Free Reply to Response to Motion - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) )
)

STEPHEN ADAMS, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

Case No. 90-162-C and Consolidated Cases (Judge Lynn J. Bush)

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PLAINTIFFS' REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION UNDER RCFC 56(f), FOR A CONTINUANCE TO PERMIT THEM TO CONDUCT DISCOVERY FOR THE PURPOSE OF OPPOSING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT REGARDING REMAINING "DRIVING TIME" CLAIMS Defendant's grudging responses to plaintiffs' requests for admissions make patently clear why plaintiffs are entitled to the continuance they seek under RCFC 56(f). A copy of defendant's responses is attached as Plaintiffs' Exhibit 1. Defendant objects therein "to plaintiffs' requests for admissions to the extent that they seek admissions concerning time solely spent driving between home and work in a Government vehicle, upon the ground that plaintiffs' claims for such time fail as a matter of law, for the reasons stated in defendant's defendant's (sic) pending motion for summary judgment." Def. Resp. 1. Defendant has thus put into issue in this RCFC 56(f) proceeding its assertion that it is entitled to dismissal of plaintiffs' claims on the merits notwithstanding that the Court ordered further briefing of that issue stayed. See Adams v. United States, No. 90-162-C (Fed. Cl. May 16, 2008) (order staying briefing). The basis for defendant's objection to plaintiffs' discovery is its contention that the Federal Circuit's decision in Adams v. United States, 471 F.3d 1321 (Fed. Cir. 2006), reh'g and reh'g en banc denied, 219 Fed. Appx. 993 (Fed. Cir. 2007), cert. denied, 128 S.Ct. 866 (2008) ("Adams"),

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is dispositive of plaintiffs' driving claims herein. See Def. Mot. for Summ. J. But as plaintiffs demonstrate in Plaintiffs' Opposition to Defendant's Motion for Summary Judgment, at 8-13, as a result of the Supreme Court's recent decisions in Long Island Care At Home, Ltd. v. Coke, 127 S. Ct. 2339 (2007), ("Coke"), and IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), ("Alvarez"), Adams has ceased to be good law. Defendant is therefore correct in citing Coltec Indus., Inc. v. United States, 454 F.3d 1340, 1353 (Fed. Cir. 2006), cert. denied, 127 S. Ct. 1261 (2007), for the proposition that "the Court of Federal Claims is required to follow the precedent of the Supreme Court, our court, and our predecessor court, the Court of Claims." See Def. Mot. for Summ. J. 8. For here, it is "the precedent of the Supreme Court" as set forth in Coke that this Court must follow since Coke holds that by failing to defer to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (2000), ("FLSA"), regulations and interpretations of the United States Department of Labor ("DOL"), (the agency directed by Congress to administer the FLSA in the non-federal sector), the Second Circuit twice mistakenly declared plaintiffs therein to be covered by FLSA.1/ In accordance with Coke, plaintiffs submit that deference to the FLSA regulations of the Office of Personnel Management ("OPM"), which was directed by Congress to administer the FLSA in the Federal sector, 29 U.S.C. § 204(f) (2000), requires this Court to declare plaintiffs' home/work driving FLSA compensable. This Court's earlier "driving" decision in this case serves to demonstrate why the Supreme Court's decision in Coke is not merely relevant but is dispositive. This Court declared as follows in Adams with regard to the Second Circuit's decision in Reich v. New York City Transit Authority,

See Coke v. Long Island Care at Home Ltd., 376 F.3d 118 (2nd Cir. 2004) and Coke v. Long Island Care at Home, Ltd., 462 F.3d 48 (2nd Cir. 2006). -2-

