KING et al v. USA

Filing 28

PUBLISHED OPINION ( Status Report due by 10/10/2008, Supplemental Exhibit due by 10/10/2008.) granting 25 Motion to Certify Class. Signed by Judge Emily C. Hewitt. (el3)

K I N G et al v. USA

D o c . 28

In the United States Court of Federal Claims
N o . 07-589 C (E -F ile d : September 26, 2008) ) ) ) ) ) M o tio n to Certify Class Action; ) R C F C 23; Certification Granted. ) ) ) ) ) ) )

J E F F R E Y B. KING, SCOTT A. AUSTIN, KEVIN J. HARRIS, AND JOHN J. HAYS, o n their own behalf and on behalf o f a class of others similarly situated, P l a i n t if f s , v. T H E UNITED STATES, Defendant.

S a n d r a Mazliah, Washington, DC, for plaintiffs. C a rrie A. Dunsmore, with whom were Gregory G. Katsas, Assistant Attorney General, J e a n n e E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director, Commercial L itig a tio n Branch, Civil Division, United States Department of Justice, Washington, DC, f o r defendant. O P IN I O N AND ORDER B e f o re the court is Plaintiffs' Motion to Certify Class Action (plaintiffs' Motion or P ls.' Mot.), filed on July 23, 2008, under Rule 23 of the Rules of the United States Court o f Federal Claims (RCFC). The complaint in this action, filed on August 2, 2007, claims th a t plaintiffs, FBI police officers working during at least one pay period after January 1, 2 0 0 3 , were denied pay and benefits mandated by 28 U.S.C. § 540C. Complaint (Compl.) 1 . Plaintiffs claim that pursuant to the Back Pay Act, 5 U.S.C. § 5596 (2006), they are e n title d to compensation, back pay, restitution, and attorneys fees.1 Compl. 1. Defendant

Defendant filed a motion to dismiss on October 31, 2007, claiming that the court did not have jurisdiction to hear this case, that 28 U.S.C. § 540C was not money-mandating as required by the Tucker Act, and that the Civil Service Reform Act (CSRA) precluded the court from (continued...)

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f iled a response to plaintiffs' Motion on August 11, 2008, stating that defendant defers to the court as to the question of whether plaintiffs' Motion should be granted. Defendant's R e s p o n s e to Plaintiff[s'] Motion to Certify (defendant's Response or Def.'s Resp.) 1. For the following reasons, plaintiffs' Motion is GRANTED and Sandra Mazliah is A P P O IN T E D class counsel. This order defines the class and the class issues and explains the reasons for appointing Sandra Mazliah as class counsel. See RCFC 23(c)(1)(A), (B). I. In tro d u c tio n and Factual Background

O n November 2, 2002, the 21st Century Department of Justice Appropriations A u th o riz a tio n Act (Act), Pub. L. No. 107-273, 116 Stat. 1758 (2002), became law. Section 11024 of the Act, 116 Stat. at 1830­31, later codified as 28 U.S.C. § 540C, is e n title d "FBI Police." See 28 U.S.C. § 540C (2006). This section authorizes the " e sta b lis h [ m e n t] of a permanent police force, to be known as the FBI police" to provide " p ro te c tio n of persons and property within FBI buildings and grounds." 28 U.S.C. § 540C(b)(1), (2). Section 540C mandates that the FBI provide the FBI police with the s a m e pay and benefits as members of the Uniformed Division of the United States Secret S erv ice. 28 U.S.C. § 540C(b)(5)(A). Plaintiffs' Complaint asserts that all plaintiffs are c u rre n t or former FBI police officers. Compl. 1­3. D e f e n d a n t asserts that plaintiffs are not "FBI police officers" and that the FBI D ire c to r has yet to establish the "FBI Police" as contemplated in 28 U.S.C. § 540C. Defendant's Motion to Dismiss (Motion to Dismiss or Def.'s Motion) 7. When deciding c la ss certification, however, the court takes all of plaintiffs' allegations as true and does n o t consider whether plaintiffs have stated a cause of action or will prevail on the merits. See Filosa v. United States (Filosa), 70 Fed. Cl. 609, 615 (2006) (discussing Eisen v. C a rlisle & Jacquelin, 417 U.S. 156, 177­78 (1974) (interpreting Federal Rule of Civil P r o c e d u re (FRCP) 23)). Accordingly, for the purpose of this decision, the court assumes th a t all plaintiffs are current or former FBI police officers. S ec tio n 540C(b)(5)(B) mandates that the pay and benefits for FBI police officers (1 ) be established by regulation, (2) apply to pay periods after January 1, 2003, and (3) n o t cause any decrease in the rate of pay for any individual. 28 U.S.C. § 540C(b)(5)(B). Plaintiffs claim that, starting on January 1, 2003 and continuing to the present, defendant
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(...continued) hearing the case. King v. United States, 81 Fed. Cl. 766, 767­68, 71 (2008). This court found that it had jurisdiction, id. at 770, that § 540C was money mandating, id., and that the CSRA did not preclude the court from hearing the case, id. at 771­72. 2

