In the United States Court of Federal Claims

No. 07-272C

(E-Filed May 5, 2017)1

MARK G. ABBEY, et al., 

 Plaintiffs, 

v. 

THE UNITED STATES, 

 Defendant. 

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RCFC 26(e)(1) supplemental 

disclosure; RCFC 37(c)(1) exclusion 

sanction 

Gregory K. McGillivary, Washington, DC, for plaintiffs. Sara L. Faulman, Washington, 

DC, of counsel. 

Hillary A. Stern, Senior Trial Counsel, with whom where Benjamin C. Mizer, Acting 

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

Assistant Director, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, Washington, DC, for defendant. Brett Daee and Michael Doherty, 

Senior Attorneys, Office of Chief Counsel, Federal Aviation Administration, 

Washington, DC, of counsel. 

OPINION AND ORDER 

CAMPBELL-SMITH, Judge

 Plaintiffs in this case, current and former air-traffic-control specialists or trafficmanagement coordinators, allege that they are entitled to compensation from the Federal 

Aviation Administration (FAA) for violations of the Fair Labor Standards Act, 29 U.S.C. 

§§ 201-219 (FLSA). In the complaint, plaintiffs claim that defendant failed to properly 

compensate them for hours worked in excess of their basic work requirements. See ECF 

 

1

 This Opinion was filed under seal on March 31, 2017, ECF No. 339. The court 

instructed the parties to file any requests for the redaction of protected material on or 

before April 17, 2017. Id. at 1, n.1. Neither party has proposed redactions. Accordingly, 

this opinion is published without redactions. 
2 

No. 105 at 7 (second count of plaintiffs’ sixth amended complaint).2

 Specifically, 

plaintiffs claim that defendant “violated the FLSA by paying plaintiffs in the form of 

compensatory time or ‘credit hours’ at the rate of one hour for each hour of overtime hour 

worked.” Id. at 7-8. Such compensation was allegedly a problem because the FLSA 

requires certain employees to be paid for overtime hours at a rate of one and one-half 

times the rate of regular pay. See id.

 Now before the court is the parties’ dispute regarding defendant’s request to 

supplement the record with new evidence it claims is pertinent to the calculation of 

damages. See ECF No. 327 at 5; ECF No. 331 at 1-2. For the reasons set forth below 

defendant’s request is DENIED. 

I. Background 

 This case was originally filed on May 1, 2007. See ECF No. 1. After years of 

litigation, discovery was closed on December 14, 2011. See ECF No. 204 at 10. On 

December 27, 2011, the parties filed joint stipulations of facts. See ECF No. 207. As 

part of those facts, the parties stipulated that plaintiffs’ damages expert based his 

calculations on payroll records dated from May 2, 2004 through October 1, 2009. See id.

at 3-4. A trial was held to determine damages in March 2012. The evidence at trial 

related to credit hours used by plaintiffs up to October 1, 2009, the date on which the 

FAA discontinued the credit hour program at issue. See ECF No. 307 at 9; ECF No. 310-

1 at 12-13. 

The parties, thereafter, submitted post-trial briefs to the court, and the court issued 

its opinion on September 6, 2012. See ECF No. 286. Following the entry of judgment, 

defendant appealed the court’s finding of liability. The Federal Circuit remanded the 

case for consideration of a narrow issue relating to whether the FAA’s overtime policies 

were fully or partly lawful, see ECF No. 326 at 3, but did not disturb the court’s method 

for calculating damages, see id. at 15. On remand, the parties filed cross motions for 

summary judgment to assist the court in deciding the issue of liability left open by the 

Federal Circuit. See ECF Nos. 305, 306. On December 1, 2015, the court issued its 

decision on liability, and ordered the parties to cooperate in calculating damages in 

accordance with the opinion. See ECF No. 326 at 17. 

 

2

 Plaintiffs’ complaint contained four counts. See ECF No. 105. Plaintiffs 

voluntarily dismissed the first and third counts, the court entered summary judgment for 

plaintiffs on the second count, and entered summary judgment for defendant on the fourth 

count. See ECF No. 286 at 2. As such, the damages discussed in this opinion relate only 

to the second count of the complaint. 
3 

 In January 2016, the parties filed individual statements outlining their respective 

positions on the damages calculations. See ECF Nos. 327, 331. The parties’ dispute 

centers on whether defendant can offset the damages award with payroll record evidence, 

dated after September 2009, which is not already part of the record. See ECF No. 327 at 

5, ECF No. 331 at 2. In its initial filing regarding this updated payroll record evidence, 

defendant represented that it provided the additional payroll record evidence regarding 

credit hours to plaintiff on two occasions, in December 2014 and December 2015. See

ECF No. 331 at 2, n.2. 

