ADEGBITE et al v. USA

Filing 18

REPORTED OPINION granting in part and denying in part 7 Motion to Dismiss - Rule 12(b)(6); granting 9 Motion for Leave to File ; granting 16 Motion for Leave to File. Signed by Judge Edward H. Meyers. (rmc) Service on parties made.

In the United States Court of Federal Claims
No. 20-1183 C
Filed: October 29, 2021
________________________________________
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ADE ADEGBITE, et al.,
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Plaintiffs,
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v.
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THE UNITED STATES,
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Defendant.
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________________________________________ )
Molly Anne Elkin, McGillivary Steele Elkin LLP, Washington, D.C., for Plaintiffs. Sarah M.
Block, of counsel.
Brendan David Jordan, United States Department of Justice, Civil Division, Washington, D.C.,
with whom were Brian M. Boynton, Acting Assistant Attorney General, Martin F. Hockey, Jr.,
Acting Director, and Reginald T. Blades, Jr., Assistant Director, of counsel, for Defendant.
OPINION AND ORDER
MEYERS, Judge.
In this collective action, correctional officers allege that the Government has required
them to work more than forty hours per week without paying them overtime. They contend that
they must perform certain pre- and post-shift activities that are central to their jobs, but the
Government does not pay them for this overtime work. The gravamen of the Government’s
motion to dismiss is that Plaintiffs fail to state a claim upon which relief may be granted. In the
alternative, the Government seeks a more definite statement of Plaintiffs’ claims. But the
Government’s motion seeks to hold Plaintiffs to a pleading standard not required by law or this
Court’s precedent. Therefore, the Government’s motion is granted-in-part and denied-in-part.
I.

Factual Background 1

Plaintiffs are current and former correctional workers employed by the United States at
the Federal Correctional Institution Sheridan or the adjacent Federal Detention Center in
Sheridan, Oregon (collectively, the “Institution”). ECF No. 1 ¶¶ 1, 4. The Institution contains
over 1,000 inmates charged with or convicted of various federal crimes, including violent and
The facts presented are from the Complaint and presumed to be true for purposes of this
motion.

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drug-related offenses. Id. ¶ 8. Serving as correctional officers, 2 Plaintiffs allege that their
“primary job duty is to maintain the safety and security of the Institution.” Id. ¶ 9. Plaintiffs
execute their job duty at assigned posts throughout the Institution, most of which are staffed for
24 or 16 hours per day while others are staffed for only 8 hours per day. Id. ¶ 10. Regardless of
which post, Plaintiffs each work a single 8-hour shift per day, with three total shifts at the 24hour posts and two total shifts at the 16-hour posts. Id. ¶ 11.
In addition to the work at their posts, Plaintiffs engage in other required activities before
and after their shifts. For example, since the outbreak of the COVID-19 pandemic in March
2020, Plaintiffs undergo a health screening involving a temperature check and symptom
questionnaire upon first arriving at the Institution’s grounds before entering the parking lot. Id. ¶
20. Plaintiffs then clear a staff screening involving walking through a metal detector and placing
their duty belts and other required equipment through an x-ray machine. Id. ¶¶ 19-20; ECF No.
8 at 4-5. After this screening, Plaintiffs collect and don their duty belts and other necessary
equipment. ECF No. 1 ¶ 19.
Plaintiffs specifically assigned to a 16-hour-post next retrieve more equipment or
paperwork from one of the Institution’s control centers. Id. ¶ 21. Then, Plaintiffs walk to their
posts through two sally ports and through the housing units. Id. ¶ 22. While walking through the
housing units, Plaintiffs must respond to emergencies that arise, including fights between
inmates. Id. ¶ 27. If they fail to do so, Plaintiffs may face disciplinary actions, including
termination. Id. Upon arriving at their posts, Plaintiffs inspect, account for, and exchange
equipment with the post’s outgoing officer. Id. ¶ 24. Plaintiffs also exchange information with
the outgoing officer concerning any significant security events that occurred during the prior
shift. Id. After their shifts, Plaintiffs again exchange equipment and security-related information
with the oncoming officer, and then walk back and return equipment to either of the Institution’s
control centers. Id. ¶¶ 26, 27. Plaintiffs claim to have engaged in these activities for at least 1530 minutes per day before and after their scheduled shifts. Id. ¶ 13.
On September 11, 2020, Plaintiffs commenced the present action, alleging that the
Government violated their rights under the Fair Labor Standards Act of 1938 (“FLSA”), 29
U.S.C. § 201 et seq. Specifically, Plaintiffs allege that the Government failed to compensate
them with overtime pay as required under the FLSA for the above pre- and post-shift activities
they performed beyond their regularly scheduled 8 hours per day and 40 hours per week of work
performed at either a 16- or 24-hour post since September 11, 2017. E.g., id. ¶¶ 12, 28, 33-37;
ECF No. 8 at 9, 16, 20. Plaintiffs thus seek monetary relief under the FLSA and the Back Pay
Act (“BPA”), 5 U.S.C. § 5596, as well as a declaratory judgment that the Government violated
the FLSA and of an accounting of all compensation owed to Plaintiffs pursuant to the
Declaratory Judgment Act (“DJA”), 28 U.S.C. §§ 2201, 2202. ECF No. 1 Prayer for Relief.
In their Complaint, Plaintiffs allege that these pre- and post-shift activities connect to
their “primary job duty” of “maintain[ing] the safety and security of the Institution.” Id. ¶ 9. In
general, the Complaint states that Plaintiffs “are charged with performing this job duty every
Plaintiffs include both full-time correctional officers as well as other correctional workers, such
as food services employees, unit counselors, and correctional services officers, who were
“augmented” to perform correctional officer tasks. See ECF No. 1 ¶¶ 28-29.

2

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moment that they are within the Institution from the moment they begin screening prior to their
shifts until they exit the Institution after their shifts end.” Id. They do so “by, among other
things, maintaining constant vigilance to ensure that nothing out of the ordinary is occurring,
immediately addressing any issues that they see no matter the location and time of day that it
occurs, including before their paid shifts begin and after they end.” Id. Regarding specific
activities, the Plaintiffs allege that, when undergoing the health screening, Plaintiffs “are
performing their primary duty of safety and security by assuring that the highly contagious novel
coronavirus does not enter the Institution.” Id. ¶ 20. They also allege that, in clearing the staff
screening, Plaintiffs “perform their primary duty of safety and security and assist in assuring no
contraband enters the Institution.” Id. ¶ 19. Further, in walking to their duty posts, Plaintiffs
allege they “perform their primary duty of safety and security . . . because they, at all times,
remain vigilant, alert, and ready to respond to emergencies.” Id. ¶ 21. “For example,” Plaintiffs
allege they “observe and correct inmate behavior, respond to inmate questions, check for security
breaches in the perimeter fence and elsewhere in the Institution, check for contraband, run to
locations where body alarms sound, and respond to other emergencies as they arise.” Id. ¶ 23.
Plaintiffs also allege that while walking back from their duty posts after their shifts, they must
“remain[] vigilant, alert, and ready to respond to emergencies . . . observing and correcting
inmate behavior, looking for contraband, [and] responding to body alarms and other
emergencies . . . .” Id. ¶ 26. Lastly, they allege that, by exchanging security information with
the outgoing correctional officer, “the oncoming correctional officer has all the important
information they need to maintain security of the inmates, staff, and post during their shift.” Id.
¶ 24.
II.