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45 F.3d 646 (2nd Cir. 1995) ("Reich"), as well as the Federal Circuit's decision in Bobo v. United States, 136 F.3d 1465 (Fed. Cir. 1998) ("Bobo"), upon which it relied: The Second Circuit in Reich stated that "to resolve the[se commuting time claims], it is necessary to return to the basic principle that underlies the FLSA: Employees are entitled to compensation only for `work.'" 45 F.3d at 651. Quoting Tennessee Coal, 321 U.S. at 598, 64 S. Ct. 698, the Reich court defined work as "an activity . . . ([that is] compensable under the FLSA) if it involves `physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.'" 45 F.3d at 651. Applying this principle to canine unit officers and their commutes in that case, the Second Circuit decided that "[h]ere, however, the activity of commuting involved neither exertion nor loss of time." Id. For these commutes which demanded no extra exertion or extra time because of employer requirements, the Reich court stated that "[w]e therefore conclude that the time spent by handlers driving to and from work with their dogs, except to the extent that actual duties of care, feeding, training, walking or cleaning up occur during such commute, is not compensable work." Id. at 652. This conclusion in Reich is in direct conflict with FPM Letter No. 551-10.2/ The FPM Letter suggested that the simple act of driving a government vehicle from home to work and work to home, with no extra effort or extra time affecting the commute, if done for the purpose of facilitating potential emergency response from employees' homes, was compensable under FLSA. The Federal Circuit would not have lightly decided to reject the conclusion of a sister circuit in favor of the guidance in FPM Letter No. 551-10. Adams v. United States, 65 Fed. Cl. 217, 238-39 (2005) (emphasis added). This Court declared further that "[a]lthough the question of the level of deference that should be given an FPM letter such as the one at issue here is an interesting one, this court is precluded

Under OPM's FPM Letter No. 551-10 (April 30, 1976), Federal employees who were required to drive defendant's vehicles home "to respond to emergency calls immediately from his/her home," were entitled to be paid for home/work driving since OPM considered it to be "hours worked." -3-

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from that inquiry because FPM Letter 551-10 is at odds with the controlling law in this circuit." Id. at 239 (footnote omitted) (emphasis added). In fact however, the Supreme Court's decision in Coke served to nullify both this Court's and the Federal Circuit's conclusions, and places OPM's FLSA regulations and FPM Letter 551-10 in the position of being entitled to judicial deference notwithstanding conflicting court decisions of this or other circuits. Plaintiffs submit that a reading of the Supreme Court's decision in Coke makes it abundantly clear that agency regulations and interpretations, such as 5 C.F.R. § § 551.401 and 551.422 and FPM Letter 551-10, are reasonable and entitled to deference and that the Federal Circuit's decision in this case and in Bobo were mistaken because of their failure to defer to OPM's FLSA regulations. A recent Supreme Court decision whose holding is precisely to the same effect as Coke, and which closely parallels the circumstances presented herein, is National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005) ("National Cable"). There the Ninth Circuit, see 345 F.3d 1120, 1130-1131 (9th Cir. 2003), reversed the conclusion of the Federal Communications Commission ("FCC"), that under the 1996 amendments to the Communications Act, 47 U.S.C. 151, et seq. (2000), as amended, cable companies providing cable modem services were exempt from mandatory regulation, relying upon "the stare decisis effect of its decision in AT&T Corp. v. Portland, 216 F.3d 871 (9th Cir. 2000) . . ." ("Portland"), which had "held that cable modem service was a `telecommunications service,' . . ." 545 U.S. at 979.3/ The

The Court noted that the court in Portland "was not reviewing an administrative proceeding." Id. at 980. This is the case herein as well. -4-

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Ninth Circuit reasoned that Portland's holding "overrode the contrary interpretation reached by the Commission . . ." Id. at 980. On certiorari, the Supreme Court reversed, declaring as follows: The Court of Appeals declined to apply Chevron [U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)] because it thought the Commission's interpretation of the Communications Act foreclosed by the conflicting construction of the Act it had adopted in Portland. See 345 F.3d, at 1127-1132. It based that holding on the assumption that Portland's construction overrode the Commission's, regardless of whether Portland had held the statute to be unambiguous. 345 F.3d, at 1131. That reasoning was incorrect. A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. This principle follows from Chevron itself. Chevron established a "presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows." Smiley, supra, at 740-741, 135 L. Ed. 25, 116 S. Ct. 1730. Yet allowing a judicial precedent to foreclose an agency from interpreting an ambiguous statute, as the Court of Appeals assumed it could, would allow a court's interpretation to override an agency's. Chevron's premise is that it is for agencies, not courts to fill statutory gaps. See 467 U.S., at 843844, and n. 11, 81 L. Ed. 2d 694, 104 S. Ct. 2778. The better rule is to hold judicial interpretations contained in precedents to the same demanding Chevron step one standard that applies if the court is reviewing the agency's construction on a blank slate: Only a judicial precedent holding that the statute unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction. Id. at 982-83.

