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

Case 1:06-cv-00111-CCM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ JOHN DOE and JANE ROE for themselves ) and on behalf of all others similarly situated, ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ) __________________________________________)

Civil Action No. 06-111C Judge Christine O.C. Miller

PLAINTIFFS' REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFFS' RULE 56(F) MOTION TO CONDUCT DISCOVERY I. Introduction

Plaintiffs JOHN DOE and JANE ROE ("Plaintiffs") respectfully submit that an irrefutable principle of employment law is that an employer must compensate an employee when that employer directs the employee to remain in a particular location for the benefit of the employer for a specified period of time during the period that the employee is "off-duty", and substantially restricts the ability of the employee to do as he or she wishes with that time. It is apparent that application of this fundamental principle of employment law to the facts of any given case involves many different factual permutations that may affect the ultimate resolution of the issue, particularly where the employee, in effect, is directed to remain in "standby" status. Plaintiffs assert that when General Leon J. LaPorte ("General LaPorte") issued his orders confining civilian employees to their "off-installation" quarters, those restrictions amounted to an order to remain in "standby" status as specified by 5 C.F.R. §550.112(k)(1), thereby in effect

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ordering them in writing to work overtime pursuant to 5 U.S.C. §5542. Defendant contends that only the Confinement Orders themselves are relevant to the resolution of its motion for summary judgment, yet submitted General LaPorte's self-serving Declaration as evidence. No citation to authority supports this novel perspective and, to the contrary, 5 C.F.R. §550.112(k)(1) requires examination of the circumstance, intent and purpose surrounding General LaPorte's insistence that his civilian employees who live "off-installation" remain on "standby duty" in a "state of readiness" to support the United States military. In other words, it is necessary for the Court to look beyond the four corners of the Confinement Orders to determine if Plaintiffs are entitled to overtime pay. Defendant insists that Plaintiffs are entitled to no discovery and, unlike the case at bar, cites to cases adjudicating whether additional discovery was warranted, not whether it should be dispersed with in its entirety. Plaintiffs' Rule 56(f) Affidavit documents the discovery necessary relating to relevant proof of the basis for compensable overtime that is required by OPM regulations, a showing more than sufficient to proceed with discovery. Defendant complains that Plaintiffs have not produced "credible evidence" to support their case when, in the same breath, Defendant seeks to suppress all discovery of the evidence that would disclose those facts. This is not the normal litigation process. Accordingly, Plaintiffs' Motion for an Extension of the

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Continuance to Reply to Defendant's Motion for Summary Judgment to Permit Plaintiffs to Conduct Discovery should be granted.

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When discussing all relevant FRAGO and general orders collectively, Plaintiffs will refer to these orders as "Confinement Orders."
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II.

The Authority Cited By Defendant Does Not Support Its Argument That Plaintiffs Should Be Denied All Discovery

Defendant exaggerates the holdings of the cases it cites. The questions presented in those cases were whether the non-movant was entitled to additional discovery well beyond the norm, not whether discovery should be dispensed with in its entirety. Contrary to the situation

presented in the case at bar, substantial discovery was afforded to the non-movant in each of the cases cited by Defendant. See Catellus Dev. Corp. v. United States, 26 Cl. Ct. 210 (1992) (following defendant's pretrial discovery and motion to dismiss, plaintiff was entitled to additional discovery necessary to assist it in defending against the motion to dismiss); International Graphics v. United States, 3 Cl. Ct. 715 (1983) (following discovery by both parties, plaintiff's motion to compel production of documents was denied during pendency of defendant's motion for summary judgment because the documents sought by plaintiff were not relevant to the pending motion); Reliance Ins. Co. v. United States, 18 Cl. Ct. 359 (1989) (defendant's motion to suspend discovery was granted only because plaintiff's outstanding discovery requests did not relate to matters raised in defendant's motion for partial summary judgment, and the court allowed additional discovery on certain other claims)2; Moore, U.S.A., Inc. v. Standard Register Co., 229 F.3d 1091 (Fed. Cir. 2000), cert. denied, 121 S. Ct. 1734 (2001) (in patent infringement action, court refused to allow plaintiff additional discovery to conduct "fishing expeditions" in hopes of finding products that might be infringing to oppose motion for summary judgment); Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624 (Fed. Cir. 1984) (in trademark registration action, court granted motion for summary judgment because there was no likelihood of confusion and found that additional discovery was not warranted
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The court made a narrow ruling and indicated that the specific interrogatory responses and documents sought by plaintiff, even if obtained, would not create a material issue of fact. See Moore, U.S.A., Inc., 229 F.3d at 361-362.
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because it was based upon plaintiff's speculative hope of finding some evidence that might tend to support a complaint). Here, Defendant seeks to deny Plaintiffs any discovery at all in

