Free Motion to Certify Class - District Court of Federal Claims - federal

Case 1:05-cv-01043-VJW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NO: 05-1043C

JORGE A DELPIN-APONTE, ET AL. VS UNITED STATES OF AMERICA MOTION FOR OPT-IN CLASS ACTION CERTIFICATION BEFORE THE HONORABLE COURT: Come now plaintiffs in the above captioned complaint by and through the undersigned attorney and very respectfully alleges, states and prays: The present case involves allege violations of the Fair Labor Standards Act "F.L.S.A.", 29 U.S.C.A. §§ 201-219, to employees of the United States Postal Service "U.S.P.S." residing in the Commonwealth of Puerto Rico. The plaintiffs allege that the U.S.P.S. failed to properly compensate them when overtime was worked. Plaintiffs seek to certify a class for purposes of obtaining back pay and other damages and for that purpose move this court to enter an order determining that the action should be certified as a class action. The class will encompass all former and present employees of the US Postal Service in Puerto Rico who are entitled to the rights pleaded in the complaint filed in the captioned case. In support of the foregoing motion, plaintiffs incorporate the allegations of Paragraphs 1 to 44 of their complaint. In this regards, all the requirements needed for a class to be certified as a opt in class action on the Court of Federal Claims in a F.L.S.A. cause of action, are present in this case as we further discuss heretofore.

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I. Class Certification in F.L.S.A. Causes of Action in the Court of Federal Claims The Court of Federal Claims is a legislative, not a constitutional court. Its judicial power is derived not from the Judiciary Article of the Constitution, article 3, but form the congressional power to pay the debts of the United States which is free to exercise through judicial as well as non-judicial agencies. Its jurisdiction is confined to the rendition of money judgments in suits brought for that relief against the Unites States. The Federal Court of Claims has power to adopt rules equivalent to the Federal Rules of Civil Procedure or to borrow those district court provisions in a particular case. About class action cases in 2002 and 2004, the United States Federal Court of Claims modified their rules to allow opt-in classes. Likewise, the disposition of the Fair Labor Standard Act to recover damages mandates that "no employee shall be a party 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) (Emphasis added). The mentioned section regulate the class action cases under F.L.S.A. to be opt-in class actions different to Rule 23 of Federal Civil Procedure that only permits opt-out classes of action. In Cooke v. United States, 1 Cl. Ct. 695 (1983), the Federal Court of Claims recognized three practical differences between its own class action rule and that of the district court as follows: (1) under the rule of the Federal Court of Claims, class members are not bound by adjudication of the class action unless they specifically opt into the case; (2) there is generally little or no possibility of inconsistent adjudications of the same issue since the jurisdiction of this court is usually exclusive; and (3) because the defendant in our cases is always the same, the United States, it may be bound by adverse determinations even vis-à-vis individual who are not parties to the litigation. The

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purpose of the written consent requirement in an opt in class certification is to prevent large groups 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 (Fed.Cir.1986). Unlike Rule 23 of the Federal Rules of Civil Procedure, the Rule 23 of the Rules of the Court of Federal Claims is discretionary; granting the court freedom to determine under what circumstances to certify a class and the terms and conditions of the class once is certified. Taylor v. United States, 41 Fed. Cl. 440 (1998). With the revision of Rule 23 of the Court of Federal Claims on May 1, 2002, a class action may be certified in the Court of Federal Claims if the following criteria are met: (a) Prerequisites to a Class Action. One or more members of a class may sue as representative parties on behalf of all only if (1) the class is so numerous that joinder of all member is impracticable, (2) there are questions of law or fact common to the class, (3) the claims of the representative parties are typical of the claims of the class, and (4) the representatives will fairly and adequately protect the interest of the class. (b) Class Action Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) the United States has acted or refused to act on grounds generally applicable to the class; and (2) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to the other available methods for the fair and efficient adjudication of the controversy. Matters pertinent to the findings include: (i) the interest of members of the class in individually controlling the prosecution of separate actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by members of the class; and (iii) the difficulties

