KING et al v. USA

Filing 81

PUBLISHED OPINION granting 77 Motion for Leave to Appear and appointing new class counsel. Signed by Chief Judge Emily C. Hewitt. (kl)

KIN G et al v. USA

Do c. 81

In the United States Court of Federal Claims
N o . 07-589 C (E -F ile d : August 4, 2010) ) ) ) ) ) M o t io n to Substitute Class ) C o u n s e l; RCFC 23(g), 83.1(c) ) ) ) ) ) ) ) )

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 la in tif f s , v. T H E UNITED STATES, Defendant.

S a n d r a Mazliah, Washington, DC, for plaintiffs. C h ris to p h e r Bowen, Commercial Litigation Branch, Civil Division, United States D e p a rtm e n t of Justice, Washington, DC, for defendant.

O R D E R AND OPINION H E W IT T , Chief Judge B e f o re the court is Plaintiffs' Motion to Add Class Counsel (plaintiffs' Motion or P ls.' Mot.), Docket Number (Dkt. No.) 77, filed on July 29, 2010, under Rules 23(a)(4), 2 3 (g) and 83.1(c) of the Rules of the United States Court of Federal Claims (RCFC).1 T h e complaint in this action, filed on August 2, 2007, claims that plaintiffs, FBI police o f f ic e rs working during at least one pay period after January 1, 2003, were denied pay a n d benefits mandated by 28 U.S.C. § 540C. Complaint (Compl.) 1, 3. Plaintiffs claim

In response to an inquiry from the court, government counsel has indicated that defendant does not intend to respond to Plaintiffs' Motion to Add Class Counsel (plaintiffs' Motion).

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th a t pursuant to the Back Pay Act of 1996, 5 U.S.C. § 5596 (2006), they are entitled to c o m p e n s a tio n , back pay, restitution, and attorney fees. Compl. 1. The court issued an o rd e r and opinion on September 26, 2008, granting class certification and appointing S a n d ra Mazliah of the law firm of Passman & Kaplan, P.C., as class counsel. Order of S e p t. 26, 2008, Dkt. No. 28, at 10-11, 14. Plaintiffs now seek to substitute Joseph V. K a p lan , also of Passman & Kaplan, P.C., as attorney of record and lead counsel in this m a tte r. Pls.' Mot. 1. For the following reasons, plaintiffs' Motion is GRANTED and J o s e p h V. Kaplan is APPOINTED class counsel. I. S u b s titu tio n and Adequacy of Class Counsel

G e n e ra lly, under RCFC 83.1(c)(4)(A)(i), a plaintiff "may seek leave of the court to s u b s titu te its attorney of record at any time by filing a motion signed by the party or by the n e w ly designated attorney along with an affidavit of appointment by such attorney." RCFC 83.1(c)(4)(A)(i). When the previous attorney's consent to the substitution is in d ic a te d in the motion, as here, Pls.' Mot. 1, "the clerk will automatically enter the s u b s titu tio n on the docket." RCFC 83.1(c)(4)(A)(i)(I). However, under RCFC 23(g), "a c o u rt that certifies a class must appoint class counsel." RCFC 23(g)(1). "Class counsel m u st fairly and adequately represent the interests of the class." RCFC 23(g)(4). To d eterm ine whether an attorney will "fairly and adequately" represent the class, the court m u st consider: [ (1 )] the work counsel has done in identifying or investigating potential c la im s in the action; [(2)] counsel's experience in handling class actions, o ther complex litigation, and the types of claims asserted in the action; [(3)] c o u n se l's knowledge of the applicable law; and [(4)] the resources that co u n sel will commit to representing the class[.] RCFC 23(g)(1)(A). In addition, the court "may consider any other matter pertinent to c o u n se l's ability to fairly and adequately represent the interests of the class." RCFC 2 3 (g )(1 )(B ). Class counsel must be "qualified, experienced and generally able to conduct th e litigation." Barnes v. United States, 68 Fed. Cl. 492, 499 (2005) (internal quotation m a rk s omitted) (citing In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d C ir. 1992)). Joseph V. Kaplan, in the context of and with the anticipated support of the law f irm of Passman & Kaplan, P.C. (the firm), satisfies the considerations set out in RCFC 2 3 (g )(1 )(A ). As the court stated in its September 26, 2008 Order, the firm has in v e stig a te d the current case, researched the applicable legal issues, and identified p o te n tia l class members. Order of Sept. 26, 2008, at 10-11. The court noted at that time 2

th a t "the firm's senior partners, Edward Passman and Joseph Kaplan, are fully briefed on th e status and issues in the complaint." Id. at 11 (internal quotation marks omitted). Mr. Kaplan and the firm have "extensive experience handling class actions and o ther complex litigation and claims of the type asserted in this action." Pls.' Mot. 2. Mr. K ap lan has served as lead counsel and attorney of record in four class actions, the firm's in v o lv e m e n t in which was previously cited by this court in appointing Ms. Mazliah as c la ss counsel. Id.; Order of Sept. 26, 2008, at 11. Plaintiffs assert that "Mr. Kaplan has a n able litigation team in place to assist him in the prosecution of the [p]laintiffs' claims." Pls.' Mot. 2. The firm "focuses its practice on employment matters affecting federal civil s e rv ic e employees, is well-published in the area of federal employment law, and has h a n d le d a number of class complaints involving an array of different federal employment m a tte r s." Id. In addition to the litigation efforts of Mr. Kaplan and two associates, Ms. M a z lia h will continue to contribute to the case, and "the firm's other attorneys and p a ra leg a l have contributed to the case." Id. The court expects that class counsel will c o n tin u e to "devote sufficient resources to this case" as previously assured by Ms. M a z lia h and the firm. See Order of Sept. 26, 2008, at 11 (internal quotation marks o m i tt e d ) . T h e court concludes that Mr. Kaplan, 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.2 The RCFC allow for only "one attorney of record" and state that a p a rty "must be represented by an attorney (not a firm)." RCFC 83.1(c)(1). All other a tto rn e ys shall be designated "of counsel." Id. This court appoints Joseph V. Kaplan as c la s s counsel for the reasons discussed above. II. C o n c lu s io n

F o r the foregoing reasons, this court GRANTS plaintiffs' Motion and APPOINTS J o s e p h V. Kaplan as class counsel.

Because the adequacy of the individual proposed as class counsel has been determined in the context of the support provided to him and to this litigation by the firm, the court may reconsider this decision if Mr. Kaplan 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. 3

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IT IS SO ORDERED. s/ Emily C. Hewitt EMILY C. HEWITT Chief Judge

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