violation of Rules 26(a)(5), 26(b)(1) and 56(c) of the Rules of the United States Court of Federal Claims ("RCFC"). Defendant's cited authority actually supports granting Plaintiffs' motion to permit normal discovery to proceed. III. Plaintiffs' Counsel's Affidavit Meets The Requirements Set Forth In RCFC, Rule 56(f)

Defendant asserts that the Rule 56(f) Affidavit "submitted by plaintiffs does not establish a genuine issue of material fact." Defendant's Opposition ("Def. Oppo."), p. 5. Defendant misinterprets the Federal Circuit's ruling in Moore, U.S.A., Inc., v. Standard Register Co., 229 F.3d 1091 (Fed. Cir. 2000), cert. denied, 121 S. Ct. 1734 (2001), which held that the Rule 56(f) Affidavit should demonstrate how the discovery would enable the party to create a genuine issue of material fact. Plaintiffs' Counsel's affidavit clearly explains how the documentary and

testamentary discovery would demonstrate General LaPorte's intent, purpose, and authority as the employer of these civilian employees to restrict their movement so that the employees could fulfill their mission for the benefit of their employer to effectively assist U.S. troops in the event of military action. Discovery will substantiate that Plaintiffs were required by their employer to be on "standby duty" in a "state of readiness". Without question, such evidence would create a genuine issue of material fact that would render Defendant's motion for summary judgment fatally flawed. IV. Plaintiffs' Case Does Not Rest Solely On Examination Of The Confinement Orders

Defendant's argument that Plaintiffs' case is based entirely on the Confinement Orders themselves is both factually and legally inaccurate. The central premise of this case rests upon
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the definition of "standby duty" governed by §550.112(k)(1), as well as §550.111(c)'s requirement that there must be an underlying order in writing. The Confinement Orders were in writing and restricted the normal and customary freedoms afforded civilian employees in foreign countries. Though not denominated as order(s) to work overtime, Plaintiffs allege that they were required to remain on "standby duty" for specific periods of time thus entitling them to payment of overtime compensation. The Court's determination of whether the Confinement Orders

required Plaintiffs to be on "standby duty" requires detailed examination of the facts surrounding the confinement. In fact, Defendant undercuts its own straw man by acknowledging that "the central issue before the Court is whether the Curfew Orders were tantamount to an order to work" overtime. Def. Oppo., p. 7. Thus, General LaPorte's intent and purpose play a critical role in analyzing whether Defendant is liable for compensable overtime pay under the rules specified by OPM in §550.112(k)(1) as applied to the facts of this case. The detailed "Talking Points" issued by General LaPorte explained that the Confinement Orders were promulgated to enhance both civilian and military readiness in the event of an attack. "Readiness" is a key ingredient required by §550.112(k)(1) in order to justify a finding of "standby" status that, in turn, is a predicate for a finding of compensable overtime. Plaintiffs had no control over governmental orders and decision-making. General LaPorte's intent and purpose (apart from the "Talking Points") is archived exclusively by the government. Plaintiffs' access to documents and deposition testimony will, inter alia, answer: (1) Whether the civilian employees were confined by General LaPorte in his capacity as their employer rather than in his exercise of generalized military authority; (2) Whether the civilian employees were directed to remain in a "state of readiness"; (3) Whether the civilian employees were required to remain in a "standby" status;
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(4) Whether the purpose of the Confinement Orders was for the benefit of the employer; and (5) Whether the Confinement Orders substantially limited the activities of these civilian employees so that they could not utilize the time effectively for their own purposes. OPM regulations require proof of these mixed questions of law and fact based on the allegations of the Complaint. Defendant's argument that the Plaintiffs are not entitled to any discovery whatsoever is without merit. V. Defendant Has Raised An Affirmative Defense Concerning General LaPorte's Authority To Confine U.S. Civilian Employees "Off-Installation", Thus Opening The Door To Discovery

