KING et al v. USA

Filing 34

ORDER re 32 Joint Status Report filed by KEVIN J. HARRIS, JOHN J. HAYS, SCOTT A. AUSTIN, JEFFREY B. KING, USA Briefing re: Statute of Limitations due by 10/31/2008; Responsive Briefing re: Statute of Limitations due 11/5/2008; Motion to Add Class Members due by 12/30/2008. Objections to this order, if any, due by 10/27/2008. Signed by Judge Emily C. Hewitt. (el3)

K I N G et al v. USA

D o c . 34

In the United States Court of Federal Claims
N o . 07-589 C (E -F ile d : October 23, 2008) ) ) ) ) ) ) ) ) ) ) ) ) )

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.

B a c k Pay Act; RCFC 23; Opt-In C la ss Action; Deadline for D e f en d a n t to Provide Contact I n f o r m a tio n as to Potential Class M e m b e r s ; Request for Briefing on S ta tu te of Limitations

S a n d r a Mazliah, Washington, DC, for plaintiffs. C h risto p h e r Bowen, 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. ORDER B e f o re the court are parties' Joint Status Report Regarding Further Proceedings (J S R ), filed October 17, 2008, and plaintiffs' Supplemental Exhibit to Plaintiffs' Motion f o r Class Certification (Supplemental Exhibit), filed October 17, 2008. The complaint in th is action, filed on August 2, 2007, claims that plaintiffs, FBI police officers working d u rin g at least one pay period after January 1, 2003, were denied pay and benefits m a n d a ted by 28 U.S.C. § 540C. Complaint (Compl.) 1. Plaintiffs claim that, pursuant to th e Back Pay Act, 5 U.S.C. § 5596 (2006), they are entitled to compensation, back pay, re stitu tio n , and attorneys fees. Compl. 1. The court certified this action as a class action o n September 26, 2008 and appointed Sandra Mazliah as class counsel. Opinion & Order o f September 26, 2008 (September 2008 Opinion) at 2. The JSR raises the following three issues: (1) whether defendant should provide p lain tiff s with a "comprehensive listing" of potential class members on or before

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N o v e m b e r 7, 2008 or December 15, 2008, JSR 2, 3; (2) whether defendant should bear th e cost of locating potential class members whose personnel information is not "within th e FBI's direct control," JSR 3; and (3) whether the proposed Notice (Proposed Class N o tic e ) submitted in the JSR satisfies the Rules of the United States Court of Federal C laim s (RCFC) Rule 23(c). F o r the following reasons, the court determines that defendant shall provide p lain tiff s with a "comprehensive listing" of potential class members on or before N o v e m b e r 21, 2008, and that defendant shall bear the costs of providing plaintiffs with c o n tac t information of potential class members. The court also notifies counsel that it w ill be issuing a revised class notice on or before November 7, 2008. I. D ate for Defendant to Provide a List of Potential Class Members

T h e parties disagree as to the date by which defendant will provide plaintiffs with c o n ta c t information of potential class members. JSR 2, 3. Plaintiffs propose November 7 , 2008, JSR 2, and defendant proposes December 15, 2008, JSR 3. Plaintiffs suggest th a t "[d]efendant's proposed date creates statute of limitation problems for the potential c la s s members." JSR 2. The potential class members include: 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. September 2008 Opinion 13. For this action the statute of limitations is six years "after s u c h claim first accrues." 28 U.S.C. § 2501 (2006). There is a question whether the statu te of limitations could be interpreted to bar claims of potential class members e m p lo ye d on January 1, 2003 who do not opt in to this action before January 1, 2009. The court determines that a deadline of November 21, 2008, affords defendant ample tim e to identify and provide plaintiffs with the required information, while increasing the lik e lih o o d that potential class members can be contacted and included in this class action b e f o re the possible expiration of the statute of limitations. The court is mindful that the s ta tu t e of limitations is a jurisdictional bar, John R. Sand & Gravel Co. v. United States, 1 2 8 S. Ct. 750, 754­55 (2008), and seeks to use all reasonably available means to contact p o ten tial class members. See RCFC 23(d) (empowering the court to "make appropriate

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o rd e rs " in class action cases for the "fair conduct of the action" and for "the protection of the members of the class"). II. C o st of Identifying Potential Class Members