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In this case the identical situation obtains. In Adams, the Federal Circuit, in reliance upon its prior decision in Bobo,4/ held that the plaintiffs' home/work driving was non-compensable even though under OPM's regulations and interpretations such driving is declared compensable. 471 F.3d at 1327. Indeed, FLSA non-exempt criminal investigators were paid by defendant under OPM's FLSA regulations for such driving for more than twenty years. "[U]nder [FPM Letter No. 551-10] FLSA non exempt officers were indeed compensated for their commute time." Id. (emphasis in the original). Thus, under both Coke and National Cable, it is the agency's regulations and interpretations to which courts must defer absent a finding by the court of "unambiguous terms of the statute" that "leaves no room for agency discretion. . . ." 545 U.S. at 982. Under these circumstances the Supreme Court's decisions in Coke and National Cable must be applied in the instant litigation by this Court, and defendant's suggestion that the law has not changed since Adams is unsupportable. Thus, the question before this Court is whether in conformity with Coke and National Cable, this Court must now defer to the relevant, reasonable and longstanding OPM regulations and interpretations declaring home/work driving in defendant's vehicle to be FLSA compensable. Plaintiffs submit that the answer must be unequivocally "yes." The foregoing principles were recently acknowledged and applied by this Court in Aeolus Systems, LLC v. United States, 79 Fed. Cl. 1 (2007): The parties agree that, in this case, "the SBA is interpreting its own regulations, promulgated for the purpose of implementing 15 U.S.C.A. §§ 632(p)(3)(A) and (p)(5)(A)(i)(I)(aa) . . . under the

"Bobo still teaches that commuting done for the employer's benefit, under the employer's rules, is noncompensable if the labor beyond the mere act of driving the vehicle is de minimus. That is the case here." 471 F.3d at 1328. -6-

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HUBZone Act." Pl.'s Mot. at 9. Indeed, there is no question that the SBA promulgated 13 C.F.R. § 126.103 "through the notice-andcomment rule making procedures of the Administrative Procedure Act," pursuant to its congressionally mandated authority to administer the provisions of the Small Business Act. See Pl.'s Mot. at 12. This is critical because, "[a]s a general rule, [the court] must defer to an agency's interpretation of the regulations it promulgates, as long as the regulation is ambiguous and the agency's interpretation is neither plainly erroneous nor inconsistent with the regulation." Gose v. United States Postal Serv., 451 F.3d 831, 836 (Fed. Cir. 2006) (citations omitted). In fact, the court must "defer even more broadly to an agency's interpretations of its own regulations than to its interpretation of statutes, because the agency, as the promulgator of the regulation, is particularly well suited to speak to its original intent in adopting the regulation." Id. at 837 (citing Cathedral Candle Co. v. United States Int'l Trade Comm'n, 400 F.3d 1352, 1363-64 (Fed. Cir. 2005) and Am. Express Co. v. United States, 262 F.3d 1376, 1382-83 (Fed. Cir. 2001)). Accordingly, "an agency's interpretation of its own regulation is `controlling' unless `plainly erroneous or inconsistent with' the regulations being interpreted." Long Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339, 2349, 168 L. Ed. 2d 54 (2007) (quoting Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997)) (internal quotations omitted). Deference is required even if an alternative interpretation of the regulation might comport with the regulatory language more closely than does the interpretation of the agency. Gose, 451 F.3d at 837 (citation omitted); see also Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515, 114 S. Ct. 2381, 129 L. Ed. 2d 405 (1994) ("The Secretary's interpretation . . . is far more consistent with the regulation's unqualified language than the interpretation advanced by petitioner. But even if this were not so, the Secretary's construction is, at the very least, a reasonable one, and we are required to afford it `controlling weight.'" (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S. Ct. 1215, 89 L. Ed. 1700 (1945))). 79 Fed. Cl. at 9-10. Plaintiffs submit that OPM's "construction is . . . a reasonable one," and this Court "is required to afford it" controlling weight.