Legal Standard

“A motion to dismiss . . . for failure to state a claim upon which relief can be granted is
appropriate when the facts asserted by the plaintiff do not entitle him to a legal remedy.” United
Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed. Cir. 2006) (quoting Boyle v. United
States, 200 F.3d 1369, 1372 (Fed. Cir. 2000)). As the Supreme Court explained, “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). And to be “plausible on its face,” it “does not need detailed factual
allegations.” Twombly, 550 U.S. at 555; see also Cary v. United States, 552 F.3d 1373, 1376
(Fed. Cir. 2009) (Rule 8 “does not require the plaintiff to set out in detail the facts upon which
the claim is based, but enough facts to state a claim to relief that is plausible on its face.”). In
other words, the Complaint must contain enough detail “to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. “Conclusory allegations of law and unwarranted
inferences of fact do not suffice to support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317,
1322 (Fed. Cir. 1998) (citations omitted). Nevertheless, the Court “must assume all well-pled
factual allegations are true and indulge in all reasonable inferences in favor of the nonmovant.”
United Pac. Ins. Co., 464 F.3d at 1327-28 (quoting Anaheim Gardens v. United States, 444 F.3d
1309, 1314–15 (Fed. Cir. 2006)).
III.

Discussion

In its Motion to Dismiss, the Government primarily argues that Plaintiffs’ Complaint fails
to state a claim upon which relief can be granted under the FLSA and the BPA. ECF No. 7 at 7,
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15-16. Alternatively, the Government requests that the Court order Plaintiffs to amend the
Complaint to provide a more definite statement. Id. at 16.
A.
This Court lacks jurisdiction under the Declaratory Judgment Act and 28
U.S.C. § 1331.
Although the Government does not style its motion as challenging the Court’s
jurisdiction under RCFC 12(b)(1) in any respect, the Government does move to dismiss the
Complaint for lack of subject matter jurisdiction insofar as it seeks relief under the DJA. See
ECF No. 7 at 16 (“Plaintiffs’ request for relief under the Declaratory Judgment Act, 28 U.S.
Code §§ 2201-02, must also fail because this Court does not have jurisdiction to grant relief
under the Declaratory Judgment Act.”). Thus, the Court must determine whether it has
jurisdiction over Plaintiffs’ claims. See RCFC 12(h)(3).
Because it is long settled that this Court lacks jurisdiction under the DJA, the Court
grants the Government’s motion insofar as it challenges jurisdiction over DJA claims. E.g.,
United States v. King, 395 U.S. 1, 5 (1969) (“In the absence of an express grant of jurisdiction
from Congress, we decline to assume that the Court of [Federal] Claims has been given the
authority to issue declaratory judgments.”); Ghaffari v. United States, 125 Fed. Cl. 665, 667
(2016) (holding “long-standing precedent establishes this court lacks jurisdiction to act under”
the DJA). The only relief Plaintiffs seek under the DJA is “a complete and accurate accounting
of all the compensation to which the plaintiffs are entitled.” ECF No. 1 Prayer for Relief ¶ (b);
see ECF No. 15 at 70:16-71:13. The Court dismisses the Complaint insofar as it seeks this
declaration.
The Government also asserts that Plaintiffs improperly cite 28 U.S.C. § 1331 as
providing this Court with jurisdiction. ECF No. 7 at 16. The Government is correct that 28
U.S.C. § 1331 3 grants jurisdiction to District Courts rather than this Court. E.g., Ali v. United
States, No. 19-586C, 2019 WL 3412313, at *4 (Fed. Cl. July 29, 2019) (“The presence of a
federal question or diversity of citizenship between parties provides a jurisdictional basis for
federal district courts, not for this court.”). This is so because § 1331 provides that “[t]he district
courts shall have original jurisdiction . . . .” (emphasis added). And when Congress grants
jurisdiction to the district courts, that grant does not provide jurisdiction to this Court because
“[t]he Court of Federal Claims is not a district court of the United States . . . .” Ledford v. United
Plaintiffs also cite the “Little” Tucker Act, 28 U.S.C. § 1346, for jurisdiction. ECF No. 1 ¶ 2.
In relevant part, the Little Tucker Act provides concurrent jurisdiction to the District Courts for
certain monetary claims this Court has jurisdiction over against the United States, but limits the
District Court’s jurisdiction to claims “not exceeding $10,000 in amount.” 28 U.S.C. §
1346(a)(2). Given that the “Big” Tucker Act, 28 U.S.C. § 1491, grants this Court jurisdiction
over these same monetary claims against the United States without regard to the amount in
controversy, the Little Tucker Act is better understood as a jurisdictional grant to the District
Courts rather than this Court. See Evans v. United States, 694 F.3d 1377, 1379 n.5 (Fed. Cir.
2012) (“The ‘Little Tucker Act’ authorizes the same types of suits to be brought against the
Government in the Federal district courts as those authorized in the Court of Federal Claims
under the ‘Big’ Tucker Act, so long as the damages sought do not exceed $10,000.”). Thus, the
Little Tucker Act is not necessary for Plaintiffs’ claims.
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States, 297 F.3d 1378, 1382 (Fed. Cir. 2002); see also Embrey v. United States, No. 19-740C,
2020 WL 7312184, at *5 (Fed. Cl. Dec. 11, 2020) (holding Section 1331 “does not apply to our
court, however, and so does not provide the necessary jurisdiction to proceed”) (citations
omitted). While the Government is correct and the Court grants its motion insofar as it
challenges jurisdiction under 28 U.S.C. § 1331, that makes no difference to the case because it is
unchallenged that other statutes provide jurisdiction over all of Plaintiffs’ claims (other than for
declaratory relief). In other words, there is no impact from the Court granting this part of the
Government’s motion.
B.

The Complaint States a Claim for Relief under the FLSA.

The Government argues that the Complaint fails to state a claim for relief under the
FLSA for three reasons. First, the Government contends that the Complaint contains insufficient
facts to adequately allege that each or any of the 107 Plaintiffs performed compensable work
under the FLSA. ECF No. 7 at 9. Second, the Government asserts that the Complaint contains
inadequate facts to plausibly allege that Plaintiffs’ alleged work activities are compensable
pursuant to the FLSA. Id. at 10. Third, the Government argues that the Complaint contains
insufficient factual details regarding the timing and duration of the alleged pre- and post-shift
activities. Id. at 14. The Court will address each argument in turn.
1.

