Free Notice (Other) - District Court of Federal Claims - federal

Case 1:05-cv-14210-NBF

Document 13-2

Filed 05/31/2006

Page 1 of 9

UNITED STATES COURT OF FEDERAL CLAIMS A Federal Court authorized this notice. This is not a solicitation from a lawyer.

Notice of Collective Action and Opportunity to Join
C More than 50 Border Patrol Agents employed by the Department of Homeland Security have sued the United States alleging that the United States required them to attend entrylevel training for 6 eight-hour days per week at the Federal Law Enforcement Training Center ("FLETC"), but paid them for only 5 eight-hour days of work. The United States Court of Federal Claims (the "Court") has ordered notice of this "collective action" to be sent to certain Border Patrol Agents ("included BPAs") who attended entry-level training at the FLETC in Glynco, Georgia, in class 557, 565, 574, or 578, for 6 eight-hour days per week during 2003 and 2004, but were paid for 5 eight-hour days of work per week. The Court has not decided whether the United States violated Federal law. However, you may join the case as a Plaintiff suing the United States. YOUR LEGAL RIGHTS AND OPTIONS IN THE COLLECTIVE ACTION (Brought under the Fair Labor Standards Act, 29 U.S.C. §§ 201-262) ASK TO BE INCLUDED Join in this lawsuit. By signing a consent to sue, you join the collective action as a party and may receive money or benefits that could result from settlement or a trial. However, you give up the ability to sue the United States separately about the same or related claims asserted in this lawsuit. DO NOTHING Do not join the lawsuit. If you do nothing and money or benefits are later awarded, you will not be entitled to any portion of the award. However, you retain the ability to sue the United States separately about the same or related claims asserted in this lawsuit, to the extent otherwise permitted by law.

C

C

C

Your options are explained in this notice. To be included in this lawsuit (collective action), your "Consent to Sue" (attached) must be filed with the Court by July 31, 2006.

Case 1:05-cv-14210-NBF

Document 13-2

Filed 05/31/2006

Page 2 of 9

WHAT THIS NOTICE CONTAINS
PAGE BASIC INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 - 4 1. 2. 3. 4. Why did I get this notice? What is this lawsuit about? What is a collective action and who is involved? Why is this lawsuit a collective action?

THE CLAIMS IN THE LAWSUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 - 5 5. 6. 7. 8. What does the lawsuit complain about? How does the United States answer? Has the Court decided who is right? What is Mr. Porta asking for?

WHO IS IN THE COLLECTIVE ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 9. 10. 11. Am I a part of this collective action? Which current and former employees are included? I'm still not sure if I am included.

YOUR RIGHTS AND OPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 12. 13. 14. How do I join the collective action? Why would I not join the collective action? How do I ask the Court to include me in the collective action?

THE LAWYERS REPRESENTING YOU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 15. 16. 17. Do I have a lawyer in this case? Should I get my own lawyer? How will the lawyers be paid?

THE TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 18. 19. 20. How and when will the Court decide who is right? Do I have to come to a trial? Will I get money after a trial?

GETTING MORE INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 21. Are more details available?

Case 1:05-cv-14210-NBF

Document 13-2

Filed 05/31/2006

Page 3 of 9

BASIC INFORMATION
1. Why did I get this notice? The Government's records indicate that, as an included BPA, you likely attended entry-level training for 6 eight-hour days per week at the FLETC, and you were paid for 5 eight-hour days of work per week. This notice explains that the Court has ordered that you receive notice of this collective action lawsuit, permitting you to join the Plaintiffs in this action. You have legal rights and options that you may exercise before the Court holds a trial. The trial would decide whether the claims being made against the United States are correct. The Honorable Nancy B. Firestone of the United States Court of Federal Claims is overseeing this Collective Action. The lawsuit is known as Porta v. United States, No. 05-14210C (Fed. Cl.). Porta v. United States was consolidated with Barth, et al. v. United States, No. 05-759C (Fed. Cl.), a case involving similar claims brought by approximately 53 Border Patrol Agents. Porta v. United States is the lead case.

2. What is this lawsuit about? This lawsuit is about whether the United States paid the Plaintiffs overtime for entry-level training on a 6th eight-hour day per week at the FLETC, and how much, if any, money might be due. The Plaintiffs claim that Federal law requires the government to pay the back overtime wages plus an additional amount of liquidated damages in an amount equal to the overtime pay at issue.

3. What is a collective action and who is involved? This case is brought as a collective action under the Fair Labor Standards Act ("FLSA") and alleges unpaid overtime. Under the FLSA, Plaintiffs can sue for unpaid overtime up to two years after it was due to be paid, or up to three years after it was due to be paid if they can prove that the failure to pay was "willful." This collective action is brought by the Plaintiffs for themselves and those "similarly situated" who choose to join the case. To join this case as a Plaintiff, your "Consent to Sue" form must be filed with the Court by July 31, 2006.