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Defendant argues nevertheless that plaintiffs' RCFC 56(f) motion seeking a continuance fails because plaintiffs' contention "presents a legal issue, not a factual one."5/ Def. Opp. 3.

Defendant is mistaken. In order for plaintiffs to demonstrate that they are entitled to judgment under Coke, Alvarez, and OPM's regulations, they must present facts which bring them within these authorities. Hence, for example, in Alvarez, 546 U.S. at 37, the Supreme Court held that where employees engage in work at the commencement and end of their working day, all time in between constitutes time worked (with the exception of a thirty minute lunch break). In this case, plaintiffs require further discovery to prove that they are engaged in FLSA compensable work when they comply with defendant's requirement that they store their firearms and ammunition in their homes at the end of each day, and when they load them into defendant's vehicles upon leaving their homes for work in the morning. In this connection, however, on May 28, 2008, in defendant's responses 16-22, defendant declared as follows: 16. When plaintiffs arrived home at the end of their workdays they were required to remove their firearms and ammunition from their GOVs and persons, unload their firearms, and store both firearms and ammunition in secure places in their homes, including safes provided by defendant. RESPONSE: Defendant objects to this request upon the ground that, under the law of the case, it is irrelevant. As an accommodation to plaintiffs, and without waiving any objection, defendant admits that when certain plaintiffs arrived home after the end of their workdays they were required to remove their firearms and ammunition from

Defendant's Opposition to Plaintiffs' Motion under RCFC 56(f) for a Continuance to Permit Them to Conduct Discovery for the Purpose of Opposing Motion for Summary Judgment Regarding Remaining "Driving Time" Claims, 3 ("Def. Opp. __", hereinafter). -8-

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their GOVs and persons, unload their firearms, and store both firearms and ammunition in secure places in their homes, including safes provided by defendant. Defendant denies that plaintiffs arrived home at the end of their workdays. 17. Before the plaintiffs entered their GOVs at the beginning of each workday they were required to remove their firearms and ammunition from their homes, load them, and place them in holsters or other containers on their persons or in their GOVs. RESPONSE: Defendant objects to this request upon the ground that, under the law of the case, it is irrelevant. As an accommodation to plaintiffs, and without waiving any objection, defendant admits that before certain plaintiffs entered their GOVs prior to the beginning of each workday they were required to remove their firearms and ammunition from their homes, load them, and place them in holsters or other containers on their persons or in their GOVs. Defendant denies that plaintiffs' workday began when they left their homes to drive to work. 18. The process of plaintiffs taking their firearms and ammunition out of their GOVs, storing and unloading their firearms and ammunition in their homes at the end of the workday took each plaintiff approximately 5 minutes each workday. RESPONSE: Defendant objects to this request upon the ground that, under the law of the case, it is irrelevant. To the extent that the requested admission may be deemed relevant, it is denied. 19. The process of removing plaintiffs' firearms and ammunition from their homes, loading them, and placing them on their persons and in their GOVs took each plaintiff approximately 5 minutes each workday. RESPONSE: Defendant objects to this request upon the ground that, under the law of the case, it is irrelevant. To the extent that the requested admission may be deemed relevant, it is denied. -9-

