Free Response to Motion - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ARTURO MORENO, et al., ) ) ) ) ) ) ) ) ) )

Plaintiffs, v. THE UNITED STATES,

No. 05-142C

(Judge Firestone)

Defendant. DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT Defendant, the United States, respectfully requests that the Court deny plaintiffs' motion for leave to file an amended complaint, pursuant to Rule 15 of the Rules of the Court of Federal Claims ("RCFC"). QUESTION PRESENTED Whether this Court should deny plaintiffs' motion for leave to file an amended complaint under RCFC 15 in light of the futility of the amendment, the undue prejudice to the United States of permitting the amendment, and plaintiffs' undue delay in seeking amendment. STATEMENT OF FACTS1 Plaintiffs filed an amended complaint in April 2005. In that complaint, they set forth one cause of action for failure to pay overtime wages in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"). Am. Compl. 4. In that complaint, they alleged that the United

We set forth only those facts relevant to resolution of this motion. Enclosed in an Appendix is the amended complaint ("Am. Compl.") filed by plaintiffs in April 2005, a copy of the proposed amended complaint ("Prop. Am. Compl.") provided by counsel for plaintiffs on August 10, 2007, and a copy of the September 24, 2004 Declaration of Wayne A. Coleman produced to plaintiffs.

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States had willfully failed to pay overtime compensation for training sessions at the Federal Law Enforcement Training Center ("FLETC") in Glynco, Georgia. Am. Compl. ¶¶ 24-25. The parties then briefed the question whether this action should proceed as a class action. It was determined that the action should proceed as a collective action, and the Court determined the appropriate form of notice to be sent to potential plaintiffs. In the meanwhile, the parties proceeded with discovery. During discovery, plaintiffs sought communications between Government pay personnel and employees who attended FLETC training. These communications concerned the Government's intentions to make back pay-plus-interest payments to employees who had attended FLETC. None of these communications contained any promise to pay employees liquidated damages. The United States did not seek or obtain discovery from plaintiffs regarding their understanding of the representations of Government pay personnel or any reliance thereupon. Discovery closed August 22, 2007. See Joint Status Report of August 22, 2007 (Docket No. 103). On August 10, 2007, counsel for plaintiffs sent counsel for the United States a proposed amended complaint in this matter. Prop. Am. Compl. The proposed amended complaint includes the following factual allegations not contained in the April 2005 complaint: 20. Defendant misrepresented to Plaintiffs that they were not entitled to payment for the sixth day of training under the FLSA. Plaintiffs relied on Defendant's misrepresentation. Defendant informed Plaintiffs in 2003 that they were entitled to overtime pay under the FLSA for the sixth day of training at the FLETC. Defendant promised to pay Plaintiffs in compliance with FLSA for the sixth day of training at the FLETC. 2

21. 22.

23.

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24.

Plaintiffs relied on Defendant's promise to fulfill its statutory obligation under the FLSA. During the time that Plaintiffs were employed by Defendant, Defendant did not maintain in the workplace a display containing notices of employee rights to receive minimum wage and overtime, as required under the FLSA.

26.

Prop. Am. Compl. ¶¶ 20-24, 26. In addition, the proposed amended complaint includes a cause of action for breach of contract. Prop. Am. Compl. 4. In their motion, plaintiffs assert that this Court should grant them leave to amend their complaint to "include allegations supporting equitable tolling and breach of contract." Pl. Mot. 1. ARGUMENT I. Applicable Law A party's ability to amend its complaint is limited by RCFC 15. RCFC 15(a) provides that a party may amend its complaint by leave of court, and that leave shall be freely given when justice so requires. RCFC 15(a). For this reason, "[t]he decision whether to allow leave to amend pleadings . . . is within the sound discretion of the trial court." First Interstate Bank of Billings v. United States, 61 F.3d 876, 881-82 (Fed. Cir. 1995) (citing Te-Moak Bands of W. Shoshone Indians of Nevada v. United States, 948 F.2d 1258, 1260-63 (Fed. Cir. 1991)); accord E.W. Bliss Co. v. United States, 77 F.3d 445, 449-50 (Fed. Cir. 1996) (affirming denial of motion to amend complaint); Christofferson v. United States, 77 Fed. Cl. 361, 363 (2007); Spalding & Son, Inc. v. United States, 22 Cl. Ct. 678, 680-81 (1991). Any one of several factors may justify the denial of a motion for leave to amend. These factors include: (1) undue delay; (2) bad faith; (3) dilatory motive; (4) repeated failure to cure deficiencies; (5) undue prejudice to opposing party; or (6) futility of proposed amendment. 3