3

Case 1:05-cv-14210-NBF

Document 13-2

Filed 05/31/2006

Page 4 of 9

4. Why is this lawsuit a collective action?

The FLSA permits this kind of lawsuit to be filed as a "collective action," which permits one or more plaintiffs to start a lawsuit, and for other "similarly situated" plaintiffs to join the case to pursue their claims together. The Court has ordered notice of this lawsuit be sent to you as someone who is likely to be similarly situated to the Plaintiffs, so that you can decide whether or not to join the case.

THE CLAIMS IN THE LAWSUIT
5. What does the lawsuit complain about? In this lawsuit, the Plaintiffs say that the United States required them to attend entry-level training for 6 eight-hour days per week at the FLETC, but paid them for only 5 eight-hour days of work per week. The Plaintiffs claim that Federal law requires the United States to pay the back overtime wages plus an additional amount of liquidated damages in an amount equal to the overtime pay at issue. You can read the Plaintiffs' formal complaints on the internet at: http://www.getmanlaw.com/cases/porta/complaint.pdf

6. How does the United States answer? The United States asserts that it has acted in good faith in accordance with the law, allowing the Court to award liquidated damages in an amount less than the overtime pay at issue if the Plaintiffs prove that they are entitled to the overtime pay at issue. The United States' formal answer to one Plaintiff's complaint is also available on the internet: http://www.getmanlaw.com/cases/porta/answer.pdf

7. Has the Court decided who is right? The Court has not decided whether the United States or the Plaintiffs are correct. By issuing this notice, the Court is not suggesting that the Plaintiffs will win or lose this case. They must prove the claims at a trial unless the case is settled. (See "THE TRIAL" section on page 7.)

4

Case 1:05-cv-14210-NBF

Document 13-2

Filed 05/31/2006

Page 5 of 9

8. What are the Plaintiffs asking for? The Plaintiffs are asking for back wages and an equal amount of liquidated damages from the United States for the entry-level training hours for which they were not paid. They also ask the United States to pay for their legal fees and costs.

WHO IS IN THE COLLECTIVE ACTION
9. Am I a part of this collective action? The Court ordered notice to all included BPAs who trained at the FLETC for 6 eight-hour days per week but were only paid for 5 eight-hour days of work per week. You are not currently part of this collective action. In order to join this collective action your completed "Consent to Sue" (attached) must be filed with the Court by July 31, 2006. If the Court determines that your claims are precluded by the applicable "statute of limitations," a two-year or three-year time limit to bring FLSA claims, your claims may be dismissed or severed from this collective action. However, the Plaintiffs contend that you may recover for damages on overtime earned more than three years ago if the Court determines that, in the interests of equity, the statute of limitations should not apply. The United States disagrees.

10. Which current and former employees are included? All included BPAs are able to join this collective action as long as they attended entry-level training at the FLETC in Glynco, Georgia, in class 557, 565, 574, or 578, for 6 eight-hour days per week, but were compensated for 5 eight-hour days of work per week.

11. I'm still not sure if I am included. If you are still not sure whether you are included, you can get free help by calling or writing to the lawyers representing the Plaintiffs in this case, as described on page 8.

5

Case 1:05-cv-14210-NBF

Document 13-2

Filed 05/31/2006

Page 6 of 9

YOUR RIGHTS AND OPTIONS
12. How do I join the collective action? In order to join, or "opt in" to this collective action, you must sign a "Consent to Sue" form and it must be filed with the Court by July 31, 2006. The Consent to Sue is attached to this notice. By joining this collective action, you may receive money from the United States as a result of this lawsuit. If you join this collective action and you are entitled to money from the United States, either as a result of settlement or a trial, you will be notified. Keep in mind that if you join this collective action now, regardless of whether the Plaintiffs win or lose, you will not be able to sue or continue to sue the United States as part of any other lawsuit about the same claims that are the subject of this lawsuit. You will also be legally bound by any orders and judgments the Court issues in this collective action.

13. Why would I not join the collective action? If you choose not to join this lawsuit, you will not get any money from this lawsuit even if the Plaintiffs obtain it as a result of settlement or a trial. However, you will be able to sue on your own, or continue to sue the United States for the same claims as those asserted in this collective action, to the extent permitted by law. If you do not join this lawsuit, you will not be legally bound by the Court's orders and judgments in this collective action. If you already have your own identical or similar FLSA overtime lawsuit against the United States and want to continue with it, you should not join this collective action. If you want to start your own individual lawsuit against the United States regarding these claims, to the extent permitted by law, you should not join this collective action. If you choose not to "opt in" so that you can start or continue your own lawsuit against the United States, you should consider talking to a lawyer soon, because your claims may be subject to the statute of limitations.