The FLSA and Portal-to-Portal Act.

When applicable, the FLSA prohibits the employment of any person to work beyond a
forty-hour workweek, or eight-hour workday, unless that person receives overtime pay of one
and one-half times his or her regular rate of pay for the overtime hours worked. 29 U.S.C. §
207(a)(1); 5 C.F.R. § 551.501(a). Employers who violate the statute are liable to covered
employees for their unpaid overtime compensation, and “[a]n action to recover the liability . . .
may be maintained . . . by any one or more employees for and in behalf of himself or themselves
and other employees similarly situated.” 29 U.S.C. § 216(b).
Although undefined in the statute, the Supreme Court has broadly interpreted “work”
under the FLSA to mean “physical or mental exertion (whether burdensome or not) controlled or
required by the employer and pursued necessarily and primarily for the benefit of the employer
and his business.” Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27, 31 (2014) (quoting
Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944)). The
Supreme Court has indicated that exertion is unnecessary for an activity to count as work under
the FLSA, as “an employer, if he chooses, may hire a man to do nothing, or to do nothing but
wait for something to happen.” Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944).
“Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for
threats to the safety of the employer's property may be treated by the parties as a benefit to the
employer.” Id. Similarly, the Supreme Court defined “the statutory workweek” under the FLSA
to “include[] all time during which an employee is necessarily required to be on the employer’s
premises, on duty or at a prescribed workplace.” Anderson v. Mt. Clemens Pottery Co., 328 U.S.
680, 690–691 (1946).
The Supreme Court’s broad interpretations “provoked a flood of litigation” and
“Congress responded swiftly.” Integrity Staffing, 574 U.S. at 31-32. The Portal-to-Portal Act of

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1947, 29 U.S.C. § 251 et seq., limits an employer’s liability under the FLSA for failing to pay
overtime compensation for the following activities:
(1) walking, riding, or traveling to and from the actual place of
performance of the principal activity or activities which such
employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said
principal activity or activities,
which occur either prior to the time on any particular workday at
which such employee commences, or subsequent to the time on any
particular workday at which he ceases, such principal activity or
activities.
29 U.S.C. § 254(a).
After the Portal-to-Portal Act’s passage, the Supreme Court interpreted the term
“principal activity or activities” to include “all activities which are an ‘integral and indispensable
part of the principal activities.’” IBP, Inc. v. Alvarez, 546 U.S. 21, 29-30 (2005) (quoting Steiner
v. Mitchell, 350 U.S. 247, 252-53 (1956)). “An activity is . . . integral and indispensable to the
principal activities that an employee is employed to perform if it is an intrinsic element of those
activities and one with which the employee cannot dispense if he is to perform his principal
activities.” Integrity Staffing, 574 U.S. at 33.
In addition, as implied by the statute, the Department of Labor explained that the Portalto-Portal Act did not alter “the ‘continuous workday rule,’ under which compensable time
comprises ‘the period between the commencement and completion on the same workday of an
employee’s principal activity or activities . . . [,] whether or not the employee engages in work
throughout all of that period.’” Sandifer v. U.S. Steel Corp., 571 U.S. 220, 226 (2014) (quoting
29 CFR § 790.6(b)); see also IBP, 546 U.S. at 29 (discussing § 790.6(b)’s adoption of the
continuous workday rule).
Even if an activity is otherwise compensable under the FLSA, however, the de minimis
doctrine may apply. Anderson, 328 U.S. at 692. “The de minimis doctrine limits FLSA liability
for overtime activities that consume negligible amounts of time.” Bull v. United States, 68 Fed.
Cl. 212, 225 (2005). As the Supreme Court explained:
When the matter in issue concerns only a few seconds or minutes of
work beyond the scheduled working hours, such trifles may be
disregarded. Split-second absurdities are not justified by the
actualities of working conditions or by the policy of the Fair Labor
Standards Act. It is only when an employee is required to give up a
substantial measure of his time and effort that compensable working
time is involved.
Anderson, 328 U.S. at 692. To determine whether the work performed is de minimis a trial court
examines: “(1) the practical administrative difficulty of recording the additional time; (2) the
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aggregate amount of compensable time; and (3) the regularity of the additional work.” Bobo v.
United States, 136 F.3d 1465, 1468 (Fed. Cir. 1998) (quoting Lindow v. United States, 738 F.2d
1057, 1063 (9th Cir. 1984)). Federal regulations “limit[] the application of the de minimis
doctrine to periods of 10 minutes or less per day.” Bull, 68 Fed. Cl. at 226 (citing 5 C.F.R. §
551.412(a)(1)), clarified by 68 Fed. Cl. 276 (2005), aff'd, 479 F.3d 1365 (Fed. Cir. 2007).
Indeed, “[d]ecisions of this court construing the FLSA have developed a rule of thumb that [10]
minutes of preliminary or postliminary work that would otherwise be compensable because it is
closely related to principal activities will nonetheless be treated as non-compensable if it totals
less than [10] minutes per day.” Id. (alterations in original) (quoting Riggs v. United States, 21
Cl. Ct. 664, 682 (1990)).
2.
The Complaint Adequately Alleges that All Plaintiffs Performed
Compensable Work Under the FLSA.
The Government first argues that Plaintiffs’ Complaint fails to state a claim for relief
under the FLSA because the Complaint contains insufficient facts to adequately allege that each
or any of the 107 Plaintiffs performed compensable work under the FLSA. ECF No. 7 at 9.
According to the Government, “each plaintiff must plead a short and plain statement of the
elements of his or her claim.” Id. at 7 (quoting Bautista v. Los Angeles County, 216 F.3d 837,
840 (9th Cir. 2000)). Specifically, the Government maintains that “each plaintiff must allege
with sufficient particularity facts regarding the nature of each plaintiff’s employment, such as
‘whether [one] was salaried or employed at an hourly wage, whether and when [one] was
required to work overtime, . . . the details of [any] employment agreement,’ and ‘the dates on
which [one] was employed.’” Id. at 10 (some alterations in original) (quoting Kraemer v. Elmira
Auto Paint Supplies, Inc., 903 F. Supp. 315, 317 (N.D.N.Y. 1995); Maya v. Master Rest.
Developer, LLC, No. 09-23408, 2010 WL 11505851 (S.D. Fla. Feb. 9, 2010), report and
recommendation adopted, No. 09-23408, 2010 WL 11505852 (S.D. Fla. Mar. 15, 2010)). Here,
in contrast, the Government asserts that “[t]he only allegations in the complaint that relate to
individual plaintiffs are the caption on the first five pages of the Complaint and an attachment
that lists their names and addresses.” Id. at 9 (citing ECF No. 1 at 1-5; ECF No. 1-1). “Other
than these rote lists,” the Government contends, “the allegations in the complaint are generalized
to all plaintiffs.” Id.
The Government emphasizes that “[p]leading in such a generalized manner is insufficient
in this case when it is clear that not every generalized allegation applies to each plaintiff.” Id.
For example, the Government observes that all Plaintiffs do not exchange equipment and
information with other correctional workers at the start and end of their shifts, as some shifts are
either a duty post’s first or last shift for the day. Id. The Government also highlights that every
Plaintiff has not had to undergo the health screenings because some former officers presumably
separated from the Institution before March 2020. Id. As a final example, the Government notes
that some Plaintiffs’ walk to and from their duty posts are de minimis given the likely close
proximity of certain duty posts to the Institution’s entrance. Id. Therefore, the Government
maintains, “[b]ecause plaintiffs failed to state these facts regarding each individual plaintiff or
any specific plaintiff with sufficient particularity, their claims must fail.” Id. at 10.
The Court disagrees. None of the cases the Government cites support the notion that a
multi-plaintiff complaint must specify the minute factual details underlying each plaintiff’s
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claim. In its motion to dismiss the Government relies mainly on Bautista, in which the Ninth
Circuit reversed the district court’s dismissal with prejudice of a multi-plaintiff employment
discrimination complaint. See 216 F.3d at 839-42. In doing so, the majority stated that “each
plaintiff must plead a short and plain statement of the elements of his or her claim.” Id. at 840.
The Government takes this statement as holding that a complaint must allege the facts supporting
each plaintiff’s individual claims in this case. ECF No. 7 at 9. But Bautista is readily
distinguishable from an FLSA claim like the one pleaded in this case. In Bautista, 51 plaintiffs
that had worked for Family Restaurants sued R.A. Music (and others) when they took over the
operations of Family Restaurants and did not hire the plaintiffs. 216 F.3d at 840. Their claims
were that R.A. Music did not hire them “based upon their race, age and disability though they
were qualified for the positions they held with Family Restaurants and had performed their jobs
satisfactorily.” Id. Such claims necessarily require individualized pleadings. The allegations
here, however, are quite different. Plaintiffs allege, collectively, that the Government requires
them to perform certain work beyond their eight-hour workdays that is uniform for each of them,
and they are not paid for it in violation of the FLSA. ECF 1 ¶¶ 6-29, 31-38; ECF No. 1; ECF
No. 8 at 9, 16, 20. This removes this action from Bautista’s sweep.
As the Eastern District of California (which is, of course, bound to follow Bautista)
recognized, the quoted language from Bautista ultimately seeks to promote “efficiency and
fairness; ‘unless cases are pled clearly and precisely, issues are not joined, discovery is not
controlled, the trial court’s docket becomes unmanageable, the litigants suffer, and society loses
confidence in the court’s ability to administer justice.’” Rodriguez v. SGLC, Inc., No. 2:0801971, 2010 WL 2943128, at *3 (E.D. Cal. July 23, 2010) (quoting Bautista, 216 F.3d at 841).
And Rodriquez distinguished Bautista because in Bautista:
Plaintiffs sought to plead their discrimination claims collectively,
without specifying the acts that gave rise to the dispute. Plaintiffs
to that action had been hired and fired at different times and for
different reasons, but this information was not provided in the
complaint. In that case, a more specific pleading was necessary to
serve the intent of the Federal Rules to “secure the just, speedy, and
inexpensive determination of every action and proceeding.”
Fed.R.Civ.P. 1.
Rodriguez, 2010 WL 2943128, at *4 (citations omitted). But in a case like this, “efficiency and
fairness would not be served by demanding a more specific pleading” because “[a] complaint
that alleged separate violations on behalf of each of the [107] Plaintiffs would be dense,
overlong, and unwieldy and would not facilitate a clear presentation.” Id. (internal quotations
omitted). That is particularly true here because Plaintiffs worked at different posts on different
days, meaning they would apparently need to plead their entire work history to satisfy the
Government. ECF No. 15 at 57:22-58:5 (explaining that Plaintiffs work different posts on
different days). It is hard to imagine a less unwieldy and overlong pleading. Plaintiffs
adequately plead that the Government’s policies required them to work without compensation in
a uniform manner. While each Plaintiff will need to prove the specific overtime hours they
worked without compensation to win their case, they do not need to plead each of those hours in
their Complaint.

