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

Case 1:05-cv-01043-VJW

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Appendix

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motion goes, when they can rest on their papers and then add whatever additionally we would need after the discovery was done. But I don't think that there would be any harm, and not really much prejudice to the government either if we were to allow things to be tied up at least as far as this particular information that will show your expert or show your clients, for that matter, what flows into what to derive each of those numbers. MR. LAMPON-GONZALEZ: THE COURT: There you go.

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I do have a couple of other First, as I

questions, though, while you're here.

mentioned earlier, it's not clear to me from the complaint whether your claim is merely that the overtime isn't what McQuig requires, but instead it seems that you seem to be claiming that payment should be one and half times the regular rate, period, and that if the premium to respond to McQuig is dealing with the TCOLA, it's not dealing with anything else that goes into the regular rate for the 1.5 of the overtime hours. MR. LAMPON-GONZALEZ: THE COURT: Your Honor --

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And that's what confuses me,

that I'm not entirely sure, then, which -- are you Heritage Reporting Corporation (202) 628-4888

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merely limited to the effect of the TCOLA on regular rate and on overtime pay? MR. LAMPON-GONZALEZ: We started like that,

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and as we got information and it was examined by the expert witness, and I believe it is in his report, he brought about the possibility that there are other items, or I don't know what word to use -THE COURT: Yes, but basically so you're

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theory of the case is that the reason that your clients are not paid what they should be getting paid under the FLSA overtime provision is because it appears that all additions to pay that count for: regular rate aren't being taken into consideration in deciding the overtime pay? MR. LAMPON-GONZALEZ: apparently. I cannot say -It's somewhat ambiguous, I It was looking at Mr. Del I have to answer,

THE COURT:

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think, in the complaint.

Valle's calculations, where I realize that he appeared to have been basing things on the full regular rate, which included everything else that raises the average hourly rate up above the basic rate. All the other

sort of additions and things, which obviously to the extent you could rest on McQuig as a precedent, you really couldn't rest on MCQuig for that, though. Heritage Reporting Corporation (202) 628-4888 You

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would really need to come forth with a legal argument that the FLSA requires that all those things be taken into account, right? MR. LAMPON-GONZALEZ: THE COURT: Absolutely. Yes.

You need such a thing, right? Yes. And I also need

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MR. LAMPON-GONZALEZ:

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more specifics, and the government during the course of this morning has argued some points that we're not getting into at this point, or at this moment in time, but in the future we may need to with regards to the motion. But again it all comes down to government

claiming or stating to Your Honor that Plaintiffs know all the facts, and that the Plaintiffs live the facts every day, every pay period. done by the USPS. But the compensat.ion is

The records are -I still don't -- I mean I guess

THE COURT:

what does somewhat trouble me, though, is it would seem to me that from the spreadsheets or the pay stubs or something, you should at least be able to tell whether or not you're getting paid more than one and half times the basic rate, for overtime. I mean you

would think that that would be on its face. So I'm a little bothered that in the amended complaint you mentioned there was an allegation that was one and a half times the basic rate in Puerto Rico Heritage Reporting Corporation (202) 628-4888

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for overtime! when I would think that that would be easily verifiable and would be known! that the question is really that it!s one and a half time something. It!s higher than the basic rate. It may

not be fully the regular rate! depending on how you look at it! and that really seems to be the gray area that werre wandering in. basic rate. THE COURT: I understand that. And as a It!s not really 1.5 times

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matter of fact! when we had the meeting in Puerto Rico and after that, our expert witness tried to reproduce the same information that was given by the government and was unable to! as he states in his report and in his sworn statement. And as you look at the

demonstrative presented by the Defendant this morning! it obviously states that we have different results. THE COURT: Uh-huh. So I am bothered by it

MR. LAMPON-GONZALEZ: as well.

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I just want to find out -THE COURT: If you put an allegation in the

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complaint that you get that something! s being limited to one and half times the basic! I mean you should have been able to check that. It seems that that

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wasn!t exactly what you seem to have been alleging about it. It doesn!t appear that the Post Office Heritage Reporting Corporation
(202) 628-4888

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anywhere was just paying one and a half times the basic rate for overtime pay. But you know, maybe the I

McQuig Court could have gotten that one wrong, too. don't know. MR. LAMPON-GONZALEZ: Honor. THE COURT: A couple other minor things. I understand, Your

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First, you didn't seem to respond, I think, to the argument concerning interest. You're not aware of any

statute that provides for payment of interest for this, right? MR. LAMPON-GONZALEZ: Honor. THE COURT: Okay. So the extent that the No, I'm not, Your

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claim is stated for interest, that could be dismissed for lack of jurisdiction, because we just can't on our own do that? MR. LAMPON-GONZALEZ: THE COURT: Okay.

And retirement benefits, you

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clarified that you were just putting that in as an example, I guess, in the complaint. But that's not

something that was being sought here, and that you understand that the retirement benefits, when the government says that they're not even affected by premiums, but any question of the retirement benefits Heritage Reporting Corporation (202) 628-4888