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20. In each of plaintiffs' two-week pay periods, approximately 1 hour and 40 minutes was spent in the activities described in paragraphs 18 and 19 above by each plaintiff. RESPONSE: Defendant objects to this request upon the ground that, under the law of the case, it is irrelevant. To the extent that the requested admission may be deemed relevant, it is denied. 21. A reason that defendant required that plaintiffs' firearms not be left in their GOVs overnight outside of their homes was defendant's concern that a break-in into the GOVs might occur in which case the firearms and ammunition might be stolen and misused. RESPONSE: Defendant objects to this request upon the ground that, under the law of the case, it is irrelevant. 22. A reason that defendant provided plaintiffs with safes to store their firearms in their homes was to avoid accidents involving other individuals who might obtain access to such firearms. RESPONSE: Defendant objects to this request upon the ground that, under the law of the case, it is irrelevant. Def. Resp. 7-10. In its Response to Plaintiffs' Requests for Admissions defendant clearly cannot argue that plaintiffs are not entitled to obtain and establish facts to support their claims. See RCFC 36 and 56. Indeed, in light of defendant's equivocal responses to Plaintiffs' Requests for Admissions 16-22, plaintiffs clearly are entitled to further discovery with regard to these points, including the conduct of RCFC 30(b)(6) depositions, and requests for the production of documents relating to the requirement of storage of firearms and ammunition in plaintiffs' homes upon arrival there, and their

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removal from their homes at the beginning of each workday, in order to establish their claims under Alvarez, and otherwise. Accordingly, on May 30, 2008, plaintiffs served defendant with a production request seeking documents relating to such facts. A copy of their production request is attached as Plaintiffs' Exhibit 2. And under both RCFC 36 and 37, plaintiffs are also entitled to an order requiring defendant to respond candidly to their requests for admissions. Indeed, defendant's responses to plaintiffs' requests for admissions demonstrate why plaintiffs are entitled to the RCFC 56(f) continuance they seek. As stated earlier, under the Supreme Court's decisions in Coke and National Cable, courts are obligated to defer to the regulations of agencies authorized and designated by Congress to issue regulations implementing statutory provisions. In this case, the agency so designated is OPM, see 29 U.S.C. § 204 (f). Under 5 C.F.R. § 551.401 of OPM's long-standing FLSA Regulations,"Hours of Work" for FLSA purposes are defined in relevant part as follows: § 551.401 Basic principles.

(a) All time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency is "hours of work." Such time includes: (1) duty; (2) Time during which an employee is suffered or permitted to work; and (3) Waiting time or idle time which is under the control of an agency and which is for the benefit of any agency. 5 C.F.R. § 551.401 (2008). First, under § 551.401(a)(1), plaintiffs believe that they will be able to establish factually that they were "on duty" while driving their government vehicles between home and work; and - 11 Time during which an employee is required to be on

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alternatively, that under § 551.401(a)(2), they were being "suffered or permitted" to work when engaged in such driving. See Doe v. United States, 372 F.2d 1347, 1360-61 & nn.6-7 (Fed. Cir. 2004). And, even if plaintiffs' driving is viewed as merely constituting "waiting time or idle time," it is FLSA compensable under § 551.401(a)(3), since it is under their employing agency's control and for its benefit. Further, OPM's regulations at 5 C.F.R. § 551.422(a)(2), declare that "[t]ime spent traveling shall be considered hours of work if . . . (2) [a]n employee is required to drive a vehicle or perform other work while traveling." (emphasis added). Thus, such employer required driving is declared by OPM to be FLSA compensable "hours of work," notwithstanding its not meeting the Federal Circuit's additional requirement imposed in Adams that "the plaintiffs must perform additional legally cognizable work while driving ." 471 F.3d at 1325. Indeed, it is clear that the Federal Circuit impermissibly substituted an "and" for OPM's regulation's "or." On this basis, plaintiffs submit that just as is required by Coke and National Cable, this Court is now obligated to defer to OPM's regulations, and that on their face they will require it to declare plaintiffs' driving compensable under FLSA. In order to demonstrate that the home/work driving engaged in by plaintiffs meets the requirements of the foregoing regulatory provisions, admissions such as plaintiffs requested in their numbered Requests for Admissions 1-39 were sought. Indeed, straightforward responses to the foregoing requests for admissions were required to establish that the plaintiffs' driving between home and work, as well as their handling and storing of their firearms and ammunition at home, fell within the provisions of the foregoing OPM regulations. Yet defendant has objected to most of plaintiffs' requests for admissions on such grounds as that they are "vague, overbroad, and unduly