8

Similarly, Kraemer and Maya do not stand for the proposition that a multi-plaintiff
complaint must specify the factual allegations underlying each plaintiff’s claim. In both cases,
the court dismissed a single, pro se plaintiff’s complaint with leave to amend it. Kraemer, 903 F.
Supp. at 316; Maya, 2010 WL 11505851, at *1. Any instruction in those cases as to a
complaint’s content, therefore, does not apply to a multi-plaintiff complaint such as Plaintiffs’.
Indeed, the Government itself invokes the argument that a case with only one plaintiff lacks
relevance to a case with multiple plaintiffs. See ECF No. 10 at 14 (arguing that Wilson v.
District of Columbia, 269 F.R.D. 8 (D.D.C. 2010) is distinct from Bautista and this case because,
“unlike this case and Bautista, Wilson concerned only a single plaintiff.”).
In the end, “whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. Here, Plaintiffs have sufficiently alleged that they worked more
than 40 hours per work week without overtime pay due to Government policies and have
provided an estimate of the number of overtime hours worked. That is sufficient at this stage of
the litigation. See Dejesus v. HF Management Services, LLC, 726 F.3d 85, 88 (2d Cir. 2013)
(“[I]n order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege 40
hours of work in a given workweek as well as some uncompensated time in excess of the 40
hours.”) (quoting Lundy v. Catholic Health Sys. of Long Island, 711 F.3d 106, 114 (2d Cir.
2013)); see also Harris v. Davita Healthcare Partners, Inc. et al., Nos. 17-2741, 17-2744, 2018
WL 3093322, at *4 (D. Colo. June 22, 2018) (finding in two single-plaintiff cases, that plaintiffs
sufficiently stated an FLSA claim to survive a 12(b)(6) when their complaints alleged they
“worked ‘on average 1.5 hours of overtime’ per week”). In short, Plaintiffs allege that they have
suffered the same harm from a common Government policy. The specifics as to each Plaintiff’s
injury is a matter for summary judgment or trial.
3.
The Complaint Contains Sufficient Facts Plausibly Alleging that most of
the Alleged Work Activities are Compensable Under the FLSA.
The Government next argues the Complaint fails to state a claim for relief under the
FLSA because it lacks sufficient facts to plausibly allege that Plaintiffs’ alleged work activities
are compensable under the FLSA. ECF No. 7 at 10. To be compensable, the work must be
integral to the Plaintiffs’ principal activities. See IBP, 546 U.S. at 21, 29-30; Integrity Staffing,
574 U.S. at 33. Of course, before determining whether a given task is integral to Plaintiffs’
principal activities, the Court must first determine what those principal activities are. Aguilar v.
Mgmt. & Training Corp., 948 F.3d 1270, 1276 (10th Cir. 2020) (citation omitted).
According to the Government, “[t]he principal activities of the correctional workers
appear to be guarding the prison by observing convicts, preventing their escape, and enforcing
prison rules.” ECF No. 10 at 3 (citing ECF No. 1 ¶¶ 9, 23). The Plaintiffs allege, however, that
their principal activity “is to maintain the safety and security of the Institution.” ECF No. 1 ¶ 9;
ECF No. 8 at 12-14. And the Government argues that this “nebulous” description is insufficient
to establish Plaintiffs’ principal activities because it would allow anything to count as integral to
these activities and compensable under the FLSA. ECF No. 10 at 1, 3-4. While the Plaintiffs’
description of their principal activities may be overbroad, it is not fatal to their claims because in
elucidating the “security” Plaintiffs provide, they allege they “observe and correct inmate
behavior, respond to inmate questions, check for security breaches in the perimeter fence and
9

