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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) JORGE A. DELPIN-APONTE, et al., ) ) ) Plaintiffs, ) ) No. 05-1043C v. ) (Judge Wolski) ) THE UNITED STATES, ) ) Defendant. ) ____________________________________)

DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION

PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director MARK A. MELNICK Assistant Director MICHAEL DIERBERG Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Class. Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530

Of Counsel: DANIEL GARRY Attorney Law Department United States Postal Service 475 L'Enfant Plaza, SW Washington, D.C. 20260 September 17, 2007

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TABLE OF CONTENTS PAGE

DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION ............................................................................................................ 1 ARGUMENT ................................................................................................................................. 3 I. II. A Rule 23 Class Action Is Unavailable for FLSA Claims .................................... 3 Even If Rule 23 Were Applicable, Plaintiff's Motion For Class Certification Should Be Denied ............................................................................. 7

CONCLUSION ............................................................................................................................ 16

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TABLE OF AUTHORITIES CASES PAGE(S)

Adams v. United States, 21 Cl. Ct. 795, 797 (1990) ........................................................................................... 5, 15 Arrington v. Nat. Broadcasting Co., 531 F. Supp. 498 (D.D.C. 1982) ....................................................................................... 4 Briggs v. United States, 54 Fed. Cl. 205 (2002) ................................................................................................ 5, 15 Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240 (11th Cir. 2003) ........................................................................................ 4 Canfield v. United States, 14 Cl. Ct. 687, 689 (1988) ................................................................................................ 4 D'Anna v. M/A-COM, Inc., 903 F. Supp. 889 (D.Md. 1995) ...................................................................................... 11 Ewer v. United States, 63 Fed. Cl. 396 (2004) ...................................................................................................... 7 Frank v. McQuigg, 950 F.2d 590 (9th Cir. 1991) ................................................................................... passim Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147 (1982) ........................................................................................................ 12 Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989) ...................................................................................................... 4, 5 LaChapelle v. Ownes-Illinois, Inc., 513 F.2d 286 (5th Cir. 1975) ............................................................................................ 4 Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095 (10th Cir. 2001) ........................................................................................ 5 United States v. Cook, 795 F.2d 987 (Fed. Cir. 1986) ...................................................................................... 4, 5
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STATUTES AND REGULATIONS PAGE(S) 29 U.S.C. § 207 ............................................................................................................................. 4 29 U.S.C. § 216(b) ............................................................................................................... passim 29 U.S.C. § 256 ......................................................................................................................... 6, 7 5 C.F.R. § 551.512 ................................................................................................................. 13, 15 29 C.F.R. § 778.109 .............................................................................................................. 13, 15 29 C.F.R. § 778.110 .............................................................................................................. 13, 15 MISCELLANEOUS

Wright & Miller, 7B Fed. Prac. & Proc. Civ.3d § 1807 ........................................................... 3, 6

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) JORGE A. DELPIN-APONTE, et al., ) ) ) Plaintiffs, ) ) No. 05-1043C v. ) (Judge Wolski) ) THE UNITED STATES, ) ) Defendant. ) ____________________________________)

DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION Pursuant to Rule 7.2 of the Rules of the Court of Federal Claims ("RCFC"), defendant, the United States, respectfully provides this response in opposition to plaintiffs' amended motion for class certification pursuant to RCFC 23. This Court should deny plaintiffs' motion because RCFC 23 is inapplicable to Fair Labor Standards Act ("FLSA") claims. Multi-party FLSA suits may instead be brought only as "collective actions" governed by 29 U.S.C. § 216(b), which are distinct from class actions brought pursuant to Rule 23 of the Federal Rules of Civil Procedure ("FRCP") or RCFC 23. Even if RCFC 23 could apply to this action, plaintiffs have not demonstrated that certifying a class action at this time is appropriate. Plaintiffs' complaint and plaintiffs' amended motion for class certification fail to define the proposed class in any meaningful or useful way. Furthermore, plaintiffs fail to describe what claims they are asserting. The complaint indicates that plaintiffs are asserting that the United States Postal Service ("USPS") erroneously pays FLSA overtime at 1.5 times the basic rate, and suggests that plaintiffs are only seeking that the FLSA overtime calculation treat the Territorial Cost of Living Adjustment ("TCOLA") in the

