In the United States Court of Federal Claims 

No. 13-457C

(Filed: May 28, 2014)

* * * * * * * * * * * * * * * * * *

 *

TAMARA BARRY, et al., * FLSA; 29 U.S.C. § 216(b); 

 * Collective Action; Conditional 

Plaintiffs, * Certification; Class Definition;

* Class Notice; Statute of Limitations

v. *

*

THE UNITED STATES OF AMERICA, *

*

Defendant. *

*

* * * * * * * * * * * * * * * * * *

Jacob Yaakov Statman, Snider and Associates, LLC, Baltimore, MD, for plaintiffs

Martin Mason Tomlinson, Civil Division, United States Department of Justice, 

Washington, DC, for defendant

OPINION AND ORDER

KAPLAN, Judge:

Plaintiffs are current and former GS-1801 Immigration Officers (IOs) and GS-0132 

Intelligence Research Specialists (IRSs) with the United States Department of Homeland 

Security (DHS), United States Citizenship and Immigration Services (USCIS) Office of Fraud 

Detection and National Security. Until February 12, 2012, USCIS designated plaintiffs’ 

positions as exempt1 from the overtime provisions of the Fair Labor Standards Act (FLSA), 29 

U.S.C. §§ 201-219, as amended by the Portal-to-Portal Act, 29 U.S.C. §§ 251-262. In this suit, 

they seek backpay and liquidated damages under § 216(b) for the hours they worked in excess of 

forty per week during the time that they were designated as FLSA exempt, prior to February 12, 

1 The FLSA exempts from overtime pay requirements, among others, “any employee employed in a bona fide 

executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1).

 
2012.

2 Plaintiffs also allege that the USCIS willfully violated the FLSA in designating them as 

exempt, thus extending the statute of limitations under § 255(a)3 from two years to three years.

Currently pending before the court is the plaintiffs’ motion for conditional certification of

a collective action under § 216(b) of the FLSA and for authorization to mail notice to potential 

class members. The government opposes the motion for conditional certification, primarily on 

the ground that, because the government no longer disputes plaintiffs’ non-exempt status, no 

common issues of law or fact unite the proposed class, and only individualized inquiries remain 

for adjudication. The government also finds fault with plaintiffs’ proposed class definition and 

class notice. For the reasons that follow, the Court grants plaintiffs’ motion for conditional class 

certification, adopts a modified class definition that addresses the government’s concerns, and 

approves the notice attached to this Opinion for distribution to potential class members.

DISCUSSION

I. LEGAL STANDARDS FOR CONDITIONAL CERTIFICATION OF AN FLSA 

COLLECTIVE ACTION

A collective action under the FLSA “may be maintained against any employer . . . by any 

one or more employees for and in behalf of himself or themselves and other employees similarly 

situated.” 29 U.S.C. § 216(b). To participate in the collective action, plaintiffs must “opt in”—

that is, they must give “consent in writing[,] . . . and such consent is filed in the court in which 

such action is brought.” Id.

This court has adopted a two-step approach for determining whether certification of a 

collective action is appropriate. Whalen v. United States, 85 Fed. Cl. 380, 383 (2009). This

approach “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.” Id. (citing Cameron-Grant v. Maxim Healthcare Servs., 347 F.3d 1240, 1243 n.2 (11th 

Cir. 2003) and Heckler v. DK Funding, 502 F. Supp. 2d 777, 779 (N.D. Ill. 2007)). The first 

step, which plaintiffs ask the Court to undertake here, is known as conditional certification, and it 

facilitates the opt-in process by requiring the defendant to produce the names and addresses of 

employees in the proposed class and by settling the form of the notice to be distributed to the 

class. Whalen, 85 Fed. Cl. at 383.

Plaintiffs’ burden at the conditional certification stage is low. Specifically, plaintiffs

need only “make a ‘modest factual showing,’” based on “the pleadings, affidavits, and other 

2 Section 207(a)(1) of the FLSA provides that “no employer shall employ any of his employees . . . for a workweek 

longer than forty hours unless such employee receives compensation for his employment in excess of the hours 

above specified at a rate not less than one and one-half times the regular rate at which he is employed.”

3 Section 255(a) provides that “[a]ny action . . . for . . . unpaid overtime compensation . . . under the Fair Labor 

Standards Act . . . may be commenced within two years after the cause of action accrued, and every such action shall 

be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action 

arising out of a willful violation may be commenced within three years after the cause of action accrued.”

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available evidence,” that potential class members are “similarly situated.” Gayle v. United 

States, 85 Fed. Cl. 72, 77 (2008) (citing Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 

(S.D.N.Y. 1997) and Cuzco v. Orion Builders, Inc., 477 F. Supp. 2d 628, 632 (S.D.N.Y. 2007)). 

The Supreme Court has indicated that potential class members are similarly situated if they share 

“common issues of law and fact arising from the same alleged [prohibited] activity.” HoffmanLa Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989). 