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likely to be encountered in a class action. Barnes v. United States, 68 Fed. Cl. 492 (Fed.Cl.2005). The petition for a class certification when the complaint alleges violation of F.L.S.A. should meet the requirements of Rule 23(a) and 23(b) and in addition to demonstrate that the representative parties are "similarly situated" to potential class members under 29 U.S.C. § 216(b). The requirements of Rule 23(a) may be grouped into five categories: numerosity, commonality, typicality, adequacy and superiority, and because the requirements are worded in the conjunctive, the failure to satisfy any one of them is fatal to the class certification. II. Requirements for an Opt In Class Certification Pursuant Rule 23 of the Federal Court of Claims Pursuant Rule 23 of the Federal Court of Claims this case should be certified as opt in class action since it meets all the established requirements object of the following discussion. A. Numerosity The prerequisite of numerosity is met when the joinder of all member are impracticable. Plaintiffs do not have to give the exact number of potential class members, they must present a reasonable estimate of the number of purported class members. Johnson v. United States, 208 F.R.D. 148 (2001). A court must not focus on sheer numbers alone but should also consider "the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiffs claim". Id. The numerosity requirement isn't limited only by the factor of how many possible litigants can join the class, but if "...proposed class includes over 1,000 known plaintiffs.... [T]his fact alone supports the numerosity requirement." Land Grantors v. United States, 71 Fed. Cl. 614 (2006). Even more, the Fifth Circuit has indicated that a class containing between

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100 and 150 members generally satisfies the numerosity requirement and whether the numerosity requirement is satisfied is left to the sound of discretion of the court handling the litigation. Johnson, supra. In the captioned case, the class action is so numerous that joinder of all members is impracticable. There are thousand of present and past U.S. Postal Employees in Puerto Rico that have been penalized by the wrongful computation of overtime pay. In Puerto Rico, as of today there are around 4,000 U.S. Postal Employees that work, without considering future employees who will work overtime and who are potential litigants in position to join the class action. Thus the numerosity requirement is easily established in this action. B. Commonality The commonality requirement is satisfied when there is at least one common legal question that is likely to have one common defense, the resolution of which will affect all or a significant number of putative class members. Filosa v. United States, 70 Fed. Cl. 609 (2006). All questions of fact and law need not be common to satisfy the requisite. In re Neurontin Makg. & Sale Practices Litig., 244 F.R.D. 89 (2007). Commonality can be satisfied by a single common legal or factual issue, making it an easily satisfied prerequisite. Id. Emphasis added. In this action the U.S. Postal Employees are not just claiming a legal question that have a common legal defense, they each are claiming the exact same legal question, which is if payment of overtime is being made in compliance with federal regulations or not, and the defendant argues against all the exact same defense alleging they are in compliance with the regulations. Appropriately this action fulfills without any doubt the commonality requirement.

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C. Typicality In this case the claims of the representative parties are typical to the claims of the class. For plaintiffs to fulfill the requirement of typicality, on a motion for class certification, they must show their claims are typical of claims of the class and this test is not demanding; the focus for this inquiry is on the similarity between the named plaintiffs legal and remedial theories and the theories of those whom they purport to represent. Johnson, supra. Emphasis added. The typicality requirement asks "...that the claims of the representatives parties be typical of the claims of the class." Fisher v. United States, 69 Fed. Cl. 193 (2006). To accomplish this requirement a simple analysis is used to understand that the claim of each member of the class arise from a similar chain of events and that each one of them is claiming the same legal arguments. Fisher v. Unites States, supra. The claims of Jorge A. Delpin-Aponte and of all present plaintiffs are the exact same claim of the putative members of the class. That is, the U.S. Postal Employees as well as Mr. Delpin-Aponte claim that the Defendant has been, and will continue, violating the Fair Labor Standard Act, "F.L.S.A.", 29 U.S.C. §§ 201-219, by incorrectly calculating their overtime as required by the F.L.S.A. Consequently, the foregoing claim complies with the typicality requirement. D. Adequacy To meet the adequacy of representation requirement, two elements must be satisfied: (1) concerns regarding the qualifications of counsel and (2) concerns regarding the relationship between the interest of the class representatives and the interests of the other class members. Johnson, supra. In analyzing whether the representative party will be able to adequately represent the interest of the class, the court should evaluate the qualifications of the representatives of the class and if