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manner required by the Ninth Circuit. However, it appears from summary judgment oral argument that plaintiffs now recognize that USPS pays FLSA overtime at more than 1.5 times the basic rate. In addition, plaintiffs suggested during oral argument that they may seek to expand this action beyond the allegations in their complaint. Plaintiffs indicated that their claims may also challenge the calculation of FLSA overtime treatment of unspecified premiums other than TCOLA, but plaintiffs could not say for sure. Plaintiffs fail to provide any clarity regarding their claims in their amended motion for class certification. Because plaintiffs have failed to define the class or identify what claims they are asserting, class certification is inappropriate. It is impossible to determine whether potential class members may be similarly situated without knowing what claims are being asserted or how the potential class would be defined. Plaintiffs have only provided a conclusory statement regarding the similarity of claims in which they essentially assert that the common element among the proposed members is the statute allegedly violated. This statement fails to meet plaintiffs' burden of establishing that a class action would be appropriate. Likewise, without a proper definition of the class or identification of claims asserted, proper notice to prospective plaintiffs is impossible. Not only is it impossible for the Court and the parties to determine to whom the notices should be sent, the Court and the parties would be unable to provide necessary information in the notice such as the nature of the claims, or what defenses the Government might have to those claims. Further, it is also unfair to the purported class members because the class counsel, who is charged with representing the class, cannot adequately represent the class because counsel can not identify what claims he is asserting.

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Class certification at this time also would not promote the just, speedy, and inexpensive resolution of this matter. See RCFC 1. One of the primary purposes of class actions and collective actions is to avoid duplicative suits. Yet, there is no indication that there are likely to be duplicative suits, or that new plaintiffs could not be added through other means. Furthermore, the Government's summary judgment motion has been fully briefed, and all that remains prior to the ultimate resolution of this matter is limited discovery permitted by the Court pursuant to Rule 56(f), and possibly supplemental briefing. Significantly expanding the group of plaintiffs to encompass a class that plaintiffs are unable to define can only complicate matters and lead to further delay. ARGUMENT I. A Rule 23 Class Action Is Unavailable For FLSA Claims Plaintiff's motion pursuant to RCFC 23 to certify a class should be denied because Rule 23 does not apply to FLSA claims. As one commentator has explained with respect to the analogous FRCP 23: Collective actions under the Fair Labor Standards Act (FLSA) are a unique species of group litigation. Unlike other [suits] that are governed by Rule 23, actions on behalf of individuals claiming that employers violated the FLSA are brought as `collective actions' under the statute. Wright & Miller, 7B Fed. Prac. & Proc. Civ.3d § 1807 (comparing FLSA collective actions to class actions pursuant to FRCP 23). The FLSA is unique in that 29 U.S.C. § 216(b) specifically limits the manner in which suits may be brought against employers: An action to recover the liability prescribed in [29 U.S.C. § 207] may be maintained against any employer (including a public -3-