elsewhere in the Institution, check for contraband, run to locations where body alarms sound, and
respond to other emergencies.” ECF No. 1 ¶ 23. Providing “security” in this manner is a
sufficient description. See Aguilar, 948 F.3d at 1277 (“[T]he officers’ principal activities include
maintaining ‘the custody and discipline of inmates,’ ‘supervising detainees,’ ‘searching for
contraband[,] and providing security.’”) (second alteration in original).
The Government argues that the alleged work activities are not integral and indispensable
to these principal activities and thus are non-compensable for purposes of the FLSA. ECF No.
10 at 4-5. The Court addresses them in turn.
a)

Health screenings.

Plaintiffs argue that passing through the health screening that is necessitated by the
COVID-19 pandemic is part of their primary activity of “maintain[ing] the of the safety and
security of the Institution.” ECF No. 1 ¶¶ 9, 20. The Government disagrees and compares the
health screenings to the post-workday antitheft security screenings that were held as not integral
and indispensable for warehouse employees in Integrity Staffing, 574 U.S. at 35. ECF No. 7 at
10-12. The Government also argues that people in many segments of society must undergo
health screenings to prevent the spread of coronavirus, and thus these screenings are not
particularly intrinsic to Plaintiffs as correctional officers. ECF No. 7 at 11 (citing Whalen v.
United States, 93 Fed. Cl. 579, 600-01 (2010)), as “finding that security screening procedure that
applied to everyone who entered a military base was not a work activity when employees
underwent the screening”). Finally, the Government argues that “assuring that the highly
contagious novel coronavirus does not enter into the Institution was the principal activity of
those administering the health screenings, not those undergoing the health screenings.” ECF No.
10 at 5 (internal quotation marks omitted).
While the Court does not find the Government’s first two arguments compelling at this
stage of the litigation (they may be more compelling after discovery), its third is correct. Given
the types of “security” that Plaintiffs provide, see ECF No. 1 ¶ 23, ensuring the inmates’ health is
not one of their responsibilities. Indeed, nowhere in the Complaint is any allegation that
Plaintiffs provide health care to inmates in their custody. The responsibility to care for the health
thus falls on others in the Institution, presumably the same ones that were conducting the health
screening to the Plaintiffs. In other words, preventing the coronavirus from getting into and/or
spreading within the Institution is not integral to Plaintiffs’ principal activities. Therefore, the
Complaint fails to allege that the time spent passing through the Covid-19 screening is integral to
the Plaintiffs’ principal activities as correctional officers and, therefore, it is non-compensable.
b)

Security screenings.

After passing through the coronavirus health screening, the Plaintiffs pass through
security screenings, which include passing through metal detectors. ECF No. 1 ¶ 19. Here too
the Government argues that security screening is integral to the activities of those performing the
screening, not the Plaintiffs. According to the Government, “the activity of preventing
contraband from entering the prison is the job of those administering the screening, not those
undergoing the screening.” ECF No. 10 at 7. Assuming that the security screening operators’
principal activities are as the Government asserts, the Government does not explain why the

10

screenings cannot also be integral to Plaintiffs’ principal activities. Here Plaintiffs do contend
that their principal activities include controlling contraband. ECF No. 1 ¶ 23.
Other courts have found activities like those alleged by the Plaintiffs to be compensable
under the FLSA based on similar descriptions of principal activities. In Aguilar, the Tenth
Circuit determined that detention officers’ undergoing a security screening upon arriving at the
prison was integral and indispensable to their principal activities of “maintaining the custody and
discipline of inmates, supervising detainees, searching for contraband[,] and providing security.”
948 F.3d at 1277 (alteration in original) (citation and internal quotation marks omitted). The
Circuit reasoned that the security screening “prevent[s] weapons and other contraband from
entering the prison[, which] . . . is necessarily tied to the officers’ work of providing prison
security and searching for contraband.” Id. at 1278 (citation and internal quotation marks
omitted); see also Roberts v. State of Arizona, 483 P.3d 212, 220-21 (2021) (finding security
screening integral and indispensable to correctional officers’ principal activity of maintaining
prison safety and security). As explained above, that is what Plaintiffs here allege as well.
To be sure, there are courts that have gone the other way. One the Government relies on
is Henderson v. Cuyahoga County, No. 20-1351, 2020 WL 5706415 (N.D. Ohio Sept. 24, 2020).
ECF No. 10 at 7. There, the District Court granted a Rule 12(b)(6) motion to dismiss a detention
officer’s FLSA claim regarding the unpaid pre-shift activity of undergoing a security screening.
Henderson, 2020 WL 5706415, at *3. Specifically, the officer’s complaint alleged that his duties
required him to “search for contraband and provide security,” and that the security screening
serves “the purposes of safety, and to prevent . . . inadvertently or intentionally bringing
contraband into the prison.” Id. at *1 (citation omitted). Henderson further alleged that
“[k]eeping weapons and other contraband out of the prison is necessarily tied to the . . . work of
providing security and searching for contraband[,]” and, “[t]hus, undergoing security screenings
is integral and indispensable to the . . . principal activities.” Id. (citation omitted). The District
Court held that undergoing the security screening is not compensable work under the FLSA
because “[w]hile the pre-shift security screening may relate to part of the activity Plaintiff
performs during his shifts, i.e., searching for contraband, the Plaintiff could still perform his job
effectively if the pre-shift screenings were eliminated.” Id. at *3. Here, the Government asserts
that “Plaintiffs’ complaint . . . suffers the same defect as the Henderson complaint.” ECF No. 10
at 7.
Henderson is not persuasive because it is unclear how that Court concluded that “Plaintiff
could still perform his job effectively if the pre-shift screenings were eliminated” based solely on
the pleadings as required under RCFC 12(b)(6). There is certainly nothing in the pleadings
before this Court that would allow any such holding here. Again, this is a factual matter that is
not amenable to resolution at this stage of the litigation. Therefore, the Court finds Aguilar more
persuasive on this point and agrees with it at this stage of the litigation. If discovery shows that
Plaintiffs could perform their principal duties effectively without the security screenings, the
Government may well prevail on summary judgment or at trial on that basis. But it cannot
prevail now.
c)

Donning and doffing of equipment.

