ilitated notice to potential plaintiffs. And in United States v. Cook, 795 F.2d 987 (F ed. Cir. 1986), the United States Court of Appea ls for the F eder al Circuit was c oncer ned only with the propriety

of a f eder al district court orde r authorizing the discovery of the names and a ddresse s of potential plaintiffs. The c ourt’s appr oach to F L SA collective a ctions is constrained, ne cessa rily , by the express lang uag e of the FL SA. That languag e per mits an employ ee to f

ile suit on behalf of himself and other

employ ees who are simil arly situated–howeve r he ma

y define “similarly situated”–a

nd then allows other e mploy ees to file a consent for

m with the court to join the suit. In other wor ds, the court is pre cluded f rom deter mining, at the initial stag e of pr ocee dings, who may join the suit. I n sum, in the absence of any binding a uthority requiringcourt c ertification of 5 FL SA collective a ctions–including the use of a two-step, ad hoc approa ch–the c ourt denies plaintiff’s motion for conditional ce rtification as unne cessa ry
. 6

The United States Court of F eder al Claims has followed the two- step, ad hoc approa ch 4 in at least three case s, see Whalen v. United States, 85 F ed. Cl. 380 (2009); Ga yle v. United States, 85 Fe d. Cl. 72 (2008); Br igg s v. United States, 54 Fe d. Cl. 205 (2002), but those decisions are not binding on the unde rsig ned. Of note, in two of these c ases, the pa rties ag ree d that to the extent conditional certification was nec essar y , the two-step pr ocess wa s the proper proce dural framework. See Whalen, 85 Fe d. Cl. at 383; Gayle, 85 Fe d. Cl. at 77. I t also bear s noting that the cour t in W halen r ejec ted the g overnme nt’s contention that due to the availability of joinder under Rule 20( a) of

the Rules of the United States Court of F eder al Claims (“RCFC”), conditional cer

tification was unne cessa

ry . 85 Fe d. Cl. at 383-84. In the instant case , the cour t’s deter mination that conditional certification is unnecessar y is based on diffe rent g rounds: the plain languag e of the FL SA and binding pr ece dent. Howeve r, under

the RCFC, there a

re a varie ty of methods of e nsuring that improperly 5 joined plaintiffs do not remain in the suit or that litigation does not otherwise be come unwie ldy

. RCFC 21 permits the court, on motion or on its own, to remove misjoined plaintiffs or seve r claims. Simi larly , RCFC 42(b) allows the c ourt to separ ate issues a nd claims for the purpose of trial. Duringoral a

rgument, plaintiff contende d that a fa ilure to conditionally cer tify the 6 collective a ction would be proble matic bec ause it would pre clude him from a cting for a ll of the individuals who filed consent for ms in a repr esentative capa city . He spe cifica lly raised c oncer

ns about his ability

to pursue re prese ntative discover y . Howeve r, conditional ce rtification is not a prer equisite to the court a dopting a discovery

plan that limits the scope of discover y in a manner that expedites the proce eding s. And while the c ourt will not rule out the use of a limit ed discovery plan, it notes that if the ca se proc eeds to trial, e ach pla intiff’s entitlement to compensation will m ost likely need to be established individually

.

-3-Howeve r, the c ourt is not preclude d from conside ringplaintiff’s motion for courtfac ilitated notice. B eca

use cour t-fac ilitated notice is an ef fec tive and ef

ficient method of implementing the c ollective ac tion provision of the FL SA, the court grants this motion. As a threshold matter, pote ntial plaintiffs must be identified. Acc ording ly , plaintiff re quests the production of the na

mes and mailingaddre sses of all equa l employ ment opportunity

counselors who wer e employ ed by

the VA nationwide within the three year s prec edingFe bruar y 8, 2011. 7 The c ourt has the a

uthority to direct de fenda

nt to disclose this i nformation to plaintiff. HoffmanL a Roche Inc., 493 U.S. at 170; Cook, 795 F.2d at 993. Plainti ff’ s reque st is well-focuse d and not overly

broad. A nd, it would not be unduly burdensome f

or def endant to supply

plaintiff with the re quested names and mailingaddre sses, espec ially since de fenda

nt estimates that only

twenty to thirty individuals held the releva nt positi on during eac h of the thre e y ear s at issue. Ther efor e, this request is g rante d.
Of c ourse, these potential plaintiffs ca nnot join the suit if they

are not awar e of its exis tence . To ensure that the potential plaintiffs ar e prope rly notified about the e x istence of the suit and their ability

to join the suit if desire d, the cour t may , at its discretion, authorize and monitor the notice sent to them. Hoff man-L a Roche Inc., 493 U.S. at 169. Plaintiff re quests that the cour t approve the proposed notice and propose d consent for m that he attac hed to his motion. Def endant r aised seve ral objec tions to t he propose d notice, and pla intiff has agree d to work with defe ndant to resolve the ir diffe renc es. Onc e the pa rties have ag ree d to a proposed notice (or a s much of a proposed notice as possible), the c ourt will review it, dire ct any nece ssary

chang es, and author ize plaintiff to send it to t he potential plaintiffs. Plaintiff shall bea r the c osts of mailing the notice to the potential plaintiffs, and de fenda nt shall not be require d to post the notice at its facilities.
Ba sed on the for eg oing, the court dire cts the following :

• The c ourt DENIES plaintiff’s motion for conditional ce rtification as unnece ssary

and GR ANTS plaintiff’s motion for cour t-fac ilitated notice.

• Def endant sha ll supply

plaintiff with the names a nd mailing a ddresse s of all equal e mploy

ment opportunity

counselors who wer e employ ed by the VA nationwide within the three y ear s prec edingFe bruar y 8, 2011, no later than Monday, Fe bruary 25, 2013

.

Def endant a rgued in its oppositi on brief that the statute of limitations bars some of 7 plaintiff’s cla ims (those that acc rued pr ior to Fe bruar y 6, 2009) and ma

y bar some or

all claims asser ted by potential plaintiffs. Plaintiff responde d in its reply brief that the statute of limitations should be tolled. Be cause the par ties have not fully

briefe d the statute of limitations iss ue and beca use the c laims of potential plaintiffs are purely speculative, see Cook, 795 F .2d at 994, the court de clines to rule on the statute of limitations i ssue at this stag e of the proce eding s. -4-• The pa rties shall confe r re g ardinga propose d notice and f ile either a

n ag ree dto proposed notice, or

a propose d notice identifying the points of disag ree ment, no later than Monday, Fe bruary 25, 2013

.

• Once the cour

t approve s a notice, pla intiff shall have a y et-to-be -def

ined period of time in which to mail the notice to the potential plaintiffs, collec t consent for

ms, and file those c onsent forms with the cour t. Potential 8 plaintiffs who choose to file their own c onsent forms will have the same period of time in which to f ile the forms with the c ourt.

• After notice has be en sent to all potential plaintiffs and the time for filing consent for

ms with the court has e x pired, the c ourt will conduct a status confe renc e to discuss furthe r proc eeding s (e.g ., whether defe ndant will file a motion to di smiss related to the statute of limitations, whether a n amende d complaint is nece ssary

to formally

add to the suit the individuals who filed consent for

ms, the use of discove ry

to asce rtain whe ther the c onsenting individuals were pr operly joined to the suit, a discovery schedule , and a proce ss for re medying misjoinder)

. IT IS SO ORDERED.
s/ Marg are t M. Sweeney MARGARET M. SW EENEY J udg e

I f the pa rties do not ag ree to an appr opriate time pe riod in a joint proposed notice, the 8 court will provide a

time period in its order a pproving a notice. -5-