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Te-Moak Bands, 948 F.2d at 1260-61 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); Mitsui Foods, Inc. v. United States, 867 F.2d 1401, 1403-04 (Fed. Cir. 1989); Christofferson, 77 Fed. Cl. at 363. As this Court has stated, "[t]he existence of any one of these criteria is sufficient to deny a motion to amend, the theory being that the amendment would not be necessary to serve the interests of justice under the circumstances." Spalding & Son, 22 Cl. Ct. at 680 (emphasis added). As discussed below, three of these factors are present in this case, demonstrating that amendment is not necessary to serve the interests of justice in this case, and, in fact, would not serve the interests of justice. For this reason, this Court should deny plaintiffs' motion. II. Plaintiffs' Proposed Amendments Would Be Futile A. Plaintiffs Have Failed Adequately To Plead The Requirements For Equitable Tolling, And Are Unable To Do So

In their motion, plaintiffs characterize their proposed amended complaint as including allegations supporting equitable tolling. Pl. Mot. 1. Even if equitable tolling were available, plaintiffs have failed to plead the requirements for equitable tolling, namely, a fraudulent misrepresentation by the United States.2 Plaintiffs are unable to plead fraudulent misrepresentation because they have yet to uncover any evidence that such a misrepresentation took place.

Equitable tolling is "an exceptional remedy, reserved for extraordinary circumstances, which federal courts have typically extended . . . only sparingly." O'Connell v. Sec'y of HHS,

It is the position of the United States that equitable tolling is not available in FLSA cases as the statute already permits the statute of limitations to be extended by one year for wilful violations. See 29 U.S.C. § 255(a). 4

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63 Fed. Cl. 49, 63 (2004) (quotations omitted). There are very few circumstances where plaintiffs in FLSA cases arguably may be entitled to invoke the equitable tolling doctrine, namely where: (1) there was a defective pleading filed during the statutory period; (2) they have been "induced or tricked" by their adversary into allowing the filing deadline to pass; or (3) their damages were "inherently unknowable." Ewer v. United States, 63 Fed. Cl. 396, 401 (2005) (quoting Hickman v. United States, 43 Fed. Cl. 424, 427 n.4 (1999)). This case presents no circumstance which would permit equitable tolling, and plaintiffs have failed to state any such circumstance in their proposed amended complaint. Plaintiffs allege neither that they filed an earlier defective pleading nor that their damages were "inherently unknowable." They simply allege that (1) the United States "misrepresented" to plaintiffs that they were not entitled to overtime pay, and (2) the United States "promised to pay Plaintiffs in compliance with FLSA for the sixth day of training at the FLETC." Prop. Am. Compl. ¶¶ 20, 23. These two allegations are insufficient to invoke equitable tolling, even if it were available in an FLSA case. With respect to the first allegation, according to plaintiffs, Government pay personnel conveyed to FLETC trainees that FLETC trainees were not entitled to overtime for the sixth day of training at FLETC. See Prop. Am. Compl. ¶ 20 (alleging "Defendant misrepresented to Plaintiffs that they were not entitled to payment for the sixth day of training under the FLSA"). This was based upon the agency's good faith interpretation of the law. See Declaration of Wayne A. Coleman ¶ 22 (explaining basis of original agency interpretation that overtime not authorized). In 2003, according to plaintiffs, Government pay personnel explained to employees that they were entitled to overtime pay for the sixth day of training at FLETC. See Prop. Am.

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Compl. ¶ 2 (alleging that "Defendant informed Plaintiffs in 2003 that they were entitled to overtime pay under the FLSA for the sixth day of training at the FLETC"). This communication was pursuant to a changed interpretation of the law from the Office of Personnel Management. See Coleman Dec. ¶ 5, 7. At this point, presumably, plaintiffs became aware of their rights, and neither the two-year statute of limitations for FLSA claims nor the three-year statute of limitations for "wilful" FLSA claims had run. Plaintiffs cannot now claim that the initial statements of Government personnel "induced or tricked" plaintiffs into delaying their filing. Any misunderstanding by plaintiffs of their rights was corrected in 2003, according to their own allegations.3 Prop. Am. Compl. ¶ 22. Accordingly, this "misrepresentation" allegation cannot support equitable tolling. Similarly, the second allegation of a promise to pay cannot support equitable tolling. Because the United States has paid plaintiffs back pay, the substance of their claim is for liquidated damages. To obtain equitable tolling, plaintiffs would have to show that the United States induced or tricked them to delay filing a liquidated damages claim. The United States made no representation to plaintiffs regarding liquidated damages, and accordingly, did not induce or trick plaintiffs into delaying their filing of a liquidated damages claim. In keeping with these facts, plaintiffs do not allege that the United States ever promised to pay plaintiffs liquidated damages. Without such a promise, plaintiffs cannot show that their delay in filing