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agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No 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 in the court in which such action is brought. 29 U.S.C. § 216(b). The legislative history of this section demonstrates that Congress' intent was "to prevent large group actions, with their vast allegations of liability, from being brought on behalf of employees who had no real involvement in, or knowledge of, the lawsuit." United States v. Cook, 795 F.2d 987, 993 (Fed. Cir. 1986) (quoting Arrington v. Nat. Broadcasting Co., 531 F. Supp. 498, 501 (D.D.C. 1982)). In light of section 216(b), this Court's predecessor and other courts have held that Rule 23 is inapplicable to FLSA suits. See, e.g., Canfield v. United States, 14 Cl. Ct. 687, 689 (1988) (stating that an FLSA collective action "is therefore mutually exclusive of the class action remedy in FRCP 23, or RUSCC 23"); see also Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1249 (11th Cir. 2003) (describing a collective action pursuant to section 216(b) as "a fundamentally different creature than the Rule 23 class action"); LaChapelle v. OwnesIllinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975) ("It is crystal clear that [section 216(b)] precludes pure Rule 23 class actions in FLSA suits."). Plaintiffs have not identified a single decision by this Court or its predecessors certifying a class action pursuant to FRCP or RCFC 23 related to FLSA claims, and we are not aware of any such decision. Moreover, the Supreme Court and this Court have evaluated the rules regarding FLSA collective actions without regard to the requirements of Rule 23. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171 (1989) (analyzing the district court's discretion with respect to notice to potential plaintiffs in a FLSA collective action, with only -4-

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passing reference to FRCP 23 for the proposition that the trial court has an interest in communications that are mailed for single actions involving multiple parties); Cook, 795 F.2d at 990 (analyzing the trial court's discretion with respect to notice without referring to FRCP or RCFC 23 except to distinguish FRCP 23) Section 216(b) is similar to RCFC 23 in that both require plaintiffs to opt-in, rather than opt-out, in contrast to FRCP 23. Compare 29 U.S.C. § 216(b) (requiring opt-in) with RCFC 23(c)(2)(B) (same) with FRCP 23(c)(2)(B) (requiring opt-out). Furthermore, courts sometimes use the terms collective action and class action interchangeably. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 & n.3 (10th Cir. 2001) (distinguishing collective actions from Rule 23 class actions, but noting that courts often use similar terminology for both). Nevertheless, there are a variety of differences between FLSA collective actions and class actions pursuant to RCFC 23, including the following: 1. Notice. In a class action pursuant to RCFC 23, once a class is certified, the Court "must direct to class members the best notice practicable under the circumstances." RCFC 23(c)(2)(B). In contrast, in FLSA collective actions, there is no requirement that the Court provide any notice to prospective plaintiffs. See 29 U.S.C. § 216(b). The Supreme Court has concluded that notice of an FLSA action is a matter squarely within the trial court's discretion, Hoffmann-La Roche, 493 U.S. at 171-74, and this Court in some instances has concluded that providing notice is inappropriate. E.g., Briggs v. United States, 54 Fed. Cl. 205, 206-07 (2002) (rejecting plaintiffs' request for notice by the Court, and stating that Hoffman-La Roche "does not hold that a court is required to order the issuance of such notices as plaintiffs request, nor does it raise such a presumption"); Adams v. United States, 21 Cl. Ct. 795, 797 (1990) (rejecting

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request for notice by the Court, and noting that "there is no presumption that the court ought to facilitate expansion of the plaintiff group"). 2. Similarly Situated. Section 216(b) neither refers to Rule 23, nor adopts the four-part test of Rule 23(a). See RCFC 23(a) (four-part test requiring numerosity, common questions of law or fact, typicality, and that representative parties will fairly and adequately protect the interests of the class); FRCP 23(a) (same). Instead, section 216(b) requires that the plaintiffs in a FLSA collective action must be "similarly situated." 29 U.S.C. § 216(b). Thus, "[m]ost courts have held that Rule 23 certification requirements do not apply in collective actions . . . ." Wright & Miller, 7B Fed. Prac. & Proc. Civ.3d § 1807. 3. Limitations Period. In a class action pursuant to FRCP 23, the statute of limitations for unnamed class members begins to run from the date the class is certified or when an individual opts out. Wright & Miller, 7B Fed. Prac. & Proc. Civ.3d § 1807. In contrast, the limitations period for each additional plaintiff in an FLSA collective action begins to run from the date that the individual files his or her notice of consent. Id. This difference flows, in part, from the unambiguous language of 29 U.S.C. § 256, which provides that the action will be deemed to commence for an individual not named in the complaint : in the case of a collective or class action instituted under the Fair Labor Standards Act of 1938 . . . [the individual's action] shall be considered to be commenced in the case of any individual claimant ­ (a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought; or (b) if such written consent was not so filed or if his name did not so appear-- on the subsequent date on which such written consent is filed in the court in which the action was commenced.