P la in t if f s suggest that defendant bear the cost of identifying potential class m em b ers. JSR 3. Defendant agrees to cooperate with plaintiffs to locate class members " f o r whom an address is otherwise needed," but argues that "any efforts outside of the p rov isio n of the information within the FBI's direct control shall be at the class counsel's s o le expense." Id. Defendant shall provide to plaintiff, at defendant's own expense,1 all known c o n ta c t information of potential class members, including the last known address for any p o te n tia l class member no longer working for the FBI. "All known contact information" in c lu d e s full names, last known addresses, last known titles, last known telephone n u m b e r s , and last known email addresses found in defendant's employment records, in c lu d in g information under the direct control of the FBI, the Office of Personnel M a n a g em e n t, or any other entity or agency of defendant retaining employment records of p o te n tia l class members. Once provided with all known contact information, plaintiff shall bear the cost of lo c a tin g potential class members who are "not readily located based upon initial in f o rm a tio n provided by the government." See JSR 4. The court believes that the foregoing cost-sharing arrangement is well-tailored to ef fe ctua te the notice provisions of RCFC 23(c). See RCFC 23(d) (empowering the court to "make appropriate orders" in class action cases for the "fair conduct of the action" and f o r "the protection of the members of the class").

Based on the potential size of the class, see Court's Opinion & Order of Sept. 26, 2008 at 5­7, the court is of the opinion that the costs involved in defendant's obtaining the contact information for potential class members is "so insubstantial as not to warrant the effort required to calculate it and shift it to the representative plaintiff." See Oppenheimer Fund v. Sanders, 437 U.S. 340, 359 (1978). If the cost of obtaining the contact information is substantial, defendant, at its option, may file a motion explaining why the cost of obtaining such information is substantial. Any such motion shall, to the extent practicable, contain the exact costs to defendant of complying with this order. 3

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III.

N o tic e to Class Members and Statute of Limitations

T h e re is attached to the JSR submitted by the parties on October 17, 2008 a P r o p o s e d Class Notice to be sent to potential class members. The court will issue a re v is e d class notice on or before November 7, 2008. The court intends that the revised n o tic e will provide potential class members with "the best notice practicable under the c irc u m s ta n c es " and be written "in plain, easily understood language" that "concisely and c le a rly" provides potential class members with the information required by RCFC 23(c). RCFC 23(c)(2)(B). The court will also add a section to the Proposed Class Notice that informs p o ten tial class members that "a class member may enter an appearance through counsel if th e member so desires." Id. T h e court is concerned about the treatment of the statute of limitations in the P rop o sed Class Notice. The court directs the parties to submit briefing on or before F r id a y, October 31, 2008, regarding how the statute of limitations affects this class action. S p e c if ic a lly, and in addition to the parties' views of any other aspect of the application of th e statute of limitations to this case, the court would like the parties' views on the f o llo w in g : (1) whether the six-year statute of limitations acts as a total bar to all claims b y potential class members employed on January 1, 2003 who do not opt in to the class a c tio n before January 1, 2009; (2) whether the statute of limitations bars only those c la im s relating to any pay period more than six years before a plaintiff joins the class a c tio n ; and (3) whether the commencement and/or certification of this class action s a tis f ie s the statute of limitations as to all potential class members. The parties may, on o r before Wednesday, November 5, 2008, submit briefing responsive to the October 31, 2 0 0 8 briefing. IV. C o n c lu s io n

F o r the foregoing reasons, the court determines that defendant shall provide p la in tif f s with a list of potential class members and all known contact information for s u c h potential class members on or before November 21, 2008; directs that defendant s h a ll bear the costs of providing plaintiffs with contact information of potential class m em b ers; and notifies counsel that it expects to issue a revised class notice on or before N o v e m b e r 7, 2008. Class counsel shall file with the court on or before December 30, 2008, a motion to a d d class members, accompanied by a copy of a signed consent form for each additional c la s s member joining the class action. 4

T h e parties are urged to contact the court at any time, by motion, when they b e lie v e the involvement of the court will help to secure the just, speedy, and inexpensive d e te rm in a tio n of this action. See RCFC 23(d) (empowering the court to "make a p p ro p ria te orders" in class action cases for the "fair conduct of the action" and for "the p ro te c tio n of the members of the class"); RCFC 1 ("[The RCFC] shall be construed and a d m in is te re d to secure the just, speedy, and inexpensive determination of every action."). In particular, any objection to any portion of this order shall be filed on or before M o n d a y, October 27, 2008. IT IS SO ORDERED. s/ Emily C. Hewitt EMILY C. HEWITT Judge

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