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burdensome," or that they "call . . . for a conclusion of law rather than an admission fact." See generally Def. Resp. Such objections are improper under RCFC 36. Defendant's response to Plaintiffs' Request for Admission No. 8 is both illustrative and particularly revealing:6/ 8. Such driving between home and place of employment by plaintiffs facilitated the accomplishment of defendant's agencies' law enforcement missions, since the GOVs were provided to the plaintiffs for rapid response to emergency calls at any time, whether plaintiffs were at home or proceeding between home and their office or other work location. RESPONSE: Defendant objects to this request upon the grounds that it is vague, overbroad, and unduly burdensome. Def. Resp. 5. Plaintiffs are at a loss to understand how the foregoing request can be characterized as being "vague, overbroad, and unduly burdensome," as claimed in defendant's response. The same is true with respect to defendant's response to plaintiffs' Request for Admission No. 9:

Defendant's responses appear on their face to be in violation of RCFC 36(a) which provides in relevant part as follows: The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. - 13 -

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9. Defendant's GOVs were driven by plaintiffs to their homes on working days so they would be able to respond to emergencies from home and elsewhere at any time. RESPONSE: Defendant objects to this request upon the grounds that it is vague, overbroad, and unduly burdensome. Def. Resp. 5-6. Defendant provided similar responses to plaintiffs' requests for Admissions Nos. 11-13 and 34-38. See Def. Resp. 6-7; 14-15. The foregoing recitation of defendant's responses to plaintiffs' requests for admissions demonstrate that further discovery is required since plaintiffs have already demonstrated that under both Coke, National Cable, and Alvarez, the process of defining "time worked" under FLSA has changed, and that plaintiffs are entitled to develop a factual record to support their claims insofar as they are based upon the law as enunciated therein. Nevertheless, defendant argues that [i]n this Court, plaintiffs can attempt to distinguish the Federal Circuit's prior decisions here and in Bobo, but plaintiffs cannot ask this Court to contravene those decisions. The only conceivable factual issue plaintiffs can raise in response to our motion is whether the home-to-work driving that they perform is materially different from the driving involved in Adams and Bobo. If there is such a difference, however, plaintiffs must know what it is; plaintiffs can hardly claim that they lack knowledge of the nature and purpose of their own activities, and that they require discovery concerning these activities. Def. Opp. 4. Plaintiffs agree that insofar as the criminal investigator plaintiffs in this case are concerned, the home/work driving that they perform is not "materially different from the driving involved in Adams . . ." However, those plaintiffs submit that since the work they perform in storing their

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firearms at home and placing or removing them from their vehicles at the beginning and end of each day constitutes "time worked," all time between those events, including plaintiffs' home/work driving in defendant's vehicles constitutes "principal activity" within the meaning of the Supreme Court's decision in Alvarez. 546 U.S. at 37. There the Supreme Court held that time spent walking inside a plant after employees had donned their protective gear and before they doffed their protective gear at the end of the day was time worked. Applying that principle to this case, plaintiffs' driving should be declared compensable time worked since it occurred within those plaintiffs' continuous workdays while they were driving defendant's vehicles.7/ As to defendant's requirements concerning the storage of firearms and ammunition by plaintiffs in their homes, which plaintiffs seek to establish through their requests for admissions, defendant responds that "we note only that each plaintiff is, necessarily, fully aware of his or her own conduct with respect to firearms, and is fully able to submit a declaration describing this conduct, without discovery. Likewise, each plaintiff is, necessarily, fully aware of the nature of his or her own conduct in driving between home and work, and is fully able to submit a declaration describing this conduct, without discovery." Def. Opp. 8. Plaintiffs recognize that the more than 6000 plaintiffs involved possess relevant information, but it is clear that in order to expedite these proceedings the Court should insist that defendant be candid with regard to the admissions sought. And defendant may not seek to impose upon plaintiffs and the Court the necessity that each and every plaintiff submit and file a declaration with regard to his or her own driving situation, or his or her conduct with regard to the storage of weapons at