 The court responded to the parties’ submissions with an order directing defendant 

to show cause why its request to submit new evidence at this very late stage in the 

proceedings should not be denied. See ECF No. 330. In its response to the court’s order, 

defendant argues its new evidence should be admitted because the evidence is important 

and will not prejudice the plaintiffs. See ECF No. 332 at 1. Defendant also insists that it 

has a reasonable excuse for not providing the evidence before now—it claims that the 

arguments before the court until now did not call for such evidence. See id. at 6-9. 

Plaintiffs oppose the use of new evidence on the basis that defendant’s failure to timely 

produce the evidence is unjustified and prejudicial. See ECF No. 333 at 5-7. 

The court then ordered supplemental briefing from the parties to address whether 

any prejudice created by the submission of the new evidence could be cured at this 

juncture. See ECF No. 336. In its supplemental brief, defendant maintains that the 

evidence would not be prejudicial to plaintiffs, and that additional discovery could be 

conducted. See ECF No. 338 at 8. Plaintiffs argue, however, that the prejudice created 

by the new evidence is extensive and cannot be cured. See ECF No. 337 at 6-11. 

Notably, in its supplemental brief, defendant revised its statement as to when it first 

provided updated payroll records to plaintiffs, claiming that it did so in August 2010, 

rather than its previously stated date of December 2014. ECF No. 338 at 4. 

II. Legal Standards 

 Rule 26(a) of the Rules of the United States Court of Federal Claims (RCFC) 

governs, inter alia, the disclosures a party is required to make at the outset of discovery: 

[A] party must, without awaiting a discovery request, provide to the other 

parties . . . a copy—or a description by category and location—of all 

documents, electronically stored information, and tangible things that the 

disclosing party has in its possession, custody, or control and may use to 

support its claims or defenses[.] 

RCFC 26(a)(1)(A)(ii). This duty to disclose is a continuing one. A party must 

supplement or correct a previous disclosure “in a timely manner if the party learns that in 

some material respect the disclosure or response is incomplete or incorrect, and if the 
4 

additional or corrective information has not otherwise been made known to the other 

parties during the discovery process or in writing.” RCFC 26(e)(1)(A). 

 When analyzing the duty to supplement, this court considers the following factors: 

“(1) whether there was a prior response; (2) whether the response became materially 

incorrect or incomplete; (3) whether the government knew that the response was 

incomplete; and (4) whether the corrective information was otherwise made known to 

[p]laintiff through the discovery process or in writing.” Zoltek Corp. v. United States, 71 

Fed. Cl. 160, 164 (2006) (citing Tritek Techs., Inc. v. United States, 63 Fed. Cl. 740, 746-

470 (2005)).3

In the event that supplementation is required, but is not timely offered, the court 

may exclude the additional evidence as a sanction: 

If a party fails to provide information or identify a witness as required by 

RCFC 26(a) or (e), the party is not allowed to use that information or witness 

to supply evidence on a motion, at a hearing, or at a trial, unless the failure 

was substantially justified or is harmless. 

RCFC 37(c)(1). This exclusion sanction is “automatic and mandatory” unless the 

violation was substantially justified or harmless. Zoltek Corp., 71 Fed. Cl. at 167 

(citations omitted). 

In considering whether a failure to disclose under RCFC 26(e) is either 

substantially justified or harmless error, the court applies a five factor test, considering: 

(1) the importance of the information withheld; (2) the prejudice or surprise to the party 

against whom the evidence is offered; (3) the likelihood of disruption of the trial; (4) the 

possibility of curing the prejudice; and (5) the explanation for the failure to disclose. 

See id. at 168. “The first four factors relate largely to the harmlessness exception, 

whereas the explanation for the failure to disclose relates to the justification 

requirement.” Id. In determining whether a party’s untimely disclosure was substantially 

justified, this court applies a reasonable person standard. Id. at 170. 

III. Discussion 

 The issue before the court is a discrete one—whether defendant should be 

permitted to submit new evidence, specifically approximately six years of payroll 

records, at this late stage in the proceedings. Defendant claims that such evidence should 

 

3

 In the Zoltek decision, the court cited a previous version of the rule regarding 

supplementation, then numbered RCFC 26(e)(2). The sections are substantially similar, 

imposing the same duty, and thus the court considers the same factors relevant here. 
5 

be permitted as consistent with the court’s damages calculus, and to avoid a windfall for 

plaintiffs. See ECF No. 331 at 2. As explained above, it is undisputed that the particular 

evidence defendant wishes to use in its damages calculations is not part of the record now 

before the court. In evaluating this issue, therefore, the court must determine whether 

defendant was under a duty to disclose the information at an earlier point in the 

proceedings, and if so, whether its failure to do so was harmless or justified. 

