# In the United States Court of Federal Claims

No. 19

- 1878 Filed: May 6, 2020 Reissued: May 22, 2020 1

DOE NO. 1, et al.,

Plaintiff s ,

v.

THE UNITED STATES,

Defendant. ) ) ) ) ) ) ) ) ) ) ) Fair Labor Standards Act; Conditional Certification; 29 U.S.C. § 216(b) ; Similarly Situated; Collective Action; Two

- Step Approach; Court

- Facilitated Notice.

Alice Chihyun Hwang , James & Hoffman, P.C., Washington, DC , for plaintiffs.

Liridona Sinani , U.S. Department of Justice, Civil Division, Washington, DC, for defendant.

ORDER GRANTING

- IN

- PART AND DENYING

- IN

- PART PLAINTIFFS’ MOTION

FOR CONDITIONAL CERTIFICATION AND NOTICE

SMITH , Senior Judge

Before the Court is plaintiffs ’ Unopposed Motion for Conditional Certification and Notice. The thirty

- two plaintiffs 2 in this case are Victim Specialists in occupational series GS

- 0101 and a re employed by the defendant, the United States, at the Department of Justice, Federal Bureau of Investigation (“FBI”). Plaintiffs’ Unopposed Motion for Conditional Certification and Notice (hereinafter “Pls.’ Mot.”) at 1. On March 2 6, 2020
, plaintiffs f iled their Motion

, seeking “ conditional certification of certain claims ” on behalf of themselves and other similarly

- situated employees under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 (2018), et seq. , (“FLSA”), and requesting that t he Court issue a “court

- supervised notice to potential opt

- in plaintiffs.” Id. On April 27, 2020, the Court held a Status Conference to discuss plaintiffs’ Motion. For the reasons set forth below , and consistent with discussions held during that Status Conference , plaintiffs’ Motion is granted

- in

- part and denied

- in

- part

.

1 An unredacted version of this Order was issued under seal on May 6 , 2020. The parties were given an opportunity to propose redactions, but no such proposals were made.
2 On March 13, 2020, plaintiffs filed an amended complaint, identifying twenty

- six named plaintiffs. See generally Plaintiffs’ First Amended Complaint Filed in Collective Action u nder
t he Fair Labor Standards Act

. Consistent with the Court’s March 22, 2020 Order, plaintiffs have since filed three separate Notices, collectively joining six additional plaintiffs to this suit. See generally Order Granting Plaintiffs’ Motion for Leave , ECF No. 34; Plaintiffs’ Unoppos ed Notice o f Additional Party

- Plaintiff ( s ) a nd Consent t o Sue Form ( s ) , ECF Nos. 36, 38, 40.2

Pursuant to § 216(b) of the FLSA, a plaintiff may bring a collective action to recover liability “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 ). However, “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed” with the Court. Id. On March 22, 2020, the Court granted plaintiffs’ Unopposed Motion for L eave to File Notices of Additional Consents

, thereby permitting the plaintiffs to join additional party

- plaintiffs to this suit pursuant to Rule 20 of the Rules of the Court of Federal Claims (“RCFC”). See generally Order Granting Plaintiffs’ Motion for L eave, ECF No. 34

. To date, plaintiffs have filed three such Notices, which are inclusive of the requisite Consent to Sue Forms, per 29 U.S.C. § 216(b)

. See generally Plaintiffs’ Unopposed Notice of Additional Party

- Plaintiff ( s ) and Consent to Sue Form ( s ) , ECF Nos. 36, 38, 40.

In their principle case, plaintiffs allege that the FBI improperly treated them and others similarly situated as exempt from the FLSA and therefore “seek to recover from Defendant back pay, liquidated damages, interest, attorneys’ f ees, and costs pursuant to the [FLSA], 5 U.S.C. § 5596 [(2018)], and other applicable laws.” Plaintiffs’ First Amended Complaint Filed in Collective Action under the Fair Labor Standards Act at 3

. In the Motion at bar , plaintiffs seek “conditional certification for all past and present FLSA FBI employees who worked as Victim Specialists in occupational series GS

- 0101 and were classified as exempt from the FLSA at any time from three years prior to the date of the notice to the present.” Pls.’ Mot. at 1.