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29 U.S.C. § 256; see also Def. Reply. Br. In Supp. Of Mot. To Dis. & Mot. For Sum. Judg. at 8-9 (citing cases holding that limitations period runs from the date each plaintiff files his or her consent).1 II. Even If Rule 23 Were Applicable, Plaintiff's Motion For Class Certification Should Be Denied Even if the Court concludes that RCFC 23 is applicable to FLSA collective actions, plaintiffs' motion for class certification should be denied because plaintiffs have neither defined the class nor identified their claims with sufficient particularity to make class certification appropriate. Without a proposed definition of the class or identification of claims, class certification is inappropriate because the Court cannot determine whether the individuals in the proposed class are similarly situated, nor provide reasonable notice to prospective members of the class, and the class agent cannot adequately represent the class because the class agent does not know what claims he is asserting. In its original motion for class certification, plaintiffs made no effort whatsoever to define the proposed class. Pl. Init. Mot. for Class Cert. Government counsel brought this deficiency to the attention of counsel for plaintiffs shortly after plaintiffs' original motion was filed, and plaintiffs subsequently amended their motion to indicate that the proposed class would include "all former and present employees of the US Postal Service in Puerto Rico who are

Although plaintiffs have previously relied upon Ewer v. United States, 63 Fed. Cl. 396 (2004), for the proposition that the limitations period can begin to run prior to the filing of a written consent, this decision notably made no reference to 29 U.S.C. § 256. Id. at 400. Instead, the Court noted that the Government did not respond to plaintiffs' arguments regarding relation back pursuant to RCFC 15, and it appears that the Court was unaware of the implications of section 256. Id. -7-

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entitled to the rights pleaded in the complaint filed in the captioned case." Pl. Amend. Mot. at 1.

This amendment to plaintiffs' motion for class certification only underscores plaintiffs' inability to define the class and to decide what claims they are asserting. This is not a definition of the class ­ it gives no indication how one might determine which individuals "are entitled to the rights pleaded in the complaint." Neither the Court nor the Government would have any way of knowing who is in the proposed class, nor to whom notice should be directed. It appears that plaintiffs are unable to define the class because they are still unsure what claims they are asserting. Plaintiffs claim in their amended complaint that they do not receive as much as similarly situated employees in Alaska and Hawaii with respect to the calculation of FLSA overtime pay based upon TCOLA. Compl. ¶ 17. Plaintiffs also contended that USPS erroneously pays FLSA overtime at 1.5 times the basic rate of pay, rather than 1.5 times the regular rate of pay. Compl. ¶ 16, 18, 20. Furthermore, the complaint strongly suggests that plaintiffs' claims are limited to the same claims asserted, and relief obtained, by the plaintiffs in Frank v. McQuigg, 950 F.2d 590 (9th Cir. 1991). See Compl ¶ 28-30 (plaintiffs' estoppel claim based upon McQuigg). We filed a motion for summary judgment that was premised upon the understanding that plaintiffs' claims were limited to ensuring that they are paid in accordance with McQuigg. However, during oral argument, plaintiffs were unable to state what their case is about: THE COURT: [I]t's not clear to me from the complaint whether your claim is merely that the overtime isn't what McQuigg 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 McQuigg is dealing with the