Defendant cites the Goldwater Nichols Act, 10 U.S.C. §164 et seq., as an affirmative defense to Plaintiffs' claims. Plaintiffs have consistently maintained that the legal standard governing this case is the employer-employee relationship as defined by the OPM overtime regulations. The Defendant instead asserts that General LaPorte had a "duty obligation" to restrict U.S. civilians who lived "off-installation" in order to "protect them from harm" and "to get them off the streets" in response to terrorist concerns. Defendant supports this affirmative defense by General LaPorte's Declaration representing that he acted solely in his capacity as a military commander pursuant to his "duty obligation" to protect his forces, including civilian employees. However, General LaPorte

explained in the "Talking Points" that he had ordered the civilians who lived "off-installation" to remain in a state of readiness to support the troops; this is a direct contradiction. The Goldwater-Nichols Act does not confer authority to military commanders to restrict the movement of U.S. civilians living "off-installation" on foreign soil. Independent of the plenary power operative within the gates of a military installation, restricting reasonable
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freedoms of U.S. civilians "off-installation" (absent martial law, or an Act of Congress) is impermissible. No authority to the contrary is cited by Defendant. Defendant now argues that General LaPorte's Declaration, which is replete with opinions and self-serving assertions as to his motives and intent, is superfluous and unnecessary to the Court's resolution of the motion for summary judgment. Defendant obviously introduced the Declaration in support of its motion in order to influence the Court with respect to facts alleged by General LaPorte, and Defendant cannot now disavow the broad factual scope of the declaration. General LaPorte attempted, unconvincingly, to marginalize and make irrelevant the damaging language within the "Talking Points" with respect to two critically important factual issues: (1) whether the continued "readiness" of the civilian employees to support the military troops' ability "to fight tonight" was an element of the General LaPorte's direction to the employees as evidenced by his intent in issuing the Confinement Orders; and (2) whether the purpose of the Confinement Orders was for the benefit of the employer in enhancing the readiness of the troops, not -- as he stated in his declaration -- simply to protect the civilians from harm's way. Thus, Defendant opened the door and placed General LaPorte's credibility in issue, and Plaintiffs must be afforded the opportunity to rebut his declaration. VI. General LaPorte's Declaration Is Rebuttable

Defendant boldly argues that General LaPorte not only is presumed to have acted in accordance within the law, but also is presumed to have testified truthfully in his Declaration under oath. The implication of Defendant's argument is that the presumption is unrebuttable. This argument fails completely for two reasons: (1) Plaintiffs do not claim that General LaPorte acted contrary to lawful authority in restricting civilian employees to remain in "standby" status but, rather, that the Confinement Orders lawfully amounted to orders to work overtime in
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accordance with the statute and §550.112(k)(1) of the OPM regulations; and (2) any presumption of regularity with respect to General LaPorte's declaration testimony obviously is subject to rebuttal as long as Plaintiffs are given the opportunity to cross-examine him by deposition. See, e.g., Lewis v. U.S., 67 Fed. Cl. 158 (2005) (court acknowledged rebuttable presumption that administrators of the military, like other public officers, discharge their duties correctly, lawfully and in good faith). VII. Defendant's "Sleeping Time" Argument Is Entirely Without Merit Under OPM Regulations

