Free Reply to Response to 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, v. THE UNITED STATES, Defendant ) ) ) ) ) ) ) ) )

No. 05-1043C (Judge Wolski)

DEFENDANT'S REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANT'S PARTIAL MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT Pursuant to Rules 12 and 56 of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests that the Court dismiss plaintiffs' claims that accrued outside of the statute of limitations or are otherwise not within this Court's jurisdiction, and requests that the Court grant summary judgment in favor of the Government on the remaining claims. The Government has amply demonstrated, as a matter of law, that it pays plaintiffs overtime in accordance with the Fair Labor Standards Act ("FLSA"). In contrast, plaintiffs have provided no legal or factual basis for their claim that the Government does not pay overtime in accordance with the FLSA. Plaintiffs contend in their opposition that: (1) the Government "has never disclosed to plaintiffs the complete formula it uses for the computation of wages and overtime in Puerto Rico or elsewhere," Plaintiffs' Opposition at 2; and (2) the Government's defense is barred by the doctrine of res judicata, id. at 14-17. However, plaintiffs' brief in opposition and exhibits demonstrate that the parties have had an opportunity to engage fully in discovery. During discovery, the Government produced, among other documents, its overtime calculation formula, detailed calculations of plaintiffs' overtime payments, and three years of payroll records for the original 13 plaintiffs for whom the parties had agreed discovery would be conducted. In

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addition, the district court record reflects that the court ordered discovery and the parties engaged in discovery. See Civil Docket, Case No. 3:02-CV-01787, D.P.R. ("Dist. Ct. Dock.") at 27-28, 31-33, 37-38, 44-47, 50-58, 61-61, 64-65.1 Finally, plaintiffs' res judicata (claim preclusion) contention is without merit because plaintiffs have not previously brought the same cause of action against the Government. I. Plaintiffs Have Failed To Show That Further Discovery In This Case Is Necessary To Respond To The Government's Motion For Summary Judgment

"When responding to a motion for summary judgment, the non-moving party may seek discovery to enable it to present the court with evidence of the facts underlying its opposition." C.W. Over & Sons, Inc. v. United States, 44 Fed. Cl. 18, 23 (1999). Such discovery may be permitted when it is reasonably directed to facts essential to justify the party's opposition. RCFC 56(f); Opryland USA, Inc. v. Great American Music Show, Inc., 970 F.2d 847, 852 (Fed. Cir. 1992). However, when "there is no reason to believe that discovery will lead to the denial of a pending motion for summary judgment," Simmons Oil Corp. v. Tesoro Petroleum Corp., 86 F.3d 1138, 1144 (Fed. Cir. 1996), the Court is not required to grant discovery "merely on the hope on the part of a plaintiff that it might find evidence to support its complaint," Brubaker Amusement Co. v. United States, 304 F.3d 1349, 1361 (Fed. Cir. 2002). Furthermore, RCFC 56(f) requires that a party requesting discovery state, by sworn affidavit, "explicit reasons why discovery is required in opposition to the motion for summary judgment." Paalan v. United States, 57 Fed. Cl. 15, 17 (2003); Brubaker Amusement, 304 F.3d

Because the district court record has been transferred to this Court, we have not reproduced each document cited from the district court docket. However, for convenience in identifying the referenced filings, we have attached the relevant docket entries. 2

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at 1361. The United States Court of Appeals for the Federal Circuit has consistently held that a party may not defeat summary judgment when the party has not provided specific grounds for the requested discovery in the form of a sworn affidavit. See, e.g., Brubaker Amusement, 304 F.3d at 1361 ("[N]ot only have appellants failed to demonstrate more than a `speculative hope' of finding evidence to support their claim of enforcement, they have also failed to avail themselves of the protection of RCFC 56(g) by not filing an affidavit explaining why they could not respond to the summary judgment motion without discovery."); Keebler Co. v. Murray Bakery Prods., 866 F.2d 1386, 1389 (Fed. Cir. 1989); Pure Gold, Inc. v. Syntex (USA), Inc., 739 F.2d 626, 627 (Fed. Cir. 1984) (assertions of counsel do not defeat summary judgment). Plaintiffs have failed to set forth in any sworn affidavit, as required by the Rules of this Court, any specific facts that are unavailable and "essential" to oppose summary judgment. See Mattoon v. City of Pittsfield, 980 F.2d 1, 7-8 (1st Cir. 1992) ("Nor did the affidavit demonstrate a realistic prospect that further discovery would disclose evidence sufficient to defeat the motion for summary judgment, which was granted largely on legal rather than factual grounds."). Plaintiffs have filed two statements with their opposition brief, one by their purported expert, Jaime del Valle, and one by Roberto Rodriguez, a plaintiff in this action. See Pl. Opp. Exs. VIII, XII. Neither of these statements satisfies the Rule 56(f) requirement for affidavits setting forth explicit reasons why additional discovery is needed, or would be productive, before the Court rules on the Government's summary judgment motion. Mr. del Valle's statement does not set forth any facts he claims are needed to oppose the Government's summary judgment motion, but merely states that he "reach[ed] different results" than the Government when calculating plaintiffs' overtime payments. Pl. Opp. Ex. VIII at 3. However, the question of whether the