11

The Government argues the collecting and donning of duty belts and other required
equipment is comparable to donning and doffing activities that courts have found noncompensable under the FLSA. Thus, the Government contends that getting and returning of this
equipment is not compensable because it is akin to the donning and doffing of protective gear
that was determined to be non-integral to nuclear power plant workers in Gorman v. Consol.
Edison Corp., 488 F.3d 586, 594-95 (2d Cir. 2007). ECF No. 10 at 8-9. Similarly, the
Government equates the collecting and donning of duty belts and other required equipment to the
placement of safety glasses, ear plugs, a hard hat, and safety shoes that was found to be noncompensable for truck drivers in Reich v. IBP, Inc., 38 F.3d 1123, 1126 (10th Cir. 1994). ECF
No. 10 at 8-9.
Whatever the merits of those holdings, the Court finds that this is a factual question for
resolution following discovery. The Complaint adequately alleges that the equipment here—
e.g., keys, chits, etc.—is integral to the Plaintiffs’ work. As the Circuit found in Aguilar,
returning equipment, is “integral and indispensable to the officers’ principal activities of
maintaining custody and discipline of the inmates and providing security.” 948 F.3d at 1283. As
the Circuit explained, “the officers use keys to guard the inmates and to lock and unlock doors to
ensure security; use radios to communicate with officers at their posts and to give them
directions and instructions throughout the day; and use [h]and restraints and pepper spray . . . as
both a deterrent and if necessary, to control unruly inmates.” Id. at 1280 (alteration in original)
(citation and internal quotation marks omitted); see also Hootselle v. Missouri Dep’t of Corr.,
624 S.W.3d 123, 141 (Mo. 2021) (en banc) (holding that picking up and returning equipment
such as keys and radios is integral and indispensable to corrections officers’ principal activities
of supervising, guarding, escorting, and disciplining offenders). It is difficult to imagine how
correctional officers could do their work without their duty belts and equipment that they carry,
but that is a question for another day.
d)

Walking to and from assigned posts.

The Government challenges the time walking to and from duty posts before and after
shifts while remaining “vigilant, alert, and ready to respond to emergencies” to maintaining
“walking, riding, or traveling to and from the actual place of performance of the principal
activity or activities which such employee is employed to perform,” which is not compensable
for FLSA purposes under the Portal-to-Portal Act, 29 U.S.C. § 254(a). ECF No. 7 at 12-13
(quoting ECF No. 1 ¶¶ 21, 23). The Government argues that this time is non-compensable under
Whalen, 93 Fed. Cl. at 600-01. See ECF No. 15 at 23:12-23, 24:8-17, 25:11-17. In Whalen, a
group of air traffic controllers argued that they should have been paid for passing through
security screenings and travelling from the security screening at the entrance to Edwards Air
Force Base to their duty stations. 93 Fed. Cl. at 597. Judge Lettow rejected this argument with a
compelling analysis of whether these activities were integral to the air traffic controllers’
principal activities. But Whalen sheds little light on whether the time prison guards spend
walking through the prison while required to perform activities that appear almost
indistinguishable from the activities they perform at their duty stations is compensable. See ECF
No. 1 ¶¶ 21-23. According to the Complaint, while walking to and from their assigned duty post
Plaintiffs must “remain[] vigilant, alert, and ready to respond to emergencies while within the
secured confines of the Institution, observing and correcting inmate behavior, looking for
contraband, responding to body alarms and other emergencies . . . .” Id. ¶ 26. Whether air traffic
12

controllers perform their principal activities while travelling from a security checkpoint to the
control tower (clearly, they do not) sheds no light on whether Plaintiffs’ can prevail here. The
same is true of the other cases the Government relies upon that do not arise from correctional
officers. See Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1343 (11th Cir. 2007)
(traveling through job site on employer vehicles); Gorman, 488 F.3d at 594-95 (ingress and
egress through security procedures)).
The Government also challenges the notion that simply remaining vigilant is sufficient to
make Plaintiffs’ walking through the Institution compensable. Here, the Government compares
this time to time the Court found non-compensable in Akpeneye v. United States, 138 Fed. Cl.
512 (2018). In Akpeneye, the Court found that although Pentagon security officers had to remain
vigilant, ready to respond to emergencies, and check their radios during their mid-day breaks,
that time was not compensable. But Akpeneye does not compel dismissal here for several
reasons. While remaining vigilant while guarding the Pentagon is clearly of vital importance, it
is not the same thing as remaining vigilant while walking through a prison where the people
Plaintiffs are guarding may attack them. More importantly, Akpeneye granted summary
judgment on this point based on facts developed in discovery. Id. at 543. 4
Similarly, the Government challenges the Plaintiffs’ claims under Babcock v. Butler
County, 806 F.3d 153 (3d Cir. 2015), which affirmed the dismissal of an FLSA complaint
seeking compensation for a 15-minute unpaid portion of a one-hour lunch break. In Babcock,
the Circuit affirmed under the “predominant benefit test,” which determines “whether the officer
is primarily engaged in work-related duties during” uncompensated periods. Id. at 156 (citation
omitted). But this test requires the Court to evaluate “the totality of the circumstances to
determine, on a case-by-case basis, to whom the benefit . . . inures.” Id. at 157 (emphasis
added). And in Babcock, the Circuit explicitly noted that even though the District Court
dismissed the complaint under Rule 12(b)(6), “there has been . . . ‘sufficient development of the
facts to enable a capable application of the appropriate predominant benefit standard . . . .’” Id.
at 158. That is not the case here.
Lastly, the Government asserts that Plaintiffs’ alleged work activity of walking from the
staff screening to their posts was not compensable because, in their Response brief, “[P]laintiffs
claim that they do not ‘perform their primary job duty’ until ‘after clearing the second sally
port.’” ECF No. 10 at 9 (quoting ECF No. 8 at 6) 5. Accordingly, the Government argues that
“[P]laintiffs do not allege any facts showing that the first part of the walk . . . is any different
than a continuation of their commute to their duty stations, which is not compensable.” Id.
(citations omitted). The Government misquotes Plaintiffs’ Response in advancing this argument.
The full sentence to which the Government refers in Plaintiffs’ Response reads, “[a]fter clearing
the second sally port at the FCI, Plaintiffs continue to perform their primary job duty while
walking to their posts.” ECF No. 8 at 6 (emphasis added). Contrary to the Government’s
The Court also notes that Akpeneye denied summary judgment on the remaining claims,
including donning and doffing, because of disputed material facts. 138 Fed. Cl. at 542-43. This
further supports denial of the Government’s motion here.