We note that plaintiffs' proposed amended complaint also includes an allegation regarding the alleged failure of the United States to display the requirements of FLSA in the workplace. Prop. Am. Compl. ¶ 26. To the extent that plaintiffs view this as an allegation in support of equitable tolling, it should not be permitted. Any alleged failure to display the requirements of FLSA in the workplace does not meet the "induced or tricked" standard. Ewer, 63 Fed. Cl. at 40. 6

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their liquidated damages claim was the fault of the United States and, further, should be subject to equitable tolling. Therefore, this second allegation of a promise to pay cannot support equitable tolling. Accordingly, any attempt by plaintiffs to invoke equitable tolling in this case would fail, and an amendment of their complaint to add allegations in support of equitable tolling would be futile. It is therefore not in the interests of justice to permit this amendment. B. This Court Would Not Have Jurisdiction To Entertain Plaintiffs' Breach Of Contract Claim

Plaintiffs' proposed amendment also would be futile because this Court lacks jurisdiction to entertain their alleged breach of contract claim. Plaintiffs refer to a "contract to compensate them in compliance with the FLSA" in their proposed amended complaint, and allege that the United States' failure to pay liquidated damages constitutes a breach of the United States' "contractual obligations." Prop. Am. Compl. ¶¶ 33, 34. Such a claim is not cognizable in this Court; accordingly plaintiffs should not be permitted to amend their complaint to add this claim. The jurisdiction of this Court is limited; this Court possesses jurisdiction only over claims where the United States has waived its sovereign immunity from suit. United States v. Testan, 424 U.S. 392, 399 (1972); Booth v. United States, 990 F.2d 617, 619 (Fed. Cir. 1993). The Tucker Act, 28 U.S.C. § 1491, governs the United States' waiver of sovereign immunity from suit in this Court, and states in part, "The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded . . . upon any express or implied contract with the United States . . . ." 28 U.S.C. § 1491(a)(1). Plaintiffs have not pled, nor can they plead, the existence of an express contract or an implied-in-fact contract "to compensate them in compliance with the FLSA." Prop. Am. Compl. ¶ 33. 7

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"[F]ederal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government." Chu v. United States, 773 F.2d 1226, 1229 (Fed. Cir. 1985) (citations omitted); accord Schism v. United States, 316 F.3d 1259, 1268, 1274-75 (Fed. Cir. 2002) (en banc) (dicta) (citations omitted). Public employment simply does not give rise to a contractual relationship in the conventional sense. Schism, 316 F.3d at 1275. Accordingly, the employment relationship between the United States and plaintiffs does not give rise to a contractual relationship. Plaintiffs' proposed breach-of-contract claim must therefore be dismissed because their pay is pursuant to statutes, not contracts. Moreover, plaintiffs have pointed to no express contract embodying the alleged "promise to pay in compliance with the FLSA." Prop. Am. Compl. ¶ 32. Nor have they pled the existence of an implied-in-fact contract, namely: "1) mutuality of intent to contract; 2) consideration; and, 3) lack of ambiguity in offer and acceptance." City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990) (citing Russell Corp. v. United States, 210 Ct.Cl. 596, 609, 537 F.2d 474, 482 (1976)). There is no indication that plaintiffs will be able to show any of these elements based upon the facts as developed thus far. Furthermore, plaintiffs have not alleged actual authority on the part of any Government representative to bind the Government in contract--a requirement of a Government contract claim. City of El Centro, 922 F.2d at 820 (quoting Juda v. United States, 6 Cl. Ct. 441, 452 (1984)). Based upon the discovery taken thus far, plaintiffs will be unable to show actual authority on the part of Government pay personnel to bind the Government in contract. Given that plaintiffs cannot show any of the three elements of an implied-in-fact contract, or actual authority, their breach of contract claim will likely fail. Even