This claim is in addition to plaintiffs' claims arising under OPM's regulations discussed supra at 11-12. - 15 -

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home. Instead the discovery plaintiffs seek will serve to short-circuit the lengthy and wasteful processes defendant proposes. In any event, such showings by each individual plaintiff are not required in cases involving massive FLSA violations by an employer such have been proven to exist in this case.8/ Next, as to the Diversion Investigators involved in this case, their claims were not litigated at all in Adams. These employees drove and drive between home and work performing "field work" pursuant to the provisions of 31 U.S.C. § 1344 (2000), which declare in relevant part: § 1344. (a) (1) Funds available to a Federal agency, by appropriation or otherwise, may be expended by the Federal agency for the maintenance, operation, or repair of any passenger carrier only to the extent that such carrier is used to provide transportation for official purposes. Notwithstanding any other provision of law, transporting any individual other than the individuals listed in subsections (b) and (c) of this section between such individual's residence and such individual's place of employment is not transportation for an official purpose. (2) For purposes of paragraph (1), transportation between the residence of an officer or employee and various locations that is-- (A) required for the performance of field work, in accordance with regulations prescribed pursuant to subsection (e) of this section . . . * * * Passenger carrier use

Under Fed. R. Evid 403 a court has broad discretion to prevent the "needless presentation of cumulative evidence." And under FLSA, reliance upon "representative testimony" is commonly accepted. See e.g., Summers v. Howard Univ., 374 F.3d 1188, 1195 (D.C. Cir. 2004); Reich v. S. New England Telecomm. Corp., 121 F.3d 58 (2nd Cir. 1997); Donovan v. Bel-Loc Diner, Inc., 780 F.2d 1113 (4th Cir. 1985). - 16 -

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is transportation for an official purpose, when approved in writing by the head of the Federal agency. * * * The regulations regarding "Home-To-Work Transportation" referred to in 31 U.S.C. § 1344(a)(2)(A), are set forth at 41 C.F.R. § 102-5 (1007). A copy of those regulations are attached as Plaintiffs' Exhibit 3. Among the relevant provisions which plaintiffs believe support the compensability of home/work driving by Diversion Investigators engaged in "field work" are the following: § 102-5.30 provides the following definitions: Field work means official work requiring the employee's presence at various locations other than his/her regular place of work. (Multiple stops (itinerant-type travel) within the accepted local commuting area, limited use beyond the local commuting area, or transportation to remote locations that are only accessible by Government-provided transportation are examples of field work.) (emphasis added). * * * § 102-5.70 provides as follows in sub-section (b): The use of home-to-work transportation for field work should be authorized only to the extent that such transportation will substantially increase the efficiency and economy of the Government. (emphasis added). * * * § 102-5.95 provides as follows: Is the comfort and/or convenience of an employee considered sufficient justification to authorize home-to-work transportation? No, the comfort and/or convenience of an employee is not considered sufficient justification to authorize home-to-work transportation. - 17 -

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* * * § 102-5.120 provides as follows: What are [agencies'] responsibilities for documenting use of hometo-work transportation? Your responsibilities for documenting use of home-to-work transportation are that you must maintain logs or other records necessary to verify that any home-to-work transportation was for official purposes. Each agency may decide the organizational level at which the logs should be maintained and kept. The logs or other records should be easily accessible for audit and should contain: (a) Name and title of employee (or other identification, if confidential) using the passenger carrier; (b) (c) (d) (e) (f) (g) Name and title of person authorizing use; Passenger carrier identification; Date(s) home-to-work transportation is authorized; Location of residence; Duration; and Circumstances transportation. requiring home-to-work

(emphasis added). Thus the applicable regulations of both OPM set forth supra at 11, and of the Government Services Administration ("GSA"), attached hereto as Plaintiffs' Exhibit 3, support the conclusion that home-work driving by Diversion Investigators for the purposes of conducting "field work" is FLSA compensable since they demonstrate that such driving meets OPM's regulatory requirements for defining FLSA "hours of work."