h a s not complied with 28 U.S.C. § 540C and that plaintiffs are owed compensation under th e Back Pay Act, 5 U.S.C. § 5596. Compl. 5­6. U n d e r the Back Pay Act, "An employee of an agency who . . . ha[s] been affected b y an unjustified or unwarranted personnel action which has resulted in the withdrawal or re d u c tio n of all or part of the pay . . . of the employee" is entitled to "an amount equal to a ll or any part of the pay . . . as applicable which the employee normally would have e a rn e d or received during the period if the personnel action had not occurred, less any a m o u n ts earned by the employee through other employment during that period" and, in c e rta in cases, attorneys fees. 5 U.S.C. § 5596(b)(1). II. L e g a l Standards

This court's rule on class actions, RCFC 23, was completely rewritten and re is s u e d in 2002 (and subsequently amended in 2004).2 RCFC 23, Rules Committee N o te s (2004). Prior to 2002 the court followed Quinault Allottee Ass'n v. United States (Q u in a u lt), 197 Ct. Cl. 134, 453 F.2d 1272 (Ct. Cl. 1972), which borrowed criteria from R u le 23 of the Federal Rules of Civil Procedure (FRCP).3

Rule 23 of the Rules of the United States Court of Federal Claims (RCFC) is modeled after Rule 23 of the Federal Rules of Civil Procedure (FRCP). See Curry v. United States (Curry), 81 Fed. Cl. 328, 332 n.10 (2008). Because the language of RCFC 23 and FRCP 23 are practically identical, other federal cases applying FRCP 23 are helpful in interpreting RCFC 23. RCFC 23 differs from the federal rule in two ways: (1) it has been modified to reflect the court's jurisdiction, in particular, the narrow circumstances in which the court will afford declaratory or injunctive relief, and (2) it allows only "opt-in," but not "opt-out," class actions. RCFC 23, Rules Committee Notes (2002). The multi-factor test set forth in Quinault Allotee Ass'n v United States consisted of: (i) the class must be large, but manageable; (ii) there must be a question of law common to the whole class; (iii) the common question of law must predominate over any separate factual issues affecting individual class members; (iv) the claims of named plaintiffs must be typical of the class; (v) the United States must have acted on grounds generally applicable to the whole class; (vi) the claims of many allottees must be so small that it is doubtful they would otherwise be pursued; (vii) the current plaintiffs must adequately and fairly protect the interests of the class without conflicts of interest; and (viii) the prosecution of individual lawsuits must create a risk of inconsistent or varying adjudications. Quinault Allottee Ass'n v. United States, 197 Ct. Cl. 134, 140­41, 453 F.2d 1272, 1276 (Ct. Cl. 1972). The eighth factor, the risk of inconsistent adjudications, has been largely obviated by the creation of the United States Court of Appeals for the Federal Circuit, which hears all appeals from the district courts and this court in cases involving requests for money damages from the government. See Fisher v. United States, 69 (continued...) 3
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T h e commentary to RCFC 23 states that "[i]n the main" the rule adopts the criteria a s set forth in Quinault. RCFC 23, Rules Committee Notes (2002). The current rule provides: (a ) Prerequisites to a Class Action. One or more members of a class may s u e as representative parties on behalf of all only if (1) the class is so n u m ero u s that joinder of all members is impracticable, (2) there are q u e stio n s of law or fact common to the class, (3) the claims of the re p re se n ta tiv e parties are typical of the claims of the class, and (4) the re p re se n ta tiv e parties will fairly and adequately protect the interests of the c la s s . ( b ) Class Actions Maintainable. An action may be maintained as a class a c tio n if the prerequisites of subdivision (a) are satisfied, and in addition: (1 ) the United States has acted or refused to act on grounds generally a p p lic a b le to the class; and (2 ) the court finds that the questions of law or fact common to the m e m b e rs of the class predominate over any questions affecting only in d iv id u a l members, and that a class action is superior to other a v a ila b le methods for the fair and efficient adjudication of the c o n tro v e rs y. The matters pertinent to the findings include: (A) the in te re st of members of the class in individually controlling the p ro s e c u tio n of separate actions; (B) the extent and nature of any litig a tio n concerning the controversy already commenced by m e m b e r s of the class; and (C) the difficulties likely to be e n c o u n te re d in the management of a class action. R C F C 23(a), (b). In shorthand, as stated in Barnes v. United States (Barnes), 68 Fed. Cl. 492, 494 (2 0 0 5 ), this rule can be grouped into five requirements: (i) numerosity, (ii) commonality, (iii) typicality, (iv) adequacy, and (v) superiority. A failure to satisfy any one of the c a te g o rie s is fatal to class certification. See Testwuide v. United States, 56 Fed. Cl. 755, 7 6 1 (2003) (noting that a court will not certify a class if it fails to satisfy any of the c a te g o rie s); see also Gen. Tel. Co. of the Sw. v. Falcon (Falcon), 457 U.S. 147, 161 (1 9 8 2 ) (making same observation as to the FRCP). Thus, to prevail in their motion to (...continued) Fed. Cl. 193, 197 n.4 (2006) (citing Moore v. United States, 41 Fed. Cl. 394, 400 (1998) and Taylor v. United States, 41 Fed. Cl. 440, 447 (1998)). 4
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c e rtif y a class, plaintiffs must establish, by a preponderance of the evidence, that the p ro p o s e d action satisfies each of the five categories. See Filosa, 70 Fed. Cl. at 615. III. Application of Legal Standards to This Case

F o r the following reasons the court finds that the proposed class fulfills the RCFC 2 3 requirements for numerosity, commonality, typicality, adequacy, and superiority. A. N u m e ro sity

R C F C 23(a)(1) allows for class certification if "the class is so numerous that jo in d e r of all members is impracticable." RCFC 23(a)(1). "Impracticable" does not mean " im p o s s ib le ." Barnes, 68 Fed. Cl. at 495 (citing Robidoux v. Celani, 987 F.2d 931, 935 (2 d Cir. 1993) (discussing FRCP 23)). The court determines numerosity by a variety of f a cto rs that include the number of class members, the location of the members of the p ro p o s e d class, the size of the individual claims, and the nature of the action. 7A Charles A lan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure (Wright, M ille r, & Kane) § 1762 at 177, 206­07 (3d ed. 2005). While not outcome determinative, the number of potential class members is p e rs u a siv e when determining numerosity: generally, if there are more than forty potential c la ss members, this prong has been met. See Stewart v. Abraham (Stewart), 275 F.3d 2 2 0 , 226­27 (3d Cir. 2001) ("No minimum number of plaintiffs is required to maintain a s u it as a class action [under FRCP 23], but generally if the named plaintiff demonstrates th a t the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been m e t." ); 5 James Wm. Moore et al., Moore's Federal Practice § 23.22[1][b] (Matthew B e n d e r 3d ed. 2004). Plaintiffs need not allege the exact number or identity of the class m e m b e r s , but they need more than mere speculation as to the number of parties. See M a rc ia l v. Coronet Ins. Co. (Marcial), 880 F.2d 954, 957 (7th Cir. 1989) (noting that u n d e r FRCP 23 plaintiffs do not need to know the "exact number" of members, but " c a n n o t rely on conclusory allegations that joinder is impractical or on speculation as to th e size of the class in order to prove numerosity"). 1. N u m b er of Class Members

