Free Response - District Court of Federal Claims - federal

Case 1:05-cv-01043-VJW

Document 57

Filed 04/09/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS JORGE A. DELPIN-APONTE, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 05-1043C (Judge Wolski)

DEFENDANT'S RESPONSE TO PLAINTIFFS' SUR-REPLY Pursuant to the Court's order dated March 12, 2007, defendant, the United States, submits this response to plaintiffs' sur-reply. In their motion for leave to file a sur-reply, plaintiffs claimed that the Government's reply brief "contains certain misstatements of facts which plaintiffs wish to point-out and clarify to this Honorable Court." Pl. Mot. for Leave at 1. Plaintiffs also asserted that a sur-reply was necessary because plaintiffs "wish to further clarify the record on various subjects, including the needed discovery, in order to assure that this Honorable Court has a clear and, perhaps, complete picture on the information defendant has not provided to plaintiffs and to the Court." Id. at 1-2. Plaintiffs fail to identify in their sur-reply any misstatements of fact by the Government. Instead, plaintiffs' sur-reply is merely a restatement of a statement that was submitted with plaintiffs' prior brief. In addition, plaintiffs' sur-reply demonstrates that plaintiffs' opposition to summary judgment is based upon vague and contradictory assertions. For example, Dr. del Valle asserts in his affidavit that he lacks sufficient information to determine whether the Government is paying plaintiffs as much as the FLSA requires, yet plaintiffs contend in their surreply based upon Dr. del Valle's analysis that plaintiffs are not paid as much as the FLSA requires. Compare del Valle Aff. ¶ 9 with Pl. Sur-Reply at ¶ 10. Plaintiffs fail to explain how they can conclude that they do not receive adequate pay, when their expert states he lacks sufficient information to determine whether they receive adequate pay. See Precision Pine &

Case 1:05-cv-01043-VJW

Document 57

Filed 04/09/2007

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Timber, Inc. v. United States, 63 Fed. Cl. 122, 135-36 (2004) (granting summary where the party opposing summary judgment based its opposition upon contradictory statements). In any event, Dr. del Valle fails to identify specifically the information that prevents him from determining whether plaintiffs were adequately paid pursuant to the FLSA. For example, Dr. del Valle suggests that the Government omitted certain "original data," but fails to explain to what he is referring, or how the alleged omission of "original data" squares with his assertion that he "always used original USPS-furnished data." See del Valle Aff. at ¶ 11, 13. As we demonstrated in our reply brief, we provided plaintiffs' with the formula, payroll records, affidavits, etc., and plaintiffs have not identified a single timely discovery request to which we failed to respond. Plaintiffs also suggest in their sur-reply that they seek depositions pursuant to Rule 56(f) of the Rules of this Court to better understand the Government's methodology for computing plaintiffs' overtime pay. Pl. Sur-Reply at ¶ 11. However, as we demonstrated in our reply brief, the central issue in this case is whether plaintiffs received less than the appropriate overtime payment, regardless of the formula used by the Postal Service in arriving at that payment. Plaintiffs cannot contend that they lack sufficient information from the discovery that has already taken place, not to mention their own bi-weekly statements, to know how much they were paid. In short, plaintiffs have not identified any genuine issue of fact that would preclude summary judgment, or provided any reason to believe that further discovery will lead to facts that are "essential" to justify plaintiffs' opposition to summary judgment. See RCFC 56(f) (stating that further discovery may be permitted when the opposing party "cannot for reasons stated present by affidavit facts essential to justify the party's opposition"). For these reasons, and the reasons stated in our prior briefs, we respectfully request that the Court dismiss plaintiffs' complaint in part, deny plaintiffs' request for additional discovery pursuant to Rule 56(f), and grant summary judgment in favor of the Government.

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Case 1:05-cv-01043-VJW

Document 57

Filed 04/09/2007

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

Of Counsel: DANIEL GARRY Attorney Law Department United States Postal Service 475 L'Enfant Plaza, SW Washington, D.C. 20260 April 9, 2007

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