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Case 1:05-cv-00142-NBF

Document 89

Filed 02/06/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ARTURO MORENO, JR., et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-142C (Judge Firestone)

DEFENDANT'S CITATIONS REGARDING FLSA WILLFULNESS Pursuant to the Court's order on January 31, 2007, defendant provides the following citations to relevant cases regarding the issue of whether plaintiffs have alleged or could prove a willful violation of the Fair Labor Standards Act.

Hazen Paper Co. v. Biggins, 507 U.S. 604, 614-17 (1993) (interpreting willfulness in an analogous provision of the Age Discrimination in Employment Act).

McLaughlin v. Richland Shoe Co., 486 U.S. 128, 135 n.13 (1988) ("If an employer acts reasonably in determining its legal obligation, its action cannot be deemed willful under. . . under the standard we set forth. If an employer acts unreasonably, but not recklessly, in determining its legal obligation, then . . . it should not be [considered willful] under [Trans World Airlines v. Thurston, 469 U.S. 111, 126 (1985),] or the identical standard we approve today.").

Case 1:05-cv-00142-NBF

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Angelo v. United States, 57 Fed. Cl. 100, 108-09 (2003) ("Under this standard, and given that the burden of proof is on the Plaintiffs, Ms. Robinson's failure to consider one criterion, although perhaps unreasonable and negligent, was not `deliberate' or `intentional' and thus not willful.").

Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 33-34 (1st Cir. 2003) (interpreting willfulness in analogous provisions of the Family and Medical Leave Act).

Hickman v. United States, 43 Fed. Cl. 424, 445 (1999) (determining that the novelty of the issue and an agency's reliance upon its personnel specialists counseled against a finding of willfulness).

Ellison v. United States, 25 Cl. Ct. 481, 488 (1992) (applying Richland Shoe to an Equal Pay Act claim against the Government). Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Kathryn A. Bleecker A. KATHRYN A. BLEECKER Assistant Director

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

February 6, 2007

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Case 1:05-cv-00142-NBF

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CERTIFICATE OF FILING I hereby certify that on this 6th day of February 2007, a copy of the foregoing "DEFENDANT'S CITATIONS REGARDING FLSA WILLFULNESS" 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. through the Court's system. Parties may access this filing

s/Mark T. Pittman Jeffrey S. Pease