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amount of overtime pay received by plaintiffs complies with the FLSA is essentially a legal determination, not an issue of fact.2 Mr. Rodriguez's statement also fails to detail the need to discover any additional material facts. See Pl. Opp. Ex. XII. Mr. Rodriguez's statement does nothing more than repeat the bare allegations set forth in the Complaint that "it is [plaintiffs'] contention" that the Government does not properly calculate overtime for employees in Puerto Rico. Pl. Opp. Ex. XII at 3. In fact, Mr. Rodriguez asserts that a "thorough review of many pay records of the US Postal Service" has already been undertaken. Pl. Opp. Ex. XII at 1. Nor is the unsworn argument of counsel sufficient to preclude the Court from ruling upon the Government's motion for summary judgment. See Committee for First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992). In addition to being defective in form, plaintiffs' contentions in their opposition brief are incorrect and insufficient to preclude summary judgment. Contrary to plaintiffs' assertions, the Government provided the plaintiffs with its overtime calculation formula on numerous occasions and as early as March 2003. Jo Ann Mitchell filed two sworn affidavits in this case, testifying that she and other representatives from the Postal Service met with plaintiffs' counsel, their proposed expert, and the union president, and provided them with the Postal Service's overtime calculation formula

Thus, Mr. del Valle's statement and purported expert report are also inadmissible evidence to support plaintiffs' claims because plaintiffs apparently offer him as an expert to reach legal conclusions reserved for the Court. See RCFC 56(e); Exigent Technology, Inc. v. Atrana Solutions, 442 F.3d 1301, 1311 (Fed. Cir. 2006) (denying a Rule 56(f) motion based upon an asserted need for expert testimony on a legal issue); Libas, Ltd. v. United States, 193 F.3d 1361, 1366 (Fed. Cir. 1999). Plaintiffs provide no evidence that Mr. del Valle is any more competent to testify upon the matters before this Court than any lay person might be, and his report bears out this lack of knowledge or expertise. After following the Government's overtime calculations step by step, Mr. del Valle endeavors to "re-compute" the overtime payment to reach his own results based solely upon "[his] general agreement and understanding" of the FLSA requirements. Pl. Opp. Ex. VI at 2, 3. 4

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(in a document titled "Appendix B (page 1), City FLSA Calculation Formula" and later labeled as USPS 00001), as well as sample payroll records and overtime calculations, Postal Service policies regarding the calculation of overtime, and information regarding the payment of TCOLA (labeled USPS 00002-00027). See Dist. Ct. Dock. at 44, Ex. 2;3 Defendant's Partial Motion To Dismiss And Motion For Summary Judgment, Ex. 3. In its July 19, 2004 responses to plaintiffs' first set of interrogatories and requests for production of documents, the Government once again produced the overtime calculation formula and other documents previously provided to plaintiffs. See Pl. Opp. at 6-7, Def. Resps. to Interrogs. Nos. 4-6; Pl. Opp. Ex. II at 4-5. As plaintiffs requested, the Government also provided "step by step" calculations of overtime pay for one workweek for each of the original 13 plaintiffs.4 See Pl. Opp. Ex. II at 6-7 (Interrog. No. 10). The Government provided plaintiffs with approximately 1,300 pages of documents in response to their request for all payroll records related to overtime payments for each of the 13 original plaintiffs. See Pl. Opp. Ex. II at 8 (Request No. 1). Indeed, in his statement, Mr. del Valle admits using payroll data and calculations furnished to plaintiffs by the Postal Service in preparing his own calculations. Pl. Opp. Ex. VIII at 1-3. Plaintiffs' opposition brief and exhibits demonstrate that the parties engaged fully in discovery during which the Government provided the plaintiffs with its