H e re , the proposed class description indicates, with some specificity, who is in c l u d e d in the class. The proposed class includes: A ll employees of [d]efendant who were, are, or will be employed as a m e m b e r of the FBI police during at least any one pay period beginning a f te r January 1, 2003 and [w]ho did not receive pay and benefits equivalent 5

to the pay and benefits applicable to members of the United States Secret S e rv ic e Uniformed Division as required by 28 U.S.C. § 540C. P lain tiff s' Memorandum of Points and Authorities in Support of Plaintiffs' Motion to C e r tif y Class Action (Pls.' Mem.) 8. Plaintiffs have identified 152 potential class m e m b e r s .4 Id. Plaintiffs claim that the size of "the potential class is approximately twice th e number of those who already consented to be part of the class." Id. at 9. Plaintiffs e stim a te d the number of additional class members using a 2006 Government A c c o u n ta b ility Office (GAO) report. Id. at 9, Exhibit (Ex.) 9 (GAO-07-12, Federal Law E n f o r c e m e n t : Survey of Federal Civilian Law Enforcement Function and Authorities, D e c . 2006). This report stated that there were then 239 FBI police officers employed by th e FBI. Id. at Ex. 9. Plaintiffs point out that the GAO number includes neither former F B I police officers no longer then working for the FBI, nor FBI police officers appointed a f te r the date reflected in the GAO report. Id. at 9. Plaintiffs did not use "mere speculation" to come up with the number of additional p la in tif f s, they estimated based on a figure reported by GAO, and, importantly, have a lre a d y identified 152 potential plaintiffs. Id.; see Marcial, 880 F.2d at 957. The actual n u m b e r of members of the class already identified, 152, is significantly higher than the th re s h o ld number of forty, and is likely sufficient to satisfy the numerosity prong by itself. See Stewart, 275 F.3d at 226­27. However, the court analyzes whether other factors c o n s id e re d in determining numerosity also support a finding of numerosity. 2. L o c a t io n of Members of the Proposed Class

A n o th e r factor to consider in determining numerosity is the geographical location o f the potential class members. See Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1 0 3 8 (5th Cir. Unit A July 1981). If plaintiffs are dispersed geographically, then a court is more likely to certify a class action. See Filosa 70 Fed. Cl. at 615 (certifying a class a c tio n when plaintiffs were dispersed throughout twelve states). "[P]laintiffs are located in every location where FBI police are regularly stationed, in c lu d in g but not limited to Washington, DC, Virginia, West Virginia, and New York." Pls.' Mem. 8. The court also notes that former FBI police officers, who are potential
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Attached to plaintiffs' Memorandum of Points and Authorities in Support of Plaintiffs' Motion to Certify Class Action (Pls.' Mem.), plaintiffs submitted Exhibit (Ex.) 8 that consists of signed consent forms from 152 current or past members of the proposed class all of whom worked at least one pay period after January 1, 2003, and who claim they did not receive pay and benefits equivalent to the pay and benefits applicable to the United States Secret Service Uniformed Division. Pls.' Mem, Ex. 8. 6

c la ss members, could be located anywhere. Owing to the dispersion of plaintiffs over, at a minimum, three states and the District of Columbia, the court finds that the g e o g ra p h ica l dispersion of plaintiffs is sufficiently broad to support the numerosity re q u ire m e n t. 3. S iz e of Individual Claims

A n o th e r factor in determining numerosity is whether the size of each individual p lain tiff 's claim hinders the ability of a plaintiff to file any action at all. See Wright, M ille r, & Kane § 1762 at 206 & n.55. The smaller the size of the claim and the larger the n u m b e r of persons, the less likely it is that, without the benefit of a class action, any p la in tif f will recover. See Barnes, 68 Fed. Cl. at 499­500 ("[T]he small recoveries e x p e cte d to be received by these individuals - estimated to be individually in the hundreds o f dollars - render it less likely that, without the benefit of class representation, they w o u ld be willing to incur the financial costs and hardships of separate litigations, the c o s ts of which would certainly exceed their recoveries many-fold."). While plaintiffs here have not briefed the court on this issue, in other wage and h o u rs contexts, this court has found that the small size of the claims involved supports the n u m e ro s ity requirement. See Filosa, 70 Fed. Cl. at 622 (noting in a case about calculating c o m p e n s a tio n for additional time worked, that "there is little benefit to having each p ro p o s e d class member retain counsel, pay filing fees, and submit duplicative p lea d in g s" ); Barnes, 68 Fed. Cl. at 499­500 (noting in an overtime case that "the small re c o v e rie s . . . render it less likely" that individual actions would be brought without a c la s s action). 4. C o n c lu s io n

