             In the United States Court of Federal Claims
                                          No. 19-1749C
                                      (Filed: April 6, 2020)

                                                )
 DOE NO.1, DOE NO. 2,                           )     Keywords: Conditional Certification;
                                                )     Proposed Notice; Class Action; FLSA;
                       Plaintiffs,              )     Overtime Pay; Federal Bureau of
                                                )     Investigation; English Monitor Analyst
        v.                                      )
                                                )
 THE UNITED STATES OF AMERICA,                  )
                                                )
                       Defendant.               )
                                                )
                                                )
                                                )

Alice Hwang, James & Hoffman, P.C., Washington, DC, for Plaintiff, with whom were Daniel
M. Rosenthal, Michael Ellement, James & Hoffman, P.C., Washington, DC, and Linda Lipsett,
Jules Bernstein, Berstein & Lipsett, P.C., Washington, DC, Of Counsel.

Kyle S. Beckrich, Trial Attorney, Commercial Litigation, Civil Division, U.S. Department of
Justice, Washington, DC, for Defendant, with whom were Reginald T. Blades, Jr., Assistant
Director, Robert E. Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney General.


                                     OPINION AND ORDER
KAPLAN, Judge.

        Before the Court is the Plaintiffs’ unopposed motion for conditional certification of a
collective action under § 216(b) of the Fair Labor Standards Act (“FLSA”) and for authorization
to mail notice to potential class members. Plaintiffs are four English Monitor Analysts in
occupation series GS-0301 at the Federal Bureau of Investigation (“FBI”). They are pursuing
claims against the United States on behalf of themselves and similarly-situated employees who
allege that the FBI wrongfully classified them as FLSA exempt, thereby depriving them of
overtime pay to which they were entitled. Compl. ¶¶ 12–15, ECF No. 1.

        Plaintiffs’ unopposed motion seeks conditional certification for “all past and present
FLSA FBI employees who worked as English Monitor Analysts in occupational series GS-0301
and were classified as exempt from the FLSA at any time from three years prior to the date of the
notice to the present.” Pls.’ Unopposed Mot. for Conditional Certification & Notice (“Mot.”) at
1, ECF No. 70. For the following reasons, the motion is GRANTED.
                                           DISCUSSION

I.     Conditional Certification

        A collective action under the FLSA “may be maintained against any employer . . . 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). Would-be plaintiffs must “opt in,” however—that is, they must
give “consent in writing[,] . . . and such consent is filed in the court in which such action is
brought.” Id.; see also Barry v. United States, 117 Fed. Cl. 518, 520 (2014).

        This Court uses a two-step approach to determine whether certification of a collective
action is appropriate, which “involves a preliminary determination of whether the plaintiffs were
subject to a common employment policy or plan, and then, after discovery, an opportunity for the
defendant to decertify the collective action on the ground that the plaintiffs are not in fact
similarly situated.” Whalen v. United States, 85 Fed. Cl. 380, 383 (2009). The first step, known
as conditional certification, facilitates the opt-in process by requiring the defendant to produce
the names and addresses of employees in the proposed class and by settling the form of the
notice to be distributed to the class. Id. At this stage, the Plaintiffs’ burden is low. Barry, 117
Fed. Cl. at 521. Plaintiffs “need only make a modest factual showing based on the pleadings,
affidavits, and other available evidence that potential class members are similarly situated.” Id.
(internal quotation marks and citations omitted). Potential class members are similarly situated if
they share “common issues of law and fact arising from the same alleged [prohibited] activity.”
Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989).

        In the case at bar, Plaintiffs have successfully met their burden. Proposed plaintiffs hold
or have held a specific job position (English Monitor Analysts) in the same occupational series
(GS-0301) at the same agency (the FBI) for the same time period (“three years prior to the date
of notice to the present”). See Mot. at 1; Compl. ¶ 1. Conditional certification is appropriate
because they challenge a common policy—the FBI’s classification of their positions as FLSA
exempt. See Doe No. 1 v. United States, 143 Fed. Cl. 113 (2019) (conditionally certifying class
and approving notice for FBI Staff Operations Specialists challenging their exemption from the
FLSA); Plaintiff No. 1 v. United States, 139 Fed. Cl. 440 (2018) (conditionally certifying and
approving notice for FBI Investigative Specialists challenging their exemption from the FLSA);
Doe No. 1 v. United States, No. 19-150C (Fed. Cl. May 7, 2019) (conditionally certifying class and
approving notice for FBI Intelligence Analysts challenging their exemption from the FLSA).
Accordingly, the unopposed motion for conditional class certification is GRANTED.