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if they could allege the elements of an express or implied-in-fact contract within this Court's jurisdiction, plaintiffs' relationship with the United States is governed by statute and not by contract. Schism, 316 F.3d at 1275. Therefore, an amendment to add this claim would be futile and should not be permitted. III. Plaintiffs' Amendment Would Cause Undue Prejudice To The United States The proposed amendment also would cause undue prejudice to the United States as it would require additional discovery. In particular, the claims regarding the existence of a contract and the alleged reliance of plaintiffs on certain alleged representations of the United States require discovery that the United States has not yet obtained. The original claims advanced by plaintiffs did not rely on what plaintiffs understood or relied upon. They were based solely upon the good faith and/or wilfulness of the United States in initially failing to pay overtime to FLETC trainees. Plaintiffs' additional proposed claims rely heavily on the state of mind of plaintiffs. To properly defend against these claims would require the United States to obtain additional discovery from plaintiffs. Because discovery has closed in this case, and the parties have set a briefing schedule for motions for summary judgment which begins in a few weeks, the proposed amendment does not permit the United States adequate time to pursue this discovery. This constitutes undue prejudice to the United States. See Holland v. United States, 62 Fed. Cl. 395, 408 (2005). It is particularly prejudicial to the United States because all of the information regarding plaintiffs' state of mind is in the possession of plaintiffs. They will likely be able to present evidence showing their state of mind without additional discovery, but the United States will be unfairly precluded from doing so. Justice does not require this amendment, and, in fact, militates against it.

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IV.

Plaintiffs Have Unduly Delayed The Filing Of This Amendment The injustice of permitting such a late amendment by plaintiffs is highlighted by the fact

that plaintiffs have unduly delayed filing this amendment for no apparent reason. Their motion does not enumerate a single reason for their delay in filing. To the contrary, their motion suggests that they intentionally waited to seek amendment as they state that these issues have been raised repeatedly since early on in this litigation. Pl. Mot. 2. Certainly, the question whether plaintiffs' claims are subject to a two-year or a three-year statute of limitations has been present since the beginning of the case. The fact that plaintiffs, in the context of a motion to compel, made a passing reference to equitable tolling, is of little significance. They failed to amend their complaint specifically to assert any additional allegations in support of such a theory until now, several years after beginning this litigation and after the close of discovery. This factor alone demonstrates that justice does not require this amendment. Spalding & Son, 22 Cl. Ct. at 680. CONCLUSION For the foregoing reasons, the United States respectfully requests that plaintiffs' request to amend their complaint be denied.

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Respectfully submitted,

PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director s/ Kathryn A. Bleecker KATHRYN A. BLEECKER Assistant Director s/ Maame A.F. Ewusi-Mensah MAAME A.F. EWUSI-MENSAH Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W., 8th Floor Washington, D.C. 20530 Tel: (202) 353-0503 Fax: (202) 514-8624 September 18, 2007 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on this 18th day of September 2007, a copy of the foregoing "DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT" 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/ Maame A.F. Ewusi-Mensah

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APPENDIX

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INDEX TO APPENDIX Amended Complaint, Moreno & Porta v. United States (Apr. 11, 2005) . . . . . . . . . . . . . . . . . A1 Proposed Amended Complaint, Moreno, et al. v. United States (Aug. 10, 2007) . . . . . . . . . . . A5 Declaration of Wayne A. Coleman, Moreno, et al. v. Bureau of Immigration (D.D.C. Sep. 24, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A10

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A1

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A2

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A3

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A4

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ARTURO MORENO, JR., individually and on behalf of others similarly situated, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 05-142C (Judge Firestone)

SECOND AMENDED COMPLAINT INTRODUCTION 1. While employed by the Defendant, the Plaintiffs worked more than 40 hours per week training at the Federal Law Enforcement Training Center. Defendant unlawfully failed to pay them overtime at the rate of time and one half for all the hours over 40. 2. Plaintiffs seek unpaid overtime wages, liquidated damages, costs and attorneys' fees under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §201 et seq. 3. Plaintiffs also seek unpaid overtime wages, liquidated damages, costs and attorneys' fees for breach of contract. JURISDICTION 4. Jurisdiction is conferred upon this Court by 28 U.S.C. §1491 as an action against the United States founded upon an Act of Congress, the Fair Labor Standards Act, 29 U.S.C. §201, et seq., and breach of contract.