F o r the foregoing reasons, the court finds that the proposed class satisfies the n u m e ro sity requirement owing to the large number of already identified and reasonably e stim a te d class members, the geographic dispersion of members of the class, and the lik e ly size of the claims in relation to the likely costs of separate litigation. B. C o m m o n a l i ty

T h e commonality requirement addresses three separate issues: (1) whether "there a r e questions of law or fact common to the class," RCFC 23(a)(2), (2) whether those c o m m o n questions "predominate over any questions affecting only individual members," R C F C (b )(2 ), and (3) whether "the United States acted or refused to act on grounds g e n e ra lly applicable to the class," RCFC 23(b)(1). "The threshold of `commonality' is n o t high." Jenkins v. Raymark Indus., 782 F.2d 468, 472 (5th Cir. 1986) (interpreting 7

F R C P 23(a)(2)). When determining commonality the court must "seek to develop an u n d e rs ta n d in g of the relevant claims, defenses, facts and substantive law." Barnes, 68 F e d . Cl. at 496 (citing Falcon, 457 U.S. at 160); see also Coopers & Lybrand v. Livesay, 4 3 7 U.S. 463, 469 (1978) (noting that class determination under FRCP 23 "involves co n side ratio n s that are `enmeshed in the factual and legal issues comprising the plaintiff's c a u se of action'") (citation omitted). The court's determination of the common issues of la w and fact raised here has been addressed, in part, in the court's decision denying d e f e n d a n t's motion to dismiss. King v. United States, 81 Fed. Cl. 766 (2008). 1. C o m m o n Questions or Law or Fact

R C F C 23(a)(2) requires there to be "questions of law or fact common to the class." RCFC 23(a)(2). The requirement is satisfied if there is at least "one core common legal q u e stio n that is likely to have one common defense." Fisher, 69 Fed. Cl. at 199; see F o r b u s h v. J.C. Penny Co., 994 F.2d 1101, 1106 (5th Cir. 1993) ("The interests and c la im s of the various plaintiffs need not be identical. Rather, the commonality test [for F R C P 23] is met when there is `at least one issue whose resolution will affect all or a s ig n if ic a n t number of the putative class members.'") (citation omitted). Here, common questions of law and fact apply to the entire class. The questions a re as follows: (1) whether section 540C requires that FBI police officers be paid as S e c re t Service Uniformed Division Officers; (2) whether the government has or has not p a id FBI police officers as Secret Service Uniformed Division Officers; and (3) whether F B I police officers are entitled to compensation under the Back Pay Act owing to the g o v e rn m e n t's failure to pay them as Secret Service Uniformed Division Officers. The c o u rt agrees with the conclusion that "commonality is satisfied where the lawsuit c h a l le n g e s a system-wide practice or policy that affects all of the putative class m e m b e r s ." Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (deciding an FRCP 23 co m m o n ality issue). 2. C o m m o n Questions of Law or Fact Predominate Over Individual Questions

R C F C 23(b)(2) requires that, once a class is certified, "questions of law or fact c o m m o n to the members of the class [must continue to] predominate over any questions a f fe c tin g only individual members" if the class action is to be maintained. RCFC 2 3 (b)(2 ). "`[F]actual variation among the class grievances' is acceptable as long as `a c o m m o n nucleus of operative fact' exists." Curry v. United States (Curry), 81 Fed. Cl. 3 2 8 , 334 (2008) (quoting Rosario v. Livaditis, 963 F.2d 1013, 1017­18 (7th Cir. 1992)). The fact that the eventual award "`will ultimately require individualized fact d e te rm in a tio n s is insufficient, by itself' to defeat a class action." Id. (quoting McCarthy v . Kleindienst, 741 F.2d 1406, 1415 (D.C. Cir. 1984)). 8