II. APPLICATION OF THE STANDARDS FOR CONDITIONAL

CERTIFICATION

Plaintiffs have made the required “modest showing” that the proposed class members are 

similarly situated. Thus, the proposed class members occupy the same positions in the same 

specific job series under the General Schedule. In addition, as the government has conceded, all 

proposed class members were previously misclassified as FLSA-exempt employees, presumably 

on the same basis. The government’s argument that this concession eliminates any common 

questions of law or fact among the class members, Def.’s Resp. 6-7, is meritless. 

Notwithstanding the government’s concession that it previously misclassified the plaintiffs’ 

positions as FLSA exempt, there remain two significant questions common to the class: (1) 

whether the government must pay class members liquidated damages (which can be avoided 

only if the government proves that it previously designated these employees as FLSA exempt in 

good faith and with reasonable grounds for believing that such designation was consistent with

the FLSA (29 U.S.C. § 260)); and (2) whether the government willfully violated the FLSA so 

that a three-year (rather than two-year) statute of limitations applies.

 Nor is there any merit to the government’s argument that individualized questions 

regarding how much compensation each employee is due overwhelm any common questions, 

thus defeating the purpose of a collective action to “yield a more efficient or affordable 

resolution” of employees’ claims. See Def.’s Resp. at 9. Individualized damages determinations 

must be made in virtually every FLSA case involving multiple plaintiffs; if the existence of 

individual questions regarding the amount of damages due could defeat certification of a 

collective action, section 216(b)’s provision for collective actions would be rendered null. 

Indeed, even in the Rule 23(b)(3) class action context, in which standards for certification are 

much more stringent, individualized issues of damages do not preclude class certification as long 

as “the damages sought are the result of the class-wide injury that the suit alleges.” Gomez v. 

Tyson Foods, Inc., 295 F.R.D. 397, 402 (D. Neb. 2013) (quoting Butler v. Sears, Roebuck & 

Co., 727 F.3d 796, 799 (7th Cir. 2013)); see also Thompson v. Bruister & Assocs., 967 F. Supp. 

2d 1204, 1217-18 (M.D. Tenn. 2013); Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 130 

(S.D.N.Y. 2011). Here, while damages among class members may vary in amount because some

members worked more overtime than others, all damages claimed are the result of the class-wide 

misclassification of employees as exempt from FLSA requirements. 

III. THE DEFINITION OF THE CLASS

The plaintiffs have submitted the following proposed definition of the conditional class:

All past or present employees of Defendant from February 12, 2009 until the 

present (the “Claims Period”) who: (1) at any time during the Claims Period 

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worked within the United States; (2) encumbered at any time during the Claims 

Period a GS-1801 Immigration Officer (“IO”) or GS-0132 Intelligence Research 

Specialist (“IRS”) position within the U.S. Department of Homeland Security, 

U.S. Citizenship and Immigration Services Office of Fraud Detection and 

National Security; and (3) had their FLSA exemption status converted from 

exempt to non-exempt.

Joint Submission 1, ECF No. 25.

The government’s first objection to this definition is based on the fact that “it 

encompasses employees who did not work in the same regional offices under the same 

timekeeping and compensation procedures as the named plaintiffs.” Joint Submission 2; see also

Def.’s Resp. 12-13. The government observes that the plaintiffs “have not identified any 

common method or plan for timekeeping regarding hours worked, or any common methodology 

for providing compensation to IOs and IRSs who worked more than 40 hours per week in the 

relevant time period.” Def.’s Resp. 12-13.

This objection is clearly without merit. The government does not deny that employees in 

the designated positions were subject to a nationwide policy under which they were not 

compensated at FLSA-required overtime rates because their positions had been, on a nationwide 

basis, designated FLSA exempt. Variations in the methods of timekeeping or of assigning 

overtime work from region to region or supervisor to supervisor have no apparent bearing on the 

adjudication of the liability issues that are common to the proposed nationwide class, which are 

based on that nationwide policy. 

The cases cited by the government in support of this objection, Def.’s Resp. 13, are easily

distinguishable from this one. In those cases, certification was denied because the plaintiffs 

failed to provide any evidence of the existence of a nationwide policy that affected all members 

of the class. See Gayle, 85 Fed. Cl. at 78-79 (conditional class certification denied because 

plaintiffs failed to provide any evidence of a nationwide policy of denying overtime 

compensation to per diem nurses at the VA); Briggs v. United States, 54 Fed. Cl. 205, 206-07 

(2002) (no conditional class certification based on claim that Census employees in a number of 

locations had been denied FLSA overtime pay where there was no allegation of a common 

management practice or policy that served as the basis for the denial of such pay). By contrast, 

in this case, the government does not deny that the decision to exempt these employees’ 

positions from the FLSA was based on a nationwide policy.

In addition to its objection to the nationwide scope of the proposed conditional class, the 

government objects to the use of February 12, 2009 as the beginning date for the claims period

because use of that date would encompass potential opt-in plaintiffs who are barred from 

participating by the statute of limitations. Def.’s Resp. 14-15. It notes that the statute of 

limitations for FLSA claims is three years at most (29 U.S.C. § 255(a)) and suggests that “the 

form of notice be addressed to only those employees employed by the agency ‘within three years 

of the date of th[is] notice.’” Def.’s Resp. 15 (quoting Doucoure v. Matlyn Food, Inc., 554 F. 

Supp. 2d 369, 373 (E.D.N.Y. 2008)). 

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The government’s point is well taken. The class definition should be limited to those 

whose claims are not barred by the statute of limitations, which is at most three years. In that 

regard, the Court is not persuaded by the plaintiffs’ reliance on a regulation issued by the Office 

of Personnel Management (OPM) (5 C.F.R. § 551.702) which governs the pursuit of FLSA 

claims through an OPM-administered claims procedure. See Pls.’ Reply 4. Plaintiffs note that 

the government has acknowledged that it had already received fifty-seven such administrative 

claims for backpay under the FLSA before this suit was filed and contend that—as to these 

individuals—the OPM regulation requires that the three-year look-back period begin from the 

date that the administrative claims were filed. Id. (citing 5 C.F.R. § 551.702(c) (providing that a 

claimant “may preserve the claim period” for OPM’s administrative procedure “by submitting a 

written claim either to the agency employing the claimant during the claim period or to OPM”)). 

Of course, an agency regulation cannot extend or alter the statute of limitations for 

actions brought in court that is set forth in the FLSA, and the OPM regulations do not purport to 

do so. In fact, the regulations themselves explicitly state that “[f]iling a claim with an agency or 

with OPM does not satisfy the statute of limitations governing FLSA claims filed in court.” 5 

C.F.R. § 551.703(c). Plaintiffs’ reliance on the OPM regulation is, accordingly, unavailing; any 

individuals with pending administrative claims who choose to opt into this lawsuit will be 

entitled to recover in this Court for, at most, a claims period that begins three years before they 

opt into the case. 

Accordingly, the Court adopts the following as the definition of the conditional class:

All past or present employees of Defendant from three years prior to the date of 

the current notice until the present (the “Claims Period”) who: (1) at any time 

during the Claims Period worked within the United States; (2) encumbered at any 

time during the Claims Period a GS-1801 Immigration Officer (“IO”) or GS-0132 

Intelligence Research Specialist (“IRS”) position within the U.S. Department of 

Homeland Security, U.S. Citizenship and Immigration Services office of Fraud 

Detection and National Security; and (3) had their FLSA exemption status 

converted from exempt to non-exempt.

IV. THE NOTICE

The plaintiffs and the government have worked together to prepare a Notice regarding the 

rights of potential plaintiffs to opt into this lawsuit. There remain two areas of disagreement

between the parties. First, the government objects to including on the first page of the Notice at 

the top of the page a bolded, capitalized caption stating that “THIS NOTICE AND ITS 

CONTENTS HAVE BEEN AUTHORIZED BY THE UNITED STATES COURT OF 

FEDERAL CLAIMS.” See Def.’s Resp. 15-16. It contends that the placement and form of this 

sentence improperly imply court endorsement and encouragement of plaintiffs to opt into the 

suit. Id. The government has submitted an alternative sample notice in which this caption 

appears on the last page of the Notice and is followed by a sentence stating that “THE COURT 

HAS TAKEN NO POSITION IN THIS CASE REGARDING THE MERITS OF EITHER 

PLAINTIFF’S CLAIMS OR DEFENDANT’S DEFENSES.” Def.’s Resp. Attach. A. Plaintiffs 

prefer that the caption appear on the first page “so that any potential class member immediately 

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recognizes that the Court has authorized the mailing and not be under the false impression that 

the letter is junk mail or should be summarily thrown away.” Pls.’ Reply 5.

The plaintiffs’ point is well taken. The Court concludes that the caption as written and in 

the context of the entire notice does not imply any court endorsement of the lawsuit itself. In 

fact, the proposed notice contains a sentence on page one that explicitly states that “no rulings on 

the merits of this case have been made.” Joint Submission Ex. 1.

The second point of contention concerns a statement on page four of the proposed Notice 

which states that federal law prohibits retaliation for taking part in this lawsuit or exercising their 

rights under the FLSA and advises persons who believe that they have suffered such retaliation 

to contact counsel for the plaintiffs. The government objects to the sentence advising individuals 

to contact plaintiffs’ counsel on the grounds that it “direct[s] individuals not necessarily related 

to plaintiffs’ claims to plaintiffs’ counsel.” Def.’s Resp. 18. The Court agrees with the 

government on this point: it is sufficient to advise recipients of the Notice of their right to be free 

of retaliation, without explicitly directing them to plaintiffs’ counsel for assistance.

CONCLUSION

For the foregoing reasons, the plaintiffs’ motion for conditional certification of a 

collective action is GRANTED, and the Notice set forth in Attachment A to this opinion is 

approved for distribution.

IT IS SO ORDERED.

s/Elaine D. Kaplan 

ELAINE D. KAPLAN

Judge

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