Plaintiffs claim that they satisfy the requirements for conditional certification

, as all of the proposed collective action members are Victim Specialists in occupational series GS

- 0101, “all have been classified as FLSA

- exempt at som e point during the past three years,” and because “they and others in their position were misclassified and not paid for their overtime hours at the FLSA

- required rate of time and one

- half their FLSA regular rate.” Id. P laintiffs indicated in their Motio n that “the Government does not oppose Plaintiffs’ request to issue the attached proposed notice subject to the notice procedure discussed” in plaintiffs’ Motion, but that “[t]he Government reserves all rights to oppose collective treatment and to seek to decertify the conditionally certified collective action.” Id. at 2.

In de ciding whether certification of a collective action is appropriate, this Court ha s , at times, chosen to employ a judicially

- devised “two

- step approach

, ” which “‘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. ’ ” Barry v. United States , 117 Fed. Cl. 518, 520 (2 014) ( quoting Whalen v. United States , 85 Fed. Cl. 380, 383 (2009)). The first step, coined “conditional certification,” places a low burden on the plaintiff, requiring onl y that the plaintiff make a “‘modest factual showing’ of common circumstance” amongst potential collective action members “based on ‘the pleadings, affidavits, and other available evidence.’” Id. at 520

– 21 (quoting Gayle v. United States , 85 Fed. Cl. 72, 77 (2008)) ; Whalen , 85 Fed. Cl. at 384

– 85 (quoting Hoffmann v. Sbarro, Inc. , F. Supp. 249, 261 (S.D.N.Y. 1997)). If that burden is met, then, as a second step, the Court “ undertakes a more searching analysis into the relationship between named and opt

- in plaintiffs

. T he inquiry into the similarity of prospective plaintiffs is more rigorous at this stage because plaintiffs have had the3

opportunity to build a more robust case and ‘ marshal their best evidence ’ through the discovery process. ” Whalen , 85 Fed. Cl. a t 385 (quoting Davis v. Charoen Pokphand (USA), Inc.

, 303 F. Supp. 2d 1272, 1276 (M.D. Ala. 2004)) (citations omitted). If the plaintiffs succeed under this “stricter evidentiary burden,” then the plaintiffs may proceed to trial as a collective action. Id. If they fail, “then the court will decertify the action, dismissing the opt

- in plaintiffs without prejudice and permitting the named plaintiffs to go forward to trial in an individual capacity.” Id. (citing Hunt er v. Sprint Corp. , 346 F. Sup p. 2d 113, 117 ( D.D.C. 2004 ) )

. As discussed during the April 27, 2020 Status Conference, the Court is not convinced that such a two

- step approach comports with the language of the FLSA or the Rules of this Court

. See McClendon v. United States , No. 12

- 81 , 2013 U.S. Claims LEXIS 19, at *2

– 3 (Fed. Cl. Jan. 24, 2014) (discussing the absence of justification for the two

- step approach in the text of the FLSA); see also Smith v. United States , No. 13

- 161, 2014 U.S. Claims LEXIS 774, at *4

– 5 (Fed. Cl. Aug. 11, 2 014) (“ The two

- step procedure seems to have arisen from the mismatch between the opt

- out procedure of the normal Rule 23 class action and the opt

- in procedure suggested by the text of the FLSA

. ”)

. N either binding precedent nor the language of the FLSA specify the precise methodology for how collective actions should proceed , and neither the Supreme Court nor the FLSA explicitly condones or mandates the use of the two

- step approach

. See Tyson Foods, Inc. v. Bouaphakeo , 136 S. Ct. 1036, 1045 (2016) (decl ining to decide if “ the standard for certifying a collective action under the FLSA is no more stringent than the standard for certifying a class under the Federal Rules of Civil Procedure.”) ; McClendon , 2013 U.S. Claims LEXIS 19, at *2

– 3 (explaining that n either the Supreme Court nor the Federal Circuit has ruled on the
two

- step approach in the context of an FLSA action ) ; Gayle , 85 Fed. Cl. at 77 (examining various methodologies for how courts have reviewed collective action certification, as “[t]he FLSA do es not set forth in precise detail the manner in which collective actions should proceed.”)