If successful, plaintiffs will receive different awards of damages based on factors s u c h as seniority or pay grade. However, it is clear that the outcome-determinative q u e stio n is whether or not the government failed to pay FBI police officers in violation of 2 8 U.S.C. § 540C. See Barnes, 68 Fed. Cl. at 498 ("[T]here scarcely would be a case that w o u ld qualify for class status in this court [if individual damages were outcome d e te rm in a tiv e for class certification]."). At a later date, if required, the court can d e te rm in e a formula for calculating individual damages. See id. at 498­99 (discussing h o w the court could employ damage estimations). 3. R e f u sa l to Act by the United States on Grounds Generally Applicable to the C la s s

R C F C 23(b)(1) requires that in order to maintain a class action the United States m u s t have "acted or refused to act on grounds generally applicable to the class." RCFC 2 3 (b)(1 ). Here, the claim is that the United States has refused to pay FBI police officers in accordance with 28 U.S.C. § 540C. Pls.' Mem. 13. The alleged refusal to act applies to the entire potential class of plaintiffs. 4. C o n c lu s io n

F o r the foregoing reasons, plaintiffs have satisfied each of the three requirements f o r a finding of commonality. C. T yp ic a lity Requirement

" [ T ]h e claims of the representative parties [must be] typical of the claims of the c la ss ." RCFC 23(a)(3). The threshold for typicality, as with the threshold for c o m m o n a lity, is "`not high.'" Curry, 81 Fed. Cl. at 335 (quoting Fisher, 69 Fed. Cl. at 2 0 0 ). The applicable test is "`not unusually restrictive.'" Id. (quoting Fisher 69 Fed. Cl. a t 200). Courts "have found typicality if the claims or defenses of the representatives and th e members of the class stem from a single event or a unitary course of conduct, or if th e y are based on the same legal or remedial theory." Wright, Miller, & Kane § 1764 at 2 7 0 ­ 7 1 (footnotes omitted). Here, as with the claims for commonality, the claims of all proposed class m e m b e r s are similar and the representative parties have the same claims as the proposed m e m b e r s of the class. The representative parties are all FBI police officers who worked a t least one pay period after January 1, 2003. Pls.' Mem. 14. The proposed members of the class are all FBI police officers who have worked at least one pay period after January 1 , 2003. Id. at 8. The typicality requirement, therefore, has been met. 9

D.

A d e q u a cy Requirement

T o determine whether the representative parties adequately represent the class, co u rts first consider the adequacy of class counsel and, second, ensure that class members d o not "have interests that are `antagonistic' to one another." See Barnes, 68 Fed. Cl. at 4 9 9 (quoting In re Drexel Burnham Lambert, 960 F.2d 285, 291 (2d Cir. 1992)). Because th e second prong, concerning antagonistic interests, does not appear to be an issue in this c a se , the court focuses its discussion on the adequacy of class counsel.5 U n d e r RCFC 23(g)(1)(B), "An attorney appointed to serve as class counsel must f a ir ly and adequately represent the interests of the class." RCFC 23(g)(1)(B). Class c o u n s e l must be "qualified, experienced, and generally able to conduct the litigation." B a rn e s , 68 Fed. Cl. at 499 (quoting In re Drexel Burnham Lambert, 960 F.2d at 291). To d eterm ine whether an attorney will "fairly and adequately" represent the class the court c o n s id e r s : [ 1 ] the work counsel has done in identifying or investigating potential claims in the a c tio n [; 2] counsel's experience in handling class actions, other complex litig a tio n , and claims of the type asserted in the action[; 3] counsel's knowledge of th e applicable law[; and 4] the resources counsel will commit to representing the c la s s . RCFC 23(g)(1)(C)(i). T h e court may also "consider any other matter pertinent to counsel's ability to f a irly and adequately represent the interests of the class." RCFC 23(g)(1)(C)(ii). Moreover, the court may direct potential class counsel to provide the court with in f o r m a tio n on fees, costs, or any other matter pertinent to the appointment as class c o u n s e l. RCFC 23(g)(1)(C)(iii). Sandra Mazliah, in the context of and with the anticipated support of the law firm o f Passman & Kaplan, P.C. (the firm), meets the criteria set up in RCFC 23(g)(1)(C)(i). Ms. Mazliah and the firm have investigated the current case, researched the applicable le g a l issues, and identified potential class members. Pls.' Mem. 15­16. Before filing the
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The court finds that class certification and appointment of Sandra Mazliah, presently counsel of record for plaintiffs, as class counsel would be consistent with the second test for adequacy: that none of the interests of the representative parties are antagonistic with those of the other members of the proposed class. All plaintiffs have the same legal claim. The court does not perceive how a resolution of this case in any plaintiff's favor could adversely affect the others in the potential class. 10