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Next, defendant declares that plaintiffs seek to distinguish "several recent cases involving similar claims by Diversion Investigators in which the Court has held that plaintiff could engage in discovery. None of those cases, however, involved a pending summary judgment motion or a Rule 56(f) motion . . . ." Def. Opp. 7, n. 2. As to defendant's assertion, (Def. Opp. 7, n. 2), that the foregoing discovery orders did not involve a RCFC 56(f) motion or summary judgment motion, this fact is clearly of no consequence. Indeed, Judge Emily C. Hewitt of this Court, recently directed the parties to conduct further discovery in Gonzalez v. United States, No. 07-790C (Fed. Cl. May 20, 2008) (order granting discovery), involving the FLSA driving claims of two Diversion Investigator plaintiffs. See Pls. Ex. 4. There, Judge Hewitt authorized the conduct by plaintiffs of a RCFC 30(b)(6) deposition in anticipation of a summary judgment motion to be filed by plaintiffs. Next, defendant argues that plaintiffs are not "entitled to a continuance under Rule 56(f), but that, with respect to Diversion Investigators, they have already obtained much if not all of the discovery sought here." Def. Opp. 7, n. 2. While plaintiffs acknowledge that in other Diversion Investigator FLSA cases pending in this Court the plaintiffs there have been provided with certain documents by defendant, plaintiffs have not yet conducted the RCFC 30(b)(6) deposition ordered by Judge Hewitt, and such a deposition may be required in this case as well. Finally, defendant claims that plaintiffs should have commenced discovery with regard to the driving issue in January 2008, after the denial of certiorari in Adams on January 7, 2008, rather than in April, 2008, so that plaintiffs should not be entitled to additional time for discovery as requested in their RCFC 56(f) motion. Def. Opp. 8-9.

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In fact, plaintiffs' discovery requests were served on April 28, 2008, which was 17 days after the filing of Defendant's Motion for Summary Judgment. As the Court knows, the parties have long been engaged in settlement negotiations concerning various aspects of this case seeking to achieve their prompt resolution. See Joint Status Report (filed on March 31, 2008). And plaintiffs have been litigating various aspects of this case vigorously in this and other courts since February, 1990. Plaintiffs believe that they have been, and continue to be, diligent in seeking discovery regarding the current phase of this protracted litigation, and they further believe that in order to expedite the resolution of this matter, granting their motion under RCFC 56(f) would be appropriate. In conclusion, plaintiffs submit that what is "illusory" here, (see Def. Opp. at 5), is defendant's suggestion that plaintiffs' reliance upon Coke, National Cable and Alvarez represent "an attempt to support an illusory need for discovery with an illusory change in the legal landscape." Id. In fact, plaintiffs have the right to engage in discovery to make a factual record upon which they will be able to demonstrate to this Court their entitlement to compensation under the FLSA for their driving pursuant to the principles enunciated by the Supreme Court in Coke, National Cable and Alvarez as well as OPM's FLSA regulations. CONCLUSION Plaintiffs believe they are entitled to have the Court grant their motion for a continuance under RCFC 56(f). Plaintiffs request oral argument on this motion.

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Respectfully submitted,

OF COUNSEL: Linda Lipsett

s/Jules Bernstein Jules Bernstein (Counsel of Record) Bernstein & Lipsett, P.C. 1920 L Street, N.W., Suite 303 Washington, D.C. 20036 (202) 296-1798 (202) 296-7220 facsimile Counsel of Record

s/Edgar James James & Hoffman, P.C. 1101 17th Street, N.W., Suite 510 Washington, D.C. 20036 (202) 496-0500 (202) 496-0555 facsimile Attorneys for Plaintiffs

Dated: June 16, 2008

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CERTIFICATE OF FILING I hereby certify under penalty of perjury that on this 16th day of June 2008, a copy of the foregoing "PLAINTIFFS' REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION UNDER RCFC 56(f), FOR A CONTINUANCE TO PERMIT THEM TO CONDUCT DISCOVERY FOR THE PURPOSE OF OPPOSING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT REGARDING REMAINING "DRIVING TIME" CLAIMS" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/Jules Bernstein