The "City FLSA Calculation Formula" is attached to Exhibit 2 of Defendant's May 13, 2004, Motion To Compel Discovery, Dist. Ct. Dock. at 44. It is a detailed formula for calculating FLSA overtime and takes into account all of the various premium payments paid employees pursuant to their collective bargaining agreements. The calculations discussed in McQuigg, however, did not account for these payments because they were not material to the issue before that court, of proper treatment of TCOLA payments. The parties agreed to limit discovery to a sampling of the first 13 plaintiffs. See January 14, 2004, Stipulation Regarding Discovery and Case Management, Dist. Ct. Dock. at 10. 5
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methodology for calculating overtime and explained it in detail on numerous occasions. See Paalan, 57 Fed. Cl. at 18 n.2 (denying a Rule 56(f) request where some of the items plaintiffs sought were already in his possession and plaintiff did not file a supporting affidavit). Notwithstanding that plaintiffs have been provided with the information they requested, the critical issue in the case is whether plaintiffs received the appropriate overtime payment, regardless of the particular formula used by the Postal Service to arrive at that payment. Plaintiffs clearly are in possession of adequate information to determine the amount of overtime they have been paid, whether through their own bi-weekly pay statements, or through discovery production. Nevertheless, the Postal Service has demonstrated both the manner in which it calculates overtime, and has provided supporting legal authority to show that the resulting payments comply with the FLSA. On the other hand, plaintiffs, who bear the burden of proof, have offered no evidence or any sufficient legal argument to support their claims that they received less overtime pay than required pursuant to the FLSA. Further, to the extent that plaintiffs have not deposed certain individuals, it was due to plaintiffs' own lack of diligence in timely pursuing such depositions. See Pl. Opp. Ex. IV. Plaintiffs' unsupported assertion that the Government agreed to hold the depositions in question is also without merit. Plaintiffs served deposition notices on August 17, 2004, just eight days before the August 25, 2004, deadline for filing dispositive motions, and four weeks after the court had ordered fact discovery closed. See Dist. Ct. Dock. at 51, 53, 55. Notably, in plaintiffs' response to the Government's objection to the untimely depositions, plaintiffs did not claim the Government failed to comply with any pre-existing agreement to permit the proposed depositions, as they assert in their opposition brief, and they did not move to compel depositions.

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See Pl. Opp. Ex. V; Exigent Technology, Inc., 442 F.3d at 1310-1311 (upholding trial court denial of 56(f) motion for lack of diligence in pursuing discovery). Moreover, plaintiffs have not stated in a sworn affidavit, or otherwise, what material facts these depositions might yield, other than establishing for plaintiffs "the path to follow in order to learn the truth." Pl. Opp., at 9. The Government has provided sworn affidavits and sworn interrogatory responses setting forth its method for calculating overtime. See, e.g., Def. Mot. Ex. 3. There is no reasonable basis upon which this Court could conclude that the Government does not calculate overtime as indicated in sworn statements. Indeed, plaintiffs do not actually contest the fact that the Government calculates overtime as it claims, but rather whether that calculation method is legal pursuant to the FLSA. Plaintiffs may not agree that the Government's methodology conforms to the law as they understand it, but that difference is not factual. The proper calculation of overtime is a question of law, and after four years of litigation, plaintiffs have provided no persuasive legal authority or factual support for their allegations that the Government does not properly calculate and pay overtime to plaintiffs. II. The Doctrine Of Res Judicata Does Not Bar The Government's Defense

Plaintiffs's contend that the Government is barred by res judicata (also known as claim preclusion) from arguing in the alternative that McQuigg is incorrect as a matter of law. This contention lacks merit. See Complaint at 28; Def. Mot. at 15 n.6; see also Office of Personnel Management v. Richmond, 496 U.S. 414, 427 (1990); Harrell v. United States Postal Service, 445 F. 3d 913, 921-22 (7th Cir.), cert. denied, 127 S.Ct. 845, 845 (Dec. 11, 2006). The Supreme Court has held that under the doctrine of res judicata, "a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action." 7

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Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.5 (1979) (emphasis added); United States v. Mendoza, 464 U.S. 154, 159 n.3 (1984); Montana v. United States, 440 U.S. 147, 153 (1979); Sharp Kabushiki Kaisha v. Thinksharp, Inc., 448 F.3d 1368, 1372 (Fed. Cir. 2006). However, the asserted "prior suit," McQuigg, and the "second suit," this action, do not "involve[] the same parties or their privies" because plaintiffs in this action were not parties in McQuigg. Thus, res judicata does not apply in the instant case because, unlike in Montana, the case before this Court has been brought by different plaintiffs than those who brought the action in McQuigg. III. This Court Does Not Possess Jurisdiction To Consider Plaintiffs' Claims That Accrued More Than Three Years Prior To Their Joining This Action, Because Those Claims Are Barred By The Applicable Statute of Limitations