c o m p lain t, counsel "performed many hours of legal and factual research to determine if p o ten tial claims existed." Id. Ms. Mazliah and the firm "filed FOIA requests to obtain re le v a n t documents." Id. Additionally, over 150 potential class members contacted the f irm and provided factual information about the claims. Id. Sandra Mazliah, as counsel o f record, also successfully defeated defendant's Motion to Dismiss. Id. Ms. Mazliah and the firm have experience managing class actions and other c o m p le x civil cases, including management of "numerous class complaints and large c o n so lid a te d complaints regarding promotions, leave, earnings under the Fair Labor S ta n d a rd s Act, and retirement benefit entitlements." Id. Ms. Mazliah points out that the f irm has been class counsel in three federal employment cases and two other complex f e d era l employee actions. See id. at 16 (listing the cases in which the firm has been p la in tif f s ' counsel). Plaintiffs assert that class counsel will "devote sufficient resources to this case." Pls.' Mem. at 16. The firm's practice "concentrates on employment matters affecting f e d era l civil service employees." Id. Members of the firm have authored a handbook for f e d e ra l employees and produce a weekly publication on federal employment matters. Id. Members of the firm have experience with experts on economic damages and with d isc o v e ry of government personnel records. Id. The litigation team for this case consists o f a partner, Sandra Mazliah, a senior associate, an associate, and a law clerk/paralegal. Id. "[T]he firm's senior partners, Edward Passman and Joseph Kaplan, are fully briefed o n the status and issues in the complaint." Id. The court concludes that Ms. Mazliah, considered in the context of and with the a n ticip a ted support of the law firm of Passman & Kaplan, P.C., will fairly and adequately re p re se n t the class.6 For the foregoing reasons, the court finds that this action meets the a d e q u a c y requirement. E. S u p e rio rity Requirement

In order for a case to be maintained as a class action, it must be "superior to other a v a ila b le methods for the fair and efficient adjudication of the controversy." RCFC 2 3 (b )(2 ). In Barnes, the court noted that superiority can be met when "`a class action
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Because the adequacy of the individual proposed as class counsel has been determined in the context of the support provided to her and to this litigation by the firm, the court may reconsider this decision if Ms. Mazliah should separate from the firm, or if the firm should become materially diminished or lack capacity to provide the support described in plaintiffs' Motion, or if the firm should dissolve during the pendency of this litigation. In any such event counsel shall promptly notify the court by motion to take notice of the event. 11

w o u ld achieve economics of time, effort, and expenses, and promote uniformity . . . w ith o u t sacrificing procedural fairness or bringing about other undesirable results.'" Barnes, 68 Fed. Cl. at 499 (quoting FRCP 23, Advisory Committee Notes (1966)). The c o u rt must balance any problems with the ability to manage or fairness of conducting a c la ss action with any benefit individual members or the system will receive from such an a c tio n . Id. The court finds that the superiority requirement is met. Owing to the common q u e stio n s of law and fact and uncertainty as to whether individuals will proceed on their o w n , the court concludes that a class action is superior to other methods of adjudication. Conducting this case as a class action is likely to achieve efficiencies in the use of the re so u rc e s of both the parties and the court.7 F. C o n c lu s io n