4

In its Reply, the Government mistakenly cites pages 9-10 of Plaintiffs’ Response as the source
of Plaintiffs’ quoted language. It appears on page 6 of Plaintiffs’ Response.

5

13

mischaracterization, Plaintiffs neither say nor imply that they only perform their primary job
duty after clearing the second sally port and not beforehand on the walk from the staff screening.
But, of course, other courts have found the time prison guards spend walking through a
prison to be compensable. The Missouri Supreme Court in Hootselle found as integral and
indispensable to the corrections officers’ principal activities the requirement while walking to
and from their posts of being “on duty and expected to respond to incidents involving offenders;
required to act as prison guards whenever they are inside the prisons; and required to remain
vigilant and respond to incidents as they arise.” 624 S.W.3d at 141 (citation and internal
quotation marks omitted). The reason, the court explained, is that these activities are what the
officers are employed for—supervising, guarding, escorting, and disciplining offenders—
regardless of whether they perform these activities at their posts or away from them. Id. at 142.
e)

Exchange of information at shift change.

Lastly, the Government asserts that the exchange of information and equipment between
outgoing and incoming correctional officers was no more than a voluntary courtesy and cannot
be accurately calculated by a practicable system. In support of this argument the Government
cites the court’s finding in Battery Workers’ Union Local 113, United Elec., Radio & Mach.
Workers of Am., C. I. O. v. Elec. Storage Battery Co., 78 F. Supp. 947 (E.D. Pa. 1948), “that an
early relief practice practiced by fixed post guards was not compensable work time because it
was voluntarily practiced by the guards and no practicable system could be adopted that would
accurately reflect exact time of guards on post.” ECF No. 7 at 13-14. The relevance of this is
puzzling. Plaintiffs do not allege that they are engaged in an “early relief practice,” they allege
that they “perform a vital (but unpaid) information exchange with the outgoing correctional
officer about any significant security events that occurred the previous shift so that the oncoming
correctional officer has all the important information they need to maintain security of the
inmates, staff, and post during their shift.” ECF No. 1 ¶ 24.
The Government also equates the outgoing officer’s exchange to the post-shift briefing
that was determined to not be integral and indispensable to the outgoing correctional officers in
Bustillos v. Board of Cnty. Comm’rs of Hidalgo Cnty., No. 13-0971, 2015 WL 8014565, at *16
(D.N.M. Oct. 20, 2015), aff’d, 697 F. App’x 597 (10th Cir. 2017). ECF No. 10 at 11. But
Bustillos does not support dismissal here because Bustillos holds that pre-shift briefings are
necessary for the oncoming officer to perform his or her job, while the post-shift briefing is not.
In other words, the briefing is compensable for the oncoming officer but not the outgoing one.
Id. at *16-17. But the Court cannot determine that all briefings are non-compensable today.
f)

The continuous workday rule.

The Government may be vindicated through discovery and be able to show that some, if
not all, of the alleged work activities are non-compensable under the FLSA. But those issues are
not for the Court to determine at this stage. This is particularly true here because the continuous
workday rule supports that the Complaint sufficiently states that Plaintiffs’ alleged work
activities are compensable under the FLSA. Specifically, because the Complaint states a claim
for relief regarding Plaintiffs’ first and last alleged work activities of the day, undergoing the
security screening and returning equipment to either of the Institution’s control centers, all the

14

intermediary activities would likely be compensable under the continuous workday rule. Indeed,
the court in Aguilar found that all the detention officers’ alleged work activities were
compensable under the FLSA pursuant to the continuous workday rule after finding that the
officers’ first alleged activity, undergoing the security screening, and the last alleged activity,
returning keys and equipment, were integral and indispensable to their principal activity. 948
F.3d at 1279-80, 1283, 1289.
The Government argues that the continuous workday rule does not apply to Plaintiffs’
alleged work activities, asserting that the Plaintiffs’ activities are each de minimis. ECF No. 10
at 13. The Government cites Singh v. City of New York, 524 F.3d 361, 371 n.8 (2d Cir. 2008),
noting that “a de minimis principal activity does not trigger the continuous workday rule.” ECF
No. 10 at 13. Thus, the Government concludes that, “to the extent the individual actions as
alleged in plaintiffs’ complaint were not preliminary, they were each de minimis and therefore
cannot serve as a trigger for the ‘continuous workday rule.’” Id. The Court does not agree. As
an initial observation, other courts disagree with Singh and hold that a de minimis principal
activity can trigger the continuous workday rule. Perez v. Mountaire Farms, Inc., 650 F.3d 350,
377-78 (4th Cir. 2011); Butler v. DirectSat USA, 55 F. Supp. 3d 793, 816-17 (D. Md. 2014)
(holding that a de minimis principal activity can trigger the continuous workday rule). More
importantly, as the Fourth Circuit explained:
In applying the de minimis rule, we consider the aggregate amount
of time for which the employees are otherwise legally entitled to
compensation. See DOL Wage & Adv. Mem. No.2006–2 n.1 (May
31, 2006). We do not, as [defendant] suggests, evaluate each task or
group of tasks separately to determine if the time period is de
minimis. Adopting [defendant’s] approach would undermine the
purpose of the FLSA . . . .
Perez, 650 F.3d at 373. Whether Plaintiffs can prevail and show that any of the work is
compensable is not the question for today. The issue before the Court is whether the Plaintiffs
have adequately pleaded that they are required to work at least ten minutes of compensable work
beyond their eight-hour shifts without pay. They have done so.
4.
The Complaint Contains Sufficient Factual Details Regarding the Timing
and Duration of the Alleged Work Activities.
The Government relatedly argues that Plaintiffs fail to state a claim because they do not
allege how much time each pre- and post-shift activity takes. ECF No. 7 at 14 (citing ECF No. 1
¶ 13). Yet, the Government concedes that a proper FLSA claim only requires an aggregate of
over ten minutes of uncompensated work. ECF No. 10 at 11-12. But the Government contends
that because the Complaint does not specify how much time each activity takes each day,
Plaintiffs cannot establish how much time they spent performing the alleged uncompensated
work. The Court cannot agree.
Plaintiffs’ alleging that they spent between fifteen-to-thirty minutes per day in total
before and after their scheduled shifts performing required, uncompensated work is not
implausible. That is, there is nothing implausible about the allegation that the activities

15

addressed above that are potentially compensable took between 15-30 minutes to complete.
Given that the Court found the health screenings to be non-compensable, the Court does consider
whether that holding renders the allegation that the remaining activities took between 15-30
minutes implausible.
While it is true that Plaintiffs do not specify how much time each activity takes, even
without the health screenings, it remains plausible that the remaining activities take between 1530 minutes per day. In fact, the Complaint alleges as much. The Complaint alleges that “[a]t all
times material herein, defendant has suffered or permitted plaintiffs to work at least 15-30
minutes each shift, and sometimes more, before and after their scheduled shift times without
compensating plaintiffs for this work time.” ECF No. 1 ¶ 13. And the Complaint seeks relief
back to September 11, 2017 (three years prior to Plaintiffs’ filing the Complaint). Id. ¶ 33. But
the coronavirus screenings did not start until March 2020, after the Covid-19 pandemic had
begun to spread. Id. ¶ 20. Thus, the Complaint alleges that Plaintiffs worked between 15-30
extra minutes each shift before the health screenings as well, which is plausible.
In the end, the Plaintiffs have adequately pleaded their claims and the Government’s
motion to dismiss their FLSA claims fails.
C.