. See generally 29 U.S.C. § 216(b) ; Hoffman

- La Roche, Inc. v. Sperling

, 493 U.S. 165 (1989). As a result, the requirement that plaintiffs be “similarly situated” is open to interpretation by the lower court when such a court is deciding whether to certify a collective action

, see 29 U.S.C. § 216(b) , and

, in doing so, whether to utilize the two

- step approach

.
In the case at bar, t he Court declines to implement the two

- step approach. As the
two

- step approach “is not specified by the plain text of the statute or binding precedent,” the Court is “ not persuaded that the judicially created two

- step process is appropriate for our use.” Smith , 2014 U.S. Claims LEXIS 774, at *4

– 5; McClendon , 2013 U.S. Claims LEXIS 19, at *2. Instead, the Court conclud es that simply facilitating the notice process

— so that plaintiffs can communicate with prospective party

- plaintiffs

— more appropriately align s with this Court’s Rules, the language of the FLSA

, and with binding precedent

. See Hoffmann

- La Roche , 493 U.S. at 171

– 72

. Additionally, the Court believes that , at the conclusion of the court

- facilitated notice process , t he plaintiffs will be adequatel y primed to submit a more comprehensive motion
to certif y a collective action. For those reasons, t he Court denies plaintiffs’ request to conditionally certify a collective action

.

T he Supreme Court has hel d that, “[b]ecause trial court involvement in the notice process is inevitable in cases with numerous plaintiffs where written consent is required by statute, it lies within the discretion of a district court to begin its involvement early, at the point of the initial notic e , rather than at some later time. ” Id. at 171. Given that § 216(b) affords employees with “affirmative permission” to proceed on behalf of similarly situated individuals, the Supreme4

Court concluded that lower courts “must [have] . . . the requisite pro cedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure.” See i d. at 170 (citing Fed

. R

. Ci v. P . 83 ). W he re a court decide s to “ oversee the notice

- giving
process, ” the Supreme Court has cautioned that courts “ must be scrupulous to respect judicial neutrality ,” and that they must “ avoid even the appearance of judicial e ndorsement of the merits of the action. ” Id. at 174. In McClendon , t his Court exercised its discretion to implement such a court

- facilitated notice by granting plaintiff’s request that defendant produce the names and mailing addresses of a narrow group o f prospective c ollective action members. 2013 U.S. Claims LEXIS 19, at *7

– 8 (“[C]ourt

- facilitated notice is an effective and efficient method of implementing the collective action provision of the FLSA .”).

T he Court believes that , in a FLSA collective action case, a court

- facilitated notice process is both a permissible and effective means of providing plaintiffs with the ability to communicate with prospective party

- plaintiffs in order to assemble a proposed collective action

. The plaintiff

s in the case at bar have requested that the Court approve the proposed Notice attached to their Motion, “subject to the notice procedure discussed” in that Motion. Pls.’ Mot. at 2. Defendant does not oppose either request. See id. Upon careful review

, the Court grants plaintiffs’ request to transmit the proposed Notice and approves the procedures for preparing and distributing such N otice as they are enumerated in plaintiffs’ Motion

. At the close of the notice and opt

- in periods, the parties SHALL FILE a Joint Status Report, notifying the Court of the completion of the opt

- in period, after which the Court will set a status conference to set a briefing schedule on the merits of certifyi ng a collective action.

For the foregoing reasons , plaintiffs’ MOTION f or Conditional Certification and Notice is hereby GRANTED

- IN

- PART as to transmitting the Notice and DENIED

- IN

- PART as to conditional c ollective action certification

. The Notice set forth in Attachment A to this Order is hereby APPROVED for distribution in accordance with the procedures outlined in plaintiffs’ Motion

. Accordingly, the parties are DIRECTED to file the “ agreed upon protective order” mentioned in the plainti ffs ’ Motion for the Court’s review . Upon the Court’s approval, defendant SHALL PROVIDE plaintiffs’ counsel with the names, home addresses, and email addresses of all prospective party

- plaintiffs within twenty days of that approval

. Finally, and

c onsistent with discussions held during the April 27, 2020 Status Conference, the Court will hold

a Status Conference on May 27, 2020, at 3:00 p.m. (EDT)

.

IT IS SO ORDERED.

s/ 

# Loren A. Smith

Loren A. Smith, Senior Judge