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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: Your Honor ­ THE COURT: And that's what confuses me, that I'm not entirely sure, then, which ­ are you merely limited to the effect of the TCOLA on regular rate and on overtime pay? MR. LAMPON-GONZALEZ: We started like that, 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 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: I have to answer, apparently. I cannot say ­ THE COURT: It's somewhat ambiguous, I think, in the complaint. It was looking at Mr. Del 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 McQuigg as a precedent, you really couldn't rest on McQuigg for that, though. You 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: Absolutely. Yes. THE COURT: You need such a thing, right? MR. LAMPON-GONZALEZ: Yes. . . . App. A (Trans. at 100-03). Thus, at this point in time, it is unclear whether plaintiffs are asserting that: (1) USPS pays only 1.5 times the basic rate of pay, which is not what the McQuigg plaintiffs asserted; -9-

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(2) USPS must pay its employees in Puerto Rico what employees in Alaska and Hawaii receive based upon the Ninth Circuit's analysis in McQuigg of FLSA overtime pay upon TCOLA; or (3) USPS should pay more in Puerto Rico than it pays in Alaska and Hawaii because there should be no "proration" (to use the term employed by the Ninth Circuit in McQuigg) for premiums to basic pay other than TCOLA. The first two possibilities are what plaintiffs allege in the complaint, the third possibility is what plaintiffs have suggested that they may be asserting, but could not say for sure, during oral argument. In fact, the third possibility appears at odds with the complaint, in that plaintiffs concede that USPS employees in Alaska and Hawaii are paid in accordance with the FLSA. During oral argument, plaintiffs attempted to tie their inability to explain what claims are being asserted with their contention that they have not yet obtained adequate discovery regarding USPS's method for calculating FLSA overtime. See App. A (Trans. at 103). However, this is not a situation in which plaintiffs have formed a legal theory about what the law requires, and all that remains to be seen is whether defendant complies with the law as interpreted by plaintiffs, assuming that to be the correct interpretation. Instead, plaintiffs are not even sure what the law requires. They are not sure whether the law solely requires what the Ninth Circuit held in McQuigg with respect to TCOLA, or whether the law requires something else with respect to other premiums to basic pay, expressly not addressed in McQuigg. If the latter, plaintiffs have not indicated to which additional premiums their legal theory would apply. In light of plaintiffs' inability to decide what claims they are asserting, certification of a class is entirely inappropriate. It is impossible to determine whether the claims of the existing plaintiffs are sufficiently typical of class members to support a class action without knowing

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what claims plaintiffs are asserting. Likewise, it is impossible to determine for purposes of 29 U.S.C. § 216(b) whether plaintiffs are "similarly situated" without knowing what claims plaintiffs are asserting. Given plaintiffs' uncertainty regarding the nature of their claims, it is not surprising that plaintiffs can only provide in their amended motion for class certification a conclusory statement regarding the similarity of plaintiffs' claims. Plaintiffs state: The claims of Jorge A. Delpin-Aponte are the exact same claim[s] of the putative members of the class. That is, the U.S. Postal Employees as well as Mr. Delpin-Aponte, claim that the Defendants have been, and will continue, violating the [FLSA], by incorrectly calculating their overtime as required by the FLSA. Pl. Amend. Mot. at 3. If plaintiffs can meet the typicality requirement in RCFC 23, or the similarly situated requirement in 29 U.S.C. § 216(b), with a conclusory statement in which the only similarity identified is little more than the provision of law allegedly violated, then these requirements would be meaningless. Plaintiffs have the burden to demonstrate these requirements, and plaintiffs' conclusory assertion is legally insufficient. See D'Anna v. M/A-COM, Inc., 903 F. Supp. 889, 893-94 (D.Md. 1995) (denying motion to proceed as a collective action based upon vague allegations). As the court explained in D'Anna, As a matter of sound case management, a court should, before offering to assist plaintiff in locating additional plaintiffs, make a preliminary inquiry as to whether a manageable class exists. . . . The courts, as well as practicing attorneys, have a responsibility to avoid the `stirring up' of litigation through unwarranted solicitation. Furthermore, an employer should not be unduly burdened by a frivolous fishing expedition conducted by plaintiff at the employer's expense. Id. at 894. -11-