With regard to the FLSA statute of limitations, plaintiffs' reliance upon Ewer v. United States, 63 Fed. Cl. 396 (2004), is unpersuasive because Ewer's relation back of consents to sue contradicts the plain language of the FLSA, other decisions of this Court, and many other courts that have considered the issue. See Def. Mot. at 18-19; Bull v. United States, 68 Fed. Cl. 212, 272 (2005) (statute of limitations runs from the date plaintiffs first file their consents to sue). See also Harkins v. Riverboat Servs, Inc., 385 F.3d 1099, 1101-02 (7th Cir. 2004) (affirming dismissal of FLSA claims of 18 named plaintiffs because they failed to file consents before limitations period expired); Archer v. Sullivan County, 129 F.3d 1263, 1997 WL 720406, at *2 (6th Cir. Nov. 14, 1997) (unpublished disposition) (although the complaint was filed on September 16, 1991, the action was not considered to be commenced until December 23, 1991 when the individual plaintiffs filed consent forms pursuant to 29 U.S.C. 256(b)); In re Food Lion, Inc., No. 94-2360, 1998 WL 322682, at *12-13 (4th Cir. 1998) (unpublished disposition) (even named plaintiffs must file written consents for statute of limitations purposes); Bonilla v.

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Las Vegas Cigar Co., 61 F. Supp. 2d 1129, 1132-33 (D. Nev. 1999) (the action is not deemed commenced with respect to each individual plaintiff until his or her consent has been filed); Mbriwa v. Davis Mem. Goodwill Indus., 144 F.R.D. 1 (D.D.C. 1992) (citing Kuhn v. Phila. Elec. Co., 487 F. Supp. 974, 976 (E.D. Pa. 1980), aff'd without opinion, 745 F.2d 47 (3d Cir. 1984) (claims do not relate back to date of complaint)). Although plaintiffs also contend that the FLSA statute of limitations should be equitably tolled, and assuming for the sake of argument that equitable tolling applies to the FLSA, plaintiffs have not alleged in their complaint any facts that would support this contention. See, e.g., Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (2003). Insofar as plaintiffs suggest that an adverse inference should be drawn from the Postal Service's failure to appeal the Ninth Circuit's decision in McQuigg, they are misguided. In Mendoza, the Supreme Court expressly rejected such reasoning, explaining that the decision whether to appeal the decision is reserved for the Solicitor General and "[u]nlike a private litigant who generally does not forego an appeal if he believes that he can prevail, the Solicitor General considers a variety of factors, such as the limited resources of the Government and the crowded dockets of the courts, before authorizing an appeal." United States v. Mendoza, 464 U.S. at 160-61. IV. Plaintiffs Have Not Responded Fully Upon The Merits

Much of the Government's motion remains unopposed upon the merits. Plaintiffs have not responded at all to the Government's motion to dismiss their claims for interest. Although it is not completely clear from plaintiffs' opposition, it appears they seek to withdraw their claim for retirement benefits. Pl. Opp. at 19. Even if plaintiffs do not withdraw that claim, it should be dismissed for lack of jurisdiction. See Def. Mot. at 20-21. Finally, plaintiffs offer no

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opposition to the Government's motion for summary judgment other than their insufficient requests for additional discovery and their inapplicable assertion of res judicata. CONCLUSION After litigating this case for over four years and engaging fully in discovery, plaintiffs have failed to produce any evidence or persuasive legal argument to support their allegations that even a single employee has been underpaid, and have presented no genuine issues of material fact that could preclude this Court from granting the Government's motion for summary judgment. In addition to the payroll records the Government produced to plaintiffs during discovery in district court, plaintiffs receive bi-weekly wage statements showing the number of overtime hours they have worked and how much they were paid for those hours, yet plaintiffs have not demonstrated even a single instance of the Government's failure to pay overtime in accordance with the FLSA. For the foregoing reasons and those set forth in the Government's partial motion to dismiss and motion for summary judgment, the plaintiffs' complaint should be dismissed in part, and the Court should grant summary judgment in favor of the Government. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Mark A. Melnick MARK A. MELNICK Assistant Director

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Of Counsel: NICOLE WYNN Attorney Law Department United States Postal Service 475 L'Enfant Plaza, SW Washington, D.C. 20260

s/ Jeffrey S. Pease JEFFREY S. PEASE Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 353-7991 Fax: (202) 514-8624 Attorneys for Defendant

January 29, 2007

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CERTIFICATE OF FILING I hereby certify that on this 29th day of January, 2007, the foregoing "DEFENDANT'S REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANT'S PARTIAL MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT" 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/ Jeffrey S. Pease