II.    Notice

        If a court finds that a plaintiff and other potential plaintiffs are similarly situated, it may
authorize notice be given to potential plaintiffs. See Hoffmann-La Roche, 493 U.S. at 170–71,
(stating that a trial court has “managerial responsibility to oversee the joinder of additional
parties to assure that the task is accomplished in an efficient and proper way”). Such notice
should prevent “a multiplicity of duplicative suits and set[] cutoff dates to expedite disposition of
the action.” Id. at 172. The Supreme Court has instructed that when “exercising the discretionary
authority to oversee the notice-giving process, courts must be scrupulous to respect judicial




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neutrality. To that end, trial courts must take care to avoid even the appearance of judicial
endorsement of the merits of the action.” Id. at 174.

         Plaintiffs and the government have agreed upon a proposed notice regarding the rights of
potential plaintiffs to join this lawsuit. See Proposed Notice Ex. A, ECF No. 35-1. The Court is
satisfied with this proposed notice. It avoids the appearance of judicial endorsement of the merits
of the action. See id. at 1 (“The Court has issued no ruling on the merits of this case.”). See also
Hoffmann-La Roche, 493 U.S. at 174; Boggs v. United States, 139 Fed. Cl. 375, 379 (2018);
Gayle v. United States, 85 Fed. Cl. 72, 80 (2015). Additionally, the notice informs potential
plaintiffs that they may be deposed or required to testify, id. at 3, it establishes the cost payment
structure for attorneys’ fees and costs, id. at 3–4, and it notifies potential plaintiffs of their rights
to file separate lawsuits, id. at 4. See also Boggs, 139 Fed. Cl. at 379; Salomon v. Adderley
Indus., Inc., 847 F. Supp. 2d 561, 566 (S.D.N.Y. 2012) (citing The Fair Labor Standards Act,
19–78–79 (Ellen C. Kearns et al. eds., 2d ed. 2010) (noting items that should be included in a
court authorized notice)).

        The Court approves the following notice procedures, as agreed upon by the parties:

        Subject to an agreed upon protective order, Defendant will provide Plaintiffs’
        counsel the names, email addresses, and postal home addresses of potential
        plaintiffs within 20 days of the date the Court enters an order granting this motion
        or approves the protective order, whichever occurs later. Plaintiffs’ counsel will
        then promptly send the notice by email and by first-class mail along with an
        enclosed self-addressed stamped envelope to potential plaintiffs for return by no
        later than 90 days from the date the notice is mailed. The email will contain only
        the Court-approved notice and no other language. The subject line of the email will
        be “Legal Notice of Collective Action and Opportunity to Join.” The envelope
        sending the notice sent to postal addresses will contain only the Court approved
        notice and will have printed on the outside “Legal Notice of Collective Action and
        Opportunity to Join.” To the extent the notice is undeliverable to potential
        plaintiffs’ email or postal addresses, if necessary, the parties will confer within no
        more than five business days of Plaintiffs’ counsel so notifying Government
        counsel.

        After notice is sent once by email and first-class mail, Plaintiffs’ counsel may send
        a second notice (identical to the first notice, except with respect to the number of
        plaintiffs at the time the notice is sent) by first-class mail to potential plaintiffs from
        whom they have not received a consent form approximately one month before the
        deadline for receipt of consent forms. Likewise, for plaintiffs whose mailed notices
        were returned as undeliverable, Plaintiffs’ counsel may send a second identical
        notice by email if efforts to obtain a correct mailing address are unsuccessful.
        However, both for the purposes of settlement and potential recovery of costs,
        plaintiffs will bear the cost of sending a second postal mailing, which will not be
        reimbursed by the United States.

Mot. at 4–5.




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                                        CONCLUSION

        The Unopposed Motion for Conditional Certification and Notice is GRANTED. The
Court conditionally certifies a collective action of current and former FBI employees who
worked as English Monitor Analysts in occupational series GS-0301 and were classified as
exempt from the FLSA at any time from three years prior to the date of the notice to the present.
The Court also approves the form of notice proposed by the parties to be provided to potential
plaintiffs, and it similarly approves the arrangements proposed for providing that notice to
prospective class members.

       IT IS SO ORDERED.

                                                    s/ Elaine D. Kaplan
                                                    ELAINE D. KAPLAN
                                                    Judge




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