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Plaintiffs' inability to define their claims also results in their inability to meet the requirements for notice to prospective class members. RCFC 23 requires that notice to potential class members include: (1) "the nature of the action;" (2) "the definition of the class certified;" and (3) "the class claims, issues, or defenses." RCFC 23(c)(2)(B). Likewise, RCFC 23 requires that the Court's order certifying a class "must define the class and the class claims, issues, or defenses . . . ." RCFC 23(c)(1)(B). If plaintiffs are unable to define the class or identify their claims, plaintiffs cannot expect the Court to do so for them. Furthermore, because of plaintiffs' uncertainty regarding what claims they are asserting, the Government cannot identify defenses we may assert. For example, if plaintiffs are asserting claims regarding FLSA overtime upon premiums other than TCOLA, our defenses may vary depending upon the premium. Certifying a class action at this time would also be unfair and unduly burdensome to the Government and to prospective plaintiffs. As the Supreme Court has noted, "`without reasonable specificity the court cannot define the class, cannot determine whether the representation is adequate, and the employer does not know how to defend.'" Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982) (quotations omitted) . The Court also found significant "the potential unfairness to the class members bound by the judgment if the framing of the class is overbroad." Id. Here, the Government already has consumed considerable resources defending this matter in district court and in this Court. During this time, plaintiffs' claims have been moving targets. Plaintiffs now seek to impose further burdens upon the Government based upon, at best, conclusory allegations and ill-defined claims.

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Furthermore, it is unduly burdensome and unfair to potential plaintiffs to ask them to decide whether they wish to participate in, and be bound by, a suit in which the existing plaintiffs are uncertain as to the claims that they are asserting. This is particularly true because, depending upon what claims existing plaintiffs advance, the compensation for some employees may go down, not up. The McQuigg decision is based upon the premise that it matters for purposes of FLSA overtime pay calculations whether a plaintiff's entitlement to TCOLA arises solely in the first 40 hours of work, during the overtime period, or during all hours of work. The court in McQuigg held that the employees' entitlement to TCOLA was solely based upon the first 40 hours of work and, thus, USPS could not average or "prorate" TCOLA over more than 40 hours of work when calculating FLSA overtime pay. McQuigg, 950 F.2d at 595-97. As the Court is aware based upon prior summary judgment proceedings, the Department of Labor and the Office of Personnel Management have interpreted the FLSA as not requiring any evaluation of whether an employee's entitlement to a premium arose in the first 40 hours of work, during the overtime period, or during all hours of work. See 29 C.F.R. §§ 778.109, 778.110; 5 C.F.R. § 551.512. Regardless of when the premium was earned, the premium is averaged over all hours of work in calculating FLSA overtime. A different approach, one which clearly has been rejected by DOL and OPM, would be to calculate FLSA overtime pay based upon the pay the employee receives solely during the first 40 hours. Essentially, the "regular rate" would be redefined such that FLSA overtime pay is calculated solely based upon the pay and premiums received during the first 40 hours. Under this approach, the employer would never calculate FLSA overtime by averaging premiums to basic pay over more than 40 hours of work. Instead, the calculation of FLSA overtime for an