For the foregoing reasons, the court finds that all requirements for class action c e rtif ic a tio n are met, and that plaintiffs have shown by a preponderance of the evidence th a t this case should be certified as a class action. IV . Certification of Class Action

P u r s u a n t to RCFC 23(c)(1)(B), "An order certifying a class action must define the c la ss and the class claims, issues, or defenses, and must appoint class counsel under R C F C 23(g)." RCFC 23(c)(1)(B). A. C la s s

P la in t if f s ' proposed class is: A ll employees of [d]efendant who were, are, or will be employed as a m e m b e r of the FBI police during at least any one pay period beginning after Ja n u a ry 1, 2003; and [w]ho did not receive pay and benefits equivalent to th e pay and benefits applicable to members of the United States Secret S e rv ic e Uniformed Division as required by 28 U.S.C. § 540C.

While the parties have not briefed this court on this issue, the court notes that in wage and hours cases other courts have found that the small size of an individual claim could preclude prudent resolution. See supra Part III.A.3. 12

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P ls .' Mem. 8. The court adopts the proposed class description with one substantive ch an g e (regarding persons who "will be employed") and one change (deletion of the word "a n y") that the court believes is non-substantive. As to the substantive change, this court d o e s not have the ability to adjudicate the claims of future employees of the FBI. See B o w e n v. Massachusetts, 487 U.S. 879, 905 (1988) (noting that this court "does not have th e general equitable powers of a district court to grant prospective relief"). Only persons cu rren tly or previously employed as FBI police officers may be in the class. Therefore the court revises the phrase "were, are, or will be employed" to read "were or are e m p l o ye d ." Accordingly, the class certified by this court is: A ll employees of the United States who were or are employed as a member o f the FBI police during at least one pay period beginning after January 1, 2 0 0 3 , and who did not receive pay and benefits equivalent to the pay and b e n e fits applicable to members of the United States Secret Service U n if o rm e d Division as required by 28 U.S.C. § 540C. B. C la s s Issues

The three main issues that apply to the class are: (1) whether section 540C requires p la in tif f s to be paid as United States Secret Service Uniformed Division Officers; (2) w h e th e r the government has or has not paid plaintiffs as United States Secret Service U n if o rm e d Division Officers; and (3) whether plaintiffs are entitled to compensation u n d er the Back Pay Act. These issues are the "class issues." See RCFC 23(c)(1)(B). C. C la ss Counsel

T h e RCFC allow for only "one attorney of record" and such attorney "shall be an in d iv id u a l (and not a firm)." RCFC 83.1(c)(1). All other attorneys shall be designated " o f counsel." Id. This court appoints Sandra Mazliah as class counsel for the reasons d is c u ss e d in Part III.D above. The law firm of Passman & Kaplan, P.C. shall be d e s ig n a te d "of counsel" in the filings. D. A tto rn e ys Fees

P u r s u a n t to RCFC 23(g) this court "may direct potential class counsel to provide in f o rm a tio n on any subject pertinent to the appointment and to propose terms for attorney f e es and nontaxable costs." RCFC 23(g)(1)(C)(iii). On or before Friday, October 10, 2 0 0 8 , plaintiffs' counsel shall file a supplemental exhibit to plaintiffs' Motion, which s h a ll describe plaintiffs' counsel's record-keeping procedures regarding attorneys fees a n d other expenses in this litigation. The supplemental exhibit to plaintiffs' Motion shall 13

a ls o describe the terms of any existing agreements with proposed class representatives re g a rd in g the payment of attorneys fees and other expenses of the litigation.

V.

C o n c lu s io n

F o r the foregoing reasons, this court GRANTS plaintiffs' Motion, CERTIFIES this a c tio n as a class action, APPOINTS Sandra Mazliah as class counsel, and ORDERS class c o u n se l to provide the court with the information described in Part IV.D above. On or b e f o re Friday, October 10, 2008, the parties shall file a joint status report suggesting f u rth e r proceedings and describing a proposed plan for meeting the notice requirements o f RCFC 23(c). P u r s u a n t to RCFC 10(a), all subsequent pleadings in this case shall use the caption s h o w n above. IT IS SO ORDERED. s/ Emily C. Hewitt EMILY C. HEWITT Judge

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