14. How do I ask the Court to include me in the collective action? To ask to be included in this collective action, you must send a completed "Consent to Sue" form to the Getman Law Office, 9 Paradies Lane, New Paltz, NY 12561, and it must file your consent to sue by July 31, 2006. A Consent to Sue form is attached to this notice.

6

Case 1:05-cv-14210-NBF

Document 13-2

Filed 05/31/2006

Page 7 of 9

THE LAWYERS REPRESENTING YOU
15. Do I have a lawyer in this case? The Getman Law Office, 9 Paradies Lane, New Paltz, NY 12561, and Gattey Baranic LLP, 2445 Fifth Avenue, Suite 350, San Diego, CA 92101, represent the Plaintiffs in this collective action. The Getman Law Office is lead counsel on the case and offers to represent all included BPAs who join this collective action. More information about the Getman Law Office, its practices, and its lawyers' experience is available on the internet, by writing to the address above, or by calling (845) 255-9370.

16. Should I get my own lawyer? You do not need to hire your own lawyer because the Getman Law Office has offered to represent you. But, if you want your own lawyer, you can ask him or her to appear in Court for you if you want someone other the Getman Law Office to speak for you. You will be responsible for any fee arrangement you agree to with your own lawyer.

17. How will the lawyers be paid? If the Getman Law Office obtains money for the Plaintiffs who join this collective action, it may petition the Court for an award of attorney fees and costs to be paid by the United States on your behalf. The fees retained by the attorneys will be either the amount received from the United States as ordered by the Court, or one-third of the settlement or judgment amount, whichever is greater.

7

Case 1:05-cv-14210-NBF

Document 13-2

Filed 05/31/2006

Page 8 of 9

THE TRIAL
The Court has not scheduled a trial to decide who is right in this case. 18. How and when will the Court decide who is right? If the case is not resolved by settlement or through other legal filings, the Plaintiffs will be required to prove their claims at a trial. A trial date has not yet been set. During a trial, the Court would hear all of the evidence to help it reach a decision about whether the Plaintiffs or the United States is right about the claims in the lawsuit. There is no guarantee that the Plaintiffs will win, or that they will get any money. 19. Do I have to come to a trial?

If the case goes to trial, you may have to provide written or oral testimony about your claims. The Getman Law Office and Gattey Baranic LLP will present the case for the Plaintiffs, and the United States will present its defense.

20. Will I get money after a trial? If your consent to sue is filed with the Court by July 31, 2006, and you are entitled to receive money from the United States for your claims, you will be notified. We do not know how long this might take.

GETTING MORE INFORMATION
21. Are more details available? You may contact the Getman Law Office by calling (845) 255-9370, or writing to: Porta FLETC Lawsuit Getman Law Office 9 Paradies Lane New Paltz, NY 12561

8

Case 1:05-cv-14210-NBF

Document 13-2

Filed 05/31/2006

Page 9 of 9

IN THE UNITED STATES COURT OF FEDERAL CLAIMS THOMAS C. PORTA, individually and on behalf of others similarly situated, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 05-14210C (Judge Firestone)

CONSENT TO SUE I hereby consent to be a Plaintiff in this Fair Labor Standards Act ("FLSA") case. I hereby consent to the bringing of claims asserted in this collective action on my behalf under the Fair Labor Standards Act (for unpaid overtime, liquidated damages, attorney fees, costs, and other relief) against the United States. I authorize the Getman Law Office, its successors and assigns, to represent me in this case. By signing and returning this consent to sue, I understand that I will be represented by the Getman Law Office without prepayment of costs or attorney fees. I understand that if the Plaintiffs are successful, costs expended by the Getman Law Office on my behalf will be deducted from the settlement or judgment first, or paid separately by the United States. I understand these costs will be divided equally among all the Border Patrol Agents who join this lawsuit as Plaintiffs. I understand that the attorneys may petition the Court for an award of attorney fees and costs to be paid by the United States on my behalf. I understand that the fees retained by the attorneys will be either the amount received from the United States as ordered by the Court, or one-third of my settlement or judgment amount, whichever is greater.

Name: Address: City: Email address: Phone: Signature: Date: , State: , Zip code:

TO JOIN THIS CASE, THIS FORM MUST BE FILED IN COURT NO LATER THAN July 31, 2006. SEND TO: Getman Law Office, 9 Paradies Lane, New Paltz, NY 12561, Tel: (845) 255-9370.