Plaintiffs’ Complaint States a Claim for Relief Under the BPA.

The Government also argues that the Complaint fails to state a claim for relief under the
BPA. ECF No. 7 at 15. The BPA, in pertinent part, provides:
An employee of an agency who . . . is found . . . to have been
affected by an unjustified or unwarranted personnel action which
has resulted in the withdrawal or reduction of all or part of the pay,
allowances, or differentials of the employee—
(A) is entitled, on correction of the personnel action, to receive for
the period for which the personnel action was in effect—
(i) an amount equal to all or any part of the pay, allowances, or
differentials, as applicable which the employee normally would
have earned or received during the period if the personnel action had
not occurred . . . .
5 U.S.C. § 5596(b). In arguing that the Complaint fails to state a claim for relief under the BPA,
the Government relies solely on its contention that Plaintiffs’ claims for relief under the FLSA
fail. ECF No. 7 at 15-16. This is because the BPA “is not itself a jurisdictional statute. It is
merely derivative in application, depending on a prior finding of appropriate jurisdiction in the
Claims Court.” Refaei v. United States, 129 Fed. Cl. 1, 23 (2016) (quoting Mitchell v. United
States, 930 F.2d 893, 897 n.3 (Fed. Cir. 1991)) (additional citations omitted). Therefore,
“‘[u]nless some other provision of law commands payment of money to the employee for the
‘unjustified or unwarranted personnel action,’ the Back Pay Act is inapplicable.’” Id. (quoting
Spagnola v. Stockman, 732 F.2d 908, 912 (Fed. Cir. 1984)) (additional citations omitted).

16

The Government’s argument here is that because the FLSA purportedly is inapplicable to
this case, the Plaintiffs’ BPA claims must fail as well. ECF No. 7 at 15-16. But as explained
above, the Plaintiffs adequately pleaded their FLSA claims, which survive the Government’s
motion. With the FLSA providing jurisdiction, there is no basis to dismiss Plaintiffs’ BPA
claims.
D.

The Complaint Does Not Require a More Definite Statement.

As an alternative to dismissal, the Government moves the Court to order Plaintiffs to
provide a more definite statement of their claims under RCFC 12(e). ECF No. 7 at 17.
According to the Government, “[b]ecause of the insufficiently plead facts regarding each of the
107 plaintiffs, the nature of the pre and post-shift activities, and the timing of these activities,
defendant cannot prepare an adequate response to the complaint.” Id. “Without such relief,” the
Government adds, it “would be required to answer a factually vague and ambiguous complaint
and could therefore be prejudiced.” Id.
RCFC 12(e) provides that “[a] party may move for a more definite statement of a
pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the
party cannot reasonably prepare a response.” As discussed above, however, a complaint need
only provide “a short and plain statement of the claim showing that the pleader is entitled to
relief.” RCFC 8. Thus, a motion under RCFC 12(e) “must point out the defects complained of
and the details desired.” RCFC 12(e). Such a motion under RCFC 12(e) is “designed to remedy
unintelligible pleadings, not to correct for lack of detail.” Adams v. United States, 151 Fed. Cl.
522, 529 (2020) (quoting Goodeagle v. United States, 111 Fed. Cl. 716, 722 (2013)). The
remedy for lack of detail in pleadings is discovery. Whalen v. United States, 80 Fed. Cl. 685,
693–94 (2008). Further, a more definite statement is unwarranted where the Government
possesses the relevant records. Id.; Fed. Air Marshals v. United States, 74 Fed. Cl. 484, 488
(2006) (denying RCFC 12(e) motion because Government has control over the relevant records
and could easily access those documents during discovery).
Here, the Government’s request for a more definite statement from the Complaint fails
because the Complaint is not “so vague or ambiguous that the [Government] cannot reasonably
prepare a response.” RCFC 12(e). The only issue the Government cites with the Complaint is
its general lack of “facts regarding each of the 107 plaintiffs, the nature of the pre and post-shift
activities, and the timing of these activities.” ECF No. 7 at 17. But these deficiencies can be
readily cured by discovery. Furthermore, the Complaint is hardly unintelligible. It provides
Plaintiffs’ names, their places of employment, their employment date range, their assigned posts,
and their alleged work activities. See generally ECF No. 1. The Government’s extensive and
detailed briefing on its motion also confirms the Complaint’s intelligibility. See generally ECF
Nos. 7 and 10. And as Plaintiffs correctly note, the Government has in its custody the
information it seeks. ECF No. 8 at 20.
The Government does not dispute this, but instead argues that the Complaint “makes
defendant’s searches through its records unnecessarily onerous and burdensome” and that “it is
substantially more difficult, and in some cases may be impossible, to find certain information
without cues from factual allegations.” ECF No. 10 at 15. The Government adds that “[t]he
difficulty of this task is compounded by the fact that there are more than 100 named plaintiffs on
17

the complaint.” Id. This is unconvincing because the remedy to these difficulties is not
requiring Plaintiffs to amend their Complaint, but discovery. The Plaintiffs have alleged that
they are entitled to their claimed overtime on dates they worked at duty posts that are staffed 16
or 24 hours per day. Of course, they work different posts on different days. But Plaintiffs have
identified which duty stations are 16-hour posts and which are 24-hour posts. ECF No. 1 ¶¶ 1415. The Government can produce the time records for each Plaintiff, which does not strike the
Court as a Herculean task and propound discovery to Plaintiffs to have them sort through the
data and provide the Government the additional information it seeks based on the records
produced.
Accordingly, the Court denies the Government’s alternative request for a more definite
statement from Plaintiffs’ Complaint.
IV.

Conclusion

As should be clear by now, the Government’s motion may succeed at summary judgment
when facts are established through discovery. But that does not mean it can prevail now as a
motion to dismiss for failure to state a claim. Because the Court holds that the Plaintiffs have
adequately pleaded their claims:
1. The Government’s Motion to Dismiss, ECF No. 7, is hereby GRANTED-IN-PART as
to the Complaint’s requested relief pursuant to the Declaratory Judgment Act and
jurisdiction under 28 U.S.C. § 1331, but DENIED in all other respects; and
2. Plaintiffs’ Motions for Leave to File Notice of Supplemental Authority, ECF Nos. 9 and
16, are GRANTED.
IT IS SO ORDERED.
s/ Edward H. Meyers
Edward H. Meyers
Judge

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