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PARTIES A. 5. 6. 7. 8. Plaintiffs Named Plaintiff MORENO was an employee of Defendant. Named Plaintiff MORENO is a resident of El Paso, Texas. Named Plaintiff MORENO was engaged in commerce while working for Defendant. Named Plaintiff MORENO represents additional federal employees who trained at the Federal Law Enforcement Training Center who were not paid time and one half for hours over 40 in a week. 9. The term Plaintiffs as used in this complaint refers to the named Plaintiff MORENO and all Plaintiffs who have opted into this action. B. 10. 11. Defendant Defendant, UNITED STATES OF AMERICA, maintains operations in Washington, D.C. Upon information and belief, Defendant grossed more than $500,000 in the past fiscal year. 12. Defendant operates an enterprise engaged in commerce within the meaning of the FLSA.

FACTS 13. 14. Plaintiffs are or were employed by Defendant. Named Plaintiff MORENO was employed by Defendant from June 2002 through January 2003. 15. Plaintiffs were required by Defendant to participate in training at the Federal Law Enforcement Training Center ("FLETC") in Glynco, Georgia. 16. Plaintiffs were required by Defendant to attend training sessions which were regularly 2

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scheduled for six days per week, eight hours per day, thus they worked more than 40 hours per week for Defendant. 17. 18. Defendant paid Plaintiffs a biweekly salary. While Plaintiffs participated in training at the FLETC they were not paid for hours worked over 40, specifically they were not paid for the sixth day of training at FLETC. 19. 20. Defendant's failure to pay Plaintiffs the proper wages required by law was willful. Defendant misrepresented to Plaintiffs that they were not entitled to payment for the sixth day of training under the FLSA. 21. 22. Plaintiffs relied on Defendant's misrepresentation. Defendant informed Plaintiffs in 2003 that they were entitled to overtime pay under the FLSA for the sixth day of training at the FLETC. 23. Defendant promised to pay Plaintiffs in compliance with FLSA for the sixth day of training at the FLETC. 24. 25. Plaintiffs relied on Defendant's promise to fulfill its statutory obligation under the FLSA. Defendant failed to pay Plaintiffs liquidated damages as required under the FLSA, 29 U.S.C. §216(b). 26. During the time that Plaintiffs were employed by Defendant, Defendant did not maintain in the workplace a display containing notices of employee rights to receive minimum wage and overtime, as required under the FLSA. 27. All actions and omissions described in this complaint were made by Defendant directly or through its supervisory employees and agents. 28. All actions and omissions described in this complaint made by Defendant directly or 3

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through its supervisory employees and agents were willful.

FIRST CAUSE OF ACTION (FAIR LABOR STANDARDS ACT - OVERTIME) 29. Defendant failed to pay overtime wages for the sixth day of training at the FLETC to the Plaintiffs in violation of the FLSA, 29 U.S.C. §201 et seq. and its implementing regulations. 30. Defendant's failure to comply with the FLSA overtime protections caused Plaintiffs to suffer loss of wages and interest thereon. SECOND CAUSE OF ACTION (BREACH OF CONTRACT - FAILURE TO PAY LIQUIDATED DAMAGES) 31. Defendant promised to pay Plaintiffs for the sixth day of training at the FLETC in compliance with the FLSA. 32. 33. Plaintiffs relied on Defendant's promise to pay in compliance with the FLSA. Defendant failed to pay Plaintiffs liquidated damages in violation of the contract to compensate them in compliance with the FLSA. 34. Defendant breached its contractual obligations by failing to comply with its promise.

WHEREFORE, Plaintiffs request that this Court enter an order: A. Granting judgment to Plaintiffs in the amount of their unpaid wages as secured by the FLSA as well as an equal amount in liquidated damages; B. Granting judgment to Plaintiffs in the amount of their unpaid wages as well as liquidated damages for breach of contract; C. D. Awarding the Plaintiffs' costs and reasonable attorneys' fees; and Granting such further relief as the Court finds just.

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Dated: August __, 2007 Respectfully Submitted,

Michael J.D. Sweeney Law Office of Dan Getman 9 Paradies Lane New Paltz, NY 12561 Tel: (845) 255-9370 Fax: (845) 255-8649 ATTORNEY FOR PLAINTIFFS

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MOR 152 A10

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MOR 153 A11

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MOR 154 A12

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MOR 155 A13

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MOR 156 A14

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MOR 157 A15

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MOR 158 A16

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MOR 159 A17

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MOR 160 A18

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MOR 161 A19

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MOR 162 A20

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MOR 163 A21

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MOR 164 A22

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MOR 165 A23

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MOR 166 A24

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MOR 167 A25

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MOR 168 A26

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MOR 169 A27

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MOR 170 A28

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MOR 171 A29