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employee whose entitlement to a premium arises in the first 40 hours of work would include that premium, averaged over 40 hours. However, an employee whose entitlement to the premium did not arise until after the first 40 hours of work would not have this premium included in the calculation of FLSA overtime pay under this approach. The consequence of this alternate approach, rejected by DOL and OPM, would be that employees whose entitlement to a premium arose during the first 40 hours would receive more FLSA overtime pay than they currently receive pursuant to DOL and OPM regulations. Conversely, employees whose entitlement to a premium arose during the overtime period would receive less than they currently receive pursuant to DOL and OPM regulations. While it is always unfair to ask prospective plaintiffs whether they would like to join in a suit without specifying what claims are being asserted, it is particularly unfair when, depending upon the claims asserted and the particular circumstances, the prospective plaintiffs' pay may decrease. If plaintiffs' response is that their pay cannot go down because the "regular rate" as defined by OPM and DOL includes certain premiums regardless of when they are received, this would demonstrate the error in their analysis. The regular rate includes premiums regardless of when the entitlement arises, and averages them over all hours of work in calculating the regular rate, because it does not matter for FLSA purposes when the entitlement arises. See 29 C.F.R. §§ 778.109, 778.110; 5 C.F.R. § 551.512. Including premiums received regardless of when earned in a given week makes sense in the context of a system in which the premiums are averaged over all hours of work in that week. That is because the "regular rate" upon which overtime pay is determined, is a rate, or average hourly compensation, for all hours of work during the week, not just the first 40. See, e.g., 29 C.F.R. § 778.109. Including premiums

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earned during all hours of work and averaging those premiums over all hours of work are thus inextricably linked.2 Finally, plaintiffs have not demonstrated that class certification would promote the "just, speedy, and inexpensive determination" of this action. See RCFC 1 (stating that the Court's rules should be "construed and administered to secure the just, speedy, and inexpensive determination of every action."). This Court has denied other employees' request to provide notice based in part upon the Court's consideration of the purposes underlying collective actions: Although collective actions are designed to avoid duplicative suits, plaintiffs have provided no substantial evidence that these suits might occur. Since this lawsuit began, no consenters have joined this suit and no evidence exists that the resources of this court will be taxed by an inordinate number of additional lawsuits. Moreover, in the event that such cases were filed, this court could, if necessary, consolidate them pursuant to RCFC 41. Briggs, 54 Fed. Cl. at 206-07; see also Adams, 21 Cl. Ct. at 797 (denying request for judicial notice to prospective FLSA plaintiffs). Similarly, there is no indication here that there are likely to be duplicative suits. The McQuigg decision was issued more than 15 years ago, and all of the potential issues in this case have been the same for at least that long, or longer, depending upon what claims plaintiffs are asserting. Nevertheless, plaintiffs' suit is the only suit that we are aware of to challenge USPS's methodology for calculating FLSA overtime pay. Furthermore, to the extent that additional

To the extent that plaintiffs may contend that a premium earned in the first 40 hours of a 50-hour workweek should be averaged solely over the first 40 hours in calculating FLSA overtime, but a premium earned only in the overtime period should be averaged over the full 50hour workweek in calculating FLSA overtime, logic cannot support such flawed analysis. Plaintiffs would essentially be arguing that the Government should revise its calculation for FLSA overtime pay to take into account when a premium was earned, but only when doing so works to plaintiffs' advantage. -15-

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plaintiffs seek to be added to the lawsuit, we do not see any impediment to them joining the suit through other means. Furthermore, certifying a class is only likely to delay a just resolution of this matter. The Government's motion for summary judgment has been fully briefed and argued, and the Court denied this motion solely for the purpose of allowing plaintiffs limited discovery pursuant to Rule 56(f). Significantly expanding the group of plaintiffs to encompass a class that plaintiffs are unable to define can only complicate matters and lead to further delay. CONCLUSION Class certification pursuant to RCFC 23 is not appropriate because this rule does not apply to FLSA collective actions, and even if it did, plaintiffs have not identified what claims are being asserted or defined the class. Furthermore, plaintiffs have not demonstrated that class certification is necessary to avoid duplicative suits, or would facilitate the just, speedy, and inexpensive resolution of this matter. Therefore, we respectfully request that the Court deny plaintiffs' motion for class certification pursuant to RCFC 23.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director /s/ Mark A. Melnick MARK A. MELNICK Assistant Director

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Of Counsel: DANIEL GARRY Attorney Law Department United States Postal Service 475 L'Enfant Plaza, SW Washington, D.C. 20260 September 17, 2007

/s/ Michael Dierberg MICHAEL DIERBERG Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Class. Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530

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