Defendant also insists that Plaintiffs have no claim because they were "sleeping" during the hours of the Confinement Orders and, in Defendant's view, an eight-hour period or less normally devoted to sleep cannot constitute compensable overtime. First, the initial phase of the confinement began at 9 p.m., not a time normally reserved by adults for sleeping. Second, pursuant to 5 C.F.R. §550.112(m)(3), the "sleep-time" argument is inapplicable to all three phases of the confinement because the eight-hour or less sleep-time exception to compensable overtime (formerly known as the "two-thirds" rule) only applies to work-shifts 24-hours or more in length, a situation not remotely presented by the facts in this case. §550.112(m)(3). VIII. Defendant's Motion For Summary Judgment Is Also Premature Because Certification Of A Class Takes Precedence Finally, Defendant's motion for summary judgment is premature also because the sequence of proceedings under Rule 23, RCFC, is to first address issues of class certification. While the Court must engage in a serious inquiry as to whether a justiciable claim has been presented, Defendant blurs the legal lines distinguishing a motion to dismiss for failure to state a claim from a motion for summary judgment.
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See 5 C.F.R.

Defendant has waived any Rule 12(b)(6)

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objections to dismiss Plaintiffs' Complaint for, inter alia, failure to state a claim. Defendant instead moves for summary judgment. But, Plaintiffs have made a prima facie showing of entitlement to overtime pay pursuant to 5 U.S.C. §5542. As such, resolution of this class action on the merits is inappropriate at this juncture. See, e.g., Bowling v. Pfizer, Inc., 142 F.R.D. 302 (S.D. Ohio 1991) (holding that class certification issues should be addressed before consideration of a motion for summary judgment because considering class certification allows a subsequent judgment to be binding on the class instead of only the named class representatives). Plaintiffs will file a Motion for Class Certification in the immediate future, and Plaintiffs respectfully request that the Court adopt a Scheduling Order including the timing for Plaintiffs' class certification motion. IX. Conclusion

In sum, Defendant has taken the extraordinary route of trying to shut Plaintiffs out of any routine discovery because it fears what material evidence Plaintiffs will uncover that now rests in Defendant's exclusive possession. Merely characterizing this case as an open and shut analysis only of the Confinement Orders themselves is unsupportable given the required judicial inquiry as to the factual parameters consistent with §550.112(k)(1). Moreover, Defendant's argument that Plaintiffs are not entitled to any discovery fails in light of the singular reliance on General LaPorte's untested Declaration in support of its motion for summary judgment. A hallmark of litigation before this Court has always been to provide each party with an opportunity to prove its case assisted by the Court's implementation of the discovery rules. Plaintiffs have demonstrated that there are a myriad of material facts deserving inquiry to both prove Plaintiffs' allegations and to disprove Defendant's reliance on General LaPorte's Declaration as an affirmative defense.
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This Court's recent pronouncement in Judith A. Mansfield v. United States, 71 Fed. Cl. 687 (2006), is controlling and follows consistent precedent. In Mansfield, the defendant supplied substantial documentary evidence through discovery well before plaintiff's counsel filed a Rule 56(f) Affidavit. The court refused to bar further discovery. Plaintiffs are entitled to no less in this case and the opportunity to depose General LaPorte and others will carve this case down to manageable, precise issues that expedite its resolution. Respectfully submitted, August 23, 2006 s/Ira M. Lechner Ira M. Lechner 19811 4th Place Escondido, CA 92029 (858) 864-2258 Attorney for Plaintiffs

OF COUNSEL: Susan Tsui Grundsmann General Counsel NATIONAL FEDERATION OF FEDERAL EMPLOYEES 1016 16th Street, N.W. Washington, D.C. 20036 (202) 862-4457 Fax (202) 862-4432 Jeffrey R. Krinsk Mark A. Golovach FINKELSTEIN & KRINSK LLP 501 West Broadway, Suite 1250 San Diego, CA 92101-3593 (619) 238-1333 Fax (619) 238-5425

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CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on this 23rd day of August, 2006, a copy of the foregoing "PLAINTIFFS' REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFFS' RULE 56(F) MOTION TO CONDUCT DISCOVERY" was filed electronically in the United States Court of Federal Claims. 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 electronic filing system.

s/Ira M. Lechner Ira M. Lechner