 A. Defendant failed to discharge its duty to supplement disclosures 

 As an initial matter, the material at issue clearly qualifies as required disclosures 

under RCFC 26(a). Defendant has asserted as an affirmative defense that “[p]laintiffs 

have received full payment under all applicable statutes and regulations for all of the 

hours which they have worked.” ECF No. 113 at 9. The updated payroll records are 

documents or electronically stored information that defendant “has in its possession, 

custody, or control” that it now seeks to “use to support its claims or defenses.” RCFC 

26(a)(1)(A)(ii). Because the records at issue were not initially disclosed by defendant, 

the court must determine whether defendant met any obligation to supplement its 

disclosures when the information became available. 

 As noted above, the court’s analysis typically involves consideration of four 

factors: “(1) whether there was a prior response; (2) whether the response became 

materially incorrect or incomplete; (3) whether the government knew that the response 

was incomplete; and (4) whether the corrective information was otherwise made known 

to [p]laintiff through the discovery process or in writing.” Zoltek Corp., 71 Fed. Cl. at 

164 (citing Tritek Techs., Inc., 63 Fed. Cl. at 746-470). 

 The court need not belabor the initial part of this analysis because defendant 

concedes its duty to supplement. In its response to the court’s December 1, 2015 opinion, 

defendant states: “[I]n providing the updated credit hour usage to plaintiffs, the 

Government is properly supplementing information previously requested by plaintiffs in 

discovery, as we are required to do by the Rules of the United States Court of Federal 

Claims. RCFC 26(e).” See Doc. 331 at 6. 

 The critical question, then, is “whether the corrective information was otherwise 

made known to [plaintiffs] through the discovery process or in writing,” such that it 

would excuse the complained-of delay. Zoltek Corp, 71 Fed. Cl. at 164. “While 

information may be considered to have been ‘otherwise made known’ where the alleged 

disclosure is clear and unambiguous, where the alleged disclosure is not sufficiently 

clear, it cannot satisfy the requirements of RCFC 26.” Tritek Techs., Inc. v. United 

States, 63 Fed. Cl. 740, 748 (2005). 

 Here, defendant initially stated that updated payroll records were first provided to 

plaintiff in December 2014. See ECF No. 331 at 2 n.2, 7. In its supplemental brief, 
6 

however, defendant revised this statement, and represented to the court that in August 

2010, it provided “plaintiffs with updated credit hour usage data demonstrating credit 

hour usage and accrual by plaintiffs up to and including April 24, 2010.” ECF No. 338 at 

4. 

 As a foundation for this revision, defendant cites to the following statement, which 

appears twice in the documents plaintiff filed in support of its partial motion for summary 

judgment: “On August 13, 2010, after the production of plaintiffs’ expert report, the FAA 

provided additional data for the Abbey plaintiffs to cover the time period up to April 24, 

2010.” ECF No. 152-5 at 7 (McGillivary declaration); ECF No. 154 at 16 (plaintiff’s 

proposed findings of fact). Defendant’s characterization of this statement is too 

ambitious. Plaintiff’s admission that it received “additional data” does not demonstrate a 

clear and unambiguous disclosure of “credit hour usage and accrual.” Furthermore, the 

fact that in December 2011, the parties stipulated that plaintiffs’ damages expert based 

his calculations on records dated from May 2, 2004 through October 1, 2009, cuts against 

any inference that updated credit hour usage and accrual was part of that August 2010 

disclosure. 

 As a further attempt to demonstrate timely disclosure, defendant points to the trial 

testimony of Ms. Sherri Jensen, and plaintiffs’ general knowledge of the credit hour 

system: 

Ms. Sherri Jensen, a Management and Program Analyst in the Office of 

Human Resource Management, Federal Aviation Administration (FAA), 

testified on March 5, 2012, that, pursuant to the parties[’] 2009 Collective 

Bargaining Agreement, air traffic controllers could no longer earn credit 

hours but could continue to use credit hours earned prior to October 1, 2009. 

Thus, plaintiffs were on notice that credit hour usage was continuing (which, 

of course, they knew because they were the ones using credit hours.) 

ECF No. 331 at 6-7. 

 

 The weakness in defendant’s argument here is two-fold. First, even assuming Ms. 