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there are any possible conflicting interest that may arose between the representatives and the members of the class. Land Grantors v. Unites States, supra. The adequacy requirement is fulfill if the interests of the named plaintiffs are aligned sufficiently with the interests of the members of the class; the issues must be similar not identical. Johnson, supra. In this case, the representative parties will fairly and adequately protect the interest of the class. Plaintiffs counsel is a highly respected member of the legal community, admitted for more than fifteen years to the practice of law in the Puerto Rico Bar and in the Federal Bar. With plenty of experience in the litigation field and with keen knowledge of the legal system, plaintiffs claim will be represented by a highly qualified and experienced counsel who has and will continue to vigorously represent the interests of all class members. Hence qualifications of the representatives of the class will be a great asset in the process of pursuing a favorable outcome to the claim of the class. The question that Mr. Delpin-Aponte and the plaintiffs have represented before this Honorable Court is the exact same question that the rest of the U.S. Postal Employees need to be answered in order to solve the controversy, thus the representative party is in the exact same position as to the members of the class.(Emphasis added) The interest of the class representative are exactly the same to all putative members which is to be compensate as U.S.P.S. employees in the Commonwealth of Puerto Rico for the incorrectly pay overtime hours they have work. Given the fact the interests of the class will be similarly protected by the representative party since they, as well as the putative members of the class are seeking the exact same remedy without interfering at all one's interests with

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another's, plaintiffs' counsel is completely free from any conflicting interest between the class representatives and the putative class members. Based on the preceding explanation, it's a fact that the plaintiffs comply with the adequacy requirement and that the undersigned counsel will be able to duly watch and protect the interests of all the members of the class. III. Requirements of Rule 23(b) to Maintain a Class Action As we already established, after satisfying all prerequisites already discuss to maintained a class action in addition it has to fulfill the following: (1) the United States has acted or refused to act on grounds generally applicable to the class; and (2) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to the other available methods for the fair and efficient adjudication of the controversy. In the present case, the United States Postal Services has refused to act on grounds generally applicable to the class. This is derived requisite of the commonality requirement. Land Grantors v. United States, supra; Filosa v. United States, supra. This claim is based on the wrong application of the F.L.S.A. by the Defendant, who willfully has not paid, and will not pay, employees in Puerto Rico who work overtime, according to the standards of the mentioned statute. In other words, the Defendant has clearly refused to comply with the requirements of the F.L.S.A. Consequently the inaction of the Defendant to correct their error is evidence that it is refusing to act on the same identical grounds applicable to all members of the class. In addition, common questions predominate over those affecting only individual members in the captioned case. This requirement basically asks

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"...whether proposed classes are sufficiently cohesive to warrant adjudication by representation..." Land Grantors v. United States, supra. It's notable that questions will arise of how much money each class member can claim individually, after the final favorable outcome of the claim. At that point the court should move to accept as fulfilled this requirement since latter the individual questions of how much money can each class member claim can be, if necessary, decided in another individual way. Extremely relevant to this matter, this honorable court, in Barnes v. United States, 68 Fed. Cl. 492 (2005) clearly said that if individualized damage determinations would be considered as "...determinative, there scarcely would be case that would qualify for a class status on this court or any court...". Also in Smilow v. Southwestern Bell Mobile Sys., 323 F. 3d 32, 40 (1st Cir. 2003), the First Circuit established that where common questions predominate regarding liability, then the courts generally find the predominance requirement to be satisfied even if the individual damages issue remains. (Emphasis added). It's clear that there's a common question identically similar to every potential member of the class, which basically is if the government has properly calculated, as required by F.L.S.A., the payment of each US Postal Employee. This question is unarguably identical for each potential member and predominates over the matter of how much is the individual compensation that each member can possibly claim. In consequence, the present claim satisfies the necessary requirements of a common question that predominates over questions of the individual members. Finally, a class action is superior to other methods to obtain a fair and efficient adjudication. The superiority requirement is fulfilled when "...a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing

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about other undesirable results". Barnes v. United States, 68 Fed. Cl. 492. The claim presented to this honorable court is based on the application of a statute, F.L.S.A. which is wrongly applied by the Defendant. All potential members of the class are on the same exact position as to the discrimination of how their payroll is being wrongly calculated. For all those members to present their case in a single and unique claim, represent that the thousands of them will not have to re-litigate individually the exact same claim, turning into an economy of time and resources as well as preventing the court of an overflow of repeated complaints. Thus, the ideal and better method available to plaintiffs in order to obtain a fair and efficient adjudication of their claim is to certify the case as a class action. For the reasons above expose, this case complies with all necessary requisites in order to certify this claim as a class action. WHEREFORE, Plaintiffs move to the Court for the stated reasons to certify the above claim as Class Action, and to order the necessary remedies accordingly. RESPECTFULLY SUBMITTED, S/ Santiago F. Lampón SANTIAGO F. LAMPÓN LAMPÓN & ASSOCIATES PO BOX 363641 SAN JUAN, PR 00936-3641 Tel: (787) 273-6767 Fax: (787) 395-7060 Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on this same date, a copy of the foregoing motion has been 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/ Santiago F. Lampón

September 15, 2008

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