Jensen’s testimony was sufficient to make plaintiffs aware of the existence of additional, 

potentially relevant payroll records, that awareness is not the same as actually producing 

those records. After all, she testified only that plaintiffs could use previously-accrued 

credit hours, not that they did so. See ECF No. 263, Tr. at 510:9-10. But perhaps more 

problematic is the fact that the evidence about which Ms. Jensen testified was available 

long before trial. Defendant offers no justification for its failure to supplement before 

Ms. Jensen testified. Plaintiffs’ general awareness of the credit hour system is simply not 

equivalent to a “clear and unambiguous disclosure,” sufficient to put plaintiffs on notice 

of defendant’s intention to submit specific, previously undisclosed offsets. 
7 

Defendant makes much of emphasizing that the court’s methodology for 

calculating damages, laid out in the September 2012 opinion, included an offset for credit 

hours. See ECF No. 331 at 2-3; ECF No. 332 at 4. It argues that consideration of the 

new records is entirely consistent with, and indeed necessary to, the court’s approach. 

See ECF No. 332 at 5. In the court’s view, however, this point actually undercuts 

defendant’s position that its December 2014 supplemental disclosure was timely. Even 

assuming, for the sake of argument, that defendant did not have a duty to disclose the 

information prior to the March 2012 trial, the methodology laid out in the September 

2012 opinion, should have immediately put defendant on notice that the record on which 

it wished to base its damages calculations was incomplete. 

 For these reasons, the court finds that defendant had a duty to make supplemental 

disclosures, and that it did not discharge that duty in a timely manner. 

 B. The evidence should be excluded under RCFC 37(c)(1) 

 Because defendant failed to supplement its disclosures in a timely manner, the 

court must exclude the evidence it now seeks to use “unless the failure was substantially 

justified or is harmless.” RCFC 37(c)(1). See also Zoltek Corp., 71 Fed. Cl. at 167 

(noting that exclusion is “automatic and mandatory unless the party violating [RCFC] 26 

shows that the violation was justified or harmless”) (citations omitted). Defendant bears 

the burden to prove that its failure was substantially justified or harmless. Id. at 167.

 To determine whether defendant’s failure to supplement its disclosures was 

substantially justified or harmless, the court looks to the factors identified in Zoltek Corp. 

v. United States: (1) the importance of the information withheld; (2) the prejudice or 

surprise to the party against whom the evidence is offered; (3) the likelihood of disruption 

of the trial; (4) the possibility of curing the prejudice; and (5) the explanation for the 

failure to disclose. See Zoltek Corp., 71 Fed. Cl. at 168. See also MicroStrategy Inc. v. 

Business Objects, S.A., 429 F.3d 1344, 1357 (Fed. Cir. 2005) (citing S. States Rack & 

Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003)). “The first 

four factors relate largely to the harmlessness exception, whereas the explanation for the 

failure to disclose relates to the justification requirement.” Zoltek Corp., 71 Fed. Cl. at 

168. (citing S. States Rack & Fixture, 318 F.3d at 596-597). 

 1. Defendant’s failure was not substantially justified 

Defendant offers several explanations for its failure to supplement its disclosures 

at an earlier point in the proceedings. First, defendant notes that at the time of the March 

2012 trial, payroll records dated after March 2012 did not yet exist. See ECF No. 332 at 

7. This explanation is facially insufficient, as it fails entirely to account for the data 

between October 2009 and March 2012 that did exist. 
8 

Second, defendant argues that withholding relevant data was reasonable because 

had it prevailed on remand, plaintiffs would not be entitled to recover any damages. See 

id. at 7-8. But permitting a party to violate its duty under the discovery rules because that 

party believes it will ultimately prevail on the merits of its position is simply illogical. 

Finally, defendant asserts that while its appeal was pending, the issue of damages 

was irrelevant. “Once the Court issued its December 1, 2015, [sic] decision finding that 

the FAA’s credit hour policies were not entirely within its authority, the issues of 

damages again became relevant, as confirmed by the Court’s order that the parties 

attempt to reach agreement as to the amount of damages due.” Id. at 9. Defendant 

reasoned that, “[a]lthough this evidence could, perhaps, have been submitted earlier, 

there was no practical reason to do so, and the Government’s reasons for why it did not 

do so are reasonable.” Id. The court disagrees with defendant’s position in the strongest 

terms. Not only do the rules of this court require supplementation, the idea that the 

relevance of certain information depends on the stage of the proceedings is antithetical to 

the orderly, efficient, and fair management of litigation. 

The court finds that none of the explanations offered by defendant as bases for its 

failure to supplement could reasonably be considered sufficient to excuse its violation of 

Rule 26(e). See Zoltek, 71 Fed. Cl. at 170 (“Substantial justification is justification 

sufficient to satisfy a reasonable person that parties could disagree as to whether 

compliance with the disclosure requirement was required.”). 

 2. Defendant’s failure is not harmless 

Upon consideration of the present circumstances, the court finds that: (1) the 

information withheld by defendant is important; (2) the late disclosure of the evidence 

significantly prejudices plaintiffs; (3) allowing the evidence in would certainly cause 

substantial disruption; and (4) a sufficient cure for the prejudice is not available. 

The payroll records at issue here are clearly important. This fact is amply 

demonstrated both by defendant’s vociferous argument in support of its desire to admit 

the evidence, and the apparent practical implications of that evidence on plaintiff’s 

recovery. Indeed, in defendant’s own words: “The value of the updated payroll 

information is great; this payroll information is critical to the accurate calculation of 

damages in this case.” ECF No. 332 at 4. Defendant insists that plaintiff’s opposition is 

“absurd[ ]” see id. at 11, and that failing to permit consideration of the records at issue 

would result in an “improper windfall” recovery, see id. at 10. Notably, the possibility 

of a materially different recovery is supported by defendant’s expert’s conclusion that 

more than 186,000 credit hours were used by plaintiffs between September 27, 2009 and 

2014. See ECF No. 331 at 7. 
9 

The late disclosure of the payroll records both significantly prejudices plaintiffs 

and would cause substantial disruption in the case. Defendant suggests that accounting 

for the new information would be a simple matter of making additional mathematical 

calculations, thus not causing material inconvenience to plaintiffs. See ECF No. 332 at 

5-6; ECF No. 338 at 6. Plaintiffs disagree. They claim that “the new evidence raises 

more questions than it answers,” and that dealing with those questions “will require a 

substantial amount of additional discovery, unnecessarily causing further delay to the 

ultimate resolution of this case.” ECF No. 333 at 15. Specifically, plaintiffs claim they 

would be entitled to an opportunity to explore: 

how the credit hour system that defendant previously represented had ended 

on October 1, 2009, was being used, who was eligible, how credit hours were 

somehow accrued as well as used, and significantly, whether liquidated 

damages should be awarded for credit hours used throughout the case as the 

unjustified late payment of overtime. 

Id. If even a relatively small portion of the discovery plaintiffs outline is ultimately 

necessary, the effort, time, and money it would take is likely to materially prejudice 

plaintiffs. This is particularly true, and particularly disruptive, given the exceedingly 

advanced stage of the proceedings. 

 Defendant suggests that reopening discovery would cure any prejudice suffered by 

plaintiffs. See ECF No. 338 at 8. Plaintiffs argue that the resulting delay of this case, in 

which discovery closed and trial was held more than five years ago, would effect 

incurable prejudice if the court admitted defendant’s updated payroll records. See ECF 

No. 337 at 9-11. The court agrees. Allowing defendant to use the updated payroll 

records in its calculations would be patently unfair without permitting plaintiffs to 

prepare any opposition to those records. Doing so would require, at minimum, reopening 

discovery. Reopening discovery at this stage would unjustifiably cost plaintiffs time and 

resources for which the court cannot provide compensation. 

 Because defendant’s failure to timely supplement its disclosures was harmful and 

was not justified, the updated payroll records must be excluded. See also Zoltek Corp., 

71 Fed. Cl. at 167 (noting that exclusion is “automatic and mandatory unless the party 

violating [RCFC] 26 shows that the violation was justified or harmless”) (citations 

omitted). 

IV. Conclusion 
10 

 Defendant had numerous opportunities to disclose some or all of the payroll 

records it now seeks to admit—during discovery, at the trial on damages, or even in the 

post-trial briefing. Disclosure at any of those points in time would have been both more 

sensible and fairer than disclosure at this exceedingly late stage. The court does not find 

that defendant’s failure to supplement its disclosures was intentional or malicious. 

Nevertheless it was a mistake that cannot now be corrected, and defendant must bear the 

consequences. For these and the reasons explained above, defendant’s request to file new 

payroll record evidence of damages offsets is DENIED. 

 

On or before July 30, 2017, the parties shall jointly calculate and file a stipulation 

with the court for the amount of compensation to which each representative plaintiff is 

entitled. 

IT IS SO ORDERED 

 s/ Patricia Campbell-Smith 

PATRICIA